Issue 35 - 9th July 2007

Monday 9 July 2007

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COURT OF APPEAL

Equal pay

South Tyneside Metropolitan Borough Council v Anderson & ors [2007] EWCA Civ 643
Female learning support assistants and the male comparator, a road sweeper, were on the same point of the White Book scale, and were employed by the same employer at separate establishments at which common terms and conditions were observed. They were therefore to be treated as in the same employment. From this, coupled with the inequality of pay, a breach of the implied equality clause followed. More info

EMPLOYMENT APPEAL TRIBUNAL

Response

Brechin City Football Club & ors v Campbell UKEATS/0094/06/MT
The Respondents put in a response to a claim for breach of contract and unfair dismissal against the club and the members of the management committee. It conceded breach of contract and did not mention the unfair dismissal claim. It was put in a day late and was rejected. On review the club did not seek to amend the response, but put in what it called "further and better particulars" in relation to the unfair dismissal claim. The review was rejected and the EAT held would not interfere with the Tribunal's discretion as the Respondent had had but not taken the opportunity to apply to amend the response. More info

Statutory grievance procedure

Otaiku v Rotherham Primary Care NHS Trust UKEAT/0253/07/JOJ
The EAT again confirms that the statutory grievance procedures do not apply to claims of discrimination where the discriminatory acts are parts of the dismissal process, in this case the notification of a disciplinary investigation and the appeal against dismissal. As a result the Claimant did not have to wait 28 days after submitting a grievance before bringing the claims. More info

South Kent College v Hall UKEAT/0087/07/LA
A claim for constructive dismissal can fall within the exception to the requirement to bring a grievance in regulation 6(5), for example, if it was alleged that the repudiatory breach was the fact that the employer was contemplating dismissal. However this could not apply where the disciplinary sanction under consideration could not lead to dismissal. The fact that a communication may refer to the possibility that there may be a dismissal further down the line if the initial sanctions are not complied with does not mean that dismissal was contemplated for the purposes of the exclusion. Further the grievance (ie the breach complained of) must be that the employer was contemplating dismissal. More info

Mackay v Blakes Newsagents UKEAT/0181/07/L
Where a claim is presented before the expiry of 28 days after a grievance letter is sent , it may be amended after the 28 days has elapsed, as long as the amendment relates to claims provided to which s32(2) Employment Act 2002 does not apply. More info

Statutory dismissal procedure

Dugdale plc v Cartlidge UKEAT0508/06/CEA
The Claimant was disciplined for failing to turn up to work a shift after he had refused to work over 48 hours per week. In the invitation to the disciplinary meeting the employer set out the need to work new shift patterns and the fact that his employment may be terminated if Claimant did not agree. At the disciplinary meeting the new shift requirements were also discussed. The Claimant was subsequently given a warning for the failure to turn up to work and when he refused to come in again his employment was terminated. The EAT held that the employer had complied with Steps 1 and 2 of the dismissal procedure as although the result of the meeting had been a warning for failing to turn up for work the Claimant was told in advance what would happen if he did not accept the new shifts and this was discussed at the meeting. More info

Bowen v Millbank Estate Management Organisation UKEAT/0032/07/MAA
The Tribunal had erred in holding that there was no breach of the statutory procedures having found as a fact that the Claimant was only notified of the details of the case against her on the morning of the disciplinary hearing. This was despite the fact that the hearing then continued at a date in the future when the Claimant did not attend. As Step 2 had been breached, the dismissal was automatically unfair. More info

Time Limits

Alliance & Leicester v Kidd UKEAT/0078/07/RN
The tribunal erred in finding that negligent advice from a trade union official meant is was not reasonably practicable for the Claimant to put in her claim for unfair dismissal in time. More info

