Issue 30 - 16th April 2007

Monday 16 April 2007

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CASES

COURT OF APPEAL

Disability discrimination

O'Hanlon v Commissioners for HM Revenue & Customs [2007] EWCA Civ 283
The Claimant had long periods of sickness absence, some of which were disability related. The Respondent's sick pay policy was for six months full pay and six months half pay with a maximum of 12 months' pay in four years. The Claimant argued that a reduction in pay when she was absent for a reason related to her disability, alternatively the aggregation of disability and non-disability related sickness absence, was a failure to make a reasonable adjustment. The Court of Appeal held it was not. Read the transcript

TUPE

Wain v Guernsey Ship Management Ltd [2007] EWCA 294

The Court of Appeal agreed with the Tribunal and the EAT that the Claimants, who were employed on a series of short-term contract alongside permanent employees, where not a separate economic entity so there was not transfer of employment. Read the transcript

COURT OF SESSION

Part-time workers and bank holidays

The Court of Session held that while there was less favourable treatment of a part-time employee who did not work on Mondays and was not given time off in lieu when a bank holiday fell on that day, there was no discrimination as the reason for the treatment was not his part-time status but the accident of his having agreed that he would not work for them on Mondays or Tuesdays. The Respondent's shift patterns and holiday policy meant that if a full-time employee worked a fixed shift from Tuesday to Saturday, he would not receive the benefit of statutory holidays which fell on Mondays either. Likewise any part-time employee worked on Mondays would receive the benefit of statutory Monday holidays. More info

EMPLOYMENT APPEAL TRIBUNAL

Tribunal procedure

Montfort International plc v McKenzie UKEAT/0155/06/LA
In the circumstances of the case, where a Tribunal member had been taken ill before the remedies hearing, all issues of liability and contribution having been decided, it was not an error of law for a substitute to be appointed without consultation with the parties. More info

Disclosure

Defoe v HM Prison Service UKEAT/0451/06/DA
The EAT reviewed the case law on disclosure and would not interfere with the Chairman's exercise of his discretion to allow only redacted disclosure of prison security information reports. The Chairman had properly balanced the need for the Claimant to pursue his case with the needs of the prison to maintain the integrity of the security information system and protect the safety of those giving and receiving such information. More info

Arqiva Ltd v Sagoo UKEAT/0135/07/ZT
The Tribunal had failed to apply the test for disclosure in Nasse v Science Research Council [1979] IRLR 465 by concentrating on the relevance of the information to be disclosed. While this is a factor to be taken into consideration, the ultimate test is whether discovery is necessary for disposing fairly of the proceedings. More info

Disability discrimination

TRW Systems Ltd v Routledge UKEAT/0539/06/RN
The EAT gave the Claimant permission to appeal to the Court of Appeal the principle in Tarbuck v Sainsbury Supermarkets Ltd [2006] IRLR 664 relating to an employer's duty to do more than simply consider whether adjustments should be made for a disabled person, which had not been directly dealt with in Hay v Surrey County Council [2007] EWCA Civ 93. More info

Employment status

Croke v Hydro Aluminum Worcester Ltd UKEAT/0238/05/ZT
It is appropriate to adopt a purposive approach in construing the extended statutory definition of "worker" under 43(K)(1) Employment Rights Act 1996 for the purposes of the provisions providing protection for protected disclosures. Where an individual supplied his services to an employment agency through his own company and the employment agency, in turn, provided the services of that company to an end user, it may be that in appropriate circumstances the individual was a "worker" of the end user. More info

North Lanarkshire Council v McDonald and Thompson UKEATS/0036/06/MT
The Tribunal had erred in holding that overtime regularly worked by the Claimants had become contractual at some time after the commencement of the contract. While a contractual term can be implied as existing from the outset of the contract, a contract cannot later be varied without the agreement of the parties by the implication of a term using the officious bystander test. More info

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