Issue 42 - 5th November 2007

Monday 5 November 2007

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COURT OF APPEAL

Contract terms

Home Office v Evans & Laidlaw [2007] EWCA 1089
The Employment Tribunal had erred in finding that it was a fundamental breach of contract for the Respondent to invoke the Claimants mobility clause rather than activate the redundancy agreement under which it would have to consult the trade union. The Respondent was legally entitled invoke the clause rather than pursue redundancy dismissals even if it had first considered following the redundancy procedures. The redundancy procedures only applied if the Respondent was dismissing or proposing to dismiss staff. In this case they were not as they instead invoked the mobility.

TUPE

Jackson v Computershare Investor Services plc [2007] EWCA Civ 1065
The Court of Appeal agrees with the EAT that the Employment Tribunal was wrong to find that regulation 5(1) TUPE operated so as to provide the Claimant, who transferred to the transferor in 2004, with access to its enhanced severance provisions which only applied to those staff who had joined the company before March 2002.

Employment status

New Testament Church of God v Stewart [2007] EWCA Civ 1004
The Court of Appeal upholds the decision of the Employment Tribunal the Claimant minister was employed by the Respondent. On the facts the Tribunal was entitled to reach the conclusions that there was an intention to create legal relations and that the contract was a contract of employment. However the court pointed out that in upholding the Tribunal's conclusions it made no general finding that ministers of religion are employees. It directed Tribunals should carefully analyse the particular facts, which will vary from church to church, and probably from religion to religion, before reaching a conclusion.

Equal pay

Grundy v British Airways plc [2007] EWCA Civ 1020
In selecting a pool for comparison under the Equal Pay Act 1970 it needs to include, but not be limited to, those affected by the contractual term of which complaint was made. This could be expressed to include both people who could and those who could not comply with it. Provided the Employment Tribunal tested the allegation in a suitable pool, it could not be said to have erred in law even if a different pool with a different outcome could legitimately have been chosen.

EMPLOYMENT APPEAL TRIBUNAL

Time limits

Miller v Community Links Trust Ld UKEAT/0486/07/JOJ
The Employment Tribunal did not err when it rejected the Claimant's representative's excuses for not presenting the claim in time, holding it reasonably practicable for him to do so when it was presented via email nine seconds out of time.

Withdrawal of claim

The British Association for Shooting and Conservation v Cockayne UKEAT/0467/07/MAA
The Claimant withdrew proceedings in order to re-issue at a later date so as to comply with the requirements of the statutory grievance procedure. In the meantime the Respondent applied for the proceedings to be dismissed. The Claimant did not oppose the application as he did not appreciate its significance. His subsequent claim on the same cause of action would not be allowed, however he could apply for a review of the original dismissal under Rule 25(4) as it was a final determination under Rule 28(1).

Deposit orders

Jansen van Rensburg v Royal Borough of Kingston upon Thames UKEAT/0096/07/MAA
Following the reasoning of North Glamorgan NHS Trust v Ezsias [2007] IRLR 603 in relation to strike out orders, the Employment Tribunal was entitled to assess disputed matters of fact, including a provisional assessment of credibility, in an exceptional case, when consider whether to impose a deposit order under the less rigorous prospects of success criteria in rule 20(1).

Breach of contract

Gap Personnel Franchises Ltd v Robinson UKEAT/0342/07/JOJ
Whether the Claimant was entitled to claim mileage expenses at 25p per mile as set out in his offer letter, in the circumstances where his employer had made it clear that it would only pay 15p per mile and that was all he had subsequently claimed for, depended upon an assessment of whether the Claimant continued to work under protest and if not, when the Claimant could properly be said to have affirmed the contract by acquiescence. It is generally accepted law that consideration for a variation in the terms of a contract of employment is mutually provided by the employer continuing to employ the employee and the employee continuing in that employment.

Statutory dismissal procedures

Davies v Farnborough College of Technology UKEAT/0137/07/LA
Alexander and another v Brigden Enterprises Ltd [2006] ICR 1277 does not require that an employee who is made redundant must always be given the redundancy criteria and their own marks before the Stage 2 meeting. What is necessary is that, on the facts of any given case, an employer must give sufficient information to an employee in relation to how the criteria were applied to give him the opportunity to challenge, correct or supplement the information which the employer took into account in reaching its conclusion. In the present case the Claimant had not been provided with the necessary information and therefore the dismissal was automatically unfair, however the EAT found that the decision would have been the same in any event and therefore there would be no compensatory award.

Holiday pay

Lyddon v Englefield Brickwork Ltd UKEAT/0301/07/CEA
The Claimant's rolled up holiday payments were not in breach of Working Time Regulations 1998 as they met the criteria of transparency and comprehensibility laid down by the ECJ in Robinson-Steele v R D Retail Services Limited [2006] ICR 932. The contract satisfactorily identified the sums referable to the holiday period.

