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									Employment law bulletin
Issue 1 January 2006


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                                                                                  JANUARY 2006 ONE



Michael Duggan,

                                                               EMPLOYMENT LAW
                                                               NEWS AND CASE
LITTLETON CHAMBERS                                             UPDATER
3 Kings Bench Walk North,
Temple EC4Y 7HR
                                                               UJPDAGTEER


NEWS ROUNDUP FOR JANUARY 2006
The Government has produced a new edition of “Redundancy and Insolvency: a
guide for Insolvency Practitioners” (8th Ed).
See:http://www.insolvency.gov.uk/pdfs/guidanceleafletspdf/guideforips.pdf

The Information Commissioner has issued a good practice note clarifying how the
Data Protection Act 1998 applies to employment references. See:
http://www.ico.gov.uk/cms/DocumentUploads/employee_references_Press_Release
_for_GPN_Jan_06.pdf &
http://www.ico.gov.uk/cms/DocumentUploads/Subject_access_and_employment_ref
erences.pdf

The Centre for Economic Performance has produced a report on the Work Life
Balance (January 2006), concluding:
“This may suggest that improving WLB is socially desirable – workers obviously like it and firm
productivity does not inordinately suffer. Our results do not, however, give a green light for policymakers
to regulate more WLB. Even if productivity does not fall, WLB is costly to implement and maintain, and
may result in significantly lower profitability. Any proposed changes to WLB policies need to weigh up
these financial burdens on firms.”
See http://cep.lse.ac.uk/management/worklifebalance_research.pdf

Consultation is to take place on whether four weeks’ paid holiday is to be additional
to eight days’ bank holiday: See the Commons debate at HC 18th January 2006,
Column 906.


The Secretary of State has asked DTI officials to review the pros and cons of further
liberalisation of the Sunday Trading laws (which apply to England and Wales only).
Any views and evidence you wish to submit should be sent via email, by 14 April
                                                    1
Employment law bulletin
Issue 1 January 2006


2006,     to:     sundaytrading@dti.gov.uk     For   the                               fact       sheet,         see:
http://www.dti.gov.uk/ccp/topics1/sunday_trading.htm

A new scheme for making redundancy payments to members of the Armed Forces is
set up with effect from April 2006. See The Armed Forces Redundancy Scheme
Order 2006 [2006/55].

HM Revenue and Customs have launched an employment status indicator. The Web
page states:
“The ESI tool which can be used in working out the employment status of individuals or groups of
workers is now available on this site. We will use this page to notify you of any important changes or
amendments to the tool and the service levels.”
See: http://www.hmrc.gov.uk/calcs/esi.htm

The Employment Rights (Increase of Limits) Order 2005 (2005/3352) provides for
increases in the statutory limits, with the compensatory award increasing to £58,400
and the basic award to £290 after 1st February 2006. See the SI for the full list.

The Government launched the Welfare Reform Green Paper on Tuesday 24 January
2006. The Website states that:
“This is a landmark document for the Department in meeting its objectives of promoting opportunity and
independence for all. It contains major new proposals to help individuals achieve their potential through
work.”

A draft statutory instrument, The Information and Consultation of Employees
(Amendment) Regulations 2006 will have the following effect as set out in the
explanatory note:
These Regulations amend the Information and Consultation of Employees Regulations 2004 ("the 2004
Regulations"). The Regulations come into force on 6th April 2006.
The 2004 Regulations impose information and consultation obligations on certain employers. Regulation 16 provides
that employers and their workforce may reach a negotiated agreement on how these obligations will be satisfied. It is
possible that such an agreement may address information and consultation on pensions issues. Further, where,
under regulation 20, standard information and consultation provisions apply, these include the obligation to inform
and consult on "decisions likely to lead to substantial changes in work organisation or in contractual relations". This
could include the provision of information and consultation on pensions issues. Regulations 7(3) and 11 to 13 of the
Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment)
Regulations 2006 ("the 2006 Regulations") require relevant employers to inform and consult about "listed changes"
which are certain changes affecting occupational or personal pension schemes.
These Regulations amend the 2004 Regulations so as to provide that the obligations to inform and consult on "listed
changes" arising either as a result of a negotiated agreement entered into before these Regulations come into force
or pursuant to regulation 20 of the 2004 Regulations do not apply where the employer is under a duty under
regulations 7(3) and 11 to 13 of the 2006 Regulations and he has notified the information and consultation
representatives appointed under a negotiated agreement or employees (where the agreement requires they be
informed and consulted directly) or the information and consultation representatives appointed under the 2004
Regulations, as appropriate, in writing that he will be complying with that duty.


The Trade and Industry Select Committee is currently undertaking an inquiry into the
work of Acas. This is amidst concerns about the cost cutting exercise by the DTI
which is likely to result in a loss of 150 jobs at ACAS. See
http://www.parliament.uk/parliamentary_committees/trade_and_industry/tisc_pn16_0
506.cfm
See also the Times on 25th January 2006:
http://business.timesonline.co.uk/article/0,,16849-2008730,00.html

In a document entitled ‘CHOICE AND FLEXIBILITY: Draft Regulations on Maternity
and Adoption Leave and Flexible Working’ the DTI has published the following draft
Regulations. Consultation closes on 18th April 2006.
    Maternity and Parental Leave (Amendment) Regulations 2006

                                                          2
Employment law bulletin
Issue 1 January 2006


    Paternity and Adoption Leave (Amendment) Regulations 2006; and
    Flexible Working (Eligibility, Complaints and Remedies)(Amendment)
    Regulations 2006.

Michael Duggan’s Books include: Wrongful Dismissal; Unfair Dismissal;
Contracts of Employment and Family Friendly Policies


