Issue 75 - 18th January 2010

Monday 18 January 2010

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Constructive dismissal

Stuart Peters Ltd v Bell [2009] EWCA Civ 938
The principle in Norton Tool does not apply where the dismissal relied upon is a constructive dismissal under section 95(1)(c) Employment Rights Act 1996 ("ERA") so that credit has to be given for earnings during what would have been the notice period.

Territorial Jurisdiction

Diggins v Condor Marine Crewing Services Ltd [2009] EWCA Civ 1133
Even if a claim for unfair dismissal is excluded by section 199(7) ERA, the Tribunal may still have jurisdiction under the Lawson v Serco principles. In the instant case the Claimant was employed by a company on board a vessel both registered outside Great Britain which ran between Portsmouth and the Channel Islands. Although he lived on the vessel during his two week rosters, his home was in Lowestoft. The EAT had been correct to find that he was a peripatetic employee who was based in Great Britain at the time of dismissal and therefore could claim unfair dismissal.

Religion or belief

Ladele v London Borough of Islington [2009] EWCA Civ 1357
The Respondent was not in breach of the Employment Equality (Religion or Belief) Regulations 2003 by insisting the Claimant register civil partnerships even though she objected to doing so on the grounds of her religious beliefs. The Court of Appeal agreed with the EAT that there was no direct discrimination as all registrars were required to officiate at civil partnership ceremonies. It also agreed that the Tribunal had been wrong to find indirect discrimination. The policy adopted was not just to provide effective civil partnership arrangements but to provide one which complied with its overarching commitment to equal opportunities and was therefore legitimate. Allowing the Claimant to refuse to perform the ceremonies would necessarily undermine the policy and therefore its insistence she did so was proportionate. Further, once the Claimant had been designated a civil partnership registrar, it would have been unlawful of the Respondent under the Equality Act (Sexual Orientation) Regulations 2007 not to require her to do so.


Ewieda v British Airways plc [2009] EWCA Civ 1025
A Protective Costs Order is not available in private litigation, in this case a claim by an employee against her employer. A Costs Capping Order under CPR 44 was not appropriate as the elements of the bill of costs were not unreasonable or disproportionate in themselves, and issues regarding the rates and times charged could be dealt with by a costs judge.

Fixed term employees/territorial jurisdiction

Duncombe & ors v Secretary of State for Children, Schools and Families [2009] EWCA Civ 1355
The employment contracts of teachers employed by the Respondent in European Schools fall within the scope of the Fixed Term Directive 1999 and the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. A rule made under Staff Regulations governing the schools limiting employment on successive fixed term contracts to nine years was not justified on objective grounds. The fact that the Respondent had no choice in the matter of the rule, as it was part of the Staff Regulations and/or was binding as an international treaty obligation, did not excuse it from having to provide a justification for it. No question of territorial jurisdiction arose in relation to the contract claims where teachers were employed in schools outside Great Britain as the employment contract stated that English employment law, which includes the Fixed Term Employee Regulations, expressly applied. While there is not a legally-binding right in European law to be protected against unfair dismissal itself, the Court of Appeal held that it was necessary to extend Lawson v Serco so that there was an effective remedy for a breach of the Directive.



Beswick Paper Ltd v Britton UKEAT/0104/09/RN
Where an explanation for the non-appearance has been given and no advice about requesting an adjournment is proffered, the Tribunal must consider the balancing interests of the parties and whether an adjournment, on terms as to costs (including, the wasted attendance costs) ought to be ordered.

Religion or Belief

Grainger plc & ors v Nicholson UKEAT/0219/09/ZT
A belief in man-made climate change, and the alleged resulting moral imperatives, is capable, if genuinely held, of being a philosophical belief for the purpose of the Employment Equality (Religion or Belief) Regulations 2003. The belief must be of a similar cogency or status to a religious belief, the ECHR jurisprudence is directly material and the limitations on the concept and extent of a philosophical belief can be derived from that, without the need to place any additional limitation on the nature or source of the belief.

Employment status

X v Mid-Sussex CAB UKEAT/0220/08/SM
A volunteer who did not have a contract to personally do any work was not employed by the Respondent for the purposes of the Disability Discrimination Act 1995. The Framework Directive did not require that the meaning of "employment" be construed to extend to unpaid voluntary workers such as the Claimant.

Shrewsbury and Telford Hospital NHS Trust v Lairikyengbam UKEAT/0499/08/DM
Even though the employment of the Claimant after 14 May 2004 was contrary to National Health Service regulations, and ultra vires he was still an employee and therefore had the right to claim unfair dismissal.


Tim Arrow & Sons v Onley UKEAT/0527/08/RN
The statutory uplift can only be applied to awards. An employer may avoid the uplift by paying sums due shortly before the Tribunal hearing.

National security

Tariq v Home Office UKEAT/0168/09/DA
Rule 54 of the Employment Tribunal Rules and the National Security Rules which provide that a Claimant and his representatives may be excluded from the whole or part of the proceedings, notwithstanding the use of a special advocate to represent the interests of the Claimant, is not of itself compatible with Article 6 ECHR or the right under European Community law for an effective judicial remedy for discrimination. Whether the withholding of materials from the Claimant will render the hearing unfair will depend on the nature of the open and the closed materials in the light of the allegations made. Similarly, it is for the Tribunal to decide whether the special advocate's inability to take the party's instructions on a particular point results in a breach of Article 6. In the circumstances the Tribunal had not erred in making the decision on whether it was permissible to hear closed evidence at all before it heard any of the open evidence (Coles v Barracks distinguished). Further, in deciding whether to order further materials to be disclosed to the Claimant to make the hearing of the claim Article 6 compliant, the Tribunal should first be informed what the parties' open cases are, and then be informed in closed session what the respondent's case is: Farooq v Commissioner of the Police for the Metropolis distinguished.

Ministry of Defence v Debique UKEAT/0048/09/MAA
The Claimant was a female soldier in the army, from St Vincent and the Grenadines, who was also a single parent with a young daughter. The Tribunal found that two provisions, criteria or practices (PCPs) were applied to her by the Respondent, namely that she be a soldier available for deployment on a 24/7 basis; and also that she could not have a member of her extended family (a half-sister) to stay with her in the Service Families Accommodation because she was a foreign national only entitled to stay in the UK for a short period. The Tribunal found that these PCPs had not been shown to be a proportionate means of achieving a legitimate aim and upheld the claims.


On 1 February 2010 the maximum compensatory award for unfair dismissal is reduced from £66,200 to £65,300 as a result of a fall in RPI in 2009. The maximum "week's pay" stays at £380. The limit on the daily guarantee payment is reduced to £21.20.


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