Issue 57 - 5th January 2009

Monday 5 January 2009

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Part-time workers

O'Brien v Department for Constitutional Affairs [2008] EWCA Civ 1448
Part-time judges are not protected by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and Regulation 17 applies. Note: a case on the same point, Miller v Ministry of Justice, has been referred by a Tribunal to the ECJ, however that decision to refer is currently being appealed to EAT.

Procedural irregularity

Clark v Clark Construction Initiatives & Anor [2008] EWCA Civ
While there is no universal test of procedural irregularity, the Tribunal's determination was not vitiated by reference to uncanvassed and untraceable authorities where these were not central to and influential in the eventual decision. The reasons given sufficiently met the criteria of intelligibility, coherence, candour and transparency. Obiter: if the parties agree that the Claimant has the required one year's service to bring a claim for unfair dismissal, their agreement will ordinarily determine jurisdiction.

Sexual orientation discrimination

English v Thomas Sanderson Ltd [2008] EWCA Civ 1421
Harassment through "homophobic banter", of a person who is not gay, is not perceived or assumed to be gay by his fellow workers, and accepts that they do not believe him to be gay, is "on grounds of sexual orientation" under Regulation 5 of the Employment Equality (Sexual Orientation) Regulations 2003.


Strike out

Chambers-Mills v Allied Bakeries UKEAT/0165/08/LA
The Tribunal had not erred in striking out the Claimant's claim for disability discrimination on the basis that her conduct of the proceedings had been unreasonable, and because she had failed to comply with orders of the Tribunal by non-cooperation in the production of a joint medical expert report.

Substitution of Respondent

Ryan v Bennington Training Services UKEAT/0345/08/LA
If the Tribunal substitutes one Respondent for another then, following Cocking v Sandhurst Stationers Ltd and another [1974] ICR 650, the substitution relates back to the date when the original claim form was submitted. The claim was not therefore out of time.

Restricted reporting orders

Tradition Securities and Futures SA & ors v Times Newspapers Ltd & ors UKEATPA/1415/08/JOJ
The Tribunal had been entitled to vary a Restricted Reporting Order to permit the naming of Claimants against the objection of the alleged perpetrators of sexual misconduct. Such orders, like case management orders should only be varied where there was a material change of circumstances or other exceptional reason. In this case there were sufficient grounds to justify reconsideration by the Tribunal, notwithstanding a previous order prohibiting the naming of the Claimants. It was in principle open to the Tribunal to prohibit the naming of the Claimants if this might lead to the identification of the alleged perpetrators. But on the facts of the case it was not established that the identification of the Claimants would necessarily have this effect.


Brennan & ors v Sunderland City Council & ors UKEAT/0349/08/LA
The EAT held that the Tribunal was correct to reject an application for disclosure of legal advice on the basis of an argument that its effect, and a summary of its contents, had been put before the court and therefore privilege was waived.

Extension of time

Wright v Wolverhampton City Council UKEAT/0117/08/LA
The Tribunal erred in not extending time for a claim of race and sex discrimination when, having accepted an explanation that the Claimant was relying on her trade union advice in not putting in her ET1 within the original time limit as justifying an extension of time, it then considered it was not just and equitable to extend time further even though the subsequent delay was also based on reliance on union advice.

Schiedel Rite-Vent Ltd v Tate UKEAT/0367/08/DM
The Tribunal had erred in failing to make key findings at to why the claim form had not been filed within the time limit.


Balamoody v Nursing & Midwifery Council UKEAT/0115/08/JOJ
The simple fact that a chairman had stood down at a previous hearing in the claim did not of itself mean the same chairman should have recused himself at a subsequent hearing. The test is whether there is a real danger of bias. In the present case the chairman had "recused" himself before on purely pragmatic grounds and there was no danger of bias. Guidance in Ansar v Lloyds TSB Bank plc [2006] ICR 1565 applied.

Statutory grievance procedures

Waite v South East Coast Ambulance Service NHS Trust UKEAT/0274/08/DA
The statutory grievance procedure applies to a claim for detriment under s 48 Employment Rights Act 1996 ("ERA"). Schedule 2, paragraph 15, Employment Act 2002 only applies to the protected disclosures provision in Part 4A ERA.


MacKenzie v Billing Acquadrome Ltd UKEAT/0238/08/ZT
The Claimant claimed he was dismissed, the Respondent that he resigned. The Tribunal had erred in that if failed to make key findings as to the facts in dispute and how the employment contract had come to an end.