A-Z TOPICS -
CASE UPDATER                                        ‘Without Prejudice’ they put forward an
                                                    offer of settlement in the sum of
                                                    £10,000, to be left open for 14 days.
                                                    Attempts were made to compromise
DISCIPLINARY PROCEDURES
                                                    the matter and final contact was made
                                                    on 9 May, the attempt not succeeding.
                                                    The Claimant’s solicitor spoke to the
EAT NOTE: Statutory disciplinary                    Respondent’s representative who said
procedure – internal appeal –                       that Mr Zilli was not prepared to
reasonable        grounds      for    belief,       discuss the matter further. On 11 May
Regulation 15(2), 2004 Regulations.                 the Claimant’s solicitor lodged his
Solicitor’s letter before action not raising        claim with the Employment Tribunal.
appeal. Immaterial that employer had                The 3 month primary limitation period
no appeal procedure.                                for his claims had expired on 1 May.
MR A PISCITELLI v ZILLI FISH                        The issue in the appeal was whether
LTD                                                 the Chairman was wrong in law in
HHJ Peter Clark, Ms Bilgan, Mr                      finding that the Claimant did not have
Mallender                                           reasonable grounds for believing,
UKEAT/0638/05/DZM                                   when the primary limitation period
The Claimant was suspended on 26                    expired,     that    a     “dismissal    or
January 2005, it being alleged that he              disciplinary      procedure,       whether
had included a service charge on                    statutory or otherwise … was being
customers’ bills contrary to the                    followed in respect of matters that
Respondent’s        instructions,     the           consisted of or included the substance
suggestion being that he was                        of the tribunal complaint”, as provided
pocketing equivalent cash amounts                   for in Regulation 15(2) of the
from the till.     On 2 February he                 Employment Act 2002 (Dispute
attended a disciplinary hearing                     Resolution) Regulations 2004 (the
conducted by Mr Aldo Zilli at which                 2004 Regulations). If so, then the
was summarily dismissed on the                      ordinary time limit fell to be extended
grounds of gross misconduct. The                    under Regulation 15 by a further 3
Claimant       instructed      solicitors,          months. In these circumstances the
Levenes, and on 23 February those                   unfair dismissal and breach of contract
solicitors wrote to Mr Zilli, contending            claims would be in time. The Chairman
that     the   dismissal     was     both           concluded that the letter of 23rd
procedurally and substantively unfair.              February did not amount to an appeal.
They added that they had advised the                The EAT held that the ET had been
Claimant of his right to present a                  correct in its interpretation of the letter.
complaint to an Employment Tribunal                 It stated:
of unfair dismissal and set out a                    “In support of the appeal Miss Banton
                                                    submitted that the concept of an internal
calculation of compensation totalling               appeal, which would have the effect of giving
£41,624 (including some double                      reasonable grounds for the belief that a
counting). In an addendum headed                    disciplinary procedure was being followed,
                                                3
Employment law bulletin
Issue 1 January 2006


should be given the same wide meaning as a               MICHAEL       KIRCHER      v
grievance for the purposes of the grievance
procedure      requirements     of    the    2004        HILLINGDON PRIMARY CARE
Regulations. See now my judgment in Thorpe               TRUST
v Poat and Lake (UKEAT/0503/SM.                 18       David Foskett QC, sitting as
October 2005) and Galaxy Showers v Wilson
(UKEAT/0525/05/CK. 10 November 2005.                     Deputy High Court Judge
Langstaff J). She contends that the evidence             [2006] EWHC 21 (QB)
before the Chairman show that up to 9 May the            The Claimant applied for an injunction
employer wished to have a meeting with the               to prevent the Trust from terminating
Claimant, indicating a willingness to entertain
an appeal and thus giving rise to the necessary          his employment. He had been
reasonable grounds for belief required by                employed as a consultant psychiatrist
Regulation 15(2) to extend time for presenting           subject to terms which had a three
the claim.                                               month notice period and a disciplinary
 We are unable to accept that submission on
the facts of this case. We accept that the fact
                                                         procedure in relation to matters of
that the Claimant’s Solicitor’s letter of 23             professional conduct and competence.
February could be viewed as a letter before              An investigation had been carried out
action does not of itself preclude such a letter         into a number of problems with
from raising an appeal (or indeed a grievance            colleagues. The Claimant had gone on
for other purposes under the 2004
Regulations). (See Regulation 2(2)) However,             sick leave and had then been
we do not read paragraph 11 of the Chairman’s            suspended. He was sent a letter on
reasons as relying simply on the fact it was a           26th May 2005 stating that a decision
letter before action as precluding the possibility       had been made to terminate his
that it also constituted an appeal. Rather, that
on a proper reading of the letter it did not raise
                                                         contract with immediate effect on the
an appeal. We think that is a fair reading. It           basis of irreconcilable differences with
did not seek the Claimant’s reinstatement or re-         the employer and strained relations
engagement, the invariable purpose of an                 with his colleagues. He was to be paid
internal appeal against dismissal; instead it            the sum he would otherwise be
sought a cash settlement of the Claimant’s
potential claim for unfair dismissal and no              entitled to by way of damages. The
more.”                                                   Claimant      contended        that    the
As to the argument that the employer                     disciplinary procedure should have
did not have an appeal procedure and                     been exhausted before the Trust could
that the effect of the decision was to                   dismiss him.
allow the employer to benefit from its                   It was held that:(1) There were serious
own breach of statutory procedure, the                   issues to be tried on the interpretation
EAT stated:                                              of the contract ie. whether the Trust
“We are not persuaded that this is so. What is           had to first exhaust the procedure
required in the first place is for the employee to       before     dismissal     (JAN       GRYF-
lodge an internal appeal. If the employer then
refuses to entertain it the employee has no
                                                         LOWCZOWSKI v HINCHINGBROOKE
reasonable grounds for believing that the                HEALTHCARE             NHS         TRUST
disciplinary process is being followed. He               considered–see under Employment
knows that he must present his claim within the          Contracts).     There was an issue
ordinary 3 month period.             If that claim       whether the Trust was acting within
succeeds, the employer will then be penalized
in compensation in the way earlier described.            the notice provision as it may have
There was nothing to prevent this Claimant               been that the Claimant was summarily
from simply indicating his intention to appeal.          dismissed for no justifiable reason.
Neither he nor his solicitors did so.”                   The letter had expressly stated that no
                                                         misconduct had been relied upon. It
Interim      injunction   to prevent
                                                         was also arguable that the wrongful
termination of employment where
                                                         repudiation which was not accepted
issue to be tried as to whether
                                                         left that contract intact at least for the
employer was obliged to exhaust
                                                         notice period.
disciplinary       procedure  before
                                                         (2) Damages were not an adequate
dismissal.
                                                         remedy:
                                                     4
Employment law bulletin
Issue 1 January 2006


