Issue 61 - 6th April 2009

Monday 6 April 2009

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Right to legal representation

G, R (on the application of) v X School & Anor [2009] EWHC 504 (Admin)
Given the gravity of the allegations made against the Claimant teacher (sexual impropriety with a person under 18 and abuse of position of trust), taken together with the very serious impact upon his future working life of a potential direction under s142 Education Act 2002 meant he was entitled to legal representation at hearings before the Disciplinary Committee and the Appeal Committee. On such matters, the Claimant could not fairly be expected to represent himself, and being accompanied by a trade union official or a work colleague was not sufficient.


Unfair dismissal

West London Mental Health Trust v Sarkar UKEAT/0479/08/DM
The Tribunal had erred in finding that the Claimant had been unfairly dismissed by focusing too much on the fact that the misconduct was originally dealt with under a procedure which aimed to negotiate a settlement and therefore suggested that allegations had not been seen as serious. After the negotiations broke down the disciplinary panel was entitled to treat the matters as dismissible. In any event it had additional material to consider. The Tribunal wrongly substituted its view in deciding the matters put against the Claimant did not justify dismissal.

Unfair dismissal compensation

Virgin Media Ltd v Seddington & Eland UKEAT/0539/08/DM
The Tribunal had erred in finding that it was entitled to treat the present case as being one where no sensible assessment of the prospects of the Claimants not having found alternative employment with the Respondent if it had acted fairly could be made. If the employer raises a prima facie case that there was no suitable employment that the employee could or would have taken it is for the employee to say what job, or kind of job, he believes was available and to give evidence to the effect that he would taken such a job. In relation to the uplift under s31(3) Employment Act 2002 the Tribunal had failed to give proper reasons for the figure of 40% and had failed to address the issue of culpability. McKindless Group v McLaughlin [2008] IRLR 678 followed.

Disability discrimination

Bourne v ECT Bus CIC UKEAT/0288/08/CEA
Although a joint expert had expressed the view in a second report that the Claimant was at the relevant time disabled for the purposes of the Disability Discrimination Act 1995, which conflicted with an earlier report, there was adequate material before the Tribunal to permit it to come to the conclusion that the Claimant was not disabled.


The Employment Code of Practice (Disciplinary and Grievance Procedures) Order 2009 brings into effect on 6 April 2009 the new ACAS Code of Practice on Disciplinary and Grievance Procedures.

The Employment Tribunals Act 1996 (Tribunal Composition) Order 2009 brings into effect on 6 April 2009 provisions which allow an Employment Judge sitting alone to hear proceedings in respect of payments relating to leave entitlement under the Working Time Regulations 1998 and other provisions.

Changes in relation to holiday entitlement and the right to flexible working also come into effect this month.

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