Issue 50 - 23rd May 2008

Friday 23 May 2008

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Correction of decisions

Bone v London Borough of Newham [2008] EWCA Civ 435
The Tribunal could not use the "slip rule" under Rule 37 to include, at a remedies hearing, a finding which had been omitted from its original liability judgment that an unfair dismissal was direct discrimination and victimisation. However, given that the intention to make such a finding was clear and that it was a decision which the Tribunal could have come to on the facts, the EAT should have invited the Tribunal to provide its reasons for the finding, applying Burns v Consignia (No 2) [2004] IRLR 425.

Race discrimination

Oyarce v Cheshire County Council [2008] EWCA Civ 434
Section 54A Race Relations Act 1976 ("RRA") correctly transposes the European Directive and the reverse burden of proof does not apply to claims of victimisation under the RRA.

Statutory disciplinary procedures

Towergate London Market Ltd v Harris [2008] EWCA Civ 433
When considering whether, under the provisions of Regulation 15(2) Employment Act 2002 (Dispute Resolution) Regulations 200, there should be an extension of time for bringing a claim of unfair dismissal the question is whether the Claimant believed on reasonable grounds that at the expiry of the normal time limit there was an ongoing procedure to enable her or him to challenge the dismissal. In the present case the Tribunal had erred in focussing on the fact that the Claimant had put in a grievance about her dismissal for redundancy instead of an appeal.

Employment status

Consistent Group Ltd v Kalwak [2008] EWCA Civ 430
The Tribunal had failed to give adequate reasons for the finding that the contract between the employment agency and its workers was a sham, that is that, at the time of the contract, both parties intended it to misrepresent their true contractual relationship. The decision failed to deal with directly contrary evidence on a central point or explain why it was rejected.


Statutory grievance procedures

Riley v First Choice Homes Oldham Ltd UKEAT/0051/08/DA
The Claimant had failed Step 1 of the modified grievance procedure. While the basis of some of the claim had been identified in the letter, it was not the same claim, nor a claim substantially similar to, the claims finally lodged with the Tribunal. The Tribunal had therefore no jurisdiction to hear the equal pay claims.

Clyde Valley Housing Association v MacAulay UKEATS/0045/07/MT
The Claimant had failed to comply with the modified procedure by failing to set out the basis for the grievance in the Step 1 letter that is the acts being relied on and the basis for the allegations for her claims of constructive dismissal and disability discrimination.

Statutory dismissal procedures

McKindless Group Ltd v McLoughlin UKEATS/0010/08/MT
In considering whether or not there should be an uplift beyond 10 per cent, the Tribunal can look to any facts which show how culpable the employer has been in his failure to comply and any other facts and circumstances surrounding the non-compliance but it cannot look at what happened later, once there were Tribunal proceedings ongoing. A failure to carry out any stage of the statutory procedure would not necessarily point to an uplift beyond 10 per cent. It would depend on the circumstances in which that came to occur including the level of culpability involved. The EAT held that it is for the Claimant to put forward evidence as to why the uplift should be above 10 percent.


Johnson v Edwardian International Hotels Ltd UKEAT/0588/07/ZT
The Employment Tribunal has no power to seek the intervention of the Official Solicitor where it believes a party may lack mental capacity. Although under s29 Employment Tribunals Act 1996 the Employment Appeal Tribunal has such a power the EAT doubted whether it would be right to use that power in order to obtain assistance by the back door for the Tribunal.

Delay in judgment

Carpenter v City of Edinburgh Council UKEATS/0038/07/MT
In the particular circumstances of the case the delay of over three years between the last date of hearing and the issuing of judgment by Tribunal gave rise to a real risk that the Claimant was denied his Article 6 right to a fair trial.

Expert evidence

Saunder v Birmingham City Council UKEAT/0591/07/RN
The Tribunal had not erred in refusing to exclude the evidence of a joint expert who had been appointed by the Tribunal on the Claimant's argument that he was biased, however it had erred in failing to allow the Claimant to subsequently adduce its own expert evidence.

Employment status

Protectacoat Firthglow Ltd v Szilagyi UKEAT/0435/07/DA
The Tribunal had not erred in finding that the Claimant was an employee and that the partnership agreement was a sham. Payments were made directly to the partners and not to the partnership; there was no partnership account; the individuals had to attend every day for work; there was evidence that another individual had been dismissed for doing work of a private nature; the rental payments for the van were never made; and the Respondent treated the documents as no more than formal requirements of no real significance.

Dependent leave

Cortest Ltd v O'Toole UKEAT/0470/07/LA
The purpose of s57A Employment Rights Act 1996 ("ERA") is to cover emergencies and enable other care arrangements to be put into place. A period as long as one month or even longer for care by a parent would rarely fall within s57A especially where there was no evidence that any other arrangements to care for dependents were sought, for example, neighbours or other relatives or any other kind. The section intended to provide time for putting in place other care. Qua v John Morrison Solicitors [2003] IRLR 184 followed.

Redundancy - suitable alternative employment

Commission for Healthcare Audit & Inspection v Ward UKEAT/0579/07/JOJ
In deciding whether or not refusal of alternative employment was unreasonable under s141(2) ERA it was permissible for the Tribunal to take into account its objective view as to how suitable the employment was for the Claimant.

Rest breaks

Miles v Linkage Community Trust Ltd UKEAT/0618/07/DA
The obligation under Regulation 24 Working Time Regulations 1998 for compensatory rest periods is only triggered when there has been an actual refusal by an employer of a request for a rest period. When looking at the issue of compensation under regulation 30(3)(b), the Tribunal must look at the period of time during which there had been a default, the degree of default ie how outrageous or offensive the behaviour, and the amount of the default in terms of the number of hours required to work and to be given off as rest periods. In the present case the Tribunal had not erred in its decision not to award any compensation, which is a discretionary remedy.

Disability Discrimination

Nichols v Corin Tech Ltd UKEAT/0290/07/LA
Alleged abuse and intimidation by the Respondent in the Tribunal building after the hearing of a disability discrimination claim could haven arisen out of and have been closely connected with the employment relationship and therefore would fall within the terms of s16A(3) Disability Discrimination Act 1995. Such alleged conduct would not attract judicial proceedings immunity.

The Chief Constable of Lincolnshire Police v Weaver UKEAT/0622/07/DM
The Tribunal erred in its approach to whether adjustments were reasonable by focusing only the Claimant's position. The Tribunal was obliged to engage with the wider operational objectives of the force in introducing the allegedly discriminatory retention policy, the benefits to the force of the policy and the consequences for other officers. The fact that the Respondent deliberately adopted a policy which operated to the disadvantage of disabled people was not a relevant factor when considering whether a reasonable adjustment could be made.

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