“If an injunction is not granted, the Claimant will        ROYAL LIVERPOOL CHILDREN’S
be deprived of the ability to argue at trial that
he should be entitled to have the opportunity to           NHS TRUST v MRS T P DUNSBY
clear his name, or at the very least put the               HHJ Richardson, Mrs McArthur,
complaints made about him in their true                    Mr Switzer
context, before an independent tribunal
provided for in his contract of employment. As
                                                           Mrs Dunsby was employed by the
Gray J concluded in Gryf-Lowczowski, the                   Trust as a staff nurse assigned to the
remedy of damages is not adequate against                  Paediatric Intensive Care Unit. In that
that particular background. There would be a               Unit she often undertook one-to-one
significant risk, as there was in the Gryf-                nursing of critically ill children. As the
Lowczowski case, that the Claimant would
never find alternative employment, at least                Tribunal found, periodic but repeated
within the NHS.”                                           absences caused severe operational
(3) The balance of convenience was                         difficulties in the Unit. Mrs Dunsby
in favour of the interim injunction.                       had, as the Tribunal said, an appalling
“The grant of an injunction will mean that the             sickness absence record. The Trust
Claimant's contract of employment remains in               has a sickness absence procedure
existence and he will be entitled to payment
under it, albeit during a period when he will not
                                                           involving four stages. As the Tribunal
be working. That is or may be a financial drain            found, it was reasonable for the Trust
from the Trust's point of view, but is met by the          to treat stage 1 as having been
cross-undertaking in damages that will have to             complied with in June 2003. The Trust
be given.                                                  held a stage 2 meeting in October
Mr Hendy has made it clear that the Claimant
agrees to remain suspended until the trial and,            2003, a stage 3 meeting in January
accordingly, there is no possibility, as Mr Moon           2004 and a stage 4 meeting on 1 June
had argued, that the grant of an injunction                2004. The sickness absence had
would "impose" the Claimant back at Mill                   been for various reasons. She had
House. For the avoidance of doubt, the
injunction I propose to grant is not intended to
                                                           mentioned gynaecological problems
direct the Claimant's reinstatement.                       but she had also mentioned personal
Against that background, it seems to me to be              stress, stress due to child-care
clear that the balance of convenience dictates             difficulties and the like. Her doctor had
the grant of an interim injunction. Without it the         reported that her absence was due
Claimant has no prospect (i) of taking part in
any disciplinary process and addressing the                essentially to problems in her own
allegations that have been made about him, (ii)            personal life. On a later occasion, the
of taking part in any other process designed to            doctor reported that she was fit for
overcome what are presently described as                   work but commented that past
"irreconcilable differences" with the staff at Mill
House or (iii) being considered for another
                                                           attendance patterns could often be a
position within the Trust. Whether the Trust               prognosticator for likely attendance
decides to try to go down the HC(90)9 route in             patterns in the future. At the hearing
the period before trial is a matter for them: I am         on 1 June, Mrs Dunsby said that some
not making a mandatory order that they should              absences during 2003 were not merely
do so. If they do decide to do so, they may
need some reassurance that the Claimant will               due to headaches, as previously
participate fully in it and cooperate with it.             recorded, but migraines caused by her
Since, in default of some other solution, he has           gynaecological problems. It was said
been wanting such a procedure for over 3                   that her medication had changed and
years, I doubt that there would be any difficulty
                                                           the migraines would not recur. Her
about it; but I will hear argument about it if it is
thought relevant.”                                         representative argued that in his view,
                                                           the Trust would be acting in breach of
                                                           the Disability Discrimination Act 1995 if
DISCRIMINATION: DISABILITY                                 it dismissed her. Her employment was
                                                           terminated because of her attendance
                                                           record. She claimed unfair dismissal,
Tribunal erred in law in its approach to                   sex discrimination and disability
justification (DDA) and s98(4).                            discrimination. At a CMD on 15th


                                                       5
Employment law bulletin
Issue 1 January 2006


October 2004 a direction was given                        material and substantial because “but
that:                                                     for the disability related absences, the
“The first hearing in this case will determine            claimant would not have been at risk
(a) the unfair dismissal claim;                           of dismissal in June 2004”. The EAT
(b) on the assumption that the Applicant was a
disabled person on all three bases                        saw two difficulties with this reasoning.
(i) whether the implementation of procedures and          It was a starting point for the enquiry
the dismissal itself can be said to be for a reason       into justification not its conclusion and
related to disability;                                    the “law requires such a dismissal to be
(ii) if so, whether the Respondents have                  justified so a Tribunal does not answer the
established justification”                                question whether a dismissal is justified merely
The EAT were critical of the nature of                    by saying that it was, in part, because the
the direction. A hearing had taken                        employee was absent on grounds of disability.”
place on 17th/18th February 2005. It                      The second problem was that the ET
was contended by the Respondent                           had asserted that the stage 2 review
that the direction had meant that the                     had to be discounted if the migraines
hearing was to be conducted on the                        were disability related. The sickness
basis all absences were disability                        procedure did not require disability
related but the EAT noted that this                       related absences to be ignored.
was not what the direction stated. The                    “An employer may take into account disability
                                                          related absences in operating a sickness
ET approached the case on the basis                       absence procedure. Whether by doing so he
that it had, in some way, to take into                    treats the employee less favourably and acts
account whether the absences were                         unlawfully will generally depend on whether he
disability related. The ET reasoned                       is justified or not. It is precisely the question of
that the stage two review was                             justification that the Tribunal failed to consider
                                                          in this case.”
triggered by disability related matters
                                                           The dismissal was held to be unfair
so that the stage two should have
                                                          because       the   disability  related
been discounted and the Claimant
                                                          absences were treated as part of the
given ‘another life’. The dismissal was
                                                          ‘totting up’ review process. The EAT
for a reason which related to an
                                                          thought this was incorrect: “there is no
assumed disability; gynaecological                        absolute rule that an employer acts
problems. The ET stated at paragraph                      unreasonably in treating disability related
9:                                                        absences as part of a totting up review process
“We next considered whether the treatment –               or as part of a reason for dismissal on grounds
the decision to dismiss – was justified, i.e.             of repeated short term absence.”
whether the reason for the treatment was                  The EAT held that the Tribunal should
material to the circumstances and substantial.            have stated whether it took the view
It was not because but for the disability related
absences the claimant would not have been at
                                                          that the Trust was unreasonable in
risk of dismissal in June 2004”.                          treating migraine related absences as
The Trust argued that the question                        part of the process as “The assertion by a
whether the treatment was justified was                   Union representative for the first time at the
                                                          fourth stage that just two absences nearly a
not properly considered by the ET. It                     year before out of a whole pattern of absences
was said that the ET had not answered                     should be left out of account does not
the question whether the treatment was                    necessarily make it unreasonable for the Trust,
for a reason which was material to the                    looking at the whole pattern, to dismiss. As we
                                                          have said, there is no rule that an employer, in
circumstances of the case and                             operating a sickness absence procedure, must
substantial. The Trust contended that                     leave out of account her disability related
there was only one answer to this                         absences.”
question. The Claimant asserted that                      The case was referred to a different
the test had been properly set out in                     ET.
paragraph 9. It was submitted that the
Trust could not rely on being at stage 4
of the procedure.
The EAT noted that the ET asserted
that the decision to dismiss was not
                                                      6
Employment law bulletin
Issue 1 January 2006


