Issue 54 - 22nd September 2008

Monday 22 September 2008

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EUROPEAN COURT OF JUSTICE

Age Discrimination

Age Concern England v UK Case C-388/07
The Advocate General has decided that the UK government was not required to set out a specific list of the differences in treatment on the grounds of age which may be justified by reference to a legitimate aim under Regulation 3 Employment Equality (Age) Regulations 2006. Further a rule such as Regulation 30 which permits employers to dismiss employees aged 65 or over if the reason for dismissal is retirement, can in principle be justified under Article 6(1) of Directive 2000/78 if it is objectively and reasonably justified in the context of national law by a legitimate aim relating to employment policy and the labour market and it is not apparent that the means put in place to achieve that aim of public interest are inappropriate and unnecessary for the purpose.

EMPLOYMENT APPEAL TRIBUNAL

Appeals

Lewis v Department for Work and Pensions UKEAT/0413/07/DM
The EAT makes observations on applications out of time for transcripts of unreserved EAT judgments where judgment is given at a hearing.

Bennett v Governing Body of Pennoweth School & ors UKEAT/0207/08/DA
An amendment to the notice of appeal raising a new point would be allowed. The Tribunal had had no jurisdiction to strike out the claim at the CMD. Although the amendment had been made late, the Claimant had not been represented during the intervening period.

Haritaki v South East England Development Agency UKEATPA/0006/08/DA
The EAT explains the Rule 3 procedure on appeals.

Costs

Dean and Dean Solicitors & others v Dionissiou-Moussaoui UKEAT/0140/08/ZT
The Tribunal had not erred in failing to award costs against the Claimant for unreasonable conduct. It was open to it to find that the reason that three partners were named in addition to the firm was related to the provisions of the Partnership Act and not to expose them to embarrassment as alleged. Further, the Tribunal was not wrong to take into account the difficulties with the statutory grievance procedures when considering whether pursing the claims was unreasonable conduct.

Time off for health and safety representatives

Walker v North Tees and Hartlepool NHS Trust UKEAT/0563/07/RN
Under Regulation 4(2)(b) Safety Representatives and Safety Committee Regulations 1977 the Tribunal must identify such training in the safety representative's functions that may be reasonable in all the circumstances (including having regard to the Code of Practice), then identify whether and what paid leave is necessary for that training. In the present case the Tribunal erred in conflating necessity and reasonableness.

Continuity of employment

Kennaugh v D Lloyd-Jones t/a Cheshire Tree Surgeons UKEAT/0208/08/DA
Under s212 Employment Rights Act 1996 the first question is whether between the start date of the employment and the effective date of termination there was there any week during the whole of which there was no contract of employment (s212(1)). If there was, the next question is whether during each of those weeks any of the circumstances in s212(3) applies. Here the question was whether the Claimant was incapable of performing the work he was employed to undertake under the previous contract, that is as a tree surgeon, by reason of sickness or injury.

Constructive dismissal

Moghal v Hudda UKEAT/0210/08/DA
The Tribunal had erred in its approach to the allegations by the Claimant, the cumulative total of which she claimed resulted in a completed breakdown of the trust and confidence between her and her employer. While it was not necessary to deal with each and every allegation by itself, the Tribunal had to make clear findings and to give reasons for those findings in relation to the overall nature of the complaints being made.

Variation of contract/dismissal

Amey v Portsmouth Hospitals NHS Trust UKEAT/0130/08/JOJ
In the absence of an express termination, following Hogg v Dover College [1990] ICR 39, a variation will be treated as a termination of the original contract of employment and re-engagement under a new contract amounting to a dismissal if the changes are so fundamental that the employee could not be said to be employed under the original contract of employment. The Tribunal had not erred in its decision that the variation was not to be treated as a dismissal, however it had failed to deal with the alternative submission that there was an express dismissal.

Working time

Industrial & Commercial Maintenance Ltd v Briffa UKEAT/0215/08/CEA
A relevant agreement as defined under Regulation 2 Working Time Regulations 1998 may legally operate to vary the employer's obligation to give notice under Regulation 15(1) - (4) by virtue of Regulation 15(5). In the present case there was an agreement that the employer could insist that the notice period be taken as holiday. This did not contradict the policy behind the legislation which was to ensure that workers had paid holiday.

Race discrimination

Sheshtak v Royal College of Nursing UKEAT/0270/08/MAA
In the circumstances, where substantial allegations were not in dispute, it was permissible in considering whether to strike out for the Tribunal firstly to look at the allegations, taking them at their face value and at their highest and, if necessary, to supplement that documentary evidence by brief evidence from the parties involved. In doing so the Tribunal had not erred in striking out the Claimant's claims under s11 and s33 Race Relations Act 1976 as having no reasonable prospects of success on the basis of documents and brief evidence.

Disability Discrimination

Lewis v Department for Work and Pension UKEAT/0413/07/DM
The Tribunal had not erred in finding that there had been no failure to make adjustments when the Claimant's specially adapted chair had been removed for repair and six replacements had been provided in the interim.

Johnson v AWE plc UKEAT/0131/08/CEA
The Claimant had to be medically retired early due to personal injury. He compromised two claims against his employer for personal injury in negligence and/or breach of statutory duties under health and safety legislation. He then pursued claims for failure to make reasonable adjustments to the job he had been doing or by finding alternative work which would have enabled him to remain in work until he was 65. The Respondent appealed on the basis that issue estoppel arose in respect of earnings and pension contributions during this period. The EAT held that in the circumstances it did not, however the Tribunal may not make an award of compensation for loss of earnings or pension insofar as either of those items were properly considered by the Tribunal (a) to have been compensated for already in the two personal injury actions and the consent order or (b) to be the subject of issue estoppel arising out of the proceedings between the parties in the County Court in the second personal injury action.

Equal pay

Hartlepool Borough Council v Dolphin & ors UKEAT/0007/08/CEA
The Tribunal, in finding that the bonus schemes operated by the Respondent were a sham and disguised the true reason for the scheme which was tainted by sex, did not err in taking into account the absence of review, measurement or monitoring as to the continued effect of the schemes and in finding they could not be used in justification as a genuine material factor. However it erred in relation to finding indirect discrimination in relation to one group of workers as there was no prima facia on the statistics presented.

PRACTICE DIRECTION

The President of the Employment Tribunals has issued a Practice Direction which stays all claims concerning the circumstances in which a director and majority shareholder of a company may be regarded as an employee for the purpose of a claim against the Secretary of State pursuant to s182 Employment Rights Act 1996 pending the outcome of the Court of Appeal decision in Secretary of State for Business, Enterprise and Regulatory Reform v Neufeld which is listed for hearing on 3 and 4 December 2008.

Direction 6

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