Issue 43 - 19th November 2007

Monday 19 November 2007

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COURT OF APPEAL

Illegality and unfair dismissal

Klusova v London Borough of Hounslow [2007] EWCA Civ 1127
Under s92(d) Employment Rights Act 1996 ("ERA") a potentially fair reason for dismissal is that the employee could not continue to work in the position which he held without contravention (either on his part or that of his employer) of a duty or restriction imposed by or under an enactment. If this reason is made out the statutory dismissal procedures do not apply. The Court of Appeal held that a reasonable belief of a lack of entitlement to work is not enough to satisfy this section only an actual statutory bar. However a genuine, though mistaken, belief that it is unlawful to employ someone would be 'some other substantial reason' for dismissal under s98(1)(b) ERA. The Court of Appeal held there was sufficient evidence before the Tribunal for it to find that the Claimant was legally entitled to remain and work in the United Kingdom at the time of her dismissal however it was wrong to find that the Respondent did not genuinely believe that the continued employment of the Claimant would contravene statutory restrictions.

EMPLOYMENT APPEAL TRIBUNAL

Amendment of claim

Ladbrokes Racing Ltd v Traynor UKEATS/0067/06/MT
The Claimant, who was not legally represented, claimed in his ET1 only that the dismissal was unreasonable. During cross-examination he raised issues of the fairness of the investigation and disciplinary proceedings. The Tribunal allowed this despite the objection of the Respondent, stating in its later reasons that it had in effect granted leave to the Claimant to amend the ET1 to include the allegation that his dismissal had been procedurally as well as substantively unfair. The EAT allowed the appeal. If procedural unfairness is being alleged, the Respondent must have fair notice of the allegation so as to enable it to prepare its case which involves clear and cogent notice that the matter is being relied on in the ET1. The EAT gives guidance on how Tribunals should approach the matter generally and in particular when the issue arises during a hearing.

National Minimum Wage

HM Commissioner for Revenue & Customs v Rinalidi-Tranter UKEAT/0486/06/DM
The EAT holds that a trainee hairdresser was a worker in the second year of training for the purposes of the section 54(3) National Minimum Wage Act 1998. Overturning the decision of the Tribunal the EAT held that the Learning Agreement under which she was trained contained mutual obligations. Further the trainee did work for the Respondent under that section. The fact that the Respondent may have given her mundane tasks to perform more to keep her occupied than to benefit the business was not the relevant question but whether work was performed for the business.

Wasted costs

Highvogue Ltd & Morris v Davies UKEAT/0093/07/RN
The EAT would not interfere with an award of wasted costs against the Respondent's representatives for extending the hearing unnecessarily due to poorly prepared witness statements, failure to disclose relevant documents, unreasonable cross-examination, raising the statutory defence only in final submissions and accusations of bias which were not pursued.

Equal pay

Joss & others v Cumbria County Council UKEAT/0148/06/MA
The EAT considers a number of issues in a complex appeal. Consideration of the Genuine Material Factor defence including market forces.

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