Issue 8 - 25th April 2006

Tuesday 25 April 2006

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CASES

TUPE

G4S Justice Services (UK) Ltd v Anstey and Ors UKEAT/0698/05/LA

The Claimants were dismissed for misconduct. A collective agreement provided that if on appeal they were re-instated their continuity of employment would be preserved and back-pay received. After the dismissal but before the appeal hearings there was a transfer of the contract on which they had been employed. The transferee refused to hear the appeals so they were conducted by the transferor who re-instated the employees. However the transferor had no work for them and the transferee argued their employment had not transferred as they had not been employed immediately prior to the transfer. The EAT held that employment did transfer. The employees had the right to have their appeals heard and determined under or in connection with their contracts of employment for the purposes of Regulation 5(2)(a). Thus employment was preserved for the purposes only of determining their appeals. As their appeals succeeded and the dismissals were set aside, they continued in employment, but with the transferee as a result of the transfer. For more info Click Here

Unfair dismissal - reversal of Polkey

Mason v The Governing Body of WardEndPrimary SchoolUKEAT/0433/05/ZT

The EAT confirmed the decision in Pudney v Network Rail Infrastructure Ltd (see last bulletin), in which it was decided that section 98A(2) Employment Rights Act 1996 should only be interpreted as applying to procedures which are written or unwritten, contractual or non-contractual, or contained in an agreement or a policy which relates to dismissal of employees. It does not apply to a failure to comply with the general standards of a reasonable employer, as in the ACAS Code of Practice on Disciplinary and Grievance Procedures or otherwise.

The effect of s98A(2) is that if the Tribunal decides on the balance of probabilities, that applying such a procedure would have resulted in dismissal, the dismissal is fair. If the Tribunal decides the chances of dismissal were 50% or less, the dismissal is unfair. It then goes on to set and apply the percentage chance of dismissal to the award of compensation, for example, if there was a 33% chance of dismissal, a compensatory award would be reduced by 33%. As a result Polkey reductions on such awards could not be more than 50%.

The EAT also confirmed that s98A(2) does not apply to the statutory procedure, so an employer who fails to follow it cannot argue the employee would have been dismissed in any event.

For more info Click Here

Alexander v Bridgen Enterprises Ltd UKEAT/0107/06/DA

Another division of the EAT gives a conflicting interpretation of s98A(2), however it did not refer to Mason. In this case it held there was no limitation on the nature of the procedural breaches caught by the subsection. It is not limited to cases where the employer fails to comply with its own established procedures, written or otherwise. It means any procedure which the Tribunal considers in fairness the employer ought to have complied with.

Further, even though s98A(2) does not apply to automatically unfair dismissals where the employer has failed to follow the statutory dismissal procedure, a Tribunal can still apply Polkey such that the compensatory award may be reduced by 100%.

The EAT also gave guidance on what is required to fulfill the statutory disciplinary procedures, in particular in relation to redundancy cases. For more info Click Here

National Minimum Wage

Commissioner for HM Revenue & Customs v Leisure Employment Services Ltd UKEAT/0106/06/MAA

Workers occupying accommodation provided by the employer had £6.00 per fortnight deducted from their pay for the use of gas and electricity in addition to the maximum deduction for accommodation allowed by regulation 36 National Minimum Wage Regulations 1998. This extra deduction, if not allowed under the regulation, took the wages below the level of the NMW.

The EAT held the amount could not be counted as payment of the NMW. If a worker is under an obligation to pay a particular sum of money in order to be permitted to make use of the accommodation on offer, as in this case, then the sum paid should properly be described as "being in respect of the provision of living accommodation". The deduction of £6.00 was therefore in respect of living accommodation and as the employer had already deducted the maximum for this, it was paying less than the NMW.

The amount was also a deduction made by the employer for its own use and benefit under regulations 32(1)(b) and thus must be subtracted from the money paid.

The employer argued the money paid was for the provision of a service, and therefore it did count towards discharging its liability to pay the NMW under regulation 35(e), however the EAT held that as the workers were required to make the payment under their contracts or in connection with their employment regulation 35(e) could not be relied on.
For more info Click Here

LEGISLATION AND GUIDANCE

Guidance on the definition of disability

The revised "Guidance on matters to be taken into account in determining questions relating to the definition of disability" comes into effect on 1 May 2006. It incorporates changes made by the Disability Discrimination Act 2005 from 5 December 2005 governing who is a disabled person for the purposes of the 1995 Act. Transitional provisions apply.
For a copy of the guidance Click Here

Equality Act 2006

The Equality Act 2006 (Commencement No.1) Order 2006 SI made on 7 April 2006 sets out the date of the coming into force a number of provisions of the Act. In particular it brings into effect from 6 April 2007 provisions amending the Sex Discrimination Act 1975 which create a public sector duty to promote gender equality. For more info Click Here

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