Issue 44 - 3rd December 2007

Monday 3 December 2007

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COURT OF APPEAL

TUPE

Regent Security Services Ltd v Power [2007] Civ 1188
The Court of Appeal upholds the decision of the EAT that the Claimant could rely on the contractual retirement age agreed after the transfer which were to his benefit and the Respondent could not insist that he be bound by the term in his pre-transfer contract.

HIGH COURT

TUPE

New ISG Ltd v Vernon & ors [2007] EWHC 2665
There can be a valid objection to a transfer under Regulation 4(7) TUPE Regulations 2006 after the transfer takes place where the identity of the transferee is not known until that time and an objection is made promptly thereafter. The Claimant transferee therefore could enforce restrictive covenants against the Defendants as by objecting they had not become its employees.

Protection from harassment

Hammond v International Network Services UK Ltd [2007 EWHC 2604 QB
For conduct to come within the Protection from Harassment Act 1997 it must be criminal therefore necessitating an element of real seriousness. It must also be targeted at the Claimant and calculated to cause alarm and distress. It must be objectively oppressive and unreasonable. Decisions reasonably taken as part of ongoing managerial functions would not be harassment.

EMPLOYMENT APPEAL TRIBUNAL

Jurisdiction

Ashbourne & Collins v DfES UKEAT/0123/07/DM
The EAT would not interfere with the Tribunal's decision that teachers employed by DfES working wholly abroad in European schools were not able to make claims for either unfair dismissal or in relation to their fixed-term employment. Lawson v Serco Ltd [2006] IRLR 289 principles applied in each case.

Time limits

Royal Bank of Scotland v Bevan UKEAT/0440/07/LA
The Tribunal did not err in law in holding that it was not reasonably practicable for the Claimant to commence proceedings for unfair dismissal within the three month time limit where the employer suddenly and without warning completed the appeal procedure just before the expiry of the limitation period. Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 was intended to encourage parties not to start proceedings until internal procedures had been exhausted. Royal Bank of Scotland v Theobald (EAT/0446/06) was considered and distinguished. There is no rule of law that it is always reasonably practicable to present a claim if the need to do so is known for 24 or 48 hours, or any other length of time. What is reasonably practicable is a matter for the Tribunal.

Postponement

Abegaze v Shrewsbury College of Arts and Technology UKEATPA1805/06/JOJ
The Tribunal had not erred in refusing the Claimant's application to postpone a remedy hearing due to be heard six years after the relevant liability decision.

Statutory dismissal procedures

Venniri v Autodex Ltd UKEAT/0436/07/ZT
The Tribunal erred in law in failing to address s98A(1) of the Employment Rights Act 1996 ("ERA"). It is not necessary for a claimant to raise s98A(1) explicitly. The Tribunal should have the matter in mind as an issue unless the matter is expressly conceded.

Unfair dismissal

Clydeport Ltd v Sinnamon & Gilchrist UKEATS/0035/07/MT
The Respondent had not acted reasonably and therefore unfairly dismissed the Claimants when it failed to follow its written redundancy policy. This was not a case of relying on mistaken advice but failing to follow the obvious correct construction of its own procedure.

Unfair dismissal compensation

Inventec (Scotland) Corporation Ltd v Duffy UKEATS/0021/07/MT
Under s123(7) ERA the Tribunal had erred in refusing to deduct the extent to which the Claimant's redundancy payment exceeded the basic award that would have been payable had the claimant not been made redundant.

Dalia Ros & Daniel Angel t/a Cherry Tree Day Nursery v Fanstone UKEAT/0273/07/DM
Where the Claimant was unfairly dismissed 10 minutes before her resignation was to take effect the level of compensation would be capped, even though she earned less in her new job, as this was not attributable to the dismissal. Gover & Ors v Property Care Ltd [2006] EWCA Civ 286 applied.

Whistleblowing

Premier Mortgage Connections Ltd v Miller UKEAT/0113/07/JOJ
For the purpose of section 43C(1)(b)(ii) ERA a worker must have a reasonable belief that the information he was disclosing related solely or mainly to a matter for which the other person had, at the time of disclosure, legal responsibility. It is not enough that the worker reasonably believes that the person once had legal responsibility for the matter.

Disability Discrimination

The Governors of the Lord Grey School v Pavlou UKEAT/0363/07/MAA
The Tribunal had erred in finding that the Claimant's disability was long term when there was no evidence before it that it was likely to last for 12 months at the time of the alleged discrimination.

Birmingham City Council v Tatlow UKEAT/0208/07/DA
In deciding whether the burden of proof has shifted the Tribunal is not limited to considering only matters which form the basis of the alleged act of discrimination but all the material before it.

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