Issue 76 - 1st February 2010

Monday 1 February 2010

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Representation in disciplinary proceedings

R (G) v Governors of X School [2010] EWCA Civ 1
A teacher was accused of sexual misconduct towards a 15 year old boy and dismissed at a disciplinary hearing. The Court of Appeal held that as it was likely that the outcome of the hearing would have a profound influence on the decision-making procedures relating to the barred list and therefore on the Claimant's right to practise his profession, a civil right was in issue and therefore Article 6 was engaged. On the facts of the case the Claimant should be afforded the right to legal representation in the proceedings.

Protection from Harassment

Veakins v Kier Islington Ltd [2009] EWCA Civ 1288
The judge had erred in asking only whether the harassment complained of would have sustained criminal proceedings rather than applying the primary test in Majrowski v Guy's and St Thomas' NHS Trust. The unchallenged evidence of victimisation, demoralisation and the reduction of a substantially reasonable and usually robust person to a state of clinical depression self-evidently crossed the line into conduct which is "oppressive and unreasonable". However the Court of Appeal said this was an extraordinary case and it did not expect many workplace cases would give rise to this liability. It was far more likely that, in the great majority of cases, the remedy for high-handed or discriminatory misconduct by or on behalf of an employer would be more fittingly in the Employment Tribunal.


Rejection of claim form

Young v Hexion Speciality Chemicals UK Ltd UKEATS/0023/09/BI
The Tribunal had erred in rejecting the Claimant's claim form for unfair dismissal as it did not contain the start date of his employment. Specification of the date of commencement of a Claimant's employment is not an item of required information under Rule 1(4). Under Rule 3(2)(b) a claim can only be rejected by an Employment Judge if it is clear that the Tribunal does not have the power to consider it. In the absence of the start date this was not clear.

Compromise agreements

Industrious Ltd v Vincent UKEAT/0478/09
The parties entered into a compromise agreement which met the requirements of s203(3) Employment Rights Act 1996 ("ERA") but the Claimant claimed it was unenforceable due to misrepresentation by the employers. The EAT considered the authorities and held that the Employment Tribunal has jurisdiction to consider the issue of whether such an agreement can be avoided on common law principles.

Territorial jurisdiction

British Airways plc v Mak & ors UKEAT/0055/09/SM
The Claimants were employed as cabin crew, based and ordinarily resident in Hong Kong, flying between Hong Kong and, among other destinations, London Heathrow or Gatwick. The Tribunal had not erred in finding that they worked partly at an establishment in Great Britain for purposes of s8(1) Race Relations Act 1976 and Regulation 10(1) Employment Equality (Age) Regulations 2006. As well as duties performed on landing and prior to take off, there were debriefing sessions and compulsory training London, all of which constituted "work". Although the work was only estimated at 5% of working time it was more than de minimis and the tasks were essential and integral parts of the job.

YKK Europe Ltd v Heneghan UKEAT/0271/09/ZT
Where Lawson v Serco applies and an employee is absent from work at the date of dismissal, as well as considering the category into which an employee falls, the following factors would in general be relevant in determining the overall picture and in deciding whether s94(1) ERA applied: why the employee was absent from work, and the length of his absence before dismissal; where the employee was ordinarily working, or based, and for how long, before his absence from work began; where the employee would have been working at dismissal, if he had not been absent from work; whether there was an active employment relationship between the date of his absence from work and the date of dismissal; from where the contract was being operated at dismissal; and whether the tribunal would have had territorial jurisdiction as at the date on which the Claimant became absent from work.

Employment judge sitting alone

Franco v Bowling & Co Solicitors UKEAT/0280/09/DM
A Case Management Discussion cannot determine civil rights and obligations, nor make an order as to the entitlement of a party to bring proceedings or strike out a claim. An Employment Judge at a CMD has no power to limit a claim of sex discrimination, said to be of a continuing act extending back for the six years of the Claimant's employment, to the last two years. Whether there was a continuing act was a decision that should have been made at a full hearing.

Grievance and disciplinary procedures

Mockett v Credit Suisse Securities (Europe) Ltd UKEAT/0299/09/CEA
The Claimant's objection to his being made redundant was to follow the Respondent's grievance procedure. While under the Employment Act 2002 the two regimes are separate but, for the purposes of Regulation 15(2) Employment Act 2002 Regulations 2004, if there is some sort of procedure in relation to the dismissal that the Claimant reasonably believes to be ongoing, it does not matter whether it is called a grievance or a disciplinary matter.

Fitness Solutions Scotland Ltd v Park UKEATS/0032/09/BI
There is nothing the statutory dismissal procedure which prevents an employer deciding, before the Step 1 letter, that he is going to impose a particular sanction, or to prohibit him from, in due course, imposing that sanction if all the necessary steps are met. Whether or not the Tribunal considered that the proceedings were a "sham" was irrelevant to whether or not the dismissal was automatically unfair.


San Ling Chinese Medicine Centre v Lian Wei Ji UKEAT/0370/09/ZT
In light of unappealed findings of fact, the Tribunal did not err in holding that the Claimant's contract of employment was not tainted by illegality, although she took a full-time job while on a student visa and was paid less than the figure showed on her work permit. The Claimant did not participate in any misrepresentation in obtaining the work permit.


Lyons v Mitie Security Ltd UKEAT/0081/09/CEA
There is no inalienable right to holiday leave under the Working Time Regulations 1998 and the entitlement is subject to fairly operated statutory or contractual notice requirements. If an employee does not follow those requirements they may lose the right to take outstanding leave at the end of the leave year.


