Issue 66 - 29th June 2009

Monday 29 June 2009

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Employment Appeal Tribunal

Strike out

Ironopolis Film Company Ltd & ors v Fox UKEAT/0314/08/DA
As the Respondents' responses were struck out in accordance with Rule 18(7)(b), (c) and (e) the Tribunal had erred in saying that they were not entitled to take any further part in the proceedings other than to seek a review. see

Amendment/reasons

Joao v Mesh Computers plc UKEAT/0529/08/JOJ
The Tribunal erred in regarding the Claimant's amendment application as an application to add an entirely new claim for unfair dismissal rather than an application to allow the substantive facts already pleaded to be relabelled formally as a claim for unfair dismissal. Both parties had in any event prepared for the claim for unfair dismissal to be heard. Further the Tribunal had failed to properly address the fact that the Respondent had presented two conflicting accounts on an important issue in the case. see

Statutory disciplinary and grievance procedures

Farr v Ryefell Ltd UKEAT/0019/09/DM
The Tribunal had erred in finding that it did not have the jurisdiction to hear the Claimants' claims as they were out of time without considering whether the time was extended under the statutory procedures. Whether the Claimant had the requisite length of service to bring any of the claims was a matter to be determined subsequently. see

Unfair dismissal

Evans v Barclays Bank plc UKEAT/0137/09/JOJ
The Tribunal had not erred in adopting the Ogden Tables for the evaluation of the loss of future pension rather than the Guidance from the Chairman of Employment Tribunals. see

Islam Channel Ltd v Ridley UKEAT/0083/09/JOJ
The Tribunal had not erred in its approach to compensation by failing to give credit against future compensation for a sum which the Claimant had earned in a particular period which was in excess of what she would have earned with the Respondent. At the date of the remedy hearing her earnings were lower and would continue to be so and her employment was insecure. The Tribunal decided what was just and equitable in having regard to the loss sustained by the Claimant as a result of the Respondent's unfair act. see

National minimum wage

Smith v Oxfordshire Learning Disability NHS Trust UKEAT/0176/09/CEA A "sleep-in payment" fell to be taken into account in calculating whether the National Minimum Wage had been paid, it being conceded that a worker was working for the purpose of the National Minimum Wage Regulations 1998 during this time. It was not an allowance to be excluded under Regulation 31 (1) (d) and in any event it did not fall within the words of exception as it was not "attributable to the performance of the worker in carrying out his work". see

Whistleblowing

El-Megrisi v Azad University (IR) in Oxford UKEAT/0448/08/MAA
In circumstances where the Appellant clearly raised a section 47B Employment Rights Act 1996 claim of some kind in the ET1, had not been required to particularise it, and had advanced it in her closing submissions, it was the duty of the Tribunal to consider it. Further the Tribunal erred in concentrating on the last protected disclosure and asking whether that was the principal reason for her dismissal rather than the entire history of her protected disclosures taken together. Where the Tribunal finds that they operated cumulatively, the question must be whether that cumulative impact was the principal reason for the dismissal. see

TUPE

Metropolitan Resources Ltd v Churchill Dulwich Ltd & ors UKEAT/0286/08/RN
The change of contractor for provision of accommodation for asylum seekers together with associated services was in the circumstances a change of service provision under Regulation 3(1)(b) of TUPE 2006. The question for the Tribunal is whether the activities carried on by the alleged transferee are fundamentally or essentially the same as those carried out by the alleged transferor. This answer of fact and degree. The multifactorial Cheeseman approach is not required. In the present case despite some differences in where and how the service was provided the Tribunal had not erred in finding that there was a transfer. see

Equal pay

Hartlepool Borough Council v Llewellyn & ors UKEAT/0006/08/CEA
Men who worked in female-dominated jobs alongside successful female claimants for equal pay with other comparators were entitled to equivalent compensation payments using the successful women as comparators. The fact that the female claimants had been entitled to compare themselves with men in other groups while the male colleagues could not was not a material factor defence. Further, the men were also entitled to equivalent awards. Such claims can be brought before the women's claims have been determined. The refusal of one of the Respondents to settle the claims of men while settling claims by women was an act of sex discrimination. see

 

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