Issue 63 - 18th May 2009

Monday 18 May 2009

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Employment Bulletin Issue 63 - 18 May 2009

COURT OF APPEAL

Age discrimination

Rolls Royce plc v Unite the Union [2009] EWCA Civ 387
The Court of Appeal has held, by majority, that the inclusion of a length of service criterion in a redundancy selection policy constituted a proportionate means of achieving a legitimate aim. The Court also gave the provisional view that the use of length of service as a criterion could be considered a 'benefit' under Reg 32 of the Employment Equality (Age) Regulations 2006 more info

National Minimum Wage and tips

Annabel's (Berkeley Square) Ltd & ors v HMRC [ 2009] EWCA Civ 361
Discretionary service charges paid by customers of a restaurant/club business to the proprietor/employer by credit or debit card or by cheque (but not where such gratuities are paid in cash) and then passed to its employees via a 'tronc' system administered by an employee troncmaster, cannot count towards the employees' remuneration for the purposes of the National Minimum Wage Act 1998. The payments to the employees of their respective shares of the tronc moneys were not 'payments paid by the employer to the worker' for the purposes of Regulation 30(a). more info

EMPLOYMENT APPEAL TRIBUNAL

Strike out

North Tyneside PCT v Ms S Aynsley & ors UKEAT/0489/08/RN

The Respondent's response was struck out for non-compliance with an unless order. The strike-out was reviewed by the Employment Tribunal purportedly under rule 34 but allowed to stand. The EAT held that rule 34 has no application to the strike-out of a response as opposed to a claim form (Uyanwa-Odu v Schools Office Services Ltd. and Neary v St. Alban's Girls School distinguished); but held that substantially the same exercise fell to be carried out under rule 10 (2) (n): Hart v English Heritage followed. The EAT went on to find that in the circumstances of the particular case, and having regard to CPR 3.9, the Judge was wrong to maintain the strike-out, notwithstanding the Respondent's breach of an unless order, since it had subsequently substantially remedied its breach - Stolzenberg v CIBC Mellon Trust followed. more info

Jurisdiction
Statutory grievance procedures

Ms D Sadare v L B Lambeth UKEAT/0116/09& UKEAT/0117/09/MAA
For the purpose of section 32 the grievance should identify, however summarily or inferentially, the legal character of the claim being raised .Although the acts complained of had been the subject of a grievance it was necessary for the purposes of s.32 that the employer should have been enabled to understand the legal character of the complaint being made; and that since the acts in question had been explicitly characterised as complaints of race and sex discrimination and there were no indications of a complaint of disability discrimination that requirement was not satisfied and the disability claim could not proceed. more info

Time limits

Mr A Carter v (1) London Underground Ltd (2) Transport for London UKEAT/0292/08/ZT
The decision in King v Quastels Avery Midgen, and thus the Tribunal's decision in this case, was wrong. The purpose of reg. 15 of the 2004 Regulations is, in effect, to impose a moratorium of three months before the normal time limit kicks in, in order to allow for the statutory procedures to run their course. That apart, its effect on the operation of the time limit contained in the relevant primary legislation should be entirely neutral. It would be extraordinary if its effect were to deprive employees of the benefit of the Tribunal's jurisdiction to consider an out-of-time complaint when it was just and equitable to do so. more info

Remploy v Mrs G A Shaw UKEAT/0452/08/JOJ
The Employment Judge had erred when she regarded herself as bound to apply Ashcroft v Haberdashers' Aske Boy's School UKEAT/0151/07/CEA to a situation where the primary limitation period had expired, was properly extended to six months and then no claim was made for a further two months. She directed herself in accordance with Ashcroft, which was not binding upon her, for it was not applicable to a person who has already passed the primary limitation period. The law does not require an open ended facility for the bringing of a claim for so long as internal procedures are in place. more info

Extension of time: just and equitable

Chief Constable of Lincolnshire Police v Ms N Caston UKEAT/0530/08/JOJ
Disability discrimination claim brought outside primary time limit. The Employment Judge was entitled to hold that misleading instructions given by Claimant to her solicitors as a result of mental ill-health constituted an exceptional circumstance entitling him to extend time. - Robertson v Bexley Community Centre [2003] IRLR 434 discussed - passage in "Employment Law Practice 2007" referring to the practice in ET's as being "the liberal interpretation of the authorities" disapproved. more info

Extension of time: reasonably practicable

Cambridge & Peterborough Foundation NHS Trust v Mr N Crouchman UKEAT/0108/09/CEA
The Claimant was dismissed for misconduct. The internal appeal panel decision was announced orally without reasons two days before the expiry of three-month limit under s. 111 (2) of Employment Rights Act 1996. On the basis of the oral decision the Claimant believed it was "hopeless" to bring unfair dismissal claim, but changes his mind when presented with further information in the form of the written reasons for the decision, subsequent to the expiry of the primary time limit.
The EAT held that the Tribunal was entitled to hold that the appeal panel's written reasons genuinely changed Claimant's belief in the viability of his claim and that that change was reasonable - Machine Tool Industry Research Association v Simpson [1998] ICR 558, CA applied. more info

