Issue 67 - 16th July 2009

Thursday 16 July 2009

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House of Lords

SCA Packaging v Boyle [2009] UKHL 37 HL
The House of Lords decided that the word 'likely' as used in paragraphs 6(1) and 2(2) of Schedule 1 to the Disability Discrimination Act 1995 (whether an impairment would be likely to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities but for the fact that the person takes measures to treat or correct it , or that an effect that has ceased is likely to recur) refers to an outcome that 'could well happen'. Also suggesting that the same meaning should apply elsewhere in Schedule 1.
The House of Lords rejected the previous authorities which held that 'likely' means 'more probable than not', thus lowering the hurdle for a claimant to overcome in establishing a 'disability' within the meaning of the Act. Read more.

Court of Appeal

Gisda Cyf v Barratt [2009] EWCA Civ 648
The Court of Appeal held that the effective date of termination of an employee who was dismissed for gross misconduct was the date on which she opened and read the letter from her employer informing her of the dismissal. Read more.

Zahoor & ors v Masood & ors [2009] EWCA Civ 650
The Court of Appeal considers the situation where there has been serious wrong doing by each side to a dispute, in what circumstances, if any, the court can properly refuse to try the merits of the case and simply strike out or dismiss the action, and holds that strike out should be considered at an early stage even if the Defendant is also guilty of misconduct. Once the case gets to trial the court can still strike out or dismiss the claim where the misconduct is such it amounts to an abuse or the court cannot rely on evidence put forward.

The Court of Appeal also reiterated that the judge should not make findings and give judgment in a case on a basis that has not been put forward in ether parties pleaded case. Read more.

Hovell v Ashford &St Peter's Hospital NHS Trust [2009] EWCA Civ 670
In an appeal against the refusal to revoke the decision to appoint an independent expert in an equal value case the Court of Appeal has held that a tribunal does not need to obtain an independent expert's report before it can find equal value between an equal pay claimant and a comparator ranked higher in a job evaluation study (JES). A small difference in points awarded to each under the JES will not, however, of itself, be sufficient to establish that the jobs are of equal value. Read more.


London Probation Board v Lee UKEAT/0493/08/MAA
Contract of Employmen
The ET had not erred in construing the terms and conditions of employment as not permitting the employer to transfer the employee to other duties; in any event, the use of any power to transfer as a disciplinary sanction was unlawful. Read more.

Fareham College Corporation v Walters

The Employment Appeal Tribunal has held that, in a claim of disability-related discrimination, and where the employer had failed to make a reasonable adjustment, the employment tribunal's failure to carry out a comparative exercise according to London Borough of Lewisham v Malcolm did not invalidate its decision that there had been less favourable treatment for a reason related to the employee's disability. Read more.

Nationwide Building Society v Niblett
Constructive Dismissal
The EAT considered the approach in of Fairbrother and Claridge on the one hand and the approach in Buckland on the other and went on to comment that it was very difficult to envisage circumstances in which an employer will be in breach of the implied term of trust and confidence unless the employer's conduct has been unreasonable. However, the mere fact of unreasonable conduct is never sufficient in itself to amount to a fundamental breach. But if the employer's conduct is reasonable, it is difficult to see how that conduct can be said to be calculated to destroy or seriously damage the relationship of trust and confidence between employer and employee, still less how it can be said to be without reasonable and proper cause. Read more.

DWP v Sutcliffe
Unlawful Deductions
The EAT held that insofar as the Claimant took her entitlement to maternity leave under the statutory provisions of section 71 ERA she was not entitled to remuneration, which includes sick pay. Read more.


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