Issue 53 - 8th September 2008

Monday 8 September 2008

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Strike out

Way v Powercraft Retail Ltd UKEAT/0217/08/MAA
An order striking out a claim or response cannot be made at a case management discussion.

Waiver of privilege

Tradition Securities & Futures SA v X & Y UKEAT/0202/08/MAA
The Tribunal had not erred in finding, in the context of an application to extend time for bringing a claim of sex discrimination, that the Claimant had not waived privilege in relation to communications with her solicitor in her evidence explaining her difficulties in giving instructions due to her mental state. It was not evidence of the contents of the privileged communications but of a state of mind and ability to give instructions over the material period of time.

Statutory grievance procedure

Thornton Print Ltd v Morton UKEAT/0090/08/JOJ
Although a letter inviting the Claimant to a disciplinary hearing was in itself a breach of contract and was significant in the timing of the decision to resign, it was not the last straw in the sense that it was the final matter that constituted a repudiatory breach of contract and therefore it did not have to be included in the grievance letter. A repudiatory breach had already occurred and the letter was merely the trigger for the decision to accept the breach.


Ramsey & ors v Bowercross Construction Ltd UKEAT/0534/07/DA
While the Tribunal had not erred in finding that the Claimants' claim that they were employees of the First Respondent was misconceived, it was only after disclosure that it should have become clear to the Claimants' representatives and proceedings discontinued, not when the ET3 was served some months earlier. In relation to the costs that may be recovered, a party can recover counsel's fees but not those of a non-legally qualified adviser, as defined in s71 Courts and Legal Services Act 1990. However the Tribunal could not make a preparation time order for those costs as well as a costs order (Rule 46(1)). The principles in Agassi v Robinson (HMIT) (No. 2) [2006] 1 WLR 2126 apply where the Tribunal is carrying out the assessment under Rule 41(1)(a).

Effective date of termination

Radecki v Kirklees Metropolitan Borough Council UKEAT/0114/08/DA
The Tribunal had erred in finding that the EDT was that contained in a draft compromise agreement expressed to be without prejudice and subject to contract, and which was never signed. There was no freestanding separate agreement that the date of termination was the one in the draft agreement. Even though the Claimant was taken off the payroll at that date and never returned to work, this was not an unequivocal termination of the contract of employment but could be explained by the continued negotiations and the expectation that the agreement would be confirmed.

Dismissal/variation of contract

Darby & Still v The Law Society of England and Wales UKEAT/0447/07/ZT
The Tribunal had erred in finding that the Claimant's were not dismissed but instead had their contracts varied. On a reasonable construction of the documents, they constituted notice of termination of the current contract of employment with the prospect of re-engagement.

Unfair dismissal

Ford v Libra Fair Trades Ltd UKEAT/0077/08/MAA
The EAT held, confirming the approach in Farrant v The Woodroffe School EAT/1117/96, that in a case in which the employer is relying on conduct which he genuinely and reasonably believes to have been conduct in relation to duties which fell within the contract of employment, it is not necessary for the Tribunal in deciding whether the dismissal was unfair to determine whether the duties were or were not part of that contract. It is open to the Tribunal to decide what the employer's reason was on the basis of the employer's genuine belief. However for a breach of contract claim the Tribunal has to consider what were in fact the contractual requirements.

Dalitis t/a Shanklin Motor Co v Plissi UKEAT/0127/08/MAA
Where there was a dispute as to whether there was a dismissal or resignation with either party asserting that different words were used, the Tribunal were under a duty to resolve the crucial issue as to what was said and then proceed on the basis of the words which they found to have been said, rather than to proceed on the basis of words which did not represent either parties' case and which the Tribunal did not find to be all that was said.

Adey-Jones v O'Dowd UKEAT/0098/08/DA
Where an employee suffered illness partly as a result of the employer's conduct and partly for other reasons an Employment Tribunal must make careful findings and follow the guidance of cases such as Seafield Holdings Ltd (trading as Seafield Logistics v Drewett [2006] ICR 1413. It should also attempt to determine whether the illness was caused by breach of the implied alleged duty of trust and confidence or by wrongful dismissal; see GAB Robins (UK) Limited v Triggs [2008] EWCA Civ 17 and GMB Trade Union v Brown [2007] UKEAT/0621/06.

Kitsons Environmental Europe Ltd v Hendry UKEATS/0002/08/MT
When considering a reduction of the compensatory award the Tribunal must identify the conduct in question, consider its nature and decide whether the Claimant was culpable in respect of it, to any extent. That will usually involve reaching a view as the characterisation of the conduct.

Protected disclosure

Muchesa v Central & Cecil Housing Care Support UKEAT/0443/07/ZT
Although the test for reasonable belief in section 43B(1) and section 43G(1)(b) Employment Rights Act 1996 were different, Darnton v University of Surrey (2003) ICR 615 EAT and Babula v Waltham Forest College [2007] ICR 1026 were relevant to both sections and provide clear guidance as to the approach which a Tribunal should adopt in deciding an issue arising under section 43G(1)(b) also.

Sex discrimination

Tradition Securities & Futures SA v X & Y UKEAT/0202/08/MAA
Where an employee of French nationality had worked for a French registered company for three years in Paris followed by two years in London, and alleged a course of sex discrimination and harassment against her extending over the whole five year period, the allegations of discrimination in Paris were not justiciable in an Employment Tribunal.

Disability discrimination

Mahon v Accuread Ltd UKEAT/0081/08/ZT
It was unfair to allow cross-examination of the Claimant to the effect that he had exaggerated the symptoms of his illness when the joint expert who had medically examined him and had accepted his symptoms had not been required to attend the hearing and no notice proper of the issue having been given. Further the Tribunal had not taken the necessary care in using their own observations as laymen to contradict the conclusions of a jointly instructed expert. Any concerns they had about the Claimant's credibility as to his symptoms should have been put to him, and the conclusions recorded.

Equal pay

Hovell v Ashford & St Peter's Hospital NHS Trust UKEAT/0163/08/RN
The same JES banding of the Claimant from a specific date is some evidence that her job and that of her comparators are of equal value, but is not determinative of equal value before that date.

Potter & ors v North Cumbria Acute Hospitals NHS Trust UKEAT/0004/08/CEA
Where there has, or may have, been material changes in a Claimant's or comparator's job, or in its content, over the claim period, it is necessary in principle to establish what her rights were as at each pay-day over the period to which her claim relates. This requires the facts to be stated (and, where necessary, found by the Tribunal) on a distinct basis in respect of the different parts of the period. The EAT gives guidance on how such issues may be case managed. In the present case that had not happened and the JARs were prepared only on the basis of the facts on the date the claims were issued. Nevertheless in the circumstances the Tribunal had not erred in stating that it would determine the issue over the whole period of the claim and consider the impact of any alleged changes in job content at a later stage in the light of the reports. This may or may not require a further expert report. This was all in accordance with the Equal Pay Rules.


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