Issue 59 - 3rd March 2009

Tuesday 3 March 2009

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COURT OF APPEAL

Constructive dismissal


Woodhouse School v Webster [2009] EWCA Civ 91

If the Tribunal interprets evidence differently from that contended for by either side, it is normally good practice for the Tribunal to raise that with the parties in case they wish to consider calling further evidence or making further submissions. In the present case it was open to the Tribunal to accept that the Claimant's reason for his resignation was that he had been instructed to dismiss a fellow teacher, even though what the Tribunal decided was actually said was not precisely as the Claimant recalled in his evidence. The Respondent had the opportunity to challenge this. The Court of Appeal also commented that when answering questions put to the Tribunal when there may have been an inadequacy in its reasons (the Burns/Barke procedure), it is not desirable for the Tribunal to do more than answer the request and it should not, for example, advance arguments in defence of its decision and against the grounds of appeal.

Strike out

Abegaze v Shrewsbury College of Arts and Technology [2009] EWCA Civ 96
The Tribunal had erred in striking out the claim for remedy on the basis that the Claimant had failed to co-operate with a medical examination a number of years after the liability hearing. A fair trial was still possible and a more proportionate response was an unless order with regard to presentation for a medical examination and disclosure of medical records.

Employment status

Protectacoat Firthglow v Szilagyi [2009] EWCA Civ 98
For a written agreement between two parties in the employment context to be a "sham", it is sufficient that the agreement as written did not reflect the true intention (or expectations) of the parties. It is not necessary to find that it was intended to deceive any third party. The appropriate question is always whether the written documents represented the true legal relationship between the parties. The Tribunal had not erred in finding that in all the circumstances the documents signed by the Claimant, including a partnership agreement, were a sham, and he was in fact an employee.

Disability discrimination

Matuszowicz v Kingston Upon Hull City Council [2009] EWCA Civ 22
Under paragraph 3(4)(b) of Schedule 3 Disability Discrimination Act 1995 where there was a continuing omission to make a reasonable adjustment as the employer has failed to make any decision on the matter, the limitation start date is the end of the period within which the employer might reasonably have been expected to do the omitted act if it was to be done. This was not restricted to deliberate omissions.

Unauthorised deductions

Tradition Securities and Futures SA v Mouradian [2009] EWCA Civ 60
The bonus owed to the Claimant was ascertainable and therefore the Tribunal had jurisdiction to hear the claim for an unauthorised deduction from wages.

EMPLOYMENT APPEAL TRIBUNAL

Jurisdiction

Diggins v Condor Marine Crewing Services Ltd UKEAT/0083/08/CEA
The Claimant was a chief officer of a ship registered in the Bahamas which sailed between the UK and the Channel Islands. He lived in the UK and joined and left the ship each day in Portsmouth . His contract was stated to be governed by Guernsey law. The EAT held that a mariner who is not excluded by s199(2) Employment Rights Act 1996 but does not fall within s199(7) is subject to the principles in Lawson v Serco. Applying that test the Claimant was a peripatetic employee and was therefore not excluded from jurisdiction under s199(2).

Claim

Tomlinson v Computer Software Group Ltd & ors UKEAT/0352/08/MAA
Although the Claimant had not completed the box relating to unfair dismissal and it was indicated that it was not a claim about dismissal, the whole of the pleading must be read together and it was clear both in the body of the complaint and an attached letter which was to be regard as being part of that claim form, that the Claimant was complaining of unfair dismissal, among other things, on the grounds that she had made a protected disclosure.

Unite & ors v Sayers Confectioners Ltd (in administration) UKEAT/0513/08/LA
The Tribunal erred in refusing to accept claims brought against a company in administration without the consent of the company or the court under para 43 of Schedule 5 Insolvency Act 1986. Proceedings brought in such circumstances were not a nullity, but liable to be stayed pending obtaining of such consent or permission. Carr v British International Helicopter [1994] ICR18 applied

Default judgment

Potter v Sound Control Modern Music Stores Ltd (in administration) UKEAT/0543/08/JOJ
When exercising its under discretion rule 8 to enter a default judgment against a Respondent, the Tribunal cannot also decide part of a claim against the Claimant as it believes it to be unfounded. There must be a hearing on liability if the claim is undefended, unless the claim is outside the jurisdiction of the Tribunal.

Postponement/stay

Abbey National plc v Bascetta UKEAT/0478/08/ZT
If an Employment Tribunal judge has not been given the full facts by one or other of the parties in reaching a case management decision, he may then fail to take into account a relevant factor through no fault of his own and therefore err in the exercise of his discretion not to postpone a hearing.

