Issue 62 - 28th April 2009

Tuesday 28 April 2009

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COURT OF APPEAL

Equal Pay

Slack & ors v Cumbria County Council [2009] EWCA Civ 293
Although the contracts signed by two of the Claimants contained new terms and a statement that they superseded any previous contract of employment, the Claimants had worked for the Respondent continually without any breaks between the contracts and on the facts there existed a stable employment relationship, the consequence of which was that time did not start to run for the purposes of an equal pay claim until the end of that relationship, that is the final contract.

Effective date of termination

Kirklees Metropolitan Council v Radecki [2009] EWCA Civ 298
The effective date of termination could not be that contained in a draft compromise agreement which was subject to contract and had not been finally agreed. However there was a separate finding of fact by the Tribunal as to the date that the council had brought the Claimant's employment to an end which fulfilled the statutory definition.

Holiday pay

British Airways v Williams & ors [2009] EWCA Civ 281
Under Regulation 4 of the Civil Aviation (Working Time) Regulations 2004 "paid annual leave" is not calculated in accordance with sections 221 to 224 Employment Rights Act 1996 ("ERA"). As no measurable level of pay is imposed by the Regulations, the Claimants could no show that they were entitled to more holiday pay than was provided for in their service agreements.

Employment status

Secretary of State BERR v Neufeld [2009] EWCA Civ 280
A controlling shareholder can be an employee of a company as long as the contract is not a sham, it is a true contract of employment and, in the case of insolvency, whether such a contract was in place at the relevant date.

Statutory grievance procedures

Suffolk Mental Health Partnership and NHS Trust v Hurst [2009] EWCA Civ 309
To comply with s32 Employment Act 2002 a grievance in relation to the Equal Pay Act 1970 does not have to identify comparators or which method of comparison under s1(2) is being relied on, but only has to refer to the Act itself.

 

EMPLOYMENT APPEAL TRIBUNAL

Strike out

Hazelwood v Eagle UKEAT/0011/09/JOJ
The Tribunal had erred in striking out the Claimant's claim for disability discrimination for non-compliance with an order to produce a medical report and a witness statement. The short reasons given failed to deal with the question whether it was proportionate to strike out and whether a fair trial remained possible. The statement and the report had been ordered to be provided simultaneously. A report had been commissioned and no hearing had yet been listed.

EPI Coaches Ltd v Lafferty UKEAT/0065/09/RN
For the purposes of the 2004 Rules an unless order is a conditional judgment until it takes effect due to the default of the party, when it becomes a judgment which can be reviewed under rules 34-36 if the interests of justice require. The Tribunal also has a power to extend time for compliance with the order under rule 10(2) (e) and (n). Neary v Governing Body of St Alban's Girls' School (2009) UKEAT/0281/08 applied. In the present case the Tribunal erred in its application of those rules.

Evidence

Netintelligence Ltd v McNaught UKEATS/0057/08/MT
The Tribunal erred in relying on an allegation by the Claimant, which was not covered by the Respondent's witness evidence, and upon which he had not been cross-examined, in its decision that the dismissal was unfair. Such a failure called into question the credibility and reliability of the Claimant. Given that the Respondent had not previously been aware of the allegation it was the Claimant's representative's responsibility to recall the Respondent's witness to cross-examine him on it. There was no duty on the Tribunal to take the initiative and recall the witness.

Apparent bias

Gill v Humanware Europe Ltd UKEAT/0312/08/CEA
The Employment Judge had shown apparent bias by speaking privately to counsel for the Respondent, without reference to the Claimant in person, to raise case management issues, and matters very personal to either the Claimant or the Respondent's manager.

Costs

Marriot Motor Group & ors v Cottington UKEAT/0319/08/DA
There is no property in a witness and while it may be a matter of professional courtesy, there is no general rule of law or procedure which requires a party to inform the other party of which witnesses it intends to call from amongst those for whom it has served or exchanged witness statements. The Tribunal therefore erred in making the Respondent pay the costs of an adjournment to enable the Claimant to question one of the Respondent's witnesses whom she expected to be called but was not, in order to elicit from him evidence to support her case.

