Issue 77 - 2nd March 2010

Tuesday 2 March 2010

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Employment status
Muschett v HM Prison Service [2010] EWCA Civ 25
The relationship between the Claimant, who was placed by an agency to work in a prison laundry, and the Respondent had not developed into that of an employee, nor was he in the Respondent's employment for the purposes of s78 Race Relations Act 1976 as there was no contract between them. There was no basis on which to imply a contract. Click Here

Constructive dismissal
Buckland v Bournemouth University Higher Education Corp [2010] EWCA Civ 121
In determining whether or not the employer is in fundamental breach of the implied term of trust and confidence the "range of reasonable responses" does not apply. It is only relevant to the fairness or otherwise of the dismissal. A fundamental breach, once it has occurred, cannot be cured by the wrongdoer, although it may be waived or the contract affirmed by the innocent party. Click Here

Equal Pay
Newcastle upon Tyne NHS Hospitals Trust v Armstrong & ors UKEAT/0069/09/JOJ
The factor relied on by the Respondent as a genuine material factor was "tainted by sex" because it originated in the Respondent's intention to match market rates which it appreciated were depressed by factors peculiar to women. Ratcliffe v North Yorkshire County Council [1995] ICR 833 applied. The continuation of the differential was not objectively justified by the costs or industrial relations implications of removing it or by the Respondent's attempts to phase it out. Click Here

Religious discrimination
Eweida v British Airways Plc [2010] EWCA Civ 80
The Respondent had not indirectly discriminated against the Claimant by adopting a staff dress code which forbade the wearing of visible neck adornment and so prevented the her, a Christian, from wearing with her uniform a small, visible cross. There was no evidence that the wearing of the cross was a requirement of her religion. Further, indirect discrimination required evidence that some identifiable section of a workforce must be shown to suffer a particular disadvantage which the Claimant shared. Here it was not shown. Click Here


Parkwood Leisure Ltd v Alemo-Herron & ors [2010] EWCA Civ 24
A term in the Claimants' contract of employment that their terms and conditions of employment would be in accordance with negotiated collective agreements did not transfer under TUPE Regulations 1981. The Court of Appeal considered Werhof v Freeway Traffic Systems GmbH & Co KG [2006] IRLR 400 and Regulation 5 TUPE Regulations 1981 and held that the Respondent could not be held liable for pay and other employment obligations which result from post-transfer collective bargaining process to which it was not and could not have been a party. Click Here


Unison & Fenton v National Probation Service South Yorkshire UKEAT/0339/09/SM
Due to an oversight no form ET1a was submitted for the Second Claimant union, although the details of both claims were full pleaded in the First Claimant's ET1. The Employment Judge had erred in finding the Second Claimant had not presented a competent claim and in not allowing it to amend. Save in cases to which rule 3(1) applies, if a claim is not accepted by the Secretary the Employment Judge will take a decision under rule 3(3)-(5) without any requirement for a review application. As the ET1 contained all the required information for the Second Claimant's claim other than its address. The Employment Judge should have adopted the approach set out in Hamling v Coxlease School Ltd [2007] IRLR 8. Given that the omission of the ET1a was not a material omission the claim should have been accepted. Click here.

Baker v The Commissioner of Police of the Metropolis UKEAT/0201/09/CEA
The Employment Tribunal did not err in concluding that the first ET1, considered as a whole, did not contain a claim under the Disability Discrimination Act 1995. However, it did err in refusing to hear and/or determine an application to amend the first ET1 to 're-label' events as falling within the DDA on the basis that the application was made at the stage of final submissions in the proceedings. The timing of the application is only one of the considerations to be taken into account in determining an application to amend. Selkent Bus Co Ltd T/A Stagecoach Selkent v Moore [1996] IRLR 661 applied. Click Here.

Strike out
Opara v Partnerships in Care Ltd UKEAT/0368/09/LA
The Employment Tribunal had erred in not holding a hearing when reviewing its decision to strike out the Claimant's claim for his non-disclosure of documents. No finding of dishonesty about a party should be made without affording a full and proper opportunity to be heard upon it. Further, although CPR 3.9 does not strictly apply (Governing Body of St Albans Girls School and anr [2009] EWCA Civ 1190) Employment Tribunals will continue to derive great assistance from a consideration of the factors it sets out and in a fully contested hearing a full balance of the relevant factors will be required in the reasoning. Click Here.

Leon v Trans Global Freight Management Ltd UKEAT/0200/09/RN
Where a Claimant is in custody as a result of the imposition of a sentence of imprisonment that is a factor which should be considered by the Employment Tribunal in exercising its discretion to strike out for non compliance with an order for disclosure while he was in custody. Click Here.