Employment Status

Harlow District Council v O'Mahony UKEAT/0144/07/LA
The Employment Tribunal had not erred in concluding there was an implied a contract of employment between the Claimant and the end user council, as it reflected the reality of the relationship as it developed. The agency had essentially acted as an agent for the Council after it had been asked to find it a plasterer and then by paying the Claimant's wages. Otherwise the Claimant was subject to the control of the Council with whom he negotiated a pay increase. He was provided with Council clothing, protective equipment and a vehicle to carry out his work and was subject to discipline by the Council and raised a grievance with it about his working conditions. He was asked directly by his supervisor to work overtime when required and had to ask the Council's permission to take holidays and notify them when he was absent through sickness.

National Grid Electricity Transmission plc v Wood UKEAT/0432/07/DM
The Employment Tribunal had erred in finding the contractual arrangements between the parties were a sham. There was no proper evidential basis for concluding that the formal arrangements were never intended to reflect the reality of the relationship. However the factual findings were enough for the Tribunal to imply a contract of employment between the Claimant and the end-user to reflect the reality of the relationship. Most significant was the fact that there were direct negotiations about pay, notice and when holidays could be taken. The Claimant was in fact treated as an integrated member of the end-user's workforce.

Reason for dismissal

Jocic v London Borough of Hammersmith and Fulham UKEAT/0194/07/LA
The EAT reviews the authorities in cases where the reason found for the dismissal by the Employment Tribunal is different from that put forward by the employer and holds that the relevant principles are those set out in Hannan v TNT-PIEC (UK) Limited [1986] IRLR 165. If the difference between the reason relied upon by the employer and the reason found by the Tribunal, which was not formally raised at the hearing, goes to facts and substance and there would or might have been some substantial or significant difference in the way in which the hearing was conducted or in the material which would have been put before the Tribunal, then the Tribunal's substitution of the reason for the dismissal cannot stand; but otherwise such change should be seen as one of re-labeling which does not significantly affect the investigation before the Tribunal and therefore the Tribunal's substitution can stand.

Constructive dismissal

MYA Consulting Ltd v Johnson UKEAT/0306/07/DM
The Employment Tribunal correctly held that the Respondent company was liable for the acts of the Managing Director's husband and so for breach of the fundamental term of trust and confidence caused by his acts. Moores v Bude Stratton Town Council [2000] IRLR 676 applied.

Contributory conduct

Sinclair v Wandsworth Council UKEAT/0145/07/DM
The Employment Tribunal erred in holding that the Claimant had not contributed to his dismissal as the misconduct related to alcohol and he was an alcoholic. The EAT held that where the Disability Discrimination Act 1995 does not apply, it cannot be said that totally unacceptable conduct in an employment context (or in a criminal context) can be excused by reference to a background or underlying illness.

Disability Discrimination

The Environment Agency v Rowan UKEAT/0060/07/DM
An Employment Tribunal considering a claim that an employer has discriminated against an employee under section 3A(2) Disability Discrimination Act 1995 by failing to comply with the section 4A duty must identify: (a) the provision, criterion or practice applied by or on behalf of an employer, or (b) the physical feature of premises occupied by the employer, (c) the identity of non-disabled comparators (where appropriate) and (d) the nature and extent of the substantial disadvantage suffered by the Claimant.

Mid-Devon District Council v Stevenson UKEAT/0196/07/LA
The Employment Tribunal had erred in failing to allow the employer to instruct its own expert. While such decisions can only be interfered with on Wednesbury grounds i.e. misapprehension as to the facts, taking into account irrelevant matters, failing to take into account relevant matters or reaching a decision which no reasonable Tribunal could reach, in this case it was one which no reasonable Tribunal could have reached.

Victimisation

Munu v Great Ormond Street Hospital UKEAT/0287/07/DM
The EAT agrees with the decision in Oyarce v Cheshire County Council (UKEAT/0557/06/DA) that the reverse burden of proof does not apply to claims of discrimination under the Race Relations Act 1976. Even if it had, the approach of the Tribunal to these allegations of victimisation in fact satisfied the requirements of section 54A.

Religion or belief

McClintock v Department of Constitutional Affairs UKEAT/0223/07/CEA
There had been no discrimination where a Justice of the Peace resigned after being told that he would not be relieved from the duty to sit in cases involving same sex couples when he stated that he could in conscience, and compatibly with his philosophical and religious beliefs, agree to place children with same sex couples. The Claimant had never made it plain that his objection was due to any conscientious or religious conviction. Further there had been no indirect discrimination as the requirement to sit on all cases would have been justified.

Consultation

UK Coal Mining Ltd v NUM UKEAT/0397/06/RN
The EAT upholds maximum protective awards for failure to consult properly over mass redundancies at the Ellington Colliery in Northumberland. However, departing from previous authority, the EAT held that the Employment Tribunal was wrong to conclude that there was no obligation to consult over the reason for the closure itself.

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