Issue 51 - 30th June 2008

Monday 30 June 2008

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HOUSE OF LORDS

Disability Discrimination

London Borough of Lewisham v Malcolm [2008] UKHL 43
Mr Malcolm had a mental illness as a result of which he sub-let his flat and went to live elsewhere. The landlord claimed possession. By s22(3)(c) Disability Discrimination Act 1995 ("DDA") it is unlawful for a person managing any premises to discriminate against a disabled person occupying those premises by evicting the disabled person, or subjecting him to any other detriment. By s24 as person discriminates against a disabled person if for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply and he cannot show that the treatment in question is justified. The Court of Appeal held that the reason for possession was related to Mr Malcolm's disability and therefore an act of discrimination giving him a defence to the proceedings. The House of Lords disagreed. The reason for the treatment is the reason which operates on the mind of the alleged discriminator. This may not be the reason given, and may not be the only reason. In this case the reason was that Mr Malcolm was not living on the premises. Here, although it may be said that but for his mental illness he would not have sub-let the flat, there was no such connection as the reason for seeking possession was a pure housing management decision which had nothing to do with his disability.

Further, the House of Lords held that Clark v Novacold Ltd [1999] ICR 951 was wrongly decided and narrowed the comparator to a person in the same position as the disabled person but without the disability (in this case a person without a mental disability who had sub-let his flat and gone to live elsewhere, or an example in the employment context a person on long-term sick who does not have a disability).
Further, knowledge of the disability, or at least imputed knowledge or a situation where a person should reasonably be expect to know of the disability, is a necessary ingredient before less favourable treatment can be established.

COURT OF APPEAL

Protective awards and liquidation

Haine v Secretary of State for BERR & Day [2008] EWCA Civ 626
The obligation to consult under section 188 Employment Rights Act 1996 ("ERA") arose before the liquidation of the company, and the ensuing protective award is a debt or liability to which the company at that point "may become subject" in due course. The protective awards in this case were therefore contingent liabilities of the company and liability lay with the liquidator.

COURT OF SESSION

Statutory Grievance Procedures

Cannop v Brown & others [2008] CSIH 38
The Court held that the grievance document and the Tribunal claim are designed to perform different functions and that their language can accordingly be expected commonly to be different. The correlation to be looked for is whether underlying the claim presented to the Tribunal is essentially the same grievance as was earlier communicated. Moreover, the grievance document need not necessarily be read in isolation. There may have been earlier communications with the employer which provide a context in which the grievance document falls to be interpreted. Events subsequent to the communication of the grievance document (for example, the giving of the "basis" prior to the Step 2 meeting and exchanges between the parties at that meeting) may illuminate the nature and scope of the grievance. Further, there may be some circumstances in which the employee (or those acting on his or her behalf) does not have access to the full facts; in such circumstances it may be sufficient to frame a grievance statement based on a suspicion or set of suspicions that certain facts exist. Although the Court of Session would not go as far as stating that in every case, the statement of grievance in an Equal Pay dispute must specify the comparator or comparators relied on, and that these must not be materially different from those relied on in the ET1, it was not clear in the present claim what comparative exercise that was undertaken by the Tribunal.

HIGH COURT

Garden leave

SG & R Valuation Services Co v Boudrais & Others [2008] EWHC 1340 (QB)
In the circumstances of the case the Defendants had the contractual right to be offered work, and not merely paid their salary for being ready and willing to work. However the right is subject to the qualification that the employee has not, as a result of some prior breach of contract or other duty, demonstrated in a serious way that they are not ready or willing to work, or that they have not rendered it impossible or reasonably impracticable for the employer to provide work. If that is the case the employer, as here, can insist the employees remaining away from work although there was no garden leave term in the contract, and they would subject to continuing contractual and other duties. In doing so it committed no repudiatory breach of contract.

EMPLOYMENT APPEAL TRIBUNAL

Statutory procedures

Yorkshire Housing Ltd v Swanson UKEAT/0057/07/JOJ
Failure to comply with a general requirement of the statutory procedures, such as the requirement that each step must be taken without unreasonable delay, is to be regarded a non-completion of the procedure, and the employee may be regarded as having been unfairly dismissed under section 98A(1) Employment Rights Act 1996 ("ERA") even if both parties had decided at the time to continue with the procedure and had in fact followed each stage through to its conclusion.

Default judgment

American E-Z Self Storage Ltd v Prince UKEAT/0539/07/DA
Although the default judgment was correctly made, the Tribunal erred in failing to consider an application to extend time and to allow the Respondent to take part in the remedies hearing.

Extension of time

Department of Constitutional Affairs v O'Brien UKEAT/0139/07/ZT
When it was considering whether it was just and equitable to extend time for a complaint under the Part-Time Worker (Prevention of Less Favourable Treatment) Regulations 2000, the Tribunal had erred by failing to consider the period of delay caused by the Claimant's unreasonable belief he was in time.