                                                  terminable on six months notice and
                                                  was paid a daily retainer. He could
EMPLOYMENT CONTRACTS                              work for other organisations and was
                                                  under no duty to carry out any
                                                  particular work. The ET found:
                                                  “(1) Between April 2002 and October 2004 the
Mutuality of obligations – contract of            Claimant pursued a number of leads supplied
service.                                          by the Company and took certain steps on his
MR F YOUNIS v TRANS GLOBAL                        own initiative.     He also pursued business
                                                  interests of his own, not being precluded by the
PROJECTS LTD & MR                                 Company from doing so.
CHARNOCK                                          (2) He was not subjected to any control in the
HHJ Peter Clarke, Mr Mallender,                   way in which he carried out work pursuant to
                                                  the letter of appointment.
Dr Mohanty                                        (3) He was provided with a company e-mail
UKEAT/0504/05/SM                                  address and mobile phone. From late 2003 the
In late 2001/early 2002 the Claimant              Company allowed the Claimant to use a small
carried out some consultancy work for             self-contained office at their Feltham site.
                                                  (4) Occasionally he was described in company
the Company, whose business                       correspondence as an employee or by
involved the movement of materials,               terminology consistent with employee status.
resources     and      information      for       (5) Although the letter of appointment provided
construction and engineering projects             for a payment of £100 per day when working
                                                  on company duty, in fact, from the outset of his
around the world.         He was paid             appointment in April 2002 he submitted
consultancy fees for that work. In early          monthly invoices of £3,200, which were paid
2002 Mr Charnock discussed with the               without question by the Company.             The
Claimant the possibility of his being             Tribunal accepted Mr Charnock’s evidence that
used as an intermediary to promote                such sums were trifling in the overall context of
                                                  the Company’s finances. At a later stage cash
the business interests of the Company             flow became a real concern, but by then it
in the Gulf States and across the                 would have been out of the question to
Middle East. The Claimant did not                 challenge the Claimant’s invoices.
advance his cause before the                      (6) He received no holiday pay nor was he
                                                  entitled to paid sickness leave under the
Employment Tribunal by giving                     agreement.”
evidence, rejected by the Tribunal, that          The ET took the view that there was no
Mr Charnock offered him a package of              mutuality and no minimum level of
benefits consistent with his becoming             control. The Claimant was not under
an employee of the Company, nor by                any particular duty to perform any
producing     a     document      entitled        particular task. He was neither an
“Contract of Employment” and dated                employee nor a worker. The EAT
25 June 2002 which the Tribunal found             overturned the ET stating:
had been manufactured by him.                     “ I considered that passage recently in A D Bly
However, the Tribunal did accept that             Construction Ltd v Cochrane (UKEAT
the Claimant’s services were engaged              0243/05/MAA.          23    November      2005.
by the Company on a consultancy                   Unreported). A copy of that Judgment was
                                                  provided to Counsel. We refer particularly to
basis on the terms of a document                  the observation at paragraph 27 of that
finally headed “Letter of Appointment”            Judgment and as Mr O’Dempsey put it in
and dated 1 April 2002. Although not              opening his submissions in this appeal, the
signed     by     the    Claimant      the        question is what mutual obligations are
                                                  necessary?
Employment Tribunal found that the                17. In the ordinary case, we accept as Ms
document reflected the terms on which             Ellenbogen submitted, the question is whether
the Claimant worked for the Company               the employer is under an obligation to provide
thereafter, until the relationship ended          work and the worker to do it when offered. See
in October 2004. Under the agreement              the succinct analysis of Maurice Kay LJ in
                                                  Mingeley v Pennock & Ivory [2004] IRLR 373,
the Claimant was to promote the                   paragraph 14. On the particular facts of that
business of the Company. He was                   case no such obligations arose.
appointed for a three year period,
                                              7
Employment law bulletin
Issue 1 January 2006


 18. However, the present case presents a                  where the ET were entitled to decide
very different factual matrix. The letter of               that the Claimant was not an
appointment appointed Mr Younis for a term of
3 years, terminable on 60 days’ notice. The                employee though it was criticised by
obligation on him was to introduce the                     the EAT for its ‘laconic’ reasoning.
Company to his contacts in the Middle East
and Gulf States. The opportunity to work on                EAT NOTE: What is meant by
those introductions was unlimited so far as the
Company was concerned, during the term of
                                                           “mutuality of obligations” where the
the agreement. True it is that the Company                 claim relies on the Working Time
agreed to pay him at a daily rate when                     Regulations; whether finding that there
performing that function but that does not, in             was no mutuality of obligations was
our judgment, detract from the open-ended                  inconsistent with holding that the
opportunity to work provided by the Company.
19. The position then promptly moved to a                  Claimant was a “worker”; whether it is
retainer basis; the Claimant rendering regular             sufficient for claim under the W.T.R. for
monthly invoices and the Company, for                      there to have been a series of separate
whatever reason, paying those invoices without             short-term assignments, as opposed to
demur.
20. Looking at the overall factual matrix we
                                                           one over-arching agreement; and what
have concluded that the necessary mutual                   should be the correct approach to
obligations, the minimum requirement of a                  deriving the terms of a contract from the
contract for services, existed here. There is no           performances of it by the parties in the
dispute as to whether the Claimant rendered                absence of any written or express oral
those services personally.
21. In these circumstances we have concluded               agreement.         Unclear ET decision
that the Tribunal fell into error in its approach to       remitted.
the question of mutuality of obligation and                COTSWOLD       DEVELOPMENTS
reached an impermissible finding on that
aspect of the case.”
                                                           CONSTRUCTION LTD v MR S J
There was thus jurisdiction for the ET to                  WILLIAMS
hear the claims.                                           Langstaff J, Mr Edmondson, Mr
NB: A D Bly Construction Ltd v Cochrane at                 Parker
paragraph 27 states:                                       UKEAT/0457/05/DM
“We repeat the well-settled law cited by Elias J           The Claimant was a carpenter, who
at paragraph 10 of his judgment (in                        was engaged to work for the
Stephenson v Dalphi Diesel Systems Ltd): the
question is, we think, what mutual obligations             Respondents (“Cotswold”) who were
are necessary in the context of a “limb (b)”               themselves sub-contractors to a main
worker? “                                                  contractor who provided maintenance
                                                           services to the London Underground.
See also:                                                  He worked for the Respondents from
EAT NOTE: Consideration of the proper                      October 2002 until 8 June 2004. He
test for the adequacy of reasons given                     was then dismissed.       He had no
by a Tribunal; the proper approach to                      contract in writing. There was no
mutuality of obligation (and the dangers                   suggestion that there was any oral
of failing to focus on the need to identify                conversation      which      definitively
only a minimum of obligation to work);                     established    the    terms    of     his
whether an agreement that a cab-driver                     engagement. He worked regularly
would work for no-one else meant that                      from day to day and week to week for
his relationship with the suppliers of                     Cotswold and did not work for any
work      was     necessarily    one     of                other person or firm throughout the
employment; whether his relationship                       twenty one months of his engagement.
was probably best characterised as one                     For practical purposes, there seems to
of licensor/licensee.                                      have been nothing which would clearly
MR A KHAN v CHECKERS CARS                                  distinguish his situation from that of
LIMITED                                                    most of those working as employees
Langstaff J, Ms Tatlow, Professor                          or workers in the building trades for
Wickens.                                                   one employer or principal throughout
                                                       8
Employment law bulletin
Issue 1 January 2006


