Issue 31 - 30th April 2007

Monday 30 April 2007

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CASES

HOUSE OF LORDS

Victimisation

St Helens Borough Council v Derbyshire & ors [2007] UKHL 16
The House of Lords disagreed with the majority of the Court of Appeal and upheld the decision of the Tribunal that a letter sent by the Council to all catering staff warning of the consequences of the Claimants continued claims for equal pay, which included depriving children of school dinners and redundancies among their colleagues, was unlawful discrimination by way of victimisation. The Council was not merely seeking to avoid prejudicing its position in the litigation as was the case in Chief Constable of the West Yorkshire Police v Khan [2001] 1 CR 1065. While an employer may act in order to dissuade the appellants from pressing their claims to an adjudication it must avoid doing anything that might make a reasonable employee feel that she is being unduly pressurised to concede her claim. In this case the Tribunal had found the letter went beyond what was reasonable in protecting the Council's own interests, it was a detriment by reason of the continued claim, and was therefore victimisation. More info

COURT OF APPEAL

TUPE

Millam v The Print Factory (London) 1991 Ltd [2007] EWCA Civ 322
The Court of Appeal held that while the transfer of shares in one company to another is not the same as the transfer of the business, the Tribunal was entitled to conclude that in the circumstances the business had in fact been transferred to the parent company for the purposes of the TUPE Regulations. More info

 

EMPLOYMENT APPEAL TRIBUNAL

Review

Compass Group UK v Wilson UKEAT/0203/07/ZT
The Tribunal had erred in failing to dealing with a review of the decision to debar the Respondent from defending the claim as it had not put in a response in time. The Chairman gave no reasons as to why the balance of prejudice and the interests of justice were not served by granting the review. The purpose of the sanction was not punishment but to achieve the overriding objective of dealing with cases justly. In the absence of any indication of real prejudice to the Respondent and there being an arguable defence to the claim, the appeal would be allowed and the ET3 accepted out of time. More info

Extension of time limits

Butterworth & ors v Evans & Haslam Homes Ltd UKEAT/0538/06/LA
The Tribunal had erred in extending time for the Claimant's claim for discrimination on the just and equitable basis under Regulation 34(3) Employment Equality Sexual Orientation Regulations 2004 when no application had been made by the employee for the Chairman to consider that extension and no relevant evidence had been given. More info

Statutory dismissal procedure

Ingram v Bristol Street Parts UKEAT/0601/06/CEA
The Tribunal had erred in finding that as additional material was provided to the Claimant at the disciplinary meeting the Respondent had failed to comply with Step 2 of the statutory dismissal procedure. The statutory requirements do not oblige the employers to provide in advance all the evidence on which they intended to rely. It merely requires sufficient material to enable the employee to put her side of the story. A failure to give a proper opportunity to deal with additional evidence may however be relevant to unfairness under the wider provisions. With respect to compensation, once a dismissal is found to be automatically unfair under s98A(1) Employment Rights Act 1996, s120(1A)(c) requires that the basic award payable under s118(1)(a) shall be increased to four weeks' pay save to the extent that there may be reduction by reason of ss122(3A) or (4). The amount cannot be reduced for contributory fault under s122(2). However it can be reduced under s120(1B) if it would result in injustice to the employer. With respect to the compensatory award, where there is an adjustment under 31(3) Employment Act 2002 for failure to comply with the statutory procedures, the uplift is applied before any reduction for contributory fault under s123(6) ERA. However under s31(4) EA the Tribunal has the discretion not to increase the award if it considers that there are exceptional circumstances. More info

National Minimum Wage

Blackford Farms Ltd v Mulqueeny UKEATS/0030/06/MT
A claim for failure to pay the National Minimum Wage can be advanced as either an unlawful deductions claim under s13 Employment Rights Act 1996 or as a contractual claim at common law. The former has a time limit of three months from the last deduction or series of deductions while the latter covers underpayments in the previous six years, providing that the claim is made within three months of the ending of employment, and is restricted to employees rather than workers. In those circumstances the EAT held there was an onus on the Claimant to specify the cause of action. Further it was incumbent on the Tribunal to determine what exactly was the nature of the claim that had been brought. In the present case the Claimant had clearly set out the claim in the ET1 as a claim for unauthorised deductions from wages and, having failed to amend the claim, it was time-barred. More info

