Issue 29 - 2nd April 2007

Monday 2 April 2007

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CASES

EMPLOYMENT APPEAL TRIBUNAL

Statutory dismissal and grievance procedures

London Borough of Hounslow v Miller UKEAT/0645/06/DA
Under s32 Employment Act 2002, where the statutory grievance procedure applies, an employee shall not present a complaint unless 28 days have elapsed since a step one grievance letter was sent. In this case the Claimant put in a claim for disability discrimination within the primary time limit but without having put in a grievance letter. The Tribunal stayed proceedings pending the sending of the letter. The EAT held that the Tribunal has no jurisdiction to accept the claim if the letter has not been sent. Such a claim must be rejected and a fresh claim must be submitted but only after the requirement has been complied with. More info

Lawrence v HM Prison Service UKEAT/0630/06/CEA
Under Regulation 6(5) Employment Act 2002 (Dispute Resolution) Regulations 2004 the grievance procedures do not apply where the grievance is that the employer has dismissed or is contemplating dismissing the employee. The EAT held that where the claim is that the dismissal is an act of discrimination the grievance is about the dismissal and therefore the grievance procedures do not apply. More info

Premier Foods plc v Garner UKEAT/0389/06/DA
The employer's policy allowed for the increase of a disciplinary sanction on appeal. The employee was given a final written warning, the employer having followed the statutory disciplinary procedures. On her appeal the employee was dismissed, the employer having further evidence which she had not been able to see or challenge. The EAT agreed with the approach of the Tribunal that after the first sanction had been imposed, when it later contemplated dismissing the employee on appeal, the employer should have engaged in the statutory dismissal procedure again and therefore the dismissal was automatically unfair. More info

Employment status

Heatherwood and Wexham Park Hospitals NHS Trust v Kulubowila & ors UKEAT/0633/06/LA
The EAT again found that there is no implied contract of employment between an agency worker and the end user. Following Cable and Wireless v Muscat [2006] IRLR 354 the Employment Tribunal must apply the common law principle of necessity as set out in The Aramis [1989] 1LR 213. The EAT commented that the test presents a high hurdle to the litigant who asserts that a contract is to be implied.
More info

Equal pay

Bainbridge v Redcar & Cleveland Borough Council UKEAT/0424/06/LA
Employees whose jobs are rated as equivalent under a job evaluation scheme do not have the right to seek compensation going back up to six years however they are allowed to pursue claims in relation to more than one comparator with respect to the same period of time. More info

Religious discrimination

Azmi v Kirklees Metropolitan Borough Council UKEAT/0009/07/MAA
The EAT upheld the decision of the Tribunal that the suspension of a teaching assistant for refusing an instruction not to wear her veil when in class with pupils assisting a male teacher was not direct discrimination on the grounds of religion or belief. While it was potentially indirect discrimination it was a proportionate means of achieving a legitimate aim. More info

CONSULTATION

The DTI has launched a consultation on how to improve the operation of the
dispute resolution procedures which have caused so much confusion and litigation since their introduction.

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