Issue 4 - 28th February 2006

Tuesday 28 February 2006

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Failure to enter a response

NSM Music Ltd v Leefe UKEAT/0663/05/CK

Under Rule 9 of the Employment Tribunal's (Constitution and Rules of Procedure) Regulations 2004, a respondent who has not presented a response to a claim shall not be entitled to take any part other than for very limited purposes which include seeking a review of a default judgement or an application for review under rule 35. Here the Respondent entered its appearance out of time, no default judgment was entered and the Tribunal ordered the Respondent could take no further part in proceedings. It refused to review this decision and no appeal was made. Judgement was entered for the Claimant and the Respondent asked for written reasons. The Tribunal refused, as the right to request written reasons was not listed under Rule 9 as a purpose for which the Respondent could take part in proceedings. The EAT did not overturn that decision, but stated that in such situations Respondent?s should state that the request for reasons is with a view to the making of an application under Rule 35, thus falling under within Rule 9(b). A request for reasons with a view to an appeal in such a situation would not fall within the construction of Rule 9. The EAT therefore exercised its own powers and asked the Tribunal for reasons.

Statutory time limits and grievance procedures

BUPA Care Homes (BNH) Ltd v Cann; Spillett v Tesco Stores Ltd (0475/05 and 0554/05)

The time limit for entering a grievance in a claim for disability discrimination is the period within which a complaint under the DDA may be considered by the tribunal. The EAT held that this includes any extension of time given under its just and equitable discretion.

Burden of proof

EB v BA [2006] EWCA Civ 132

A complaint was made of sex discrimination on the grounds of gender reassignment. The claim was based on the Respondent's failure to allocate project work to the applicant during a relevant period. On the information available to it, the Tribunal did not find sex discrimination. The Respondent had not provided details of all projects during the relevant period and left it to the applicant to identify them. The Respondent's view was that it only had to justify the failure to allocate the projects which the Applicant identified. The Court of Appeal disagreed. Employers should not be permitted to escape the provisions of s.63A by leaving it to the employee to prove her case.


Continuity of employment

Cornwall CC v Prater [2006] EWCA Civ 102

The Applicant was a home tutor engaged by a local authority on a series of assignment over a number of years. Although during periods between the assignments there was no obligation to provide work, these periods amounted to a temporary cessation of work under s212 Employment Rights Act 1996. Despite the fact that the council was not obliged to offer the work to the Applicant nor was she obliged to accept it, each individual assignment was a contract of service as once it was taken on the Applicant was obliged to do the work and the council obliged to pay her. As a result the Applicant had continuous employment as an employee.


Equality Act 2006

The Equality Act 2006 gained Royal Assent on 16 February 2006. It establishes the Commission for Equality and Human Rights (CEHR) from October 2007. The CEHR will bring together the work of the Disability Rights Commission and the Equal Opportunities Commission from October 2007, and that of the Commission for Racial Equality from 2009.

The CEHR's purpose is the promotion and protection of human rights, and will provide institutional support for the Human Rights Act. It will cover England, Scotland and Wales. In Scotland and Wales there will be statutory committees responsible for the work of the CEHR.

The act also:

makes unlawful discrimination on the grounds of religion or belief in the provision of goods, facilities and services, education, the use and disposal of premises, and the exercise of public functions;

enables provision to be made for discrimination on the grounds of sexual orientation in the provision of goods, facilities and services, education, the use and disposal of premises and the exercise of public functions;


creates a duty on public authorities to promote equality of opportunity between women and men ('the gender duty'), and prohibit sex discrimination and harassment in the exercise of public functions. Click here for more info

Tupe regulations

The new Transfer of Undertakings (Protection of Employment) Regulations 2006 SI 2006/246 have been published. They come into force on 6 April 2006 and will replace the existing regulations. The guidance on the regulations was featured in the last Bulletin. Click here for more info

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