Issue 48 - 17th March 2008

Monday 17 March 2008

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EUROPEAN COURT OF JUSTICE

Sex Discrimination

Mayr v Bäckerei und Konditorei Gerhard Flöckner
While women undergoing IVF treatment, who have had their ova fertilised but not yet implanted, are not 'pregnant' and are therefore not protected from dismissal under the EC Pregnant Workers Directive, if a woman is dismissed for reasons related to such IVF treatment when this is at an advanced stage, this will amount to discrimination on the grounds of sex contrary to the EC Equal Treatment Directive, since only women receive IVF.

COURT OF APPEAL

Constructive dismissal compensation

Gab Robins (UK) Ltd v Triggs [2008] EWCA Civ 17
On a claim for unfair dismissal the Claimant is entitled to compensation for whatever loss flowed from that dismissal. In a case of constructive dismissal this loss does not include loss (including future loss) flowing from wrongs already inflicted upon the Claimant by the employer's prior conduct which were breaches of the implied term of trust and confidence. The Claimant would have accrued a right to sue for damages in respect of those.

Unfair dismissal

Airbus UK Ltd v Webb [2008] EWCA Civ 49
A dismissal is not necessarily unfair even if the employee would not have been dismissed but for the employer taking into account circumstances related to an expired disciplinary warning. The language of s98(4) Employment Rights Act 1996 ("ERA") is wide enough to cover the employee's earlier misconduct as a relevant circumstance of the employer's decision to dismiss the employee, whose later misconduct is shown to be the reason or principal reason for the dismissal. Diosynth Ltd v. Thomson [2006] IRLR 284 distinguished on the basis that in that case the expired warning "tipped the balance in favour of dismissal" as the other factors taken together would not have justified dismissal.

EAT time limits

Jurkowska v HLMAD Ltd [2008] EWCA Civ 231
Where an appeal is lodged outside of the time limit, even if the explanation does not amount to a good excuse, there may be exceptional circumstances which anyway justify an extension of time. The guidelines United Arab Emirates v Abdelghafar [1995] ICR 65 are not rigid but they do prescribe a principled approach to an application for an extension of time.

EMPLOYMENT APPEAL TRIBUNAL

Statutory grievance procedures

Ward v University of Essex UKEAT/0391/07/LA
A written response to concerns raised by the Respondent suggesting they should not have been raised was capable of meeting the requirements of a Step 1 letter. The fact that it also offered a compromise in the alternative did not change its status.

Joshi v Manchester City Council UKEAT/0235/07/DA
If an extension of time is given for the presentation of a claim as a result of complying with the statutory grievance procedures then the time period for presentation in claims which have a time limit of three months will be six months less one day. Singh t/a Rainbow International v Taylor UKEAT/0183/06 not followed.

Statutory disciplinary procedures

Butt v CAFCASS UKEAT/0362/07/MAA
Where there is an unreasonable delay in holding an appeal against dismissal under paragraph 12 of Schedule 2 Employment Act 2002 the dismissal is automatically unfair under s98A(1) ERA and s98A(2) does not apply (following Wilmot v Selvarajan UKEAT/0427/06/RM).

Amendment of claims

Mouteng v Select Services Partner Ltd UKEAT/0059/08/DA
The Tribunal erred in not allowing the Claimant to apply to amend her existing claim for unfair dismissal to include new claims for race and sex discrimination and instead directing that she should put in new claims which would be considered under the statutory provisions for extension of time. Selkent applied.

Restricted reporting orders

Dallas McMillan & A v B & Davidson UKEATS/0006/07MT
The Tribunal had erred in hearing an application by a journalist to lift a restricted reporting order after it had been made and once the Claimant had withdrawn her claim. The journalist was not a party to proceedings and once the claim was withdrawn it was functus.

Holiday pay

British Airways plc v Williams & ors UKEAT/0377/07/MAA
Although the Civil Aviation (Working Time) Regulations 2004 are silent as to how pay is calculated during periods of annual leave, Community law requires it to be paid at a level which is comparable to what is payable when workers are working normally. As a result there is no reason why s224 ERA cannot apply.

Employment status

Clark v Clark Construction Initiatives Ltd UKEAT/0225/07/CEA
The EAT gives guidance on how to approach the task of determining whether the contract of employment of a controlling shareholder should be given effect.

M&P Steelcraft Ltd v Ellis & HMP Prison Service UKEAT/0536/07/LA
A prisoner who attended a paid work placement with a company organised by the Prisons Resettlement Unit was not employed under a contract of employment. The Tribunal should have considered the tripartite agreement in the round, in which the parties all undertook specific obligations to each other and the dominant purpose of which had to be seen in terms of the rehabilitation objective, rather than just the relationship between the Claimant and the placement company.

