Issue 70 - 25th August 2009

Tuesday 25 August 2009

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Court of Appeal

Wrongful Dismissal

Cook v MSHK Ltd & Ors [2009] EWCA Civ 624
The Claimant could not rely on alleged breaches of the implied term of trust and confidence of which it had knowledge prior to its clear affirmation the contract. Click here.

Equal Pay

Foster Wheeler Ltd v Hanley & Ors (Rev 1) [2009] EWCA Civ 651
Where possible the courts should follow the rules of the relevant pension scheme when giving effect to Barber rights. If this was not possible then the interference with the scheme should be as restricted as possible. Click here.

Gutridge & Ors v Sodexo & Anor [2009] EWCA Civ 729
The Claimants were female domestic cleaners who claimed equal pay for a period of six years prior to the date on which they lodged their claims. That period spanned the date of the transfer of their employment from North Tees and Hartlepool NHS Trust to Respondent. The comparators they sought to rely on for the whole period were male maintenance assistants who had not been transferred. The Court of Appeal held that they could use these comparators as the right to do so had crystallised prior to the transfer and the terms of their contract had altered accordingly. However the majority held that while the transferee was liable for the breach of contract by the transferor, the time limit for bringing a claim for that period was six months from the date of transfer. The breach by the transferee itself continued and such a claim had to be brought within six months of the termination of that employment. Click here.

Disability Discrimination

Booth v Oldham MBC [2009] EWCA Civ 880
While a person who is found not to be under a disability under the Disability Discrimination Act 1995 ("the DDA") will not always fail to establish permanent incapacity under the Local Government Pension Scheme Regulations of 1997, in the particular circumstances of the case the decision of the Employment Tribunal on this point also established that the Claimant was not permanently incapable of discharging the duties of his employment purpose of the Regulations. Further, the Claimant had failed to use the dispute resolution machinery provided under the Regulations and therefore had no right to bring this claim. Click here.

High Court

Disability Discrimination

X Endowed Primary School v Special Educational Needs and Disability Tribunal & Ors [2009] EWHC 1842 (Admin)
The High Court has held that under Regulation 4 Disability Discrimination (Meaning of Disability) Regulations 1996 an excluded condition includes both free-standing conditions and conditions which are symptoms of another disorder. Therefore if the treatment complained of related only to a pupil's tendency to physical violence which was a symptom of his ADHD, he would be excluded from the protection of the Act. In the circumstances however the failure to make reasonable adjustments related to the ADHD in general and therefore the Act applied.
Click here.

Employment Appeal Tribunal

Time Limits

Sodhexo Health Care Services Ltd v Harmer UKEATS/0079/08/BI
The Tribunal erred in finding that it was not reasonably practicable for the Claimant to have presented her claim for unfair dismissal within the three month time limit. Although she had been represented in her appeal by her trade union, she had not been advised and she had not asked for advice about time limits, although she was aware there was one. Her mistake in believing the time limit ran from the date of the final appeal decision letter did not meant it was not reasonably practicable to have brought the claim in time. Click here.

DHL Exel Supply Chain v Davies UKEAT/0035/09/DA
The Employment Judge had erred in finding it was not reasonably practicable for the Claimant to have made his claim for unfair dismissal within the three month time limit. While there had been initial confusion on his part as to the actual date of dismissal, by the time that confusion had ended, it was still reasonably practicable to have made a claim in time. Click here.

Strike Out

A v B & C UKEAT/0450/08/JOJ
The Tribunal had erred in striking out the claim for sex discrimination and unfair dismissal under Rule 18(7)(b). This was not such an extreme case that had no reasonable prospects of success. Click here.

Statutory Dismissal Procedure

The Governors of Birdwell Primary School v Fitzgerald UKEAT/0059/09/LA
The Respondent failed to follow the statutory disciplinary procedure when a notice to terminate was sent before any Step 2 meeting was held. Click here.