Part-time workers

Dorset County Council v Omenaca- Labarta UKEAT/0092/08/DA
Although the Tribunal erred when assessing justification under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, as amended, by failing to take into account the fixed term nature of the position, on the facts of the case they were still correct in coming to the conclusion that termination had not been justified.


Royal Mail Group v Communication Workers Union UKEAT/0338/08/DA
The Respondent was not acting in breach of Regulation 13 TUPE by misstating the effect of Regulation 4 and by identifying the measures it proposed to take on the premise that its analysis of the regulation was correct. The obligation was to state what it genuinely thought those implications were. It was not warranting that its analysis was correct.

Age discrimination

Seldon v Clarkson Wright & Jakes UKEAT/0063/08/CEA
A partnership had a provision in the Partnership Agreement which required partners to resign at 65 (although they could be kept on by agreement). The Claimant alleged that this was age discrimination. The EAT held that the Tribunal had erred in finding that the direct discrimination was justified in part on the assumption that performance tails off at around this age. This was not supported by any evidence and involved stereotyping. The EAT held that the test with respect to direct age discrimination is the same as that which applies to the other forms of discrimination. It is not correct that direct age discrimination should be permitted only in very exceptional cases. The normal principles of legitimate aim and proportionality apply. The EAT also rejected a submission there could be no justification at all where the firm had never considered the impact of the age discrimination legislation nor addressed the justification for the policy it has adopted. Further, it is appropriate when assessing justification to consider whether the particular rule was agreed between the parties.

Disability discrimination

Noor v Home Office (Border & Immigration Agency) UKEAT/0252/08/DA
While the effects of an illness or disability can have an increasingly adverse effect on an employee, once a Tribunal has determined that an impairment did not have a substantial adverse effect on an employee's ability to carry out normal day-to-day activities, there would have to be an appreciable difference in the facts relating to the adverse effects if issue estoppel was not to apply in the future.

HM Land Registry v Wakefield UKEAT/0530//07/ZT
The Tribunal's assertion that if a disabled employee honestly asserted an entitlement to an adjustment the employers were bound to make it unless they could establish good reason for not doing so was wrong in law.

Race discrimination

Eydatoulah v Brighton and Sussex University Hospitals NHS Trust UKEAT/0583/07/DM
The Tribunal was right to hold that that the Claimant was estopped from pursuing claims in a third set of proceedings on the grounds that he was re-litigating matters already dealt with or which should have been dealt with in his first and second proceedings.

Allied Healthcare Group Ltd v George UKEAT/0169/08/ZT
The Tribunal erred in deciding that the Respondent had discriminated against the Claimant on a ground which was not pleaded or said to be an issue in the case without alerting the parties to the point and giving them the opportunity of dealing with it.

Religious discrimination

London Borough of Islington v Ladele UKEAT/0453/08/RN
The Claimant was a registrar who refused to undertake civil partnership work because of her religious beliefs. The EAT held that there was no direct discrimination as she was treated in the same way as anyone who would have refused to carry out civil partnership work. With respect to indirect discrimination, once it was accepted that the aim of providing the service on a non-discriminatory basis was legitimate, then the Respondent was entitled to require all registrars to perform the full range of services. The Respondent was entitled to prohibit the Claimant from choosing what duties she would perform depending upon whether they were in accordance with her religious views, at least in circumstances where her personal stance involved discrimination on grounds of sexual orientation.

Sex discrimination

F&C Asset Management plc & ors v Switalski UKEAT/0423/08/CEA
The Tribunal erred in the in dismissing the Respondent's application for review by reference to fresh evidence and/or the interests of justice. It also erred in its decision in relation to constructive dismissal, sex discrimination and victimisation.

Part-time pensions

Lavety v Lanarkshire Health Board and Scottish Ministers UKEATS/0033/08
When considering a scheme which was compulsory for full-timers but from which part-time works were excluded the question for the Tribunal is whether or not the Claimant could establish that had she been afforded access to the pensions scheme when she should have been, she would, on a balance of probabilities, have joined it.

Equal pay

Wilson v Health and Safety Executive UKEAT/0050/08/MAA
Once it is accepted that the nature of the job is such that pay can properly be made to depend on length of service, the Tribunal may also consider in an appropriate case the particular way in which the criterion is applied.


The Employment Rights (Increase of Limits) Order 2008 increases compensation limits in Tribunals and will come into effect on 1 February 2009. The new limits include unfair dismissal compensation of £66,200 and a week's pay of £350.



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