Strike out

Drummond v Babcock Naval Services Ltd & Ministry of Defence UKEATS/0025/08/BI
Although the Claimant had no good reason for failing to attend a pre-hearing review at which his claim was dismissed, the appeal against the strike out was allowed as the Tribunal did not have the power under rule 18(5) to dismiss the claim simply on the basis that the Claimant did not attend and the procedure under rules 18(7) and 19 had not been followed.

Dismissal of claim

Anita Downing t/a Downing Private Nursing Homes v McCallister UKEATS/0040/08/BI
Where a case against a particular Respondent is dismissed under rule 10(2)(l) that means that the proceedings against that Respondent are brought to an end and those proceedings cannot be revived.

Statutory dismissal procedures
Zimmer Ltd v Brezan UKEAT/0294/08/ZT
The Respondent was in breach of statutory procedures as the Step 1 letter did not tell the Claimant he was at risk of dismissal. The obiter remarks in Alexandra v Brigden 2006 ICR1277 were correct and should be followed. Although Step 1 is also complied with if the Claimant is aware from the letter, and information provided with, it that dismissal is contemplated (Home Serve Emergency Services Ltd v Dixon, EAT/0127/07/CEA), that was not the situation in the present case.

Statutory grievance procedure

Tomlinson v Computer Software Group Ltd & ors UKEAT/0352/08/MAA
The fact that the Claimant did not wish to pursue an internal grievance procedure was not relevant to the issue as to whether a Step 1 letter had been sent and therefore whether the Tribunal had jurisdiction to hear the claim.

Employment status
Train v DTE Business Advisory Services Ltd & Associated Companies t/a DTE Chartered Accountants and others UKEAT/0201/08/LA
On the particular facts the Tribunal were entitled to find that the Claimant was a partner although not an employee. Thus his age discrimination claim could proceed under Regulation 17 Employment Equality (Age) Regulations 2006 but not the claim for unfair dismissal.

Constructive dismissal
Bridal Fashions Ltd v Burke UKEATS/0038/08/BI
The Tribunal erred in finding that the Claimant had been constructively dismissed when she had not effectively communicated her decision to resign. Further it failed to address the correct test for constructive dismissal and failed to make necessary findings of fact.

Unfair dismissal

Philips Electronics UK Ltd t/a Philips Lighting v Miller UKEATS/0039/08/BI
The Claimant was dismissed for misconduct on the basis of two grounds, one of which according to the dismissing officer was not alone enough to justify dismissal. The Tribunal found that the Respondent had no reasonable grounds to sustain a belief in the other ground and therefore the dismissal was unfair. The fact that the manager who heard the appeal did find that the establish ground was enough to warrant dismissal was not relevant, as if the Respondent had acted fairly no dismissal and therefore no appeal would have taken place.

Chaplin v Howard Kennedy Solicitors UKEAT/0469/08/RN
The Access to Medical Reports Act 1988 prevents access to medical records without the patient's consent, however it does not prevent an employer deciding that an employee who unreasonably refuses a reasonable request should be subject to disciplinary proceedings. In the present case even though the Claimant did not rely on her statutory right, the Tribunal had not erred in finding the Clamant was not unfairly dismissed for refusing to give her consent to disclosure of her medical records.

Compensation

Bone v London Borough of Newham & ors UKEAT/0075/08/ZT
The Tribunal erred in failing to give reasons for its decisions in relation to its calculation of the Claimant's future losses.

Allied Distillers Ltd v Handley & ors UKEATS/0020/08/BI
The Tribunal had not erred in deciding there had been a 40 per cent risk of the Claimants being made redundant in any event. It was not a case where the evidence was so sparse as to leave the Tribunal with a speculative exercise about which it could take no sensible view. However the Tribunal had erred in awarding damages for loss of enhanced contractual rights when no such claim had been made.

Stewart v Dumbrow Homes Ltd UKEATS/0045/08/BI
The Tribunal had not erred when, having found that the Claimant would have been retained but at a lower salary, compensation was calculated under s123 Employment Rights Act 1996 on that lower salary and not on his salary at the time of dismissal.

Roberts v Aegon UK Corporate Services Ltd UKEAT/0277/08/ZT
The Tribunal had not erred in awarding continuing loss in relation to a final salary scheme when the new employment had a higher salary but a money purchase pension scheme. It was entitled to find that the final salary scheme was in the circumstances a unique benefit which the Claimant would never be able to replace.