Working time

Sumision v BBC Scotland UKEATS/0042/06/MT
The Claimant was employed under a temporary contract which required him to work six days a week, however he had to take his six day holiday entitlement on any Saturday during the duration of the contract when he was not scheduled to work, although he was required to be available for work. The Claimant subsequently asked to take the leave in a single block of days before the end of the contract and was refused. The issue was to what extent in a weekly-based employment relationship an employer legitimately may make use of Saturdays to meet the statutory obligation to provide annual leave. The EAT agreed with the Tribunal that there was nothing in the regulations or the directive to prohibit this as long as the notice provisions were complied with. Although the Claimant may not in fact have been required to work on those Saturdays, he was being released from an obligation to be available to do so and there fore was being asked to take leave. More info

Contract terms

The Laurel Pub Company Ltd v Jones & ors UKEAT/0501/06/LA
The Tribunal had erred in fining that the Claimants had a contractual term which required the employer to pay any shortfall in post-termination car insurance not paid out by the insurance company as it failed to identify either an express term or an implied term on which to base this finding. More info

Przybylska v Modus Telcom Ltd UKEAT/0566/06/CEA
The Claimant's contract provided for a three month notice period which could be extended by the Respondent. The notice to be given was one week during the probation period and three months thereafter. The Respondent did not extend the probationary period although it did carry out a review under its provisions after the period had expired, and then dismissed the Claimant with one week's notice. The EAT held that the Claimant was entitled to three month's notice. There was not basis for the Tribunal to have implied a term that that probation period was extended because the review had taken place after a not unreasonable delay. More info

Employment status

Secretary of State for Trade and Industry v Alede UKEAT/0591/06/ZT
Under s182 Employment Rights Act 1996 claims against the National Insurance Fund can only be made by employees of insolvent companies, that is those with a contract of employment. The Claimant worked for an employment agency before it went into liquidation owing him wages. He could not therefore claim against the fund as, contrary to the finding of the Tribunal, the EAT held he was not employed under a contract of employment. More info

Unfair dismissal

Cambridge Housing Society v Anwar UKEAT/0564/06/LA
It was open to the Tribunal to find that there was an unfair dismissal where the Claimant's employment had been terminated on her refusal to accept detrimental changes to her terms and conditions of employment. The employer had failed to consult her properly on the issue. More info

Shipperley v Nucleus Information Systems Ltd UKEAT/0340/06/JOJ
The Tribunal erred in failing to consider whether the non-payment of wages played any part in the reason for the Claimant's resignation. If that was the case there would have been no other conclusion open to them other than that he had been entitled to accept that as repudiation of the contract. More info

Sex Discrimination

Love v Alexander Le Skerne Ltd UKEAT/0506/06/LA
Even though the ET1 had not specified a claim for sexual harassment, but only sex discrimination, the EAT held that it was clear that the Tribunal had treated the claim as such and found all the relevant fact, therefore it made an error of law by failing to consider the application of section 4A(1)(b) Sex Discrimination Act 1975. More info

Race Discrimination

Gravel v London Borough of Bexley UKEAT/0587/06/CEA
The Tribunal had erred in finding in striking out the Claimant's claim for harassment where the case alleged was that the Respondent's policy of not challenging racist behaviour by clients was capable of itself of having the effect of creating an offensive environment for her, although the remarks were not directed at her as she was white. If it were established on the facts, that was capable in my judgment of falling within s3A Race Relations Act 1976. Similarly the sending of racist jokes by colleagues by text could also constitute harassment. More info

LEGISLATION

Discrimination

From 30 April 2007 the Employment Equality (Religion or Belief) Regulations 2003
are amended to replace the previous definition of 'religion or belief' as "any religion, religious belief or similar philosophical belief", with "any religion, or religious or philosophical belief".

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