Disability Discrimination

Chief Constable of Lothian and Borders Police v Cumming UKEATS/0077/08/BI
While the Claimant had an eye sight impairment for the purposes of the DDA, making an application to enter a profession or for any job is not a "normal day to day activity" as it does not imply any particular physical activity. Refusal to allow the Claimant to progress to the next stage of her application because of her impairment was not a relevant adverse affect. No reasonable Tribunal could have concluded that the Claimant's eyesight impairment had a substantial adverse affect on her ability to carry out normal day to day activities. Click here.

Bowers v William Hill Organisation Ltd UKEAT/0046/09/DM
Once the Respondent had conceded that the Claimant was disabled at the time of the alleged statutory tort, this concession covered all aspects of the definition, and it was unnecessary to consider whether any of the specific provisions of Schedule 1 DDA had been met, such as substantial effect, day to day activities, or how long it was likely to last. Click here.

Statutory Grievance Procedure

Bells Food Group Ltd v Latimer UKEATS/0021/09/BI
The Tribunal erred in awarding an uplift of 50 per cent under s31 Employment Act 2002 to an award for sex discrimination. The issue is not whether or not the grievance procedure was fairly conducted or could have been conducted better but is, rather, whether the employer has complied with the requisite steps of the relevant statutory procedure. Click here.

Glasgow City Council v Steffan Cross Claimants & ors UKEATS/0007/09/BI
Under s32(6)(b) Employment Act 2002, after considering the authorities, the EAT held that Respondents are not required to raise the issue of compliance with the statutory procedure in the ET3 before it can be relied on, as it is only one method of doing so and the Respondent does not have to apply to amend the in order to subsequently raise the matter. However it will be too late to raise the matter once the Tribunal has begun considering the merits of the claims. Click here.

Employment Status

Launahurst Ltd v Larner UKEAT/0188/09/MAA
The Tribunal had not erred in finding that the Claimant was an employee and not a supplier of services. Having previously worked for the Respondent for a number of years as an employee, he had signed a "contract supply agreement" which contained an "entire agreement" clause, however his working arrangements continued as before. In the circumstances it was open the Employment Judge to find that the clause was a sham since the operation of the relationship demonstrated that the parties did not realistically intend or envisage that the terms would be carried out as written. Protectacoat Firthglow Ltd v Szylagyi [2009] EWCA Civ 98 applied. Click here.

Race Discrimination

Amnesty International v Ahmed UKEAT/0447/08/ZT
The failure to appoint the Claimant, who was of northern Sudanese ethnic origin and already employed by the Respondent, to the post of Sudan researcher on the basis that it would compromise the Respondent's perceived impartiality and would have safety implications constituted direct discrimination on the grounds of her national/ethnic origin, contrary to s1(1)(a) and 4(2)(b) Race Relations Act 1976, notwithstanding Amnesty's (potentially) justifiable reasons for the decision. However in the circumstances there was no breach of mutual trust and confidence. Obiter the effect of s41(1A) is to disapply s41(1) in the case of all discrimination (direct or indirect) within the scope of the Race Directive. Click here.


Tapere v South London and Maudsley NHS Trust UKEAT/0410/08/DA
The Claimant's contractual place of work was within the transferor Trust's geographical area. This could not be construed as being that of the Respondent Trust on transfer and the concept of "substantial equivalence" did not apply. The geographical area had been widened to the Claimant's detriment and was a breach of contract. Whether or not a "substantial change" is to the "material detriment" of the employee under Regulation 4(9) TUPE Regulations 2006 is a question of whether the employee regarded it as detrimental and, if so, whether that was a reasonable position for the employee to adopt? Shamoon v Royal Ulster Constabulary [2003] IRLR 285 applied. Click here.


The Working Time (Amendment) Regulations 2009
These amendments provide for the 48 hour working time limit for doctors in training to be increased to 52 hours for certain doctors in training until 31st July 2011. Click here.


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