TUPE

Alemo-Herron v Parkwood Leisure Ltd UKEAT/0456/08/ZT
Under Regulation 5(1) TUPE, a contractual term entitling employees to pay "in accordance with collective agreements negotiated from time to time by [the NJC]" is protected on a TUPE transfer to the private sector so as to give a right to pay increases negotiated post-transfer. This is so despite the decision of the ECJ in Werhof. The limitation to one year, or the earlier expiry of the relevant collective agreement, in Art 3(2) of the Directive was not transposed into the regulations and so UK treatment is, as is permitted by Art 7, more favourable than that in the Directive.

Clearspring Management Ltd v Ankers & ors UKEAT/0054/08/LA
The Tribunal was entitled to find that service provided by the claimed transferor was too fragmented to give rise to transfer under the service provision change provisions in regulations 3(1)(b) and (3) TUPE 2006.

Disability discrimination

The Child Support Agency (Dudley) v Truman UKEAT/0293/08/CEA
The decision of the House of Lords in London Borough of Lewisham v Malcolm [2008] IRLR 700 applies equally to employment cases. There is no distinction between the comparator identified in s24(1)(a) and s3A(1)(a).

Abbey National plc v Bascetta UKEAT/0402/08/ZT
The Tribunal had erred in coming to its decision on the basis of material which did not form part of the explicitly pleaded case and which the Respondent's witness had not been given the opportunity to deal with in evidence.

Race discrimination

Osborne Clarke Services v Purohit UKEAT/0305/08/ZT
The Tribunal had not erred in finding that the Respondent had not justified its practice of not accepting applications for training contracts from non-EEA nationals who required a work permit. It had not provided any evidence of any dialogue with the Border and Immigration Authority or of any attempts to apply for a permit but relied only on assumptions. Further the Tribunal properly considered the Code of Practice on Racial Equality and Employment which stated that issues regarding eligibility of employment should be left to the final stages of the employment process.

Racial harassment

Richmond Pharmacology v Dhaliwal UKEAT/0458/08/CEA
The Tribunal had not erred in finding that, in the circumstances of the case, a remark made by an employer to a female employee of Indian ethnic origin referring to the possibility of her being "married off in India" had the effect of violating her dignity and constituted harassment within the meaning of s3A Race Relations Act 1976. The EAT provides guidance on the approach to harassment under that section.

Religious discrimination

Chondol v Liverpool City Council UKEAT/0298/08/JOJ
Dismissal for the inappropriate promotion of religious beliefs by a social worker to his clients was not religious discrimination. The distinction between the Claimant's religious belief as such and the inappropriate promotion of that belief was entirely valid in principle, if it reflected the employer's true reason. Further, the Tribunal had not erred in constructing a comparator who was a person who, in the course of his contact with service users, inappropriately promoted any religious belief or other strong personal view.

Post-employment victimisation

Coutinho v Rank Nemo (DMS) Ltd UKEAT/0315/08/LA
A claim that the Respondent had victimised the Claimant by taking steps to avoid paying a judgment debt by way of a county court order was on the face of it inextricably linked to the employment relationship and therefore should not have been struck out.

Equal pay

Gibson & ors v Sheffield City Council UKEAT/0303/08/ZT
The Tribunal had not erred in distinguishing between two groups of (predominantly female) workers, finding that in relation to one group the genuine material factor defence was made out and in relation to the other it was not.

Coventry City Council v Nicholls & ors UKEAT/0162/08/ZT
The Tribunal had not erred in rejecting the Respondent's claim the union's alleged intransigence in agreeing a pay arrangement was a supervening cause which had overtaken the difference in sex as the difference in pay. With regard to bonus payments, if it is possible to make a payment only to an exclusively or almost exclusively male group, because of particular features of their job not shared by the female claimants doing traditionally "women's work", then it necessarily involves a form of prima facie indirect discrimination against those women which must be justified. In this case it could not be as the Tribunal were entitled to find that the objectives could be achieved by less discriminatory means. The issue of whether the Respondent discriminated in limiting a pay protection scheme to those who actually suffered a reduction in income when a new job evaluation scheme was introduced was remitted following Redcar and Cleveland Borough Council v Bainbridge [2008] IRLR 776.

LEGISLATION

Employment Tribunal Procedure
The draft Employment Tribunals (Tribunal Composition) Order 2009 adds holiday pay to the list of the jurisdictions that an Employment Tribunal judge can hear alone and is due to come into force on 6 April 2009.

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