Issue 50 - 10th June 2008

Monday 9 June 2008

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COURT OF APPEAL

Khan v The Home Office [2008] EWCA Civ 578
The Tribunal had not erred in its application of burden of proof when it concluded that the Respondent's approach to dismissal procedure, pay, special leave and CSCS compensation was untainted by race or sex discrimination.

EMPLOYMENT APPEAL TRIBUNAL

Strike out

Turner v Sandham UKEAT/0028/08/ZT
Although there had been unreasonable and scandalous conduct by the Claimant and his representative, in the circumstances a fair trial could still be held and strike out was disproportionate. Further, the Tribunal had failed to give sufficient reasons for its decision.

Tribunal's findings of fact

Woodhouse School v Webster UKEAT/0459/07/DM
It is open to a Tribunal to make findings of fact which differ from those contended for by the parties. It will not be an error of law not to alert the parties to the potential different findings and to allow them to make submissions on their legal effect if such submissions would not have made any difference.

Employment status

Cave v Portsmouth City Council UKEAT/0608/07/ZT
The Tribunal erred in failing to separate out the two issues of whether there was a contract between Claimant and Respondent at all, and if so, what was its nature.

St Ives Plymouth Ltd v Haggerty UKEAT/0107/08/MAA
The Tribunal was entitled to find that there were mutual obligations subsisting between the employer and the employee during periods when the employee, a casual worker, was not actually engaged on any particular shift. An "umbrella contract" existed on the basis of "a course of dealing" - in the circumstances there was a duty to be offered and to work a reasonable number of shifts. It is a matter of fact for the Tribunal to decide if the explanation for the conduct was the existence of a legal obligation as opposed to simply goodwill and mutual benefit. In the view of the majority of the EAT there was no reason why commercial imperatives may not over time crystallise into legal obligations.

Wages

Delmon Pizza v Melcioiu UKEAT/0112/08/CEA
Under the contract as it existed, whether a delivery driver was insured to work or not was a question of fact for the Tribunal and the reasonable belief of the employer was not relevant. Having established that the Claimant was so insured, refusing to allow him to work when he presented himself, and therefore not paying him, was an unauthorised deduction from wages. In order for that reasonable perception to relieve the Respondent from the duty to pay wages, it would have had to shown that there was an express or implied term of the contract which meant it was not obliged to pay wages unless the employee was properly insured and that he could demonstrate that fact to the Respondent's reasonable satisfaction.

TUPE

Perry's Motor Sales Ltd & Perry's Burnley Ltd v Lindley UKEAT/0616/07/DA
The transferee was liable for having automatically unfairly dismissed the Claimant by reason of its having instructed the transferor to do so, prior to the transfer, because the Claimant had brought a Tribunal claim against the transferee when it had previously employed her. As the transferee became her employer, she could then claim against it for unfair dismissal for having sought to enforce a statutory right.

Capita Health Solutions v BBC & McClean UKEATS/0034/07/MT
The Claimant objected to being transferred when part of the undertaking in which she worked was taken over by the transferee. However, at the transferor's request she agreed to work in the transferred unit for six weeks after the date of transfer under secondment from the transferor at the end of which she would resign. The transferor continued to pay her salary. The EAT held that actually going to work for the transferee after the date of the transfer was incompatible with the notion that the Claimant in law objected to the transfer and therefore her employment had transferred. Calling it "secondment" made no difference.

Unfair dismissal compensation
Hope v Jordan Engineering Ltd UKEAT/0545/07/DA
The Polkey reduction applies to compensation for loss of statutory rights/long notice in the same way as to the rest of the compensatory award.

Equal pay

Walton Centre for Neurology v Bewdley UKEAT/0564/07/MAA
A Claimant in an equal pay claim cannot compare herself with a successor insofar as she is seeking a remedy with respect to periods when her chosen comparators were not employed. Diocese of Hallam Trustee v Connaughton [1996] ICR 860 was decided per incuriam and should not be followed. Article 141, as interpreted in the case law of the European Court of Justice, does not permit such a comparison.

Race discrimination

Bayode v Chief Constable of Derbyshire UKEAT/0499/07/ZT
The Tribunal had properly come to the conclusion that in the context of the case the making and content of entries in colleagues' notebooks about the Claimant did not amount to a detriment.

Disability discrimination

Secretary of State for Work and Pensions v Heggie UKEAT/0482/07/JOJ
The Tribunal erred in finding that the Respondent had failed to make reasonable adjustments when the Claimant had not been fit to return to work in any capacity in the foreseeable future. Until he was fit to do some work the need for adjustments did not arise.

Practice Direction

The Employment Appeal Tribunal has issued a new practice direction which came into effect on 22 May 2008. More info

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