Issue 69 - 12th August 2009

Wednesday 12 August 2009

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Court of Appeal

Unfair Dismissal
Strand Transport Services Ltd v Whitworth [2009] EWCA Civ 858

Although the Tribunal's decision on the matter was brief, with no findings of fact or clear reasons, save to say it was given "no evidence" in support of the submission, it was obvious why the Respondent had failed on the Polkey issue. It was clear from the judgment as a whole that the Tribunal considered the Respondent had not established relevant facts by credible evidence to support its case on the matter. Read more.

Metrobus Ltd v Unite the Union [2009] EWCA Civ 829

Strike action by UNITE was not protected under s219 Trade Union and Labour Relations (Consolidation) Act 1992 as some of the statutory conditions were not complied with. The conditions were not incompatible with Article 11 ECHR. Read more.

Employment Appeal Tribunal

Restriction of Proceedings Order

Attorney General v McCluskey UKEAT/0118/09/RN

An indefinite restriction on proceedings order was made against the Claimant after 12 unsuccessful applications and numerous review applications, and at least 31 appeals, all dismissed or stayed, in some of which the Claimant had named Tribunal staff and judges and EAT judges. Read more.

Bias

Peninsula Business Services v Rees & ors; Peninsula Business Services v Malik UKEAT/0333/08/RN UKEAT/0340/08/RN

The then part time Judge was an employment law specialist in a firm of solicitors who, in an advert for their employment law expertise, had denigrated non-solicitor employment law consultants. Although not named in the advert, the Respondents were a large and well-known firm of consultants. In the case of Rees the EAT held that fair-minded and informed observer could not have excluded the possibility of bias against the Respondent by the Employment Judge. In the case of Malik there was no longer any real risk of bias given the lapse of time between the advert and the hearing and the fact that the Judge was by then full-time and no longer a partner in the firm. In addition properly informed consent been given to the continuance of the case after the recusal of a lay member. Read more.

Costs

Dunedin Canmore Housing Association Ltd v Donaldson UKEATS/0014/09/BI

The Claimant brought a claim for breach of contract when the Respondent failed to pay the compensation agreed under a compromise. The Respondent claimed that the Claimant had breached the confidentiality clause, which she denied. Having found, contrary to her assertions, that she had made disclosures which breached the clause, it was perverse of the Tribunal not to make an award of costs as the Claimant had acted unreasonably in bringing the claim. Read more.

Gill v Humanware Europe Ltd UKEAT/0312/08/CEA

A wasted costs order in relation to the EAT proceedings was made against Counsel for the Respondent when, largely as a result of her improper conduct in approaching the Judge in the original hearing, the decision of the Tribunal was set aside on appeal due to the appearance of bias. However the Respondent's solicitors were not liable for the acts of Counsel in this case. Read more.

Unfair Dismissal

Lomond Motors Ltd v Clark UKEATS/0019/09/BI

The Tribunal had erred in finding that the Claimant's dismissal was unfair due to the wrong pool for selection for redundancy. The pool that was selected was in the range of reasonable responses. In the circumstances the Claimant's mobility clause was not relevant. Read more.

Manor Oak (PMG) Ltd v Kelly UKEATS/0070/08/BI

The Tribunal had erred in substituting its own decision for that of the employer and it had not properly applied the Burchell test. Further, although the Claimant was excluded from the part of the disciplinary meeting when other evidence was taken, this was not a fatal flaw in procedure as a note of this part of the meeting was sent to him and he was able to deal with the matter in writing before the appeal and at the appeal hearing. Read more.

Race Discrimination
Leeds City Council v Woodhouse & ors UKEAT/0521/08/DA

In the circumstances the Claimant could bring a claim under s7 Race Relations Act 1976 against Leeds City Council even though he was an employee of an organisation created specifically to manage part of the council's housing stock, as all the work was done for the benefit of the council. Therefore the Claimant was a contract worker and the council was the principal under s7. Read more.

Sex Discrimination
Queen Victoria Seaman's Rest Ltd v Ward UKEAT/0465/08/MAA

Despite references to a non-pregnant woman comparator and the use, in their findings of fact, of the term "but for" on one occasion, the Tribunal did not err in its overall analysis and reasoning in finding discrimination against the Claimant on the ground of pregnancy. Read more.

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