Issue 60 - 23rd March

Monday 23 March 2009

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EUROPEAN COURT OF JUSTICE

The Incorporated Trustees of the National Council on Ageing (Age Concern England) v UK Case C 388/07
A retirement age of 65 under Regulation 30 of the Employment Equality (Age) Regulations 2006 is capable of being justified. Further, the fact that Regulation 3, does not contain a precise list of the aims justifying derogation from the principle prohibiting discrimination on grounds of age does not make is not contrary to the Directive on Equal Treatment in Employment and Occupation. It is for the national court to ascertain whether the legislation complies with such a legitimate aim and whether the national legislative or regulatory authority could legitimately consider, taking account of the Member States' discretion in matters of social policy, that the means chosen were appropriate and necessary to achieve that aim.

COURT OF APPEAL

Unfair dismissal

London Ambulance Service v Small [2009] EWCA Civ 220
The Tribunal had fallen into the trap of substituting its own view of the reasonableness of the decision to dismiss for that of the Respondent by introducing its own findings of fact about the Claimant's conduct, and then using those facts to support the conclusion that it had no reasonable grounds for belief in his misconduct. As a general rule, it would be better practice in an unfair dismissal case for the Tribunal to keep its findings on that particular issue separate from its findings on disputed facts that are only relevant to other issues, such as contributory fault, constructive dismissal, discrimination and victimisation claims. Further the fact that the Claimant was not interviewed about the misconduct until 10 weeks after the event did not in the circumstances make the dismissal procedurally unfair.

EMPLOYMENT APPEAL TRIBUNAL

Extension of time for filing answer and cross appeal

Slingsby v Griffin Smith Solicitors UKEAT/0619/07/MAA
The EAT Practice Direction imposes a 14 day time limit from the EAT's sealing of the order which permits an appeal to go forward to a full hearing for the Respondent to file any Answer and cross-appeal. Default in relation to the Answer is goverened by Rule 26 of the EAT Rules whereby the EAT may order that the Respondent is debarred from the proceedings or may make any other order that it thinks just. The EAT held that the strict time limits applied to the institution of an appeal in United Arab Emirates v Abdelghafar [1995] ICR 65 and Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111 do not apply to the Answer to that appeal. The general discretionary principles apply to requests for an extension of time for the delivery of an Answer, including the need to consider the length of any delay and the existence and nature of any prejudice to the other party. However the strict time limits do apply to a cross-appeal.

Disclosure

Beck v Canada Imperial Bank of Commerce UKEAT/0064/09/ZT
The Employment Judge erred in refusing specific disclosure of documents on the basis of a statement by a former senior employee of the Respondent which supported the Claimant's case. There was evidence by senior officers of the Respondent of a differential approach to employees who were connected with Canada from those who are not. This was relevant to the Claimant's claim of race discrimination, and as a result the documents were disclosable.

Postponement/stay

Lewes Associates t/a Guido's Restaurant v Little UKEAT/0460/08/CEA
In the circumstances when the Respondent contacted the Tribunal on the day of the hearing stating she could not attend due to illness, in the absence of medical evidence the Tribunal had been entitled to proceed in the Respondent's absence under Rule 27(5). Although the Judge ought to have given the Respondent an opportunity to provide medical evidence before determining the review application under Rule 35(3), having seen the evidence that would have been provided the EAT held that it was insufficient to have allowed the review.

Compromise

McLean v TLC Marketing plc & ors UKEAT/0429/08/LA
Clear language is needed for an agreement in a COT3 to preclude claims arising from events after it is entered into. Dicta in Royal National Orthopaedic Hospital Trust v Howard [2002] IRLR 849 applied. In this case the phrase "in full and final settlement of [the Claimant's] Employment Tribunal claims against the Respondents, and of any other claim whatsoever" was not sufficiently precise to prevent the Claimant from bringing a claim for sex discrimination by way of victimisation on the basis that the Respondents failed to pay the full settlement amount until ordered to do so by the county court and failed to provide a testimonial as agreed.

Statutory dismissal procedure

Smith Knight Fay Ltd v McCoy UKEAT/0245/08/DA
Under paragraph 2(1) Schedule 2 Employment Act 2002 Step 1 and Step 2 of the standard procedure must be complied with before "action is taken". In the absence of a statutory definition of this phrase the EAT held it to mean either dismissal or disciplinary action short of dismissal. As a result an employer may inform an employee he is to be dismissed before the procedures are complied with and it will not be automatically unfair to dismiss him as long as the procedures are carried out before the dismissal occurs.

Employment status

Premier Groundworks Ltd v Jozsa UKEAT/0494/08/DM
In a case where the contractual documents were not found to be a sham, a party who has an unfettered right for any reason not to personally perform the contractual obligations under a contract but can delegate them to someone else cannot be a "worker" within the meaning of the Working Time Regulations even though the person actually performing the contractual obligations has to meet certain conditions. The position would be different if the right not to perform the contractual obligation depended on some other event such as where that party was "unable" to perform his or her obligations. Express and Echo Publications Ltd v Tanton [1999] IRLR 367 applied. The Claimant was therefore not a worker. Further under the terms of the contract he was also a business providing services to a customer.

Working time

Craig v Transocean International Resources Ltd UKEATS/0029/08/MT
The Claimants worked at two week offshore/two week onshore rota pattern. During the onshore "field breaks" they were for the most part free to do as they chose. The EAT held, by a majority, that it was permissible for the Respondent to require the Claimants to take their annual leave in their "field breaks" which provided sufficient time for the leave entitlement to be taken as well as compensatory rest and any required training and appointments. It also held by a majority that an effective response had been given under Regulation 15 Working Time Regulations.

Unfair dismissal

Swallow Security Services Ltd v Millicent UKEAT/0297/08/JOJ
Having found that there was conduct on the part of the Claimant that was or could be regarded as blameworthy, the Tribunal were bound by s123 of the Employment Rights Act 1996 ("ERA") to consider contributory fault, even though it was not raised by the Respondent.

Disability discrimination

Hughes v Safford & Rural Homes Ltd & Anor UKEAT/0360/08/JOJ
On the facts the decision in Lewisham v Malcolm [2008] IRLR 700 did not affect the finding of disability-related discrimination as those findings were underpinned by findings of a failure to make a reasonable adjustment which meant both that the disability related discrimination could not be justified but that the Claimant's treatment was unlawful in any event. Further the Tribunal had not erred in failing to follow the schematic approach set out in Smiths Detection Watford v Berriman UKEAT/0712/04.

Stockton on Tees Borough Council v Aylott UKEAT/0401/08/CEA
The Tribunal erred in finding that direct discrimination had occurred on the basis of a stereotypical view of mental illness by the Respondent without first having constructed the correct comparator and having considered whether there was less favourable treatment which could be accounted for by those views. Further the Tribunal failed to explain what it meant by the phrase "stereotypical view of mental illness". In relation to disability-related discrimination London Borough Council v Malcolm [2008] IRLR 700 must be followed and the comparator was now the same as for direct discrimination.

Race discrimination

Edwards v Beacon Care Group Ltd & ors UKEAT/0431/08/RN
The Tribunal misinterpreted a decision of an earlier CMD and therefore erred in their construction of the correct comparator and the nature of the complaint regarding the investigation into the allegations of harassment.

 

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