Issue 34 - 18th June 2007

Monday 18 June 2007

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CASES

EMPLOYMENT APPEAL TRIBUNAL

Amendment

Cummings v Compass Group UK & Ireland Ltd UKEAT/0625/06/DA
The Tribunal erred in failing to allow the Clamant to amend the Notice of Appearance and striking it out on the basis that her solicitor had incorrectly named the Claimant and therefore failed to comply with Rule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The Tribunal did have jurisdiction to allow the amendment. Further, the fact that the grievance had also been submitted with an incorrect name did not invalidate it.

T&GWU v Safeway Stores Ltd UKEAT/0092/07/LA
The Claimants applied to amend their claims to include claims for breach of statutory consultation obligations not included in the original claim and outside the relevant time limit. The EAT reviewed the authorities and held that there is no absolute bar in cases where the amendment involves adding a new claim outside of the statutory time limit. Following Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650 and British Newspaper Printing Corporation (North) Ltd v Kelly [1989] IRLR 222 the Tribunal retains a discretion to allow the amendment.

Statutory dismissal procedure

Arnold Clark Automobiles Ltd v Glass UKEATS/0095/06/MT
The Tribunal erred in extending time for the claim of unfair dismissal under the statutory procedures on the basis that the Claimant had pursued his claim reasonably and diligently rather than deciding whether the Claimant reasonably held the belief that a disciplinary or dismissal procedure was being followed at the date when the time limit expired.

Harris v Towergate London Market Ltd UKEAT/0090/07/DM
The Tribunal erred in failing to extend time in a claim for unfair dismissal under the statutory procedures as it has asked itself the question "Was this a formal appeal?" rather "Did the Claimant believe on reasonable grounds that there was an ongoing procedure to enable her to challenge her dismissal?"

Sovereign Business Integration plc v Trybus UKEAT/0107/07/DM
Regulation 13 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 does not apply where the employer has given unreasonably short notice or has employed some evidently unreliable means of communicating the date or time of the meeting to the employee as in such a case, it is all too foreseeable that the employee may not receive notice. Such a case is covered by Para 13 of Part 3 of Schedule 2 to the Employment Act 2002.

Remitted hearing

Varma v North Chesire Hospitals NHS Trust UKEAT/0178/07/CEA
Where a number of claims had been made and dismissed and only one of those claims, in relation to constructive dismissal had been remitted to fresh Tribunal for a rehearing on appeal, the first Tribunal's decision on that claim was null and void. Its findings of fact on the other claims, insofar as they related to the issue of constructive dismissal and any consequential issues of fairness and remedy, were not binding on the new Tribunal.

Illegality

Daymond v Enterprise South Devon UKEAT/0005/07/DA
Following Salvesen v Simons [1994] ICR 409 the EAT held that the Claimant could not rely on a period of employment in a claim for unfair dismissal which involved a loss to the Revenue.

Unfair dismissal

Gab Robins (UK) Ltd v Triggs UKEAT/0111/07/RN
In a claim for constructive dismissal the employer's conduct consisted of a breach of the implied term of trust and confidence representing an accumulation of events dating back to 2001. The breach caused the Claimant's illness in September 2004 whereafter she was on sick leave until she accepted the breach in February 2005. The EAT held that the course of conduct by the Respondent formed part of the constructive dismissal and that the Claimant's ill-health caused by that breach was to be treated as a consequence of the dismissal leading to loss of earnings, even though the onset of the illness itself pre-dated the effective date of termination.

Sex discrimination

Devon Grocers Ltd v Finnan UKEATS/0061/06/MT
The Claimant alleged, and the Respondent denied, one incident of sexual harassment. The EAT held that there were inconsistencies in the Claimant's evidence and a witness who could have given relevant evidence was not called. The Tribunal erred in finding the matter proved without making reference to those inconsistencies or to the absence of that witness. Further it did not explain why it had rejected the employer's evidence.

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