Constructive dismissal

Robinson v Tescom Corporation UKEAT/0567/07/JOJ
Where unilaterally imposed changes to terms and conditions are not so fundamental so as to bring that contract to an end and the Claimant did not resign and claim constructive dismissal but chose agreed to work to the new terms under protest and preserve his right to sue for breach of contract, an instruction to work to those new terms was a lawful instruction, and dismissal for subsequently refusing to do so was within the band of reasonable responses.

Re-engagement

Cowen v Rentokil Initial Factory Services (UK) Ltd UKEAT/0473/07/DA
The Tribunal had erred in allowing the Respondent to adduce evidence of an offer of re-engagement, which the Claimant had previously refused, during the remedy hearing for unfair dismissal at which the Claimant was in fact seeking re-engagement. The offer had been made during without prejudice negotiations. Although there was the possibility that there may have been a bilateral waiver of the privilege the Tribunal had only relied on the Respondent's waiver. If, however, the evidence could be properly admitted, then it would be a relevant factor to take into account when deciding whether to order re-engagement.

Part-time workers

Sharma v Manchester City Council UKEAT/0561/07/RN
Once it is found that the part timer is treated less favourably than a comparator full timer and being part time is one of the reasons, that will suffice to trigger the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, even if there are other reasons for the treatment. If and to the extent that the EAT in Gibson v The Scottish Ambulance Service EATS/0052/04 made any such ruling, it should not be followed.

Fixed term workers

Ashbourne v Department for Education and Skills UKEAT/0123/07/DM
The principles in relation to territorial limitation in Lawson v Serco Ltd [2006] IRLR 289 apply to Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 in the same way as they apply to s94 ERA.

Sexual orientation discrimination

English v Thomas Sanderson Blinds Ltd UKEAT/0556/07/LA
The Claimant was subject to sexual innuendo by his work colleagues to the effect that he was homosexual. He was not homosexual and was not believed to be by colleagues, which the Claimant accepted was the case. The EAT held that in those circumstances his claim did not fall within Regulation 5 of the Employment Equality (Sexual Orientation) Regulations 200 as the unwanted conduct was not on grounds of sexual orientation. The EAT further held that in this respect the Regulations did not properly implement the Directive, however it could not be directly relied upon in relation to the private Respondent. Permission was given to appeal to the Court of Appeal.

Race discrimination

D'Silva v NATFE UKEAT/0384/07/LA
A Tribunal should not treat alleged failings in disclosure or the response to a statutory questionnaire as automatically giving rise to an inference of discrimination. It is necessary in each case to consider whether in the particular circumstances the failure in question is capable of constituting evidence supporting the inference that the Respondent acted discriminatorily in the manner alleged, and if so whether in the light of any explanation supplied it does in fact justify that inference.

Okonu v G4S Security Services UK Ltd UKEAT/0035/07/JOJ
The burden of proof in s54A Race Relations Act 1976 does not apply to cases of direct discrimination on the grounds of nationality or colour. In such cases the burden of proof set out in King v Great Britain China Centre [1992] ICR 516 and Anya v University of Oxford [2004] ICR 84 applies.

Victimisation

South London & Maudsley NHS Trust v Dathi UKEAT/0422/07/DA
A Tribunal has no jurisdiction to hear a claim of discrimination and victimisation founded upon a letter from the Respondent's advisers to the Claimant's advisers refusing to disclose a document said to be relevant. Disclosure and preparation of bundles pursuant to case management directions are protected by absolute immunity. So is a response to the Claimant's application for costs directed to the Tribunal. Both letters came into existence for the purpose of the proceedings and in the second case was "akin to a pleading" and thus both attracted absolute immunity.

Injury to feelings awards

Al Jumard v Clwyd Leisure Centre & ors UKEAT/0334/07/ZT
Where different forms of discrimination arise out of the same facts, a single award for injury to feelings is justified. But where there are specific acts which fall into one category but not the other, they should be separately assessed. At the end of the exercise the Tribunal must look at the total figure in the round to ensure that it is proportionate overall and does not involve double counting.

Paternity leave

Atkins v Coyle Personnel plc UKEAT/0206/07/DA
For the purposes of s99 ERA Regulation 29 of the Paternity and Adoption Leave Regulations 2002 there must be some causal connection, and not mere association, between the dismissal and the fact that the Claimant took or sought to take paternity leave.

STATUTORY INSTRUMENTS

Age discrimination

The Employment Equality (Age) Regulations 2006 (Amendment) Regulations 2008 come into force on 6 April 2008. The regulations provide for a three month extension of time under the Employment Act 2002 (Dispute Resolution) Regulations 2004 as well as other minor amendments.

Statutory leave pay

From 6 April 2008 Statutory Sick Pay increases to £75.40 per week, Statutory Maternity Pay, Paternity Pay and Adoption Pay to £117.18. The changes are contained in the Draft Social Security Benefits Uprating Order 2008.

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