Issue 33 - 4th June 2007

Monday 4 June 2007

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CASES

COURT OF APPEAL

Admissibility of without prejudice negotiations

Brunel University & Swartz v Webster & Vaseghi UKEAT/0307/06
The Court of Appeal agrees with the decision of the EAT (see Bulletin 19) holding that while in most cases, where a grievance meeting takes place in the usual way, internally, there will be no question of waiver if the parties mention matters covered by "without prejudice" privilege. But in the particular and unusual circumstances of this case, where the proceedings were in effect a trial of the victimisation issues by an independent panel and where both parties gave or called evidence of the previous negotiations, the EAT was entitled to conclude that privilege had been bilaterally waived.

EMPLOYMENT APPEAL TRIBUNAL

Statutory Disciplinary Procedures

Sahatciu v DPP Restaurants Ltd UKEAT/0177/06/RN
A Step 1 letter which referred to an earlier discussion, at which a specific allegation of misconduct and the details of it had been discussed, and which alluded to the type of misconduct in general terms, was sufficient for the purposes of the statutory procedures. Similarly in the circumstances there was no requirement under step 2 to give the full details of subsequent investigations of the allegation in advance of the disciplinary meeting. A finding of automatically unfair dismissal does not preclude a reduction in compensation of 100% for contributory conduct nor does it mean there must be a finding of wrongful dismissal.

Archer v Department for Constitutional Affairs UKEAT/0365/06/DM
A "procedure" for the purposes of s98A(2) Employment Rights Act 1996 includes the procedure involving a third party where it takes the decision to dismiss.

Statutory grievance procedure

Kennedy Scott Ltd v Francis UKEAT/0204/07/DM
The Claimant had complied with Step 1 of the statutory grievance procedure where he presented his complaint at a meeting with his line manager to discuss the matter and who then noted it down so that he should have something in writing to evidence his grievance.

Unfair dismissal compensation

Davie v Wastemaster Ltd UKEATS/0058/06/MT
While correct to find the Claimant was automatically unfairly dismissed the Tribunal had erred in reducing compensation to a three week period as it had failed to make the necessary findings of fact which entitled it to restrict the award.

Disability discrimination

The Hospice of St Mary of Furness v Howard UKEAT/0646/06/MAA
The Tribunal erred in not allowing the Respondent to instruct its own expert after the joint expert had failed to find an organic cause for the impairment but believed the symptoms to be genuine. This was a substantial claim for compensation and, following Daniels v Walker [2000] 1 WLR 1382, as the Respondent's reason for requesting its own expert was not fanciful, ie to show there was not a physical impairment at all, it should have been allowed. The EAT reviewed the authorities and held that while it was not necessary for the Claimant to establish the cause of any physical impairment, where there is an issue as to the existence of a physical impairment it is open to a Respondent to seek to disprove the existence of such impairment, including by seeking to prove that the claimed impairment is not genuine or is a mental and not a physical impairment. Further, while the case of Vicary v British Telecommunications plc [1999] IRLR 680 establishes that an expert cannot tell the Tribunal whether an impairment has a substantial effect or what is a normal day-to-day activity, he or she can comment on what may or may not be the consequences of a condition or how serious or otherwise the consequences of a condition may be.

Race discrimination

Mehmet t/a Rose Hotel Group v Aduma UKEAT/0573/06/CEA
The Tribunal was entitled to find that the employer who failed to pay the NMW to the Claimant (a Nigerian national working on a student visa) had discriminated against him on the grounds of race as he had taken the opportunity which the employee's employment status gave him to avoid employment legislation. Similarly his attempt to dissuade the Claimant from obtaining a National Insurance number and subsequent dismissal were also acts of discrimination. The EAT rejected the argument that given that the evidence had revealed the employer as a person who sought to exploit those in a vulnerable position this was a genuine non-discriminatory reason for the treatment which should not have been ignored. It also rejected the argument that the Tribunal should have considered whether the reason for dismissal was the employer's wish to protect his own tax position. While this was raised by the Tribunal it had never been asserted by the employer and therefore it did not err in finding that the burden of proof, which had shifted to the employer, had not been discharged.

Sex discrimination

Redcar and Cleveland Borough Council v Scanlon UKEAT/0369/06/LA
The Tribunal had erred by relying on a "causative connection" when finding both sex discrimination and dismissal for making a protected disclosure and not the proper statutory tests.

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