Issue 78 22nd March 2010

Monday 22 March 2010

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COURT OF APPEAL

Unfair dismissal

Sarkar v West London Mental Health NHS Trust [2010] EWCA Civ 289
The Employment Tribunal had not erred into taking into account the fact that the Respondent had at one stage felt that the allegations of misconduct against the Claimant were not serious enough to engage the full disciplinary procedure, before it abandoned that procedure and dismissed the Claimant for gross misconduct. Neither had it erred in finding that subsequent allegations of misconduct did not individually or cumulatively amount to gross misconduct.

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EMPLOYMENT APPEAL TRIBUNAL

Statutory grievance procedure

Brett & ors v Hampshire County Council UKEAT/0500/08/JOJ
A grievance identified four comparators' jobs for equal pay purposes but the subsequent claim form identified only two of those jobs and two which were different. As each comparison gave rise to a distinct claim, the Claimant was entitled to pursue her claim in respect of the previously identified jobs but not the new ones. If a grievance statement misstates the Claimant's job title it cannot have properly set out the grievance. However such a mistake can be rectified before proceedings are issued. A grievance which has been withdrawn can only be re-instated in writing.

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Evidence
Williamson v The Chief Constable of Greater Manchester Police UKEAT/0346/09/DM
The Employment Judge had not erred in excluding evidence obtained by a covert recording of a discussion by the panel at a capability hearing when the Claimant and his representative had withdrawn so that the discussion could take place. Chairman and Governors of Amwell View School v Dogherty [2007] IRLR 198 considered.

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Compensation

Wood v Mitchell SA Ltd UKEAT/0018/10/CEA
When a Claimant becomes unfit for work due to a supervening illness after he has been dismissed, this does not end the compensation period. The Employment Tribunal must consider for how long thereafter the Claimant might have been employed by the Respondent, whether he might again have become fit for work during that period, and what sick pay or other benefits he would have received.

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Protective award
Shanahan Engineering Ltd v Unite UKEAT/0411/09/DM
The purpose of the protective award under section 188 Trade Union and Labour Relations (Consolidation) Act 1992 is to provide a sanction for breach of an employer's obligations not to compensate employees and so there is no link between the 90 day maximum award and the length of time consultation would have taken. However, when assessing the seriousness of a default, it is relevant to consider the culpability of the employer and the harm or potential for harm of the default. While in the present case there was no consultation at all, it was relevant that it could have taken place over a short period and this was one factor which should have been taken in order consider what was just and equitable.

Time for appealing
Tasneem v Dudley Group of Hospitals NHS Trust Ltd UKEATPA/0496/09/CEA
Under EAT rules the time limit for instituting an appeal is 42 days from the date when the written reasons for the judgment of the Employment Tribunal are sent to the parties, which is presumed to be the date which is recorded on the decision. In the present case the Claimant produced unchallenged evidence which proved on the balance of probabilities that the decision was most likely put in the post at a date later than that recorded. The EAT commented that in any future case in which the date when the judgment is recorded as having been sent is seriously placed in issue it would expect that the Employment Tribunal would be able, if requested to do so, to make available evidence as to the procedures it has in place for ensuring that the date of sending, as stamped on the decision, is the day the document is actually handed to the postman or put in the post-box.

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Anonymity orders in EAT
A v B UKEAT/0206/09/SM
Although the EAT does not have the same powers as the Employment Tribunal to make permanent anonymity orders in cases which involve allegations of the commission of a sexual offence, it was necessary in the circumstances to give effect to the Claimant's right under Article 8 ECHR for it to use its powers to regulate its procedure under s30(3) Employment Tribunals Act 1996 to protect the Claimant's identity by anonymising its judgment and by deleting from the public record any matter which was likely to lead members of the public to identify the Claimant.

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