Issue 64 - 1st June 2009

Monday 1 June 2009

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Employment Bulletin issue 64

COURT OF APPEAL

Jurisdiction
Rank Nemo (DMS) Ltd and ors v Coutinho [2009] EWCA Civ 454
The Court of Appeal has held that a tribunal has jurisdiction to hear a post-termination victimisation claim based on the non-payment of a tribunal award of £72,508.75 for race discrimination.
The Court considered that the Claimant was not asserting that the ET had any jurisdiction to enforce the ET award or the county court order. His claim rested not so much on the fact of an unsatisfied judgment as on the reason why and the circumstances in which the judgment debt has not been paid, in particular the unexplained less favourable treatment of him when compared with the other creditors who have not done a protected act and whom Rank Nemo had paid.
The Court saw no reason, subject to considerations relating to double recovery, why, if the victimisation claim were proved, the claimant could not receive both the original tribunal award and damages for any loss of benefit or detriment suffered as a result of the victimization.
more info

EAT
Jurisdiction
Jurisdiction in unfair dismissal

Dolphin Drilling Personnel PTE Ltd v (1) Alan Winks (2) Dolphin Drilling Ltd UKEATS/0049/08/BI
The Claimant was employed by the respondents, a Singapore company, as a storeman working in the offshore industry. He worked on an oil rig registered in Singapore operated by a company registered in the UK when it was in the Gulf of Mexico and then when it was off the coast of Nigeria. He was dismissed and sought to pursue a claim of unfair dismissal before the Employment Tribunal in Aberdeen. The Tribunal found that it had jurisdiction on the basis that there was a substantial connection between Great Britain and the employee/his employment. On appeal, the EAT found that the Tribunal had applied the wrong test with reference to Lawson v Serco Ltd [2006] ICR 250 and had erred in concluding that it had jurisdiction. more info

Worker, employee or neither
Little v BMI Chiltern Hospital UKEAT/0021/09/DA
The Claimant worked as a hospital bank porter and the question was whether he was an employee. The EAT held that the ET was entitled to find that he was not employed under a succession of short engagements based on the absence of mutuality of obligations. The finding that on occasions bank workers were sent home halfway through a shift without the worker being entitled to payment for the remainder of the shift distinguished his case from Prater Cornwall County Council v Prater [2006] IRLR 362 (CA) and North Wales Probation Area v Edwards (UKEAT/0468/07/RN. 12 December 2007). more info

2002 Act and pre-action requirements - Constructive dismissal
Parsons v Burworth Estates UKEAT/0547/08/MAA
The ET was wrong to have held that the complaints relied on by the Claimant had not been the subject of a prior grievance when the substance of the complaints remained the same although further particulars of incidents relied on were provided. Cyprus Airways Ltd v Lambrou UKEAT/0526/06 does not enunciate any general principle about "severance". In a constructive dismissal claim where the claimant relies on a series of quite discrete breaches, but has failed to lodge a grievance in respect of some of them, there is no reason in principle why he should not pursue his claim insofar as it is based on the remainder. more info

Statutory Dismissal procedures
Unfair dismissal: reasonableness of dismissal

Compass Group UK & Ireland Ltd T/A Eurest v Okoro UKEAT/0055/08/CEA

The Tribunal erred in law in finding that the Appellant had not complied with the requirements of step 2 of the Standard Dismissal and Disciplinary Procedure .The basis upon which the charges are laid will not necessarily be much more extensive than the charges themselves. Sometimes written grounds may be quite detailed, in which case the written grounds may themselves make clear the basis on which they are laid. Sometimes the facts may be simple, straightforward and well known to all concerned, for example from a meeting at which an employee was suspended
However, the Tribunal did not err in law in finding the dismissal to be substantively unfair: "there is no bright line dividing those cases where, following admissions, an employer may dispense with or curtail an investigation from those where an employer may not do so. There will be cases of admitted misconduct (such as dishonesty or violence) where no further investigation will be required. There will be others where a reasonable employer will investigate to form a view about the seriousness of the conduct in question or the mitigating circumstances surrounding the misconduct"
15% Reduction for contributory fault
Although the percentage finding of contributory fault was low there was no error of law in the Tribunal's reasons and Tribunal's assessment not perverse. more info

Equal Pay

Dumfries and Galloway Council v Mrs E North & ors UKEATS/0047/08/BI
The issue was whether or not the claimants and their chosen comparators were in the same employment for the purposes of section 1(2)(c) of the Equal Pay Act 1970. On a proper construction of section 1(6) of the 1970 Act, the claimants- 244 classroom assistants, support for learning assistants and nursery nurses employed by local authority, and their comparators -male manual workers based elsewhere, at depots and at a swimming pool, and employed as road workers, groundsmen, refuse collectors, refuse drivers and a leisure attendant were not in the same employment. It had not been established that the comparators would or could have worked, in their comparator jobs, at schools. Even if it was possible to hypothesise that they could have been so employed, it had not been established that their terms and conditions would have been broadly similar to those on which they were employed when not based at schools. more info

Costs
European Wellcare Scotland (11) Ltd v Lucas UKEAT/0444/08/MAA
Costs were awarded against the appellant by the EAT where it found that appeal relied on grounds of bias and irregularity which had absolutely no substance in them.The ordering of a full hearing by a Judge does not afford any guarantee that when the Notice of Appeal is given full examination it will be found to contain any merit. more info

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