Issue 45 - 7th January 2008

Monday 7 January 2008

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HOUSE OF LORDS

Watt v Ashan [2007] UKHL 51
The Labour Party is not a qualifying body for the purposes of section 12 Race Relations Act 1976 however it is an association under s25 and proceedings against it can be taken in the County Court. Nevertheless an earlier decision by the EAT that s12 did apply to the Labour Party in the present case and which had not been appealed was binding as it had been made by a competent court. Further, a finding that the party did not wish to have a candidate who would be seen to identify with the Pakistani community must be a decision made on racial grounds even if the motives were purely political.

COURT OF APPEAL

Protective award

Northgate HR Ltd v Mercy [2007] EWCA Civ 1304
Under 189(1)(b) Trade Union and Labour Relations (Consolidation) Act 1992 where the complaint is of breach of the obligation to provide information to appropriate employee representatives it can only be presented by "any of the employee representatives to whom the failure related", not an individual employee. Further, the Tribunal was wrong in so far as it held that in relation to scoring in a redundancy selection exercise, a glaring inconsistency produced in good faith did not or could not amount to unfairness in the administration of the procedure.

HIGH COURT

Medical retirement

Chittoo v British Telecommunications plc [2007] EWHC 2944 (Ch)
The High Court rejected the Claimant's appealed from the Pension Ombudsman against the Respondent's failure to award her a medical retirement pension.

EMPLOYMENT APPEAL TRIBUNAL

Jurisdiction

Bleuse v MBT Transport Ltd UKEAT/0339/07/JOJ
The Claimant was a lorry driver who worked mainly in Austria and Germany but had a contract of employment with a company registered in England. The contract identified English law as the proper law and sought to confer exclusive jurisdiction on the English courts. The Claimant made a number of claims including failure to pay holiday pay. The Tribunal held that, following Lawson v Serco Ltd [2006] ICR 250, it did not have jurisdiction to hear the claims. The EAT disagreed in relation to the claim for holiday pay. This was a directly effective right derived from Council Directive 2003/88/EC and it could be given effect by construing the Working Time Regulations in a manner which was compatible with the terms of the Directive. Ashbourn v Department of Education and Skills UKEAT/0123/07 and Williams v University of Nottingham [2007] IRLR 660 distinguished.

Strike out

Jatto v Godloves Solicitors UKEAT/0300/07/JOJ
The Tribunal had not erred in striking out a claim for race discrimination where there was no reasonable prospect of success on the evidence that the burden of proof under s54A Race Relations Act 1976 would be reversed.

Statutory dismissal procedures

Butler v GR Carr (Essex) Ltd UKEAT/0128/07/CEA
The Tribunal had not erred in setting the uplift for a serious breach of the procedures at 30%. Less than 10% would be exceptional. If there had been willful or blatant flouting of the scheme it would have been higher than 30%.

O'Neil v Wooldrige Ecotech Ltd UKEAT/0282/07/LA
The Tribunal had erred in finding that the modified dismissal procedure applied when the dismissal did not take place until the day after the conduct complained of as it was not therefore "at the time the employer became aware of the conduct or immediately after it" as required under paragraph 3 Employment Act 2002 (Dispute Resolution) Regulations 2004.

Statutory grievance procedures

Royal Mail Letters v Muhammad UKEAT/0392/07/ZT
The Tribunal erred in finding that a grievance letter complied with the statutory requirements even though it did not mention that the alleged harassment was on the grounds of race or religion which was the basis of the subsequent claim.

Employment Status

North Wales Probation Area v Edwards UKEAT/0468/07/RN
A relief hostel worker who could decline to work any particular shift, or could make arrangements for another relief hostel worker to cover the shift for her, was working pursuant to a contract of employment when she worked a session (Cornwall County Council v Prater [2006] IRLR 362 applied).

Unfair dismissal and ill health retirement

First West Yorkshire Ltd t/a First Leeds v Haigh UKEAT/0246/07/RN
Where an employer provides an enhanced pension on retirement through ill health it will be expected to take reasonable steps to ascertain whether the employee is entitled to the benefit of ill health retirement prior to dismissal for the dismissal to be fair.