B v A and C UKEAT/0505/07/JOJ
It was legitimate for the Tribunal to infer that C reasonably assumed that the same rules in relation to the extension of time limits where the statutory grievance procedure was being followed would apply to both the employer and to the individual Respondent, as on the authorities at that time there was no reason to suppose that there were different time limits applicable. Accordingly, the Tribunal were entitled to determine the just and equitable extension on the basis that C reasonably thought that her claim against the individual respondent was in time.

London Borough of Islington v Brown UKEAT/0155/08/ZT
The Tribunal had erred in allowing an extension of time of 18 months for the filing of a claim for unfair dismissal. The fact that the Claimant had instructed her union to put in the claim and believed that it was doing so meant that it was reasonably practicable for the time limit to have been complied with. Where the adviser actually undertakes to present the claim and not merely to give advice, and the Claimant relies upon the adviser to do so, then the failure of the adviser must be treated as the failure of the claimant.

Evidence

PJ and ME Egan t/a Dell Care Home v Owen UKEAT/0035/08/DM
Even though the employer had clearly failed to adequately investigate an allegation of serious misconduct or to have a proper disciplinary procedure, it should not have been prevented from relying upon evidence which would be relevant to issues of remedy. it will be only in rare cases where a party has complied with rules and directions in relation to the submission of evidence that the Tribunal may exclude evidence where it is relevant and material.

Employment status

Postworth Ltd t/a Sky Blue v Ashworth UKEAT/0183/08/LA
The Tribunal had erred in finding that there was a contract of employment. It had failed to identify the nature of the contract after it said the written contract ceased to have effect, it had wrongly inferred a mutuality of obligations from the evidence of the Claimant, and there was no adequate analysis of the issue of control.

Fitton v City of Edinburgh Council UKEATS/0010/07/MT
An employee who undertook a permanent secondment with another employer and relinquished her post with the Respondent had ceased to be employed by the Respondent at the time she was subsequently dismissed and therefore it was not liable for unfair dismissal.

Unfair dismissal compensation

Wings Aeromedical Services Ltd v Alderson UKEAT/0411/07/ZT
Under s224 ERA in the absence of a series of 12 consecutive weeks where remuneration was paid ending with the effective date of termination, or the week before the effective date of termination, as appropriate, the Tribunal cannot pick any random week or weeks in the past when remuneration was payable. If any weeks in that period are to be disregarded they must be replaced by the next preceding week or weeks in which remuneration was payable. The compensatory award was not necessarily linked to the calculation of the basic award and in this case it was based on the Tribunal's finding of fact as to what was just and equitable in all the circumstances, having regard to the loss sustained by the complainant in consequence of the dismissal, which will include the amount of future work available.

National Minimum Wage

Revenue & Customs v Annabels (Berkley Square Ltd) & others UKEAT/0562/07/RN
Where restaurant or bar service charges are paid by the customer to the employer, but are then paid into a troncmaster's bank account for distribution by him/her in accordance with a tronc scheme agreed between the troncmaster and employees, the sums so distributed to employees are not "paid by the employer" for the purposes of being included in the National Minimum Wage calculation.

Burrow Down Support Services Ltd v Rossiter UKEAT/0592/07/LA
The amendment to Regulation 15 National Minimum Wage Regulations 1999 did not alter the law in relation to payment when employees were allowed to sleep on shift as this was still time at work for the purposes of Regulation 3. British Nursing Association v Inland Revenue [2002] IRLR 480 and Scottbridge Construction Ltd v Wright [2003] IRLR 21 still applied.

TUPE

Kimberley Group Housing Ltd v Hambley & others UKEAT/0488/07/RN
When considering whether a service has been transferred under Regulation 3(1)(b) TUPE Regulations 2006 the Tribunal must first identify the relevant activities before considering whether they have ceased to be carried out by a contractor on a client's behalf and are carried out instead by another person on the client's behalf. Under Regulation 3(3) it then has to consider whether, immediately before the ceasing of activities by a contractor on a client's behalf, there was an organised grouping of employees which had as its principal purpose the carrying out of the activities concerned on behalf of the client. It is not necessary nor apparent that "transferee" should be understood as being singular when one is looking at a service provision change or transfer of an undertaking business or part of an undertaking in 3(1)(a). In the present case the Tribunal erred in apportioning liability between the two new contractors on a percentage basis and should have applied the principles in Botzen v Rotterdamsche Droogdok Maatschappij B.V. [1985] ECR 519 recognised in Duncan Webb Offset (Maidstone) Ltd v Cooper [1995] IRLR 633 and asked to which part of the undertaking the employees were assigned.

Appeals to the EAT

Kennaugh v Lloyd-Jones t/a Cheshire Tree Surgeons UKEATPA/0710/07/DA
Following Aziz Mir v Sainsbury's Supermarket Plc (UKEATPA/0537/06/JOJ), where there is a corrected judgment which substitutes a fresh judgment and reasons for the old, the time for appeal runs from the date of correction, not the date of the original judgment. Although in the present case the appeal was still not properly instituted in time as the Claimant in error lodged the original judgment rather than the corrected judgment with the Notice of Appeal he had done everything bar lodging the corrected judgment and reasons to bring the matter to the attention of the EAT within time. When asked for the document he supplied it immediately. In these circumstances, the EAT would exercise its discretion in favour of extending time for the appeal.

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