the period. The Claimant complained               “We are concerned that Tribunals generally,
to the Employment Tribunal of unfair              and this Tribunal in particular, may, however,
                                                  have misunderstood something further which
dismissal, wrongful dismissal, non-               characterises the application of “mutuality of
payment of holiday pay and unlawful               obligation” in the sense of the wage/work
deductions from his wages. The issue              bargain. That is that it does not deprive an
before the Tribunal was whether he                overriding contract of such mutual obligations
                                                  that the employee has the right to refuse work.
was an employee (in which case the                Nor does it do so where the employer may
Respondents did not dispute his claim             exercise a choice to withhold work. The focus
for    unfair     dismissal,    nor    the        must be upon whether or not there is some
correctness      of    his    claim     for       obligation upon an individual to work, and some
compensation for wrongful dismissal               obligation upon the other party to provide or
                                                  pay for it.”
(pay in lieu of notice) and he would, of
                                                  The Employment             Appeal       Tribunal
course, have been entitled to complain
                                                  commented:
of a failure to pay holiday pay). If he           “56…the Tribunal does not appear to be
was not an employee but was a                     focussing upon whether the facts demonstrated
worker within the meaning of the                  what Dillon LJ would refer to as the effect of
Working Time Regulations 1998 he                  “market forces”, nor do they appear to be
                                                  addressing the real question which is whether
would not be entitled to complain that            or not there was some minimum amount of
he had been unfairly or wrongfully                work which the facts demonstrated that the
dismissed. Cotswold contended that                Claimant had obliged himself to do. The fact
he was neither an employee nor a                  that there was regular contact as to whether
worker. The Employment Tribunal                   the Claimant wished to work on a particular day
                                                  does not answer the question whether the
found that he was a worker, such that             relationship was such that on a sufficient
he could claim holiday pay; but                   number of days he was obliged to do so; the
dismissed his claim that he was an                fact that on occasion he declined to work is no
employee such that he might claim a               more than the home workers did on occasion in
                                                  Nethermere, or, for that matter, in the
right to unfair or wrongful dismissal.            preceding case of Airfix Footwear Ltd v Cope
There were occasions when the                     [1978] ICR 1210 to which it referred. The fact
Claimant refused work. The Claimant               that there was a variation in the shifts worked
held a CIS certificate. He was not paid           proves nothing, nor does the fact that on
                                                  occasions there was no work available and the
when he did not work, if work was not             Claimant was not paid. The earlier finding (in
available or he chose not to do so and            paragraph 4.7) that there were occasions on
was paid £100 gross per shift. He was             which the Claimant was paid a sum equivalent
not paid when sick. The ET found that             to half a shift (the implication of the paragraph
the Claimant was required to carry out            is that this is when he did not work at all) raises
                                                  the question why this should be, which in the
the work personally and that the                  absence of alternative explanation probably
Respondent was not in the position of             was because the employer recognised some
a client or customer of any profession            obligation to pay when work was not available.
or business undertaking carried on by             That may pre suppose an obligation on the part
                                                  of the employee to hold himself available for
the Claimant. The ET found that the               such work.
Claimant was therefore a worker but                57. The lay members would emphasise,
that there was no mutuality of                    further, that the process upon which the
obligation as there were occasions                Employment Tribunal were engaged was one
when the Claimant declined to work or             of deriving terms of a possible contract from
                                                  what had happened between the parties in
there was no work available. The ET               practice. An important element of that, they
observed that if there was mutuality it           emphasise, is that Cotswold plainly needed the
would have concluded that there was               services of the Appellant for the particular skills
sufficient control to satisfy the test in         which a tradesman such as he would offer. An
                                                  emphasis by the Tribunal on a refusal to work
Ready Mixed Concrete.                             back to back shifts was misplaced: it did not
On appeal, the EAT held that the                  appear to recognise that such shifts (one
findings of the ET were inconsistent              worked immediately after the other, upon a
and the case was remitted to the same             normal understanding of the term) were not
Tribunal. The EAT observed:                       only onerous but also in apparent breach of the

                                              9
Employment law bulletin
Issue 1 January 2006


Working Time Regulations in the first place                vehicle, making deliveries across
(and this would be so whether or not there was             London and the Home Counties. The
an overriding contract, or whether each
individual engagement was a separate                       vehicle was owned by the Respondent
incident).”                                                and the Claimant worked core hours.
The EAT set out the approach to be                         He signed a document which
taken:                                                     contained the following clause:
“(a)      was there one contract or a                      “Contractor [the Claimant] may, at his
succession of shorter assignments?                         absolute discretion, send a substitute or
(b)       if one contract, is it the natural               delegate to perform the Works. This right to
inference from the facts that the Claimant                 send a substitute or delegate is unfettered and
agreed to undertake some minimum, or at least              unlimited and agreement of the Contractor is
some reasonable, amount of work for Cotswold               not required in any circumstances, nor does
in return for being given that work, or pay?               notice of sending a substitute or delegate need
(c)       if so, was there such control as to              to be given to the Contractor”.
make it a contract of employment so as to give             The Chairman however found that the
rise to rights of unfair dismissal, as well as a           Claimant was not allowed to send a
right to holiday pay?
(d)       if there was insufficient control, or any
                                                           replacement when he was not able to
other factor, negating employment, whether the             attend and it was accepted by the
Claimant was nonetheless obliged to do some                Respondent that the Claimant had
minimum (or reasonable) amount of work                     never sent a replacement. It was
personally?”                                               argued by the Respondent that there
                                                           was no obligation of personal service
See also:                                                  (Staffordshire Sentinel Newspapers v
EAT NOTE: ET misconstrued contract                         Potter [2004] IRLR 752) whilst the
of employment as a contract for                            Claimant submitted that it was
services because C only worked when                        necessary to look at the reality of the
work was available. EAT held that this                     case. The Chairman held that the
did not mean there was a lack of                           Claimant was an employee. On appeal
mutuality; the C was in any event                          it was contended that, in the absence
required to undertake work when                            of a finding that the written term had
offered                                                    been varied or was a sham, the
WILLIAM WILSON v CIRCULAR                                  provision determined the matter. HHJ
DISTRIBUTORS LTD                                           Clark reluctantly allowed the appeal:
HHJ Serota QC, Mr Keenan, Mr                               “I regret to say that in the light of higher
Hunter                                                     authority I am again driven (as I was in Potter)
                                                           to uphold the employer’s submission. In all
EATS/0043/05                                               ways found by the Chairman, this appears to
                                                           be a contract of service. Mr Callaghan worked
EAT NOTE: Contract of Employment:                          regularly for the Respondent, driving their lorry
                                                           for five years. After his break in 1999 he
Definition of Employee                                     worked regular hours on a work and finish
EAT NOTE: Requirement of personal                          basis and plainly passed the business
service for contract of employment.                        integration and control tests for a contract of
Written contractual term allowing for                      service. But he entered into a written contract
substitute to be sent without restriction.                 which, in my judgment, contrary to Ms Reed’s
                                                           submissions, was not found to be a sham by
Chairman accepted oral evidence to the                     the Chairman…
contrary (no finding of “sham” or                          It is now clear that the question for the Tribunal
variation). Impermissible finding. See                     is not how the contract operated in practice, but
Tanton; Stevedoring v Fuller (CA).                         what was the intention of the parties. In order
                                                           to establish what the intention was, it may
Appeal allowed.                                            sometimes be permissible to look at the overall
REAL TIME CIVIL ENGINEERING                                factual matrix, as the House of Lords made
LTD v MR D CALLAGHAN                                       clear in the case of Carmichael. However,
                                                           how the contract operates in practice is no
HHJ Clark sitting alone.                                   basis for simply displacing an express term in
UKEAT/0516/05/ZT                                           the written agreement.”
The Claimant worked for the
Respondent, driving a light goods
                                                      10
Employment law bulletin
Issue 1 January 2006


