Issue 47 - 25th February 2008

Thursday 28 February 2008

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Disability Discrimination

Coleman v Attridge Law (Case C-303/06)
Ms Coleman cares for her disabled son. When she sought to take time off to care for him, she was called 'lazy' by her employer and was accused of attempting to manipulate her working conditions. She brought claims under the Disability Discrimination Act 1995, arguing that she had suffered discrimination by association with her son's disability. The case was referred to the ECJ for guidance on whether a person who was not themselves disabled is protected by EC Directive 2000/78 which establishes a general framework for equal treatment in employment.

In the Advocate General's Opinion, a robust conception of equality entails that subtler forms of discrimination - such as discrimination by association - should be caught by anti-discrimination legislation, as they, too, affect the persons belonging to 'suspect classifications' of sex, race, religion or belief, disability, age or sexual orientation. Given this, he advised the ECJ to hold that the Directive 'protects people who, although not themselves disabled, suffer direct discrimination and/or harassment in the field of employment and occupation because they are associated with a disabled person'. The Decision of the ECJ is awaited, whilst the ECJ does not have to follow the Advocate General's Opinion it does so in the majority of cases.

Sick leave and accrual of holiday

Stringer and ors v HM Revenue and Customs (Case C-520/06),
In this case the Advocate General recommended that the ECJ hold that workers who are absent on sick leave should still accrue entitlement to the minimum annual leave provided for by the Working Time Directive (No.2003/88). However, a worker should not be able to take, and receive payment for, annual leave during a period in which he or she would otherwise be absent through illness. In a separate Opinion, in Schultz-Hoff v Deutsche Rentenversicherung Bund (Case C-350/06), the Advocate General went on to suggest that workers absent on sick leave throughout an entire leave year should be able to take their minimum annual leave on their return to work.


James v London Borough of Greenwich [2008] EWCA Civ 35
In this important case on the status of agency workers the Court of Appeal held that only on grounds of necessity can an employment tribunal imply a contract of employment between an agency worker and the end-user of his or her services. The Court made clear that it is not for courts or tribunals to extend employment protection rights to agency workers, and that further developments will need to come from Parliament. The Court of Appeal found that the employment tribunal had correctly applied the test of necessity in assessing whether a contract of employment should be implied between Ms James and the Council. The Court clearly approved the guidance handed down by the EAT.

Lord Justice Mummery, giving the lead judgment, made clear that the question of whether an agency worker is an employee of an end-user is a question to be decided in accordance with the common law principles of implied contract, and that labels are not a substitute for legal analysis of the evidence.


Practice and procedure

Harlington Hospice Association v S Mitchell UKEAT/0424/07
The claimant was found to have been unfairly dismissed. The Tribunal concluded that she had committed gross misconduct but there had been various procedural defects in her dismissal. They also held that they were not satisfied that even had fair procedures been adopted, the dismissal would have occurred in any event. The dismissal was therefore unfair by virtue of s.98A(2) of the Employment Rights Act 1996.

The employers contended that the Tribunal had substituted its view for that of the employer, and that the finding on s.98A(2) was perverse. The claimant cross appealed on the grounds that on the evidence the finding of gross misconduct was perverse, and that on the material before the court, the only proper inference was that there was no gross misconduct.

In the course of its reasoning the EAT (ELIAS P presiding) accepted the submission on behalf of the Claimant that in circumstances like this, if the Tribunal is going to prefer hearsay to direct evidence, then it ought albeit briefly to indicate why it has reached that conclusion. In the circumstances the appeal would be remitted, the Tribunal had not given any reasons at all for finding gross misconduct; indeed, it was not clear that it had appreciated that it had to determine that issue for itself.

Deductions from wages

Recovery of overpayment of commission on termination
Key Recruitment UK LTD v J C Lear UKEAT/0597/07
An employer deducted an overpayment of commission from the employee's final salary on the basis that the client had failed to pay the invoice and therefore according to the commission agreement the employer was entitled to deduct the commission. In this case it was not disputed here that there was an overpayment, and that is was of wages as defined by the ERA.
The definition of "wages" encompasses any payments made to the employee in connection with his employment, including commission: section 27(1)(a).

Held: where the deduction comes within Section 14 of ERA there is no limitation in the section either as to the amount that may be recovered, nor the period of time within which any recovery of overpayment must be made. There are such limitations in section 18 which apply to deductions made for cash shortages or stock deficiencies in retail employment, but not in the general run of employment cases.
However in this case it was far from certain whether there ever was an overpayment. To be an overpayment, the moneys would have had to have been wrongfully paid at the point when they were received by the Claimant in June 2006. If the Claimant was at that time entitled to the commission and to retain it subject only to a power conferred upon the employer to deduct it later if the client did not in fact meet the company's invoice, then it could not sensibly be described as an overpayment. The fact that there may at a later date have arisen a duty to reimburse the employer would not retrospectively allow the original payment to be characterised as an overpayment. Indeed, if the Claimant had a contractual right to the full commission at that stage (albeit subject to a conditional right to reimbursement) and it had been withheld, that would have been an unlawful deduction since it would have been a failure to pay what was legally due: see Delaney v Staples [1991] IRLR 112 (CA). It follows that section 14 would apply here only if, when the Claimant received the commission in June 2006, he was paid more than he ought to have been.

The Tribunal made no findings as to how the commission payments operated and in particular whether, assuming that there was a right to receive the commission in June, the obligation to repay had crystallised by the date of termination at the end of April. As the deduction may have been lawful, the appeal succeeded. The case was remitted for the tribunal to decide whether the employee was overpaid in June 2006 (in which case section 14 would apply) and if not, whether he was legally obliged to repay the relevant part of the commission by the date of termination in April 2007 (in which case he owed the money and section 13 would apply.)

Statutory Instrument

Annual uprating of compensation limits

From1 February 2008 the limit on a week's pay which can be taken into account in calculating statutory redundancy pay and/or basic award on unfair dismissal - increases from £310 to £330.
The limit on the amount of compensatory award a tribunal can order to be made on unfair dismissal increases from £60,600 to £63,000.


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