Issue 37 - 6th August 2007

Monday 6 August 2007

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COURT OF APPEAL

Unauthorised deductions

Luke v Stoke on Trent City Council [2007] EWCA Civ 761
It was not necessary to imply a term into the Claimant's contract that she could be required to work elsewhere which allowed the Respondent to stop paying her when she refused to do so. The Claimant had refused a reasonable management instruction and as a result was not presenting herself for work under the contract.

Unfair dismissal

McAdie v Royal Bank of Scotland [2007] EWCA Civ 806
The Court of Appeal agreed with the EAT's decision with respect to the fairness of dismissals for incapability and analysis of the authortities. The fact that an employer has caused the incapacity in question, however culpably, cannot preclude him for ever from effecting a fair dismissal. The Tribunal had misdirected itself by focusing not on what it was reasonable for the Bank to do in the circumstances in which it found itself (however culpably) but on whether it should have got into those circumstances in the first place. The Claimant was unfit for work and there was no prospect of recovery therefore the dismissal was fair.

Workplace stress

Deadman v Bristol City Council [2007] EWCA Civ 822
The judge had erred in finding that, although the Council had not acted in breach of the duty of care it owed the Claimant at common law, the manner in which it had conducted the investigation into allegations against him of sexual harassment and the manner in which it had informed him of the renewal of the investigation had involved breaches of his contract of employment and that those breaches were the cause of his illness. There was no separate contractual obligation to act sensitively. There was merely an obligation
not to undermine the relationship of mutual trust and confidence and a duty to take reasonable care to avoid causing the Claimant foreseeable harm. While there may have been a breach of contract in the number of panel members constituting the investigation it was not reasonably foreseeable that it would have adverse consequences for the Claimant's health.

EMPLOYMENT APPEAL TRIBUNAL

Statutory dismissal procedure

Sage (UK) Ltd v Bacco UKEAT/0597/06/DM
The Tribunal was wrong to conclude that the Respondent had failed to comply with the DDP because it gave the Claimant the Step 1 letter in relation to potential redundancy at a meeting which he believed was to discuss sales. Further as the Claimant accepted he was not the appropriate person for the remaining post no further information was necessary on the selection process.

Strike out

Moorse v NTL Group Ltd UKEAT/0258/07/LA
The Tribunal was wrong to strike out the Claimant's equal pay claim as it failed to follow the relevant principles and the witness statements raised factual issues which ought to be tried.

Hudson v University of Oxford UKEAT/0488/05/DM
The Tribunal erred in striking out the Claimant's claims as having no reasonable prospect of success where they involved complex factual disputes.

Employment status

Wood Group Engineering (North Sea) Ltd v Robertson UKEATS/0081/06/MT
The Claimant had worked for the Respondent as an agency worker prior to becoming an employee and less than a year later she was dismissed. The EAT overturned a finding of the Tribunal, relying on Dacas, that she had also been an employee under an implied contract while working as an agency worker. The EAT reiterated that while it will be pertinent to consider whether there is an implied contract of employment, it can only be concluded that one exists or existed where it is necessary to do so and such implication will not be appropriate unless the arrangements under which the person is working are only explicable by there being such a contract. If they are explicable by reference to the existing written contracts then there will be no room for any such implication unless it can properly be concluded that those contracts were but a sham.

Illegality

Grace v BF Components UKEAT/0644/06/MAA
Where someone agrees to self-employment and pays less tax accordingly but then argues before a Tribunal that they are an employee, the initial agreement as to self employment does not necessarily render the contract illegal. The EAT, in reviewing the authorities on illegality, found that there were a number cases where contracts were illegal due to a fraud on the Revenue as the parties had knowingly entered into arrangements they knew misrepresented the facts of the employment relationship. However contracts were not illegal merely as a consequence of the fact that parties in good faith and without misrepresentation had wrongly characterised their relationship with the result that the wrong tax regime was adopted. If the arrangement merely has the effect of depriving the Revenue of tax to which they were in law entitled then this does not itself render the contract unlawful.

Unfair dismissal

Ranger v Bit Systems Ltd UKEAT/0049/07/JOJ
The Tribunal erred in finding the Claimant had been fairly dismissed as it had attached significant weight to the importance of a complaint about him which he had not been given an opportunity to deal with it at the dismissal or appeal stages.

Part-time pensions

Unison v Allen & Ors UKEAT/0056/07/CEA
The Claimants had been employed by NUPE before the amalgamation with other unions into Unison. While with NUPE they had been prevented from joining the occupational pension scheme. They claimed that as their employment had transferred under trade union legislation they could claim against Unison. The EAT held that the contracts had transferred under TUPE and therefore the claims were out of time (Powerhouse Retail v Burroughs [2006] IRLR 381).

TUPE

Compass Group UK v Burke & ors UKEAT/0623/06/JOJ
The Employment Tribunal erred in finding there had not been a stable economic entity which transferred despite the closure of the school kitchen before the contract was given to another provider. Once the facts were found whether a transfer took place is a question of law.

Appeals

Sage (UK) Ltd v Bacco UKEAT/0597/06/DM
Authorities referred to in appeals and provided in bundles to the EAT should be copies of the cases as reported in the ICR or IRLR reports.

Information and consultation

Amicus v Macmillan Publishers Ltd UKEAT/0185/07/RN
The Respondent admitted a breach of regulation 19(1) Information and Consultation of Employee Regulations 2004. The EAT found that it was a serious breach and fixed the penalty at £55,000.

Part-time workers

Christie v Department for Constitutional Affairs UKEAT/0140/07/ZT
A part-time fee paid social security tribunal chairman was not a "worker" within the meaning of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. There is no concept of "worker" which has to be applied in all cases where the issue arises in EU law. The Part Time Workers Framework Directive gives protection to those who are defined as relevant workers under domestic law. Regulation 17 applied.

Disability discrimination

Paterson v Metropolitan Police UKEAT/0635/06/LA
The Tribunal was wrong to find that the Claimant's dyslexia did not have a substantial adverse impact on his ability to carry out normal day to day activities. As it was not disputed that he suffered a substantial disadvantage because of the effects of his disability in the procedures adopted for deciding between candidates for promotion, the only proper inference was that those effects must involve a more than trivial effect on his ability to undertake normal day to day activities.

Sex discrimination

GMB v Allen & Ors UKEAT/0425/06/DA
The EAT overturned a decision by the Tribunal that the failure by the union to support certain female members in their claims for equal pay against their employer, and the union's subsequent treatment of these members once it became known that they were pursuing such claims through the Tribunal, was indirect sex discrimination and victimisation. In relation to indirect discrimination, while the union did adopt a practice of witholding effective representation from those seeking full back pay on equal pay claims, this was justified it was a proportionate means of achieving a legitimate aim.

 

THE NEXT BULLETIN WILL BE ON 4 SEPTEMBER 2007

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