Territorial jurisdiction
Curran & Sons Ltd v Beswinski UKEAT/0476/09/JOJ
Under Rule 19(1) an Employment Tribunal only has jurisdiction to deal with proceedings where the Respondent resides or carries on business in England and Wales. The Employment Tribunal failed to give sufficient reasons why it concluded it had such jurisdiction in a case in which the Claimant drove lorries for a company based in Northern Ireland but lived and worked mainly in England and there was no evidence the company had an office in England. Click Here

Interim relief
Raja v Secretary of State for Justice UKEAT/0364/09/CEA
The Employment Judge erred in refusing the Claimant's application for interim relief under sections 128-129 Employment Rights Act 1996 on the basis that the sections only applied to claims where there is a clear and simple conflict between the parties' assertions and not to a complicated and long-running dispute. Given the voluminous documentation the Employment Judge should have requested the parties to direct her attention to those parts of the claim form and the relevant documentary evidence which were covered by section 128. Click Here

Statutory grievance procedures
Allen v Secretary of State for Work and Pensions UKEAT/0498/08
A grievance must be extant for it to be relied on in bringing a claim to the Employment Tribunal. One which has been satisfied or is no longer a grievance is not. If it has previously not been pursued it must be raised again in Step 1 form. With respect to a continuing act of discrimination, a further grievance need not be submitted in respect of subsequent matters provided that precisely the same specific allegation of a continuing act of discrimination is in issue. The onus is on the Claimant to specify what particular acts she/he seeks to rely upon during the Step 1 process. Click Here

Statutory dismissal procedures
Noushuri v HBOS plc UKEAT/0334/09/SM
The Employment Tribunal had erred in deciding not to extend time under Regulation 15. The Claimant had resigned she subsequently submitted a grievance. Although she was not at that stage seeking re-instatement but compensation, she still fell within Regulation 15(2) in that she had reasonable grounds for believing when the time limit expired that a dismissal or disciplinary procedure, statutory or otherwise, was being followed in respect of matters that consisted of or included the substance of the Tribunal complaint. Click Here

Employment status
Bebbington v Palmer t/a Sturry News UKEAT/0371/09/DM
On the facts found by the Employment Tribunal the Claimant, a newspaper boy, was not employed under a contact of employment. Among other factors considered the Respondent was under no obligation to provide him with work and the Claimant was under no obligation to do the work. Section 18 of the Children and Young Persons Act 1937 does not provide that a child employed in accordance with the statute is to be regarded as an employee, that is employed under a contract of service. Click Here

Age discrimination
Keane v Investigo & ors UKEAT/0389/09/SM
The Employment Tribunal had not erred in dismissing the Claimant's claims. It found that she was an experienced accountant who had applied for jobs advertised for the newly qualified and that she had no interest in the vacancies and was making the applications only in order to be able to claim compensation. An applicant for a job who has no interest in accepting it if offered has no claim for discrimination if the application is unsuccessful. Click Here

Disability discrimination
City of Edinburgh Council v Dickson UKEATS/0038/09/B1
The Employment Tribunal had erred in finding direct discrimination. The Tribunal wrongly believed that because that the explanation for the misconduct was related to the Claimant's disability, it followed that the Respondent's failure to engage with and therefore reject this explanation was on the ground of his disability. The Respondent simply had not believed the explanation and therefore the reason for the dismissal was not the Claimant's disability. Click Here

Race discrimination
Arhin v Enfield Primary Care Trust UKEAT/0296/09/LA
Where an employer seeks to rely upon having made a mistake which disadvantages a person who may legitimately think that they might be the subject of discrimination, the mistake should be identified as a reason in the Respondent's notice. A mistake may be a perfectly adequate reason if it is shown itself to be free of any (in this context) racial bias, but it demands necessarily close scrutiny. The Employment Tribunal must focus upon the likelihood of the mistake having been a genuine accident and consider what systems there may be within the employer which tend to prevent such a mistake being made. Click Here

May & Baker t/a Sanofi-Aventis Pharma v Okerago UKEAT/0278/09/ZT
The behaviour of an agency worker working for the Respondent did not make it liable for direct race discrimination under sections 32 and 33 Race Relations Act 1976. There were no findings of primary fact which permitted the Employment Tribunal to come to the conclusion that she was either in the employment of or an agent of the Respondent under section 32. In relation to section 32 a person cannot aid another to do something which the second person has already done. Allowing an environment where particular conduct could take place does not amount to aiding that conduct. In any event the act would not have been unlawful if done by the agency worker as she was not an employee of the Respondent. Click Here

NCP Services Ltd v Topliss UKEAT/0147/09/SM
On remission to a Tribunal to reconsider an award in respect of future loss the Tribunal should have regard to circumstances as they will be on the date the remitted case is determined by it. Click Here

Unauthorised deductions from wages
Bateman v Asda Stores Ltd UKEAT/0221/09/ZT
The Employment Tribunal had not erred in finding that the wording of a variation clause in the Claimant's staff handbook was wide enough to permit the Respondent to change matters set out in it, which included the pay and work structure of the Claimants. The wording of the clause meant that the Respondent was entitled to impose such changes without the need to obtain the Claimant's express consent. It had not been part of the claim that the variation clause was not part of the contract of employment. Click Here



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