Issue 41 - 15th October 2007

Monday 15 October 2007

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EUROPEAN COURT OF JUSTICE

Age discrimination

Palacios v Cortefiel C 411/05
A compulsory retirement age of 65 allowed in Spain under collective agreement was not in breach of the Directive on Equal Treatment in Employment and Occupation 2000 with respect to age discrimination. The provision was objectively and reasonably justified under Article 6(1) in the context of national law by a legitimate aim relating to employment policy and the labour market, and it was not apparent that the means put in place to achieve that aim of public interest were inappropriate and unnecessary for the purpose.

EMPLOYMENT APPEAL TRIBUNAL

Procedure

Doyle v Argyll & Bute Council UKEATS/0052/06/MT
The Tribunal had erred in turning what was supposed to be a full hearing into a preliminary hearing without notice and dismissing the Claimant's claim of constructive dismissal without hearing evidence.

Time limits

Asda Stores Ltd v Kauser UKEAT/0165/07/RN
The fact that the Claimant had been "stressed" by a police investigation into alleged theft after her dismissal and the fact she believed she could not bring a claim while the police investigation was ongoing did not mean it was not reasonably practicable for the claim to have been brought within the time limit. Further the Tribunal erred in failing to consider the three days before the time limit expired but after the police investigation had ended.

Statutory Grievance Procedure

Mowels v Vox Displays Ltd UKEAT/0122/07/RN
Where a breach of contract claim does not relate to dismissal (that is it is not a claim for wrongful dismissal) the statutory grievance procedure applies and the extension of time provided by Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004.

Statutory Dismissal Procedure

Wilmot & ors v Selvarajan UKEAT/0427/06/RN
Unreasonable delay in carrying out an appeal, even though the appeal may eventually take place, is a failure to complete the procedure in accordance with the requirements of Schedule 2 Employment Act 2002 rendering the dismissal automatically unfair.

Homeserve Emergency Services Ltd v Dixon UKEAT/0127/07/CEA
On the facts of the case, while the Step 1 letter did not state that dismissal was a possible outcome it still met the statutory requirements. Further, given that the Respondent challenged the Claimant during the misconduct complained of, and he was well aware of the charge against him, it was not necessary to present further information before the Step 2 hearing.

Aptuit (Edinburgh) Ltd v Kennedy UKEATS/0057/06/MT
The Tribunal erred in finding that the Claimant had been automatically unfairly dismissed as she had not been given the opportunity to appeal her dismissal. This was not part of the Claimant's complaint and the Respondent had not been given an opportunity to deal with the point.

Unauthorised deductions

Merseyside Electrics 2002 Ltd v Taylor UKEAT/0162/07/MAA
The Claimant's contract permitted the employer to withhold sick pay if there was "any doubt" that the absence was for reasons other than health. On the facts, any doubt was removed by the submission of sick certificates, and the absence of any contrary medical opinion from the employer.

Wilson v Lamb UKEAT/0106/07/DM
An increase in the minimum rate of payment set by the Learning and Skills Council for a Modern Apprenticeship was incorporated into the Claimants contract. However by continuing to work for a year at the old rate when her employer refused to pay more the Claimant had affirmed the contract and waived the breach.

Employment status

Samrai v United Cooperative Ltd EAT/0174/07/MAA
The Employment Tribunal had not erred in finding that a locum pharmacist who was not required to work a minimum number of hours was not an employee.

McGregor v Edinburgh Leisure UKEATS/0027/07/MT
In the circumstances although the Claimant, who was a fitness instructor for the Respondent, had to provide personal service and was under the control of the Respondent there were other factors which pointed towards the Tribunal's finding that the contract was in fact a contract for service (Ready Mixed Concrete [1968] 2 QB 497 applied).

Unfair dismissal

GMB v Brown UKEAT/0621/06/ZT
It was open to the Tribunal to find that in the circumstances the insistence that the Claimant follow the Respondent's normal grievance procedure, which would involve it being heard by the manager against whom she was complaining, was a breach of the implied term of mutual trust and confidence entitling the Claimant to resign. The manager was aware that that any further meetings with him would be likely further to damage the Claimant's health. Abbey National plc v Fairbrother [2007] IRLR 320 applied.

Secretary of State for Justice v Slee UKEAT/0349/06/JOJ
The Tribunal was entitled to reach the conclusion that the Claimant had been unfairly dismissed and that the Respondent had failed to offer her a suitable and available vacancy, following the redundancy of her existing post, contrary to Regulation 10 Maternity and Parental Leave etc. Regulations 1999.

Unfair dismissal compensation

Wolff v Kingston upon Hull City Council UKEAT/0631/06/DA
An award for loss of statutory rights may still be made even where the Claimant has subsequently found a new job and acquired one year's service. The Claimant had been under the shadow of being dismissed without statutory protection for a period of 12 months. The award is part of the compensatory award and as such must be just and equitable in all the circumstances and can cover such intangible losses.

GMB v Brown UKEAT/0621/06/ZT
Where the Claimant resigns due to the failure to follow a reasonable grievance procedure, compensation can be assessed on Polkey principles, ie what was the likelihood that if a proper procedure had been followed the Claimant would have remained at work. In this case the EAT would not interfere with a 50% reduction. However the Tribunal erred in compensating the Claimant for the period after dismissal when she could not work due to illness was as result of a breach of contract prior to dismissal, and which was not the "last straw". The Claimant could, in principle, recover theses losses in a contractual claim, but not through a complaint of unfair dismissal. Johnson v Unisys Ltd. [2001] ICR 480 applied.

Part-time pensions

Winder v Aston University/Aston University v Campbell UKEAT/0025/07/ZT/UKEAT/0026/07/ZT
Where there is a long standing employee whose work changes over time, correct approach when deciding when time starts to run for the purposes of a claim for equal pay in relation to pensions is to look at whether, on each occasion when there was a change, there was a variation or a rescission of the whole contract. The EAT would not interfere with the Tribunal's finding that one of the Claimant's work evolved through a series of gradual changes and therefore she was in time in bringing the claim. Similarly it was permissible for the Tribunal to find that the other Claimant was out of time in relation to earlier work. She had been subjected to an interview process, and also her section, duties, grade and the scale of pay changes.

Disability Discrimination

Jama v Alcohol Recovery Project UKEAT/0602/06/RN
The Tribunal had not erred in finding that the Respondent was not aware that the Claimant suffered from a disability, despite the fact that the Claimant had on two occasions mentioned to the Respondent that he was receiving treatment for post traumatic stress disorder. The Claimant had failed to produce any evidence to support the diagnosis and his sickness absences were mostly described as physical complaints. The other symptoms of which he complained were not necessarily referable to post traumatic stress disorder.

Scottish & Southern Energy v Mackay UKEATS/0075/06/MT
A failure to consult satisfactorily with the Claimant on the issue of redeployment was not itself a failure to make reasonable adjustments. Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664 applied. However a failure to investigate may in principle amount to disability-related discrimination, for example if there would have been fuller consultation had the Claimant not been disabled. Such a conclusion would not be inconsistent with Tarbuck.

Religion or belief

Harris v NKL Automotive Ltd UKEAT/0134/07/DM
The Employment Tribunal had not erred in finding that there was no indirect discrimination by the Respondent against the Claimant, who was a Rastafarian. The parties accepted that Rastafarian beliefs constituted a philosophical belief, which was similar to a religious belief and therefore fell within the scope of the Employment Equality (Religion and Belief) Regulations 2003. However there was no evidence that the Respondent did in fact object to the Claimant's dreadlocks.

 

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