Issue 38 - 3rd September 2007

Monday 3 September 2007

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EMPLOYMENT APPEAL TRIBUNAL

Withdrawal of claim

Silva-Douglas v London School of Economics UKEAT/0075/07/RN
Once withdrawal of a claim is notified to the Tribunal under Rule 25 of the Employment Tribunals Rules of Procedure 2004 it cannot be reversed, even if such an attempt is made a few hours later.

Time limits

Beasley v National Grid Electricity Transmissions UKEAT/0626/06/DM
Although the claim for unfair dismissal had been submitted only 88 seconds outside the three month time limit the Tribunal had not erred in finding that it had been reasonably practicable to bring the claim in time having taken into account all relevant matters. The fact that the decision did not mention the reasonably practicable test was not an error as it was clear that it had been considered (Retarded Children's Aid Society v Day [1978] ICR 347).

Wolverhampton University v Elbeltagi UKEAT/0167/07/RN
The Tribunal had erred in finding that it was not reasonably practicable to present the claim for unfair dismissal within the time limit. It had focused only on the period during which an appeal and negotiations were taking place and failed to consider whether or it was reasonably practicable to present the claim within the subsequent three days before the time limit expired.

Strike out

Bayley v Whitbread Hotel Company Ltd UKEAT/0046/07/DM
The Tribunal had erred in striking out the Claimant's claim for non-disclosure of the full expert reports by his father who represented him. Even if the failure was deliberate, the Tribunal had erred in finding that a fair trial could no longer take place. The Tribunal had allowed its strong disapproval of the way that the Claimant's representative had conducted himself to obscure a clear assessment of what actual harm had been done.

Statutory disciplinary procedures

Aptuit (Edinburgh) Ltd v Kennedy UKEATS/0057/06/MT
The Tribunal had erred in finding that the Claimant had been automatically unfairly dismissed as the Respondent had not notified her of her right to appeal in the dismissal letter. There are not restrictions in the statutory procedures on how the right to appeal is communicated. Further the Tribunal had erred in raising the matter itself without notice to the Respondent who had no chance to bring evidence or make submissions on the issue. The Tribunal also erred in making an uplift of 40% for failure to follow the statutory procedure. Under the statutory procedures the only circumstances to be taken into account are those which relate to those procedures and other circumstances ie failure to consult properly on redundancy, are not relevant.

Cex Ltd v Lewis UKEAT/0013/07/DA
The Tribunal had not erred in uplifting the awards of compensation for failure to follow the statutory procedure by only 10% due to the Respondent's ignorance of the law. The Tribunal had a broad discretion which was not restricted by statute or authority beyond "just and equitable".

Unfair dismissal

Greenwood v Whiteghyll Plastics Ltd UKEAT/0219/07/MAA
The Tribunal had erred in finding that the Claimant was fairly dismissed due to an instruction from a large supplier and where there was no other work available as it did not consider the injustice suffered by the employee as required by Dobie v Burns [1984] ICR 812.

Whistleblowing

Roberts v Valley Rose Ltd UKEAT/0394/06/DA
The Tribunal had not erred in finding that alleged protected disclosures were not made in good faith. The Claimant had notice of the issue of bad faith as it was mentioned in the ET3 and in a witness statement disclosed before the hearing as well as being put in cross-examination.

Employment status

Nesbitt & Nesbitt v Secretary of State for Trade and Industry UKEAT/0091/07/DA
The Tribunal erred in finding that the Claimants' joint control of the shares of the company meant they could not be employees. The EAT reviewed the authorities and held that such control was not sufficient to deprive them of employment status if they otherwise satisfied all the criteria for employment and if the employment contract was not a sham.

Holiday pay

Yarrow v Edwards Chartered Accountants UKEAT/0116/07/RN
When calculating entitlement to pay for untaken holiday on termination of employment the number of days in a working year should be applied, rather than the calendar year. Leisure Leagues UK Ltd v Macconnachie [2002] IRLR 600 followed. Further, the Tribunal had erred by failing to consider the information provided by the parties, contrary to Rule 27(6) of the Employment Tribunals Rules of Procedure 2004, before dismissing the claim when the Claimant did not appear at the hearing.

Disability discrimination

HM Prison Service v Johnson UKEAT/0420/06/MAA
Once the opportunity for reasonable adjustment has passed and the Claimant could no longer return for work her dismissal less favourable treatment was unquestionably justified, despite the fact that that this situation may have been caused or contributed to by the Respondent's earlier failings. The breaches or acts of discrimination alleged must be assessed by reference to the state of affairs at the time in question. However if the dismissal of the Claimant was caused by earlier breaches of the duty to make reasonable adjustments the Claimant could recover compensation as a consequence of those earlier breaches.

 

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