Daleside Nursing Home Ltd v Mathew UKEAT/0519/08/RN
In the circumstances of the case, where at the heart of a claim is an explicit lie alleging racial abuse, it was perverse for the Tribunal to fail to conclude that in making such a false allegation the Claimant had acted unreasonably in bringing or conducting the claim and it should have made an order for costs against her.

Compromise agreement

Stanley v Capital Law LLP UKEAT/0417/08/LA
The Employment Judge had not erred in finding that the Claimant could not pursue his claims by reason of a compromise agreement and that the Respondent was entitled to refuse to pay the termination payment under the agreement because of the Claimant's fundamental breach.

Statutory disciplinary procedure

Renfrewshire Council v Ferguson UKEATS/0054/08/BI
The Tribunal had erred in holding that the Claimant had requested an appeal under Step 3 of the dismissal procedures. The letter stated that he had taken the advice of his union and would be lodging a Tribunal claim.

Jones v Northumberland County Council UKEAT/0482/08/DM
The Tribunal had not erred in failing to consider in its decision whether the dismissal was automatically unfair for failing to follow the statutory dismissal procedures. The Claimant had argued that the real reason for dismissal was not redundancy and therefore the Step 1 letter which gave such a false reason was deficient. However once it was found that redundancy was the reason for dismissal, that argument fell away. In the present case the Tribunal had not failed to consider of its own motion whether there was any other breach of the procedures such that the point could now be raised on appeal. On the face of the information before it there was compliance and it was under no obligation to investigate further the sufficiency of the type of information given which this had not been questioned at the hearing. Venneri v Autodex Ltd (2007) UKEAT/0436/07 distinguished.

Statutory grievance procedures

Burns v Killgerm Group Ltd UKEAT/0548/08/CEA
Raising a complaint in a County Court pleading does not constitute the making of a complaint for the purpose of the statutory grievance procedure. In the present case a complaint about a breach of the Equal Pay Act 1970 in a Defence and Counterclaim did not comply with Step 1, as a complaint raised in the context of litigation cannot reasonably be regarded as a complaint made for the purpose of the statutory grievance procedure.

Just and equitable extension of time

Accurist Watches Ltd v Wadher UKEAT/0102/09/MAA
Where findings of fact need to be made for the purpose of a discretionary decision such as the decision to extend time, while it is good practice and may be essential for the party seeking the extension to adduce evidence in the form of a witness statement, it is not an absolute requirement. A Tribunal is entitled to have regard to any material before it which enables it to form a proper conclusion on the fact in question, including statements in pleadings or correspondence, medical reports or certificates, or the inferences to be drawn from undisputed facts or contemporary documents.

Employment status

Kovats v TFO Management LLP & anor UKEAT/0357/08/ZT
In the context of partnership the Tribunal is required to decide into which of two legal categories a person falls: partnership or employment. If the Tribunal decides that the person is not a partner, it does not follow that he is necessarily an employee. The usual common law tests will still need to be applied, as the person may in fact be self-employed. On the facts of the case the Claimant was a partner in a limited liability partnership and not an employee.

Unfair dismissal

Asda Stores Ltd v Green UKEAT/0437/08/LA
The Tribunal had mis-stated the law by saying that section 98(4) ERA required "the fullest reasonable investigation" and had not applied the correct test. Further it had erred by substituting its own view of the reasonableness of the dismissal for that of the employer by making its own conclusions on the evidence of misconduct rather addressing the reasonableness of the employer's conclusions on it.

Abbey v Associated Foreign Exchange Ltd UKEATPA/1518/08/ZT
Although the contract of employment provided for notice in writing, the effective date of termination was on the day oral communication of dismissal was given and received.