Jurisdiction

Williams v University of Nottingham UKEAT/0124/07/RN
The Claimant was employed by the Respondent but for the last two years of his employment was seconded to work in Malaysia for an organisation in which the Respondent was a minority shareholder. With respect to the issue of the statutory tests of jurisdiction for the different claims, the Tribunal had not erred in approaching the interpretation of s68 Disability Discrimination Act 1995 in the manner in which Lord Hoffman in Lawson v Serco [2006] ICR 250 indicated the same words should be understood in the context of the statutory test for unfair dismissal. More info

Disclosure

ODL Securities Ltd v Brooks & Ors UKEAT/0285/07/MAA
The Claimants claimed constructive unfair dismissal in the context of making a protected disclosure. There was an allegation of threats to one of the Claimants requiring him to have police protection. The Respondents requested disclosure of all documents in relation to the complaint to the police, including statements, but the application was refused. The EAT held that the relevant questions were whether the Claimants had documents or information relating to the Respondent's request, if so, was that material relevant to the issues in the case and whether in any event it was proportionate to make the orders sought. The EAT allowed the appeal subject to the interested agencies involved in the investigation applying to be joined as parties to make representations of the issue of confidentiality or public interest immunity. More info

Strike out

Wiggan v Wooler & Co Ltd UKEAT/0542/06/MAA
The Tribunal erred in acceding to application to strike out the claim at close of Claimant's evidence under 18(7)(b) Employment Tribunal Rules of Procedure 2004 as having no reasonable prospect of success. The restrictive attitude to 'no case to answer' applications endorsed by the Court of Appeal in Logan v Commissioners of Customs and Excise [2004] IRLR 63 applies equally to strike-out applications made in similar circumstances. More info

Contractual sick pay

Beattie v Age Concern UKEAT/0580/06/LA
The Claimant was entitled to six months' full pay under her contract when absent through illness. The contract stated that the Claimant would work a minimum of 15 hours per week however she had never worked less than 30 hours per week during her employment. The EAT the contract had to be construed as a whole. It was silent on how many hours it expected the Claimant to work and therefore it was, as a matter of fact, what was agreed from time to time by the parties. In this case that was the hours the Claimant actually worked. More info

TUPE

Secretary of State for Trade and Industry v Slater & Ors UKEAT/0119/07/DM
On 25 July 2006 the directors of the employer company voted for voluntary liquidation, and a firm of accountants gave redundancy notices the following day. The Tribunal found the business was sold by the liquidator on behalf of CFG (the transferor) as a going concern on 27 July 2006 however the creditors' meeting did not take place until 16 August 2006. Under Regulation 8 of the TUPE Regulations 2006 which relates to transfers taking place on or after 6 April 2006, the transfer must take place after insolvency proceedings have commenced. The EAT held that in this case liquidation did not occur until after the transfer. Further the accountants had not been appointed as insolvency practitioners at the time of the transfer. More info

T&GWU v Swissport & Aer Lingus Ltd UKEAT/0603/06/DM
The regulations can apply where the facts are such as to justify a finding that there has been a transfer of a stable economic entity, even where the transferor has not continued trading and there has been no sale or transfer of part of the transferor's undertaking as a going concern. There is nothing to exclude such cases in the simple language of the regulations and the fact that the directive does not extend protection to such cases does not bar the regulations from doing so. More info

Employment status

Consistent Group Ltd v Kalwak & Others UKEAT/0535/06/DM
On the facts of what the EAT calls an exception case, the Tribunal had not erred in finding that the Claimants, Polish workers recruited in Poland, were employees of the agency which placed them with third parties but provided them with accommodation and transport. Even though the contract stated they were self-employed and that there was no obligation to provide them with work or for them to accept it. The Claimants were obliged to work when able to do so and when they had accepted a particular engagement. The agency had effective control over the Claimants and the provisions relating to self-employment was found to be a sham. More info

Morrison v ODS Business Services Ltd UKEAT/0618/06/MAA
Although being a controlling shareholder was not inconsistent with being an employee, in the present case the Tribunal had not erred in holding that the Claimant was not an employee. More info