Statutory disciplinary procedures

Smith Knight Fay Ltd v Mr N McCoy UKEAT/0245/08
The Employment Tribunal had erred in law in deciding that Step 2 was not complied with where an employee was told at an initial meeting, which had not been preceded by a Step 1 letter, that his role was to be made redundant; but in circumstances where subsequently a letter complying with Step 1 was sent and subsequent meetings were held. No action was taken before these subsequent meetings; the Employment Tribunal was bound to pay heed to them. The phrase
"before action is taken" means "before the contemplated dismissal or disciplinary sanction takes place".
When an employer in a redundancy situation contemplates dismissal for redundancy, it does not follow that the action of dismissal will need to be taken
The Employment Tribunal erred in setting too high a standard for the requirements of a Step 1 letter; they failed to consider the guidance on that topic in Alexander v Brigden. more info

Dismissal automatically but not substantively unfair

Sandsfield Gravel Co Ltd v Mrs S Loving UKEAT/0415/08/MAA

An Employment Tribunal had correctly held that the failure of an employer to provide adequate details of the complaints against an employee vitiated the disciplinary proceedings so that the dismissal was automatically unfair by virtue of Section 98A Employment Rights Act 1996.

The Employment Tribunal had however, inadmissibly substituted its own views of the evidence for those of the Employer when finding that the Employer could not properly have regarded as gross misconduct, the actions of the employee. The employee had driven a company van in an area frequented by children having drunk a small quantity of wine while holding the glass out of the window of the van.

The Employment Tribunal had correctly found that the termination of a subsequent contract of employment [where the Claimant lacked qualifying service to protect her against unfair dismissal] did not break the chain of causation of the original unfair dismissal. more info

Constructive dismissal: applicability of range of reasonable responses
Bournemouth University Higher Education Corporation v Professor P Buckland UKEAT/0492/08/DA
The EAT holds that the 'range' test has no application at the s.95(1)(c) (constructive dismissal) stage. Departing from three earlier decisions of the Employment Appeal Tribunal: Elias P in Claridge v Daler Rowney [2008] ICR 1267, 1274 F-G; Abbey National plc v Fairbrother [2007] IRLR 320 (Lady Smith presiding) and Hamilton v Tanberg Television Ltd (unreported 12 December 2002 HHJ McMullen QC presiding). more info

Evidence
PJ & ME Egan T/A Dell Care Home v Miss J M Owen UKEAT/0035/08/DM
The Claimant was dismissed from her position as a Senior Carer at the Respondent's Care Home. The dismissal was procedurally and substantially unfair. The Claimant was not made aware of the allegations against her and could not respond to them. There had been no proper investigation or evidence of misconduct. The Respondent, who was unrepresented, wished to call evidence that went to the issue of the reason for dismissal and to the issue of contribution, but was prevented from doing so. The Respondent was denied the opportunity of calling evidence in relation to remedy. The Employment Appeal Tribunal considered that this denial could not be justified.
The EAT held: It cannot be the case that an employer, who has failed to adequately investigate an allegation of serious misconduct or to have a proper disciplinary procedure, should be prevented from relying upon evidence which may be absolutely overwhelming that would be relevant to issues of remedy.
It is a very strong thing for an Employment Tribunal to exclude evidence that is both relevant and material, as this evidence was, in the absence of some breach of an order or rule relating to the preparation of that evidence. more info

Discrimination: drawing inferences
Teva (UK) Ltd v Mr A Goubatchev UKEAT/0490/08 DA
The Employment Tribunal erred in a number of ways when it drew inferences of race discrimination including when it:
Drew an inference of racial discrimination from the respondent's failure to comply with a Code of Practice without considering whether there was another reason unconnected with the claimant's race or ethnic origin for its failure to comply with the Code. Alternatively no reason was given for the inference of racial discrimination from the respondent's failure to comply with a Code of Practice.
Assumed that an "inadequate or unsatisfactory " explanation for prima facie discriminatory conduct could entitle the Employment Tribunal to conclude that there was discrimination with out considering whether any explanation for the conduct which was not indicative of racial discrimination more info

Part-time Workers Regulations
Mrs B K Carl v The University of Sheffield UKEAT/0261/08/CEA
A Claimant may not rely on a hypothetical comparator in a PTWR claim. Part-time worker status need not be the sole reason for less favourable treatment. more info

NEWS
Working time opt out to be retained
The European Parliament and the Council could not find agreement on the major points, the opt out, on-call work and multiple contracts. This is the first time that no agreement could be reached during the Conciliation stage since the entry into force of the Amsterdam Treaty. The main stumbling block was the opt out.
In the absence of agreement the Directive as it currently stands, including the opt-out, remains in force for the foreseeable future.

Consultation on implementation of the EU Agency worker directive
The Consultation period commenced on 8 May and will close on 31 July 2009
Background to consultation
The Department for Business, Enterprise and Regulatory Reform (BERR) is seeking views on the implementation of the Directive on conditions for temporary (agency) workers - Directive 2008/104/EC - more usually known as the "Agency Workers Directive" (the Directive). Member States have until 5 December 2011 to implement. The Government is proposing to implement on the basis of the CBI/TUC agreement of May 2008 which allows for equal treatment to apply after a temporary agency worker has been in a given job for 12 weeks. The Government's key objectives are to ensure appropriate protection for temporary agency workers whilst maintaining a flexible labour market.

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