East Riding of Yorkshire Council v Cowton UKEAT/0432/08/LA
The majority of the Tribunal had erred in finding that the Claimant was unfairly dismissed as other workers who had acted in a similar way were not. The correct question was whether it was reasonable in the circumstances for her to be treated as if she were in a different position to the others.

Aryeetey v Tuntum Housing Association UKEAT/0324/08/RN
Although the Claimant was unfairly dismissed for making a protected disclosure and at the time of the liability hearing the Tribunal held that Polkey did not apply, it was entitled to conclude, on the basis of the Claimant's subsequent behaviour before the remedy hearing which related to the disclosure and amounted to a vendetta, that he should not receive any compensation after that date as he could fairly have been dismissed.

Disability discrimination

Chief Constable of Dumfries and Galloway Constabulary v Adams UKEATS/0046/08/BI
The Tribunal had not erred in finding that carrying out the activities of walking, stair climbing and driving were normal day-to-day activities even when carried out at work between 2am and 4am. Applying the requirement that the impairment must hinder participation in "professional life" in Chacon Navas v Eurest Colectividades SA [2006] IRLR 706, alongside guidance that some work activities may be too specialised to meet the definition, the EAT held that there are enough people who work on nightshifts for this to be a normal day-to-day activity within the meaning of section 1 Disability Discrimination Act 1995 ("DDA").

Hiero v Changework Now Ltd UKEAT/0474/08/RN
The Tribunal had erred in failing to make a finding under DDA Sch 1 para 6(1) as to the impairment which would be present but for the medication as there was sufficient evidence before it to infer that the issue had to be determined.

Race discrimination

London Borough of Hackney & Sindhu v Distant UKEAT/0487/08/MAA
The Tribunal had erred in failing to identify the particular acts on which it based its finding of discrimination. Dismissal had not been pleaded an act of discrimination.

Unegbu v Dimension Data Network Services Ltd UKEAT/0391/08/RN
The Respondent did not put the Claimant's name forward for employment with the end user as it was mistakenly told that the candidates had to have British passports. The Tribunal erred in considering motive to be relevant to a finding of direct race discrimination and in failing to appreciate the significance of the Respondent's equating the requirement for a candidate to be of British nationality with that of being a British passport holder.

Sex discrimination

Network Rail Infrastructures Ltd v Gammie UKEATS/0044/08/BI
The Tribunal had erred concluding that there had been unlawful discrimination on the basis of speculation as to the reasons why there appeared to be an imbalance in the workforce as between men and women. They had taken into account wholly irrelevant material that was not founded in the evidence and was not based on any finding in fact.

Grampian Health Board v Hewage UKEATS/0016/08/MT
There was no material on which the Tribunal could properly have inferred that there was a like for like comparison being relied on by the Claimant and so no basis for inferring discrimination.

Marriot Motor Group & ors v Cottington UKEAT/0319/08/DA
The Tribunal erred in inferring sex discrimination by failing to explain as to why it drew such an inference or to consider how a comparator would have been treated.

Equal Pay

Potter & ors v North Cumbria Acute Hospital NHS Trust UKEAT/0385/08/CEA
The move from Whitley Council to Agenda for Change terms constituted a variation of existing contracts of employment and not their termination and their replacement with new contracts. As a result the time for presentation of equal pay claims would not start to run from the date on which each Claimant was assimilated to the new terms. The applications to amend the claims of the test Claimants were not made out of time if they had been presented as fresh claims.

Time off for trade union activities

Calder v Secretary of State for Work and Pensions UKEAT/0512/08/LA
The Respondent was not in breach of Regulation 4(2) Safety Representatives and Safety Committees Regulations 1977 as the relevant course was not in "working hours" as it was delivered on days on which the Claimant was required to work

LEGISLATION

Equality Bill
The Equality Bill had its first reading in the House of Commons on 24 April 2009. The Bill will bring together existing equality and discrimination legislation, deal with the effect of London Borough of Lewisham v Malcolm, and introduces many other new provisions

 

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