The ET took a wrong approach in                           which was not pursued so that the
looking at the reality of the matter as it                expert report of Mr Kennedy was
was bound to consider whether clause                      admitted. The ET stated:
7 reflected the true contractual                          “If the Respondent, as it now seeks to do,
position.                                                 considered the report to be flawed because of
                                                          double counting, scores given to factors which
                                                          were not an important part of the job or no factor
EQUAL PAY                                                 dealing with financial consequences of decisions,
                                                          then the time to raise those objections was in an
                                                          application under Rule 10A(18). Rule 11(2C) is
                                                          then very clear that ‘no party may give evidence
EAT NOTE: Equal Value It is not an error                  upon, or question any witness upon, any matter
of law for an Employment Tribunal to                      of [f]act upon which a conclusion in the report of
refuse to admit part of an employer’s                     the expert is based’. Whilst it was eventually
expert report on the evaluation of two jobs               accepted by the parties that no other evidence
if it or the part excluded does not comply                other than expert evidence should be heard on
with Rule 11. In any event the                            the issue of equal value, what the Respondent
                                                          now seeks to do is indeed challenge the findings
Employment Tribunal had a discretion                      of fact upon which Mr Kennedy’s conclusions
which it exercised correctly. MF defence                  were based. It is not entitled to do so.”
raises difficult points and should go to Full             The ACAS expert had been asked to
Hearing.
                                                          answer the question whether the work
LONDON      BOROUGH       OF                              of the Claimant “during some or all of
NEWHAN v MS A L JACKLIN                                   the years 1996 to 1999 inclusive is of
HHJ McMullen, Mr Jacques, Mr                              value to the work of Ron Robinson from
Motture                                                   1 September 2000 to date". The
UKEAT/0508/05/DM                                          Respondent’s expert had been asked to
The ET found that “the Claimant was                       “evaluate the jobs of the Applicant as
between 1996 to 1999 employed on                          performed in the years 1996 to 1999
work of equal value to that of Ron                        and that performed by the comparator
Robinson from September 2000 to the                       from 1 September 2000.” The ET held
date of issue of these proceedings in                     that he had been asked to report on a
May 2002.” The comparison was of                          different question to that of the
work        of         persons     not                    independent expert so that his expert
contemporaneously employed so that                        evidence did not come within
the ET had the assistance of an                           Regulation 11(2B) save where Mr
independent expert appointed by                           Burns criticised the methodology of Mr
ACAS.      The       Respondent   had                     Kennedy. On appeal the point taken
commissioned a report from a Mr                           was that the ET was incorrect to
Burns. Under the Schedule to the 2004                     characterise the material excluded as
Regulations, it is provided:                              falling within paras.11(2B) and.11(2C)
“11:… ‘(2B) At any time after the Tribunal has            of the Schedule to the Employment
received the report of the expert, any party may,         Tribunal Regulations and that the
on giving reasonable notice of his intention to do
so to the Tribunal and to any other party to the          Tribunal wrongly excluded this material
claim, call one witness to give expert evidence           because in substance there was no
on the question on which the Tribunal has                 difference between the approach of the
required the expert to prepare a report; and              two experts since they are said to be
where such evidence is given, any other party
may cross-examine the person giving that
                                                          based upon the same facts. The EAT
evidence upon it.                                         stated:
(2C) Except as provided in rule 10A(19) or by             “In substance, the Tribunal had to look at the
paragraph (2D), no party may give evidence                material, it formed a view about it and it formed
upon, or question any witness upon, any matter            a view about the questions asked. It turned its
of fact upon which a conclusion in the report of          specialist attention as an Employment Tribunal
the expert is based.”                                     to the difference between equal value
There is a procedure for the adduction                    assessment under the regulations and the job
                                                          evaluation scheme, or a job assessment
of challenges at the admission stage                      scheme, or a job evaluation assessment, and

                                                     11
Employment law bulletin
Issue 1 January 2006


we cannot fault its conclusions (expert and             ‘Action before a claim’, the Respondent
specialist as it is) and, indeed, basing                answered ‘Yes’ to Q 2.5 ‘Has the
ourselves upon our own experience in this field.
We too, have looked in detail at the reports of         substance of this claim been raised by
Mr Kennedy and Mr Burn. We are unable to                the Claimant in writing under a
find any error in the Employment Tribunal’s             grievance procedure? In answer to
analysis of those reports. We cannot see how            Q 2.6, requesting details of the stage
the Tribunal committed an error of law in its
approach either to the construction of
                                                        reached, the Respondent replied:
paragraphs 11(2B) and 11(2C) or in the                  “Claimant       served     equal    pay
exercise of its discretion in this case. Thus,          questionnaire      on    21.10.04   and
bearing fully in mind the approach of the EAT in        Respondent replied on 12.11.04 and
Aldridge, we will dismiss the appeal.”                  invited the Claimant to meet if she was
                                                        not satisfied but the Claimant did not
GRIEVANCE PROCEDURES                                    take up this offer.”
                                                        On 13 April 2005 a Case Management
                                                        Discussion (CMD) took place. At that
Regulation 14 2004 Regulations;                         hearing the Respondent’s solicitors
excluding discrimination Questionnaires                 raised a point under Regulation 14 of
from definition of statutory grievance.                 the Employment Act 2002 (Dispute
When failure to comply with SGP may                     Resolution) Regulations 2004 (The
be raised. Whether SGP requirement                      2004 Regulations) as to whether the
offends European Law.                                   Claimant      could    rely    on    the
MRS D HOLC-GALE    v                                    questionnaire dated 21 October 2004
MAKERS UK LTD                                           as a Step 1 grievance under the
HHJ Clark, Ms Bilgan,                       Mr          Statutory Grievance Procedure (SGP).
Mallender                                               The point had, it was said at the
UKEAT/0625/05/SM                                        subsequent PHR, been missed by the
                                                        solicitor who completed the Response.
The Claimant was employed by the
                                                        At the PHR the Employment Tribunal
Respondent from 5 September 2001
                                                        upheld the Respondent’s submission
until 30 November 2004. On 2 January
                                                        that she could not.
2005 she presented a claim to the
                                                        By Regulation 14(1) Where a person
Employment Tribunal. That was a
                                                        aggrieved questions a respondent
claim under the Equal Pay Act 1970
                                                        under any of the provisions set out in
(Eq PA). She compared herself with a
                                                        paragraph (2), those questions shall not
fellow-employee. Section 3 of the claim
                                                        constitute a statement of grievance
form is headed ‘Action before making a
                                                        under paragraphs 6 and 9 of Schedule
claim’. In answer to Q 3.5 – Have you
                                                        2 (EA 2002).
put your claim in writing to the
                                                        The EAT dismissed the appeal, stating:
Respondent? She replied ‘Yes’ and                       “the policy behind Regulation 14 is to exclude the
gave the date on which she had put her                  statutory     anti-discrimination   Questionnaire
complaint in writing as 22/10/04. The                   procedure altogether from the statutory definition
Claimant served a written questionnaire                 of grievance. The prescribed Questionnaire
on the Respondent in connection with                    form, although not mandatory, is headed ‘The
                                                        Complainant’s Questions to the Respondents’.
her then potential Eq P claim, dated 21                 The summary at Section 1 and identification of
October 2004. She completed the                         comparators at Section 2(a) is a necessary
standard form issued by the DTI.                        foundation for the specific questions which
Section 1 states that she believed, for                 follow. Those initial statements are, in that
                                                        sense, part of the questions which follow. The
the following reasons, that she may not                 word ‘Questionnaire’ although habitually used to
have received equal pay in accordance                   describe the information gathering procedures
with the Eq PA 1970. There then                         under the discrimination statutes, does not in fact
followed a short summary of her                         appear in those statutes. Thus Section 7B Eq
reasons for that belief. In section 2 of                PA speaks of questions, plainly envisaging that
                                                        the standard form procedure in its totality is to be
their Response form, again headed                       treated as questions by the Complainant. It is in