Unfair dismissal and illegal employment

Kelly v University of Southampton UKEAT/0295/07/ZT
The EAT overturned the Tribunal decision that the Claimant was not unfairly dismissed due to section 98(2)(d) Employment Rights Act 1996. The University was not committing an offence under section 8 of the Asylum and Immigration Act 1996 as the Claimant was still permitted to work under the Immigration Rules although her leave to remain had expired. Section 98(2)(d) therefore did not apply. Further, it would not always be reasonable to dismiss under section 98(4) even if continuing to employ someone would breach section 8, for example if it resulted from the conduct of the employer.

Compensation

The Governing Body of Hastingsbury School v Clarke UKEAT/0373/07/DA
The EAT emphasised that it is only in exceptional cases that the Tribunal should not try to assess what would have happened had the necessary procedures been complied with as underlined in the Court of Appeal decision in Scope v Thornett [2007] IRLR 155 and the guidance given by the EAT in Software 2000 Ltd v Andrews [2007] IRLR 568. It also held that the s98A(2) Employment Rights Act 1996 principle applies only if the dismissal would have occurred at the same time as it did, had the procedures been properly complied with. In the present case although the dismissal would have taken place there would have been a delay while in the necessary referral to Occupational Health took place of around 10 weeks. Further there would be no deduction for contributory fault as the misconduct was due to underlying mental illness and therefore not culpable.

Disability discrimination

Hart v Chief Constable of Derbyshire Constabulary UKEAT/0403/07/ZT
The EAT agreed that the Chief Constable was entitled to terminate the services of a probationary constable who could not successfully complete her probationary period because certain disabilities prevented her from carrying out duties in a confrontational setting. It was not a reasonable adjustment to expect the Chief Constable to dilute the standards required. The position of someone who had passed the probationary requirements was different from someone who had not. The former has at some point demonstrated the ability to carry out all the relevant tasks and the Chief Constable was not required further to certify his or her fitness. That was not the situation with a probationer.

Religious discrimination

Padgett v The Board of Trustees of the Tate Gallery UKEAT/0097/07/LA
Regulation 6(1) the Employment Equality (Religion or Belief) Regulations 2003 only applies where an employer has employment to offer. It does not apply where an employer is prepared to entertain a proposal for some new piece of work which (if he accepts the proposal) might then lead to an offer of employment.

Age discrimination

Johns v Solent SD Ltd UKEAT/0449/07/MAA
The Tribunal had erred in striking out a claim for age discrimination in relation to a retirement dismissal where the case of Age Concern v Secretary of State for Business Enterprise and Regulatory Reform [CO/5485/2006], was pending before the ECJ. The Tribunal was wrong to act upon speculation about that case's chances of success.

NB as a result of the above case and the Respondent's being granted leave to appeal to the Court of Appeal, the President of the Employment Tribunals (England and Wales) has issued a Practice Direction staying all cases on the same point pending the decision in the ECJ, however the direction will be reviewed when judgment is given the by the Court of Appeal.

http://www.employmenttribunals.gov.uk/tribunal_procedures/documents/Practice_Direction_EW_1_AgeRegs200611.doc

 

Equal Pay

Chief Constable West Midlands Police v Blackburn UKEAT/0007/07/MAA
The Tribunal had erred in finding that special payments to those on a 24/7 shift pattern were in breach of the Equal Pay Act 1970. Although it found the payments were an appropriate means of pursuing a legitimate aim, it had erred in concluding that the same objective could have been achieved by less discriminatory aims, namely paying the Claimants who were unable to work these hours because of their child care responsibilities, as if they had done the work.

Wrongful dismissal

Speechly Bircham LLP v Nsaba UKEAT/0186/07/MAA
Where an employee has started work but the offer was subject to satisfactory references, then it was strongly arguable that the contract was subject to a suspensive condition which could automatically discharge it if the references were not satisfactory and therefore no rights would accrue in terms of notice.

TUPE

Hollis Metal Industries Ltd v GMB & Newell Ltd UKEAT/0171/07/CEA
The TUPE regulations can apply to the transfer of a business which after transfer is based outside the United Kingdom and also outside the European Union.

LEGISLATION

Compensation limits

Tribunal compensation limits increase on 1 February 2008. The basic award increases to £330 per week and the upper limit for the compensatory award increases to £63,000. All the limits can be found here

 

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