Issue 32 - 14th May 2007

Monday 14 May 2007

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CASES

COURT OF APPEAL

Whistleblowing

Lake v British Transport Police [2007] EWCA 424
The Court of Appeal held that the Tribunal did have jurisdiction to hear a claim of detriment for making a protected disclosure and unfair dismissal even though the matter had been considered by the Police Disciplinary Board. The fact that a statutory appeals procedure could be followed by a claim to an employment tribunal was unusual but was the effect of s 43KA Employment Rights Act 1996. More info

Statutory grievance procedure

Lipscombe v The Forestry Commission [2007] EWCA 428
The Court of Appeal reviewed the authorities on the taking of new points on appeal and held that the EAT was entitled to allow a fresh point on jurisdiction, that is whether the resignation letter was a step 1 grievance letter, to be taken. More info

Dismissal or Resignation

Sandhu v Jan de Rijk Transport Ltd [2007] EWCA 430
At a meeting called to dismiss the Claimant discussions took place as to the date of termination and the conditions during that time resulting in written terms of termination. The Claimant made it clear in later correspondence he had not wished to end his employment. The Court of Appeal reviewed the case law and held that this clearly was not a case of agreed termination as the Claimant had been told he was going to be dismissed at the beginning of the meeting and had not been in an effective negotiating position. More info

EMPLOYMENT APPEAL TRIBUNAL

Composition of Tribunal

Sterling Developments (London Ltd) v Pagano UKEAT/0511/06/CEA
The decision on the composition of a Tribunal is a judicial one which is susceptible to appeal, however absent an appeal when the decision is made, the mode of hearing will settled, subject to any change of circumstances which requires the hearing Chairman to revisit the question of composition. The EAT gave guidance on the approach to be taken where a claim is one which under s4 Employment Tribunals Act 1996 is to be heard by the Chairman alone. More info

Adjournments

Snowy's Ltd v Cook UKEAT/0595/06/DM
The Tribunal had not erred in refusing a third postponement of a hearing on the basis of no more than a doctor's certificate that the Respondent was unfit to attend work. It made a correct distinction between evidence that a person is unfit to attend his or her workplace and whether that person can attend an Employment Tribunal. More info

Appeals

Secretary of State for Health v Maddocks & ors UKEAT/0402/06/ZT
The EAT exercised its discretion to allow a point conceded at the Tribunal to be reopened on appeal due to exceptional circumstances. The issue went to jurisdiction and involved four test cases representing 120 similar concessions in mass litigation affecting 11,000 NHS employees. The mistake was administrative not tactical and the Respondents applied in each case for a review to the Employment Tribunal, as well as appealing. There had been no first instance full hearing of the Claimants' cases as the matter being handled according to national protocols, and no further investigation into the facts was required in order to do justice. The concessions were withdrawn and the appeals were allowed. More info

Statutory grievance procedure

Chickerova v Holovachuk UKEAT/0016/07/ZT
Under section 32(3) Employment Act 2002 an employee must wait 28 days after a step 1 letter is sent before presenting a complaint. However under s32(6) a Tribunal is only prevented from considering a compliant in breach of that subsection of it is apparent on the information supplied or the employer has raised the issue. The Respondent appealed on the basis the date on which she received the letter was less than 28 days before the claim was filed. This allegation was not before the Tribunal as she had not put in a response and therefore Tribunal was entitled to consider the claim. More info

Smith v Network Rail Infrastructure Ltd UKEAT/0047/07/DA
The Claimant suffered a number of strokes and it was agreed he could only thereafter do office work and would need retraining. The Respondent began to look for vacant posts but did not communicate with the Claimant. He wrote to the Respondent complaining of the lack of contact. It was accepted that this was a step 1 letter. No training or employment was subsequently forthcoming however the Claimant did not put any further complaint in writing before issuing the ET1. The Respondent argued that there was only jurisdiction to hear a claim relating to allegations up to the date of the letter. The EAT held that as the letter was a grievance relating to a continuing discriminatory act such as a general failure to help the Claimant find alternative employment, he was not required to serve a further grievance in respect of the same continuing act. More info

Cyprus Airways v Glambrou UKEAT/0526/06/MAA
The Claimant claimed constructive unfair dismissal arising out of four acts of the Respondent, only one of which had occurred before the statutory grievance procedures came into force and about which a letter of complaint had been written. No grievance was presented pursuant to the procedures. The EAT held that the Tribunal was wrong to allow the case to proceed on the one complaint. It was not possible to sever the four grounds and to proceed on only one as the Claimant's case was based on all the acts. More info

Return from maternity leave

Blundell v Governing Body of St Andrew's Catholic Primary School UKEAT/0329/06/RN
Under Regulation 18 Maternity and Parental Leave (etc) Regulations 1999 a woman returning from ordinary maternity leave has the right to return to the job in which she was employed before her absence. The EAT held that the Regulations aim to provide that a returnee comes back to a work situation as near as possible to that which she left. However the nature of the job including the contract must be considered and it is a matter of fact for the Tribunal to decide whether the regulations have been breached. More info

Contract workers

Partnership In Care Ltd v Laing UKEAT/0622/06/DA
The Tribunal had not erred in holding that the Claimant, who provided advocacy services at a mental health institution, was a contract worker under s7 Race Relations Act 1976. The EAT reviewed the case law. More info

Unfair dismissal

Aroma (Northampton Ltd) v Ang UKEAT/0048/07/CEA
The Tribunal had erred in awarding compensation for unfair dismissal where it would have been illegal for the employee to continue working in any event as her work permit had expired. The Claimant did not appear and was not represented at the appeal. More info

Metrobus Ltd v Bauerfield UKEAT/0117/07/CEA
While the Claimant was automatically unfairly dismissed as a step 1 letter had not been sent, the Tribunal had erred in substituting its own view of the reasonableness of the investigation when considering whether to make a Polkey deduction. It had also failed to adequately deal with the issue of contribution. More info

Race discrimination

Royal Mail Group plc v Jan UKEAT/0101/07/DA
The Tribunal erred in failing to set out separately the evidence for race and religious discrimination. While there may be exceptional cases where the same evidence justifies an inference of prima facie discrimination on more than one prohibited ground this was not such a case. The Tribunal also erred in moving directly from an unreasonable explanation to a finding of discrimination without full reasoning of why. It confused whether the explanation was adequate, in the sense of rational and acceptable, with the question of whether it was a genuine non-discriminatory explanation. More info

Disability discrimination

Project Management Institute Ltd v Latif UKEAT/0028/07CEA
The Tribunal had not erred in finding that the Respondent had failed to make an adjustment which was only suggested by the Claimant for the first time at the hearing. There was no duty on the Claimant to identify any adjustments at the material time, and while there was no duty the Respondent to assess her situation (Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664), it could not rely on a failure to do so as a shield to justify a failure to make a reasonable adjustment which a proper assessment would have identified. As to the burden of proof, the Claimant must establish both that the duty to make an adjustment has arisen and that there are facts from which it could reasonably be inferred, absent an explanation, that it has been breached through evidence of some apparently reasonable adjustment which could be made. In certain circumstances it would be appropriate for an adjustment to be raised by the Tribunal itself, particularly if the employee is not represented and for examples from the Code to be considered, as long as the Respondent has an opportunity to deal with the issue. More info

GOVERNMENT CONSULTATIONS

The government has issued a consultation document on proposals for Additional Paternity Leave and Pay allowing fathers to take up to 26 weeks Additional Paternity Leave. The consultation closes on 3 August 2007. More info

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