Issue 49 - 21st April 2008

Monday 21 April 2008

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EUROPEAN COURT OF JUSTICE

Fixed-term workers

Impact v Ireland European Court of Justice, Case C268/06
Clause 4 of the framework agreement on fixed-term work (put into effect by Council Directive 1999/70/EC) must be interpreted as meaning that "employment conditions" encompasses conditions relating to pay and to pensions which depend on the employment relationship, but not to pensions arising under a statutory social-security scheme.

COURT OF APPEAL

Unfair dismissal

Kuzel v Roche Products Ltd [2008] EWCA Civ 380
It is for the employer to prove that the reason for dismissal is a potentially fair one. It is not for the employee to disprove that reason or to prove a different reason. It is sufficient for the employee to challenge the evidence produced by the employer to show the reason advanced by him for the dismissal and to produce some evidence of a different reason. It will then be for the Tribunal to consider the evidence as a whole and to make findings of primary fact on the basis of direct evidence or by reasonable inferences from primary facts established by the evidence or not contested in the evidence. The Tribunal must then decide what was the reason or principal reason for the dismissal on the basis that it was for the employer to show what the reason was. If the employer does not show to the satisfaction of the Tribunal that the reason was what he asserted it was, it is open to the ET to find that the reason was what the employee asserted it was. However it does not have to find this was the reason. It may be open to the Tribunal to find that, on a consideration of all the evidence in the particular case, the true reason for dismissal was not that advanced by either side.

Unless orders

Chukwudebelu v Chubb Security Personnel Ltd [2008] EWCA Civ 327
An unless order takes effect if it is not complied with. It does not require a further order addressed to the party against whom the order was made. Marcan Shipping (London) Ltd v Kefalas & Anr [2007] EWCA Civ 463 applied.

TUPE

Dynamex Friction Ltd v Amicus [2008] EWCA 381
The decision to dismiss was that of the administrator as there was no money to pay the employees' wages. There had been no prospective buyer at the time and there had been no collusion with a director of another company. In the circumstances therefore the dismissal was for an economic reason and not unfair.

Illegality

Enfield Technical Services Ltd v Payne [2008] EWCA Civ 393
The fact that there may be tax advantages in claiming self-employed status while working does not render the contract subsequently found to be a contract of employment unenforceable for being unlawfully performed if it is a miscategorisation and there is no misrepresentation or bad faith.

EMPLOYMENT APPEAL TRIBUNAL

Costs

Jilley v Birmingham & Solihull Mental Health Trust UKEAT/0584/06/DA
Rule 41(2) gives to the Tribunal a discretion whether to take into account the paying party's ability to pay. If a Tribunal decides not to do so, it should say why. If it decides to take into account ability to pay, it should set out its findings about ability to pay, say what impact this has had on its decision whether to award costs or on the amount of costs, and explain why. Even if a Tribunal orders detailed assessment it is entitled to make an order which takes account of ability to pay. It can, for example, order that only a specified part of the costs should be payable or place a cap on an award of costs even where it orders a detailed assessment.
Although the Claimant's appeal in relation to the Tribunal's application of the burden of proof was allowed, the award of costs would not be set aside. There was no connection between the error of law made by the Tribunal and the conduct which gave rise to the costs order.

Wasted costs

Mitchells Solicitors v Funkwerk Information Technologies York Ltd UKEAT/0541/07/MAA
The Tribunal erred in making a wasted costs order against the Claimant's representative. Before a wasted costs order can be made against a legal representative on the grounds that he has presented a hopeless case that representative must be shown not only to have acted improperly, unreasonably or negligently, but also to have lent assistance to proceedings which amount to an abuse of the court. Further, the Tribunal failed to consider the issue of causation

Ratcliffe Duce & Gammer v Binns t/a Parc Ferme UKEAT/0100/08/CEA
Not only did the Tribunal apply the wrong legal test to the issue of wasted costs, it erred in allowing the opposing party to comment on the Claimant's representatives submissions on the matter. While the opposing party may apply for an order (and the issue can exceptionally be raised by the Tribunal at its own initiative) it does not thereafter comment on the submissions, and it will never be appropriate for the receiving party to cross-examine the representative against whom the order is being considered.

Case management

Ghera v Birmingham City Council UKEAT/0195/07/DM
The Tribunal had not erred in disallowing re-examination on the fairness of the appeal process in a claim for unfair dismissal when the issue had not previously been raised. Further it had not erred in preventing a witness from giving his general opinion on the implementation of the Respondent's equal opportunities policy.