                                                   12
Employment law bulletin
Issue 1 January 2006


that context that we read Regulation 14 of the         November the Claimant resigned,
2004 Regulations. It is plainly directed to the        citing the reasons given at his
whole of the Questionnaire procedure.”
                                                       grievance     appeal     hearing.    The
An argument that the Regulation was
                                                       Claimant wrote to Mr Young on 5th
in breach of European law was also
                                                       February 2005 stating that the appeal
rejected.
                                                       had been the final straw and he made
                                                       further complaints. On 14th March
Statutory Grievance Procedure 2004
                                                       2005 he commenced ET proceedings.
Regulations. Transitional provisions,
                                                       The three month time limit had expired
Regulation 18. Meaning of ‘action’ in
                                                       on 20th February.
Regulation 2(1).
                                                       The ET held that the letter of 5th
THE MUDCHUTE ASSOCIATION v
                                                       February had been a grievance and
MR D PETHERBRIDGE                                      that time was extended under
HHJ Clark, Ms Bilgan, Mr Mallender                     Regulation 15 of the Employment Act
UKEAT/0569/05/SM                                       2002 (Dispute Resolution) Regulations
The        Claimant        commenced                   2004. It was argued on appeal that
employment with the Respondent as                      the Claimant had already raised a
farm manager at their City Farm on 8                   grievance prior to 1 October 2004, in
September 2003. In June 2004 Tim                       his letter of 8 September, so that
Atkinson was engaged by the                            Regulation 18 operated to exclude
Respondent as Business Development                     reliance on the letter of 5 February. It
Director. He became the Claimant’s                     was asserted that insofar as it raised
line manager. That relationship, on the                complaints about the Trustee’s
Claimant’s account, was not a happy                    handling of his earlier grievance dated
one.     On 8 September 2004 the                       8     September,     the     letter  was
Claimant raised a written grievance                    parasitical on that earlier grievance. It
through his Trade Union, the GMB,                      related to the action about which the
against     Mr Atkinson.    He    there                Claimant complained before 1 October
mentioned a number of specific                         2004 and which continued thereafter.
complaints regarding Mr Atkinson’s                     Thus the proviso in Regulation 18 was
attitude and conduct, concluding that                  engaged and time was not extended
he felt bullied, harassed and belittled                by Regulation 15. The EAT rejected
by Mr Atkinson in front of other                       this argument holding that the
employees. He said that his health                     Chairman was entitled to draw a
had been adversely affected; he was                    distinction between the original
signed off work and, in the event,                     complaint relating to Mr Atkinson and
never returned to work. That grievance                 the Claimant’s further complaint about
was considered by the personnel sub-                   the way in which the Trustees dealt
committee      of    the   Respondent                  with that earlier complaint. Insofar as
Association. It was rejected by letter                 the letter of 5 February related to
dated 18 October, following a meeting                  complaints about Mr Atkinson it was
held on 14 October. That letter was                    caught by the proviso; however the
signed by Mr Martin Young, a Trustee,                  fresh complaints about the trustees’
who represented the Respondent in                      treatment of the original grievance
the proceedings. Against that decision                 were not. The EAT noted:
the union appealed and the appeal                      “The word ‘action’ in the Regulation 2(1)
was heard by the board of trustees,                    definition of grievance is, in our view, capable
excluding     the     personnel    sub-                of including action by the employer on an
                                                       earlier grievance raised by the employee. As
committee members who had first                        Mr Coghlin points out, the SGP does not apply
considered the grievance. The appeal                   where the grievance is that the employer has
meeting took place on 10 November                      taken or is contemplating disciplinary action
and the following day the Claimant                     (Regulation 6(6) and 7).        Had Parliament
                                                       wished to exclude grievances about the way in
was informed of their decision. On 21
                                                  13
Employment law bulletin
Issue 1 January 2006