Continuity of employment

Vernon v Event Management Catering Ltd UKEAT/0161/07/LA
A casual worker worked two or three days per week from 2003 until his dismissal in June 2006 apart from a two-week holiday during 2005. None of the statutory dismissal procedures were followed. The Tribunal found that although he was not in any employment relationship between engagements he was an employee with respect to each engagement. However he could not bring a claim for ordinary or automatic unfair dismissal as he did not have the required continuity of employment under s212(1) Employment Rights Act ("ERA") The EAT held that the Tribunal had erred in its interpretation of the section which clearly applies once a person had worked part of a week. The break for the holiday had not broken continuity as he took the holiday by agreement with the employer and holiday pay was rolled up in his hourly rate. It therefore fell within s212(3)(c) ERA. More info

Unfair dismissal

Lloyd-Briden v Worthing College UKEAT/0065/07/RN
The Claimant was dismissed on 6 January 2006 and his claim for unfair dismissal was rejected as he was excluded from bringing the claim due to his age. The EAT held that the Claimant could not rely on Mangold v Helm [2006] IRLR 43 to argue that the protection from age discrimination in the Equal Treatment Directive 2000 was directly effective although it had not at the time been transposed into UK law. The EAT accepted it was bound by the proposition in Mangold that the principle of non discrimination on grounds of age is to be regarded as a general principle of community law such that, in certain circumstances, a national court may be required to set aside any provision of national law which conflicts with that general principle. However, the effect of later ECJ authorities was that there could be no direct operation in domestic UK law of the general principles as the UK had met its obligations by transposing the directive into UK law without breaching Article 18. In Mangold the German government had been in breach of that article by taking measures which were liable to seriously compromise the attainment of the aim of the directive. More info

Royal Mail v Adam & Stephen UKEATS/0056/06/MT
The Tribunal had erred in finding that dismissal for wilful delay of mail, which was listed in the Respondent's code of conduct as an example of gross misconduct and was also a criminal offence, was not within the range of reasonable responses as the mail involved was "junk mail". More info

Disability discrimination

Great Ormond Street Hospital v Patel UKEAT/0085/07/LA
When considering an order for re-instatement in the context of a failure to make reasonable adjustments, even if it is impracticable to offer the employee the same job that they had previously had, it might nevertheless be practicable to offer them the modified job which they would have been entitled to be offered if the employment had continued. More info

Race discrimination

Islamic Cultural Centre and the London Central Mosque v Mahmoud UKEAT/0615/06/MAA
While the EAT upheld the decision that the Claimant had suffered sex discrimination and victimisation, there was insufficient evidence for it to find race discrimination. In particular in a claim for direct discrimination where the alleged discriminatory act is the hostility to which the Claimant was subject combined with a request for documentation showing her right to work in the UK, the comparator is not a UK national who is not required to provide such proof. Broadly the comparator would be somebody who has been the subject of a similar hostility over the period concerned, who also has the relevant documentation and who has failed to provide it, but was of a different national origin. More info

Sex discrimination

Allaway v Reilly & Lothian & Border Fireboard UKEATS/0054/06/MT
An employee aids an employer to discriminate under sections 41(1) and 42(1) and (2) Sex Discrimination Act 1975 if he does an act in the course of employment which has the effect of discriminating against the Claimant employee on grounds of sex and that is a result which can be concluded to have been within his knowledge at the time the act in question was carried out. Discrimination does not have to be the intention nor the motive. It is enough that, on the evidence, the conclusion can be drawn that discrimination as the probable outcome was within the scope of his knowledge at the time. More info

Part-time pensions

London Borough of Brent v Shah UKEAT/0029/07/ZT
Time begins to run for the presentation of a claim for equal access to pensions six months from the ending of the contract of employment to which it relates or the ending of a stable employment relationship formed by a series of short term contracts. The EAT would not interfere with the Tribunal's decision that the Claimant was employed on a succession of contracts for broadly similar work and therefore was entitled to bring the claim. More info

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