Witness immunity

Aharia v Birmingham Heartlands and Solihull Hospitals NHS Trust UKEAT/0355/07/CEA
The General Medical Council's Fitness to Plead Panel is a quasi-judicial body and absolute immunity from suit attaches to witnesses that appear before it.

Territorial Jurisdiction

Hunt v United Airlines Ltd UKEAT/0575/07/DA
The Tribunal had not erred in deciding that it did not have jurisdiction to hear the claim for unfair dismissal of a peripatetic employee who had been based in Paris and whose transfer to London was agreed but had not taken effect.

Duncombe v The Department for Education & Skills UKEAT/0433/07/DM
While the Tribunal has jurisdiction to entertain breach of contract claims for notice pay, fixed term workers whose contracts expire by effluxion of time must first obtain the necessary declaration of permanence under Regulation 9(5) of the Fixed Term Employment (Less Favourable Treatment) Regulations 2002 in order to bring a claim. That cannot be done where the claim falls outside the territorial reach of the Tribunal. The EAT, following the decision in Bleuse v MBT Transport UKEAT/0339/07, held that as a directly effective EU right was involved the Tribunal did have jurisdiction.

Statutory grievance procedures

Bottomley v Wakefield District Housing UKEAT/0550/07/JOJ
Although a document headed statutory grievance was expressed as directed to the transferor, it was still a grievance when sent to the transferee, and even though identified comparators had not transferred.

Employment status

Neufield v Secretary of State for Trade and Industry UKEAT/0177/07/JOJ
The Tribunal erred in holding that the Claimant was not an employee when he was a 90% majority shareholder yet had a contract of employment as a salesman which was not a sham, and the parties conducted themselves in accordance with the contract. Clark v Clark Construction Initiative Ltd [2008] UKEAT/0225/07 followed. Where the issue is whether payments are to be made by the Secretary of State on insolvency, the relevant date is the date at which the company became insolvent.

Vidal-Hall v Ministry of Justice UKEAT/0462/07/DA
The Claimant was employed by CSV to work at a prison. The prison had an arrangement, but not a contract, with CSV and so the prison could not be liable to the Claimant as a contract worker under s9 Sex Discrimination Act 1975 for the acts of prison officers. It was not necessary to imply a contract of employment with the prison.

Constructive dismissal

Parsons v Bristol Street Motors UKEAT/0581/07/DM
The Tribunal had erred in considering only the first part of the test for breach of mutual trust and confidence, that is whether the behaviour was calculated to destroy or seriously damage the relationship of confidence and trust between employer and employee. It had failed to consider the second part, which is whether the behaviour was likely to have such an effect. That was an objective test.

Redundancy

Martland v Cooperative Insurance Society Ltd UKEAT/0220/07/RN
Changes to the Claimants' terms and conditions did not amount to redundancy as it did not constitute a change in the kind of work within the meaning of section 139 of the Employment Rights Act 1996. In relation to contractual redundancy payments, in order for collectively agreed terms to be apt for incorporation into an individual contract the terms must, by their nature and character, be suitable to take effect as contractual terms. What is agreed is a term is defined by the contract and not as defined by the collective agreement.

Indirect discrimination

Aviance UK Ltd v Garcia Bello UKEAT/0044/07/DA
The Tribunal had not erred in its approach to the pool for comparison for indirect discrimination. A flexible approach is required, with the ability to use both statistical information and at times intrinsic knowledge, comparing at times the advantaged or the disadvantaged.

Disability Discrimination

Bury Metro Racial Equality Council v Lyle UKEAT/0466/07/DA
Following Meikle v Nottinghamshire County Council [2005] ICR 1 and O'Hanlon v Customs & Excise [2007] ICR 1359, whereas paying full pay to a disabled employee who is off work and subject to contractual reduced sick pay or SSP is not normally of itself a reasonable adjustment, and failure to do so will not normally amount to disability-related discrimination under s3A(1) Disability Discrimination Act 1995, where an employer is found not to have made reasonable adjustments which would have allowed the employee to return to work on full pay, that will amount to disability-related discrimination which cannot be justified by virtue of s3A(6).

Continuing act

Tait v Redcar & Cleveland Borough Council UKEAT/0096/08/ZT
The Claimant's disciplinary suspension was an act extending over a period, and not a one off act with continuing consequences. However it ended when the suspension ended, even though the Claimant remained off work while arrangements were put in place to transfer him to another post.

LEGISLATION

Under the Income Tax (Pay As You Earn) (Amendment) Regulations 2008 , Regulation 72F is inserted into the 2003 regulations allowing the amount of income tax that the employer should have paid on a person's earnings to be set off against the amount of income tax the employee has already paid on that income under self assessment.

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