Cavendish Munro Professional Risks Management Ltd v Geduld UKEAT/0195/09
Under s43B(1) ERA a qualifying disclosure must be the disclosure of information and not just the making of an allegation, reserving rights or identifying issues. In the present case the letter from the Claimant's solicitor to his employer setting out his position was not a qualifying disclosure.

Disability discrimination

Department for Work and Pensions v Alam UKEATPA/0242/09
When considering the exemption from the obligation to make reasonable adjustments provided for by section 4A(3) and 4A(3)(b) Disability Discrimination Act 1995 applies, two questions arise. Did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)? And if not, ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)? If the answer to both questions is no then there is no duty to make reasonable adjustments. Eastern and Coastal Kent PCT v Grey [2009] IRLR 429 discussed.

Patel v Oldham Metropolitan Borough Council UKEAT/0225/09/CEA
In determining whether the effects of an impairment are long term for the purposes of Schedule 1 paragraph 2 (1)(a) and (b) DDA, the effect of an illness or condition likely to develop or which has developed from another illness or condition forms part of the assessment of whether the effect of the original impairment is likely to last or has lasted at least 12 months.

Sex discrimination

Sahota v Home Office UKEAT/0342/09
A woman undergoing IVF treatment is to be regarded as pregnant for the period following the implantation of the fertilised ova until the end of the protected period in the Sex Discrimination Act 1975. Before implantation, there may be sex discrimination during the limited period described in Mayr v Backerei und Konditorei Gerhard Flockner OHG [2008] IRLR 387.

Dansie v Commissioner of Police for the Metropolis UKEAT/0234/09
The EAT reviewed the authorities on dress codes from which it derived the following principles: a difference in treatment between the sexes on one particular aspect of the Dress Code is not necessarily more favourable treatment of a member of one sex compared with a member of the other sex. In order to determine whether an employer treats members of one sex less favourably than the other it is necessary to consider the Dress Code as a whole, even although a single provision of the Code may upset the balance of treating the sexes equally. A code which applies a conventional standard of appearance is not in and of itself discriminatory; looking at the Code as a whole, neither sex must be treated less favourably as a result of its enforcement. In the present case the Tribunal had not erred in finding that the requirement that the Claimant cut his shoulder length hair although it was common ground that a female recruit would not, in similar circumstances, have been required to have her hair cut was not discriminatory.

Employment status

Prison Officers Association v Gough UKEAT/0405/09
The EAT confirmed that an individual can be employed by two different employers at the same time as long as the employment is compatible. In the present case the Claimants were employees of the Respondent and the Prison Service.

Alston Transport v Tilson UKEAT/0358/09/CEA
The Tribunal erred in finding that a contractual document in relation to the Claimant's employment was a sham. This claim had not been made by the Claimant and the Respondent had not been given the opportunity to respond to the point. Further the Tribunal had formed the view on the basis of one clause and had failed to consider the document as a whole. Looking at the conduct of the parties once the relationship started there was no intention to create a legal employment relationship. The Claimant had been offered and refused permanent employment.

Pregnancy risk assessments

O'Neill v Buckinghamshire County Council UKEAT/0020/09
Pregnant workers are not automatically entitled to a work assessment under Regulation 16 Management of Health and Safety at Work Regulations 1999 in the absence of evidence that the work involved a risk as to health and safety to the expectant mother. Madarassy v Nomura International Plc [2007] IRLR 246 followed. In the particular case the EAT held that an individual facing disciplinary proceedings would not amount to a working condition or process of the type envisaged by the Regulations. However if the obligation to undertake an assessment is triggered and there is a failure to do so it is likely to be an act of sex discrimination without the need to show detriment.

Redundancy dismissal

Inchcape Retail Ltd v Symonds UKEAT/0316/09/DA

In finding the inclusion of a particular employee in the pool for redundancy inappropriate and therefore making the Claimant's dismissal for redundancy unfair, the Tribunal was substituting its own view for that of the employer. It was not unreasonable for the Respondent to include that employee. Further, while mistakes in objective criteria can be overturned, it is not for the Tribunal to substitute its view as what the scores should have been where subjective criteria are concerned.

Equal pay

Beattie & ors v Leicester City Council UKEAT0386/09/SM
Under Regulation 24 School Staffing (England) Regulations 2003 support staff at voluntary-aided schools are employed by the school's governing body unless there is an agreement that they should be employed by the LEA. In the present case there was no express agreement and none could be implied.

Birmingham City Council v Barker & ors UKEAT/0447/09/LA
The Employment Judge had erred in his discretion in deciding to sit alone on a PHR of a genuine material factor defence. However in the circumstances given the substantial delay that would be caused by an adjournment to convene a full Tribunal the hearing should go ahead.


Unison v Somerset County Court UKEAT/0043/09/DA
In regulation 13 of TUPE the "affected employees" whose representatives the employer must inform and consult about a relevant transfer are those who will be or may be transferred, those whose jobs are in jeopardy by reason of the proposed transfer, and those who have internal job applications pending at the time of transfer. The definition does not extend to everyone in the workforce who might apply in the future for a vacancy in the part transferred.

EAT Procedure

Abiola v North Yorkshire County Council & ors UKEAT/0369/08/DM
Copies of Yeboah v Crofton [2002] IRLR 634 and Meek v City of Birmingham [1987] IRLR 250 should not be supplied to the Employment Appeal Tribunal as they are well know to it. A quotation of the appropriate citation in a skeleton argument will generally suffice and it will only be in rare cases that it is necessary for a copy of the entire case to be provided.


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