Issue 58 - 2nd February 2009

Monday 2 February 2009

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Holiday pay

Stringer v HMRC C 520/06
Under the Working Time Directive, national legislation or practices can prevent workers from taking holiday while on sick leave. However, workers will still accrue holiday entitlement during their sick leave. They are entitled to take this holiday on returning to work or to be paid in lieu if their employment terminates.


Claim form

Anthony Chowles t/a Granary Pine v West UKEAT/0473/08/DM
A claim form sent to the Respondent which mis-spelled the Respondent's surname and had two errors in the address was not sent to him under Rule 2 and it was not therefore necessary to decide whether or not the Respondent was telling the truth when he said he did not receive it. UKEAT/0473/08

Strike out

Neary v the Governing Body of St Alban's Girls School & Anor UKEAT/0281/08/LA
A strike out under Rule 13(2) for failure to comply with an unless order is automatic and there need be no notice or hearing. A Rule 13(2) order amounts to a conditional judgment which becomes a final determination of the proceedings under Rule 28(1)(a) if the party fails to comply with the underlying order and therefore is capable of review under Rules 34-36. There is also the power under Rule 10 to grant relief from sanction. On reviewing the decision the Tribunal should consider all the factors set out in CPR 3.9(1), however failure to mention a factor will not be an error if omission is not relevant to the facts of the particular case.


HSBC Bank plc v Da Gama UKEAT/0532/08/DA
The Employment Judge erred in refusing the request for a postponement of the trial by the Respondent as he failed to take into account the question of prejudice to each side in refusing the postponement and the reason for the request for a postponement.
UKEAT/0532/08 & UKEAT/0533/08

Procedural irregularity

Cafanga v ISS Mediclean Ltd UKEAT/0318/08/ZT
There was no unfairness when the Respondent changed the factual basis of the defence three days before hearing. It was not a matter which would have been in dispute on the day of the hearing.

Statutory disciplinary procedures

Compass Group UK & Ireland Ltd t/a Scolarest v Celebi UKEAT/0152/08/RN
The Tribunal had conflated Step 1 and Step 2 of the statutory disciplinary procedures and therefore erred in finding that Respondent had failed to comply with them. The Tribunal further erred by substituting its own judgment of the fairness of the dismissal and for failing to adequately consider the Polkey issue.
UKEAT/0152/08 & UKEAT/0251/08

Constructive dismissal

Flintshire County Council v Michaelides UKEAT/0189/08/DM
The Tribunal erred in focussing on a particular incident rather than asking whether the Claimant was entitled to resign on the basis that the Respondent had, without reasonable and proper cause, conducted itself in such a way that he was entitled to terminate the contract and claim he was unfairly dismissed.

Stuart Peters Ltd v Bell UKEAT/0272/08/DM
The principle in Norton Tool Company Ltd v Tewson [1972] ICR 501 applies to constructive dismissal compensation. The Tribunal had not erred in declining to offset or credit the earnings actually received by the Claimant from alternative employment in the course of her six-month notice period against the compensation awarded in relation to that period under s123 Employment Rights Act 1996 ("ERA").

Sexual orientation discrimination

Grimshaw v Griffin Signs Ltd & ors UKEAT/0299/08/DA
Although acts of harassment were made out, the Tribunal had not erred in finding that they did not constitute part of a continuing act of discrimination or that it was not just and equitable to extend time.

Unauthorised deductions from wages

Lucy & ors v British Airways plc UKEAT/0033/08/LA
The Claimants were cabin crew whose base was closed but who were not dismissed nor were they rostered for flying duties. If they had flown, the Claimants could have become entitled, depending on differing criteria, to payment of one or more of a number of allowances. The EAT held that while the claims were difficult to quantify they were quantifiable. However the claims were not for wages but for remuneration which only became payable to the employees if the applicable tasks were carried out, which they were not. The claim was for damages for loss of opportunity to earn the remuneration and therefore could not be brought before the Tribunal while their employment continued.

Small & ors v Boots Co plc & Boots UK Ltd UKEAT/0248/08/MAA
The Employment Judge erred in treating the use of the term 'discretionary' in the documentation as determinative against the bonus scheme having contractual effect. Further, he erred in failing to take into account the invariable practice of making payments over many years. A claim for a bonus under a 'substantially equivalent' scheme on a TUPE transfer is for an unquantified amount and cannot be brought as a claim for an unauthorised deduction from wages.

Patel v Marquette Partners (UK) Ltd UKEAT/0190/08/JOJ
A deduction of £65,000 from the Claimant's untaxed bonus earnings indicated by the HMRC under threat of enforcement is an excepted deduction under s14(3) ERA, which applies not simply to formal determinations under PAYE Regulation 80 but to other decisions. The employer was bound to make the deduction which was authorised.


Oakland v Wellswood (Yorkshire) Ltd UKEAT/0395/08/DM
Where joint administrators continue to trade a business with a view to its sale as a going concern, any relevant transfer in those circumstances will attract protection for employees under Regulation 4 TUPE Regulations 2006. However in this case the Judge was entitled to conclude that the appointment of Joint Administrators was with a view to the eventual liquidation of the assets of the transferor. Regulation 8(7) therefore applied.

Amicus & ors v City Building (Glasgow) LLP UKEATS/0007/08/MT
The transferee has no obligation under TUPE to consult with the representatives of the transferred employees after the date that the transfer was completed in respect of any envisaged measures that might affect transferred employees.
UKEATS/0014/08 & UKEATS/0007/08

Disability discrimination
Eastern and Coastal Kent plc v Grey UKEAT/0454/08/RN
Under section 4A(3)(b) Disability Discrimination Act 1995 ("DDA") an employer is exempt from the duty to make adjustments if each of the following four matters can be satisfied. The employer (a) does not know that the disabled person has a disability; (b) does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled; (c) could not reasonably be expected to know that the disabled person had a disability; and (d) could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.

McKechnie Plastic Components v Grant UKEAT/0284/08/MAA
In the circumstances the Tribunal had been free to reach a finding of discrimination when an agreed expert's medical report did not support such a finding, except that it had failed to apply the correct test with respect to whether the impairment was long term.

Sawyer v Secretary of State for the Department of Work and Pensions UKEAT/0133/08/LA
The Employment Judge correctly struck out the Claimant's case as it was not reasonably arguable, on the evidence at a Pre-hearing Review, that the Claimant's intolerance to temperatures below 27oC was a disability within the DDA.

Race discrimination

London Borough of Camden v Miah UKEAT/0031/08/LA
The Tribunal erred in applying the reverse burden of proof in a victimisation claim under the Race Relations Act 1976 (Oyarce v Cheshire CC [2008] EWCA Civ 434 applied). It also erred in failing to adequately construct a hypothetical comparator before considering whether such a comparator would have been treated differently to the Claimant.

Sex Discrimination

Fitness First Clubs Ltd v Drysdale UKEAT/0195/08/LA
The Tribunal had correctly applied the burden of proof and had not erred in finding that that Equal Pay Act questionnaire was linked to earlier dissatisfaction and so played a part in the Respondent's decision to dismiss.

House v Chief Constable of Avon & Somerset UKEAT/0195/08/LA
The Tribunal had not erred in finding that one of the decision makers did not have the required knowledge of the protected acts and that the burden of proof was correctly applied.

Equal pay
North Cumbria Acute Hospitals NHS Trust v Potter & ors UKEAT/0121/07/CEA
Under s1(6) Equal Pay Act 1970 the terms and conditions in the respective employment contracts of a Claimant and her comparator do not have to emanate from a "single source".



Employment Act 2008
The Employment Act 2008 (Commencement No.1, Transitional Provisions and Savings) Order 2008 brings into force certain provisions of the Employment Act 2008 on 6 April 2009. These relate to the repeal of the statutory dispute resolution procedures and connected provisions, the Tribunal's discretionary powers to vary awards if parties have failed to comply with a relevant Code of Practice, amendments to Tribunal procedure for determinations without a hearing, changes to the law relating to conciliation by ACAS and compensation for consequential financial loss in certain types of monetary claim. There are also transitional provisions.

Employment Tribunal Procedure

The Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2008 come into effect on 6 April 2008. These Regulations make procedural changes to Tribunal practice, including in relation to default judgments, electronic communications, withdrawal of proceedings, and Stage 1 equal value hearings. They also make consequential amendments to the main Regulations arising out of the Employment Act 2008, which repeals the statutory dispute resolution procedures (contained in sections 29 to 33 of and Schedules 2 to 4 to the Employment Act 2002), and makes changes to conciliation by ACAS under sections 18 and 19 of the Employment Tribunals Act 1996.


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