which the grievance procedure is operated it            January 2004. In the meantime the
would have said so.                                     Claimants had submitted forms RP1 to
 Further, we accept Mr Coghlin’s further
submission that failure to deal with a grievance        the Secretary of State which were
properly may itself amount to a breach of the           forms pursuant to which they sought
implied term of Trust and Confidence, giving            recovery from the Secretary of State of
rise of itself to a claim of constructive unfair        amounts owing to them by RJL. On 7
dismissal. See Goold (WA) (Pearmak) Ltd v
McConnell [1995] IRLR 516. It cannot be the
                                                        July 2003 it was found by a decision of
position that such a complaint of constructive          an Employment Tribunal that there
dismissal cannot be the subject of the SGP.”            had been a TUPE transfer from RLJ to
                                                        ROS. Application was made, as a
INSOLVENCY: DTI PAYMENTS                                result, to the Employment Tribunal for
                                                        further payments as against ROS, by a
                                                        number of applicants including the two
EAT NOTE: Practice & Procedure:                         Claimants. On 8th March 2004 an ET
Contract of Employment -&- Unfair                       found that the two Claimants were
Dismissal ET upheld DTI's refusal to                    unfairly dismissed by ROS, and that
pay balance of claims by employee                       because those dismissals were in
against insolvent employer for (i)                      connection with a transfer of an
compensatory       award    for    unfair               undertaking they were, therefore,
dismissal (ii) protective award under                   automatically unfair, and so ROS was
TUPE (iii) balance of protective award                  ordered to pay to the Claimants
under TULRCA, over and above                            specific sums. In the case of Mrs Hine
ceiling imposed by DTI of 8 weeks at                    there was a basic award of £560 and a
£270 per week for arrears of pay,                       compensatory award of something
within ss 184-6 of ERA. Held: DTI in                    over £7,000. In the case of Mr Connor
compliance with ERA and not liable in                   there was a basic award of £750 and a
respect of (i) and (ii) and had paid all                compensatory award of something
due in respect of (iii), and entitled to                getting on for £20,000. The Tribunal
rely on ceiling, and no non-compliance                  further declared that the Claimants
with the Directive or uncertainty as to                 were entitled to a declaration that RJL
interpretation or construction of the                   was in breach of the requirements of
ERA.                                                    s188 of the Trade Union and Labour
(1) MR M CONNOR (2) MRS L                               Relations Consolidation Act 1992
L HINE v SECRETARY OF STATE                             (TULRCA), and a protective award
FOR TRADE & INDUSTRY                                    was made in favour of the Claimants in
                                                        respect of the maximum period of 90
Burton J sitting alone
                                                        days, commencing on 25 September
UKEAT/0589/05/SM          &                             2002. So far as the TUPE position was
UKEAT/0590/05/SM                                        concerned, the Claimants were found
The Claimants were employed by a                        to be entitled to a declaration that
company called RJL Engineering                          ROS, the transferee, had acted in
Services Ltd, (RJL) which closed down                   breach of the requirements of
on 25 September 2002, resulting in the                  Regulation 10 of the Transfer of
dismissal of all employees, and it                      Undertakings        (Protection      of
entered    a     creditors’  voluntary                  Employment) Regulations 1981 in
arrangement on 14 October 2002. One                     failing to consult with them regarding
of the directors of RJL, a Mr Orwin,                    the proposed transfer of undertaking.
attempted to keep the business going                    The ET however, decided to make no
by employing some, but not all, of the                  award in respect of the breach of the
employees of RJL, and he set up a                       obligations under TUPE because that
new business, Ray Orwin Services Ltd                    period of time was concurrent with the
(ROS) for that purpose. That company                    consultation period pursuant to the
in turn went into liquidation on 2nd                    obligations arising under TULRCA
                                                   14
Employment law bulletin
Issue 1 January 2006


stating that it would not be just and                    reflects possibly, in certain circumstances,
equitable for the applicants to be                       lifetime loss of earnings.”
compensated twice in respect of the                      Secondly, a TUPE award is excluded
same period of time and in relation to                   under section 184.
substantially similar obligations.                       Thirdly, the argument that there should
There was then a claim before a                          be no ceiling on the protective award
different ET on 18 March 2005 which                      of 90 days flew in the face of the
held that the Claimants were not                         permitted ceiling under the Directive.
entitled to any further sum against the                  The EAT stated:
                                                         “It is quite clear that the eight-week limit that
DTI or to any declaration that the DTI                   can be placed by Article 4 is in respect of
had failed to fulfil its obligations under               “claims relating to pay” and a protective award,
s182 of the Employment Rights Act                        or a claim for a guarantee for a protective
1996. On appeal the issues related to                    award is a claim relating to pay. A sensible way
                                                         of dealing with that statutorily was for ERA to
recovery as against the DTI of: (1) the                  define a protective award as falling within the
compensatory        award      for   unfair              category of arrears of pay. Another way of
dismissal; (2) what was said to be a                     doing it would have been to make it a different
protective award for failure to comply                   category from arrears of pay, and yet impose
with Regulation 10 of TUPE; and (3)                      the same eight-week limit cumulatively on all
                                                         categories, all claims relating to pay, counting a
The balance of the protective award                      protective award, like arrears of pay, as a claim
under s.189 of TULRA insofar as it                       relating to pay.
had not already been paid.                               On that basis, I am satisfied that the argument
Having referred to the relevant                          that the eight-week limit which, Mr Hay
                                                         accepted, is permitted by Article 4(2) (third
sections of the Employment Rights                        indent) of the Directive does apply to the total
Act 1996 and the Insolvency Directive,                   of arrears of pay, including the TULRCA
80/987/EEC of 20 October 1980                            protective award. It is quite plain to me that a
Burton J held:                                           ceiling can be imposed by a Member State,
 There was no right of recovery                          and that that ceiling is expressly permitted to
                                                         be eight weeks by virtue of Article 4(2) and
against the DTI in respect of the                        4(3).“
compensatory award and the Directive
permitted this limitation.                               PROCEDURE
“Thus, s184 should be read as if it applies Part
XII and the obligation of the guaranteeing
institution to the listed debts among others.
That is, again, plainly an impossible                    EAT NOTE: The Tribunal Chairman
construction. It is quite clear that the only            erred in law in concluding that Mrs
obligation that the guaranteeing institution has
is in respect of the five categories of debts            Verdin’s breach of contract claim should
defined in subparagraph 1 of s184.                       be dismissed.       Rule 25 of the
 There is clearly a deliberate exclusion by the          Employment Tribunal Rules 2004 is to
United      Kingdom      legislation   of     the        be construed in the light of Ako v
compensatory award. The basic award gives
an employee a minimum amount of
                                                         Rothschild Asset Management [2002]
compensation for loss of employment, by                  IRLR 348. A claim should be dismissed
reference to the number of years for which the           if (a) the Claimant is intending to
employee has worked for the employer. But, of            abandon it or (b) if the Claimant is
course, by reference to the other provisions of          intending to resurrect it, it would be an
s184, the employee, faced with an insolvent
employer will want to have satisfied his or her          abuse of the process to allow that to
wages, including any unpaid wages and any                occur. The Tribunal may dismiss part of
unpaid notice, and, subject to the terms of the          a claim on withdrawal.
Act, any protective award in favour of the               MS ANNE-MARIE VERDIN                            v
employee. It is quite plain that what has been
excluded by the Act is the open-ended concept            HARRODS LIMITED
of compensation for the future which, in the             HHJ Richardson, sitting alone.
case of ordinary unfair dismissals, is limited to        UKEAT/0538/05/DA
some £58,000 or £59,000 but is potentially
unlimited in other situations and, in any event,         The Claimant was employed as
                                                         Marketing and   Communications
                                                    15
Employment law bulletin
Issue 1 January 2006


Director. Her pay before tax was more            further that: “It is still open to the
than £200,000 per year together with a           Claimant to proceed with her complaint
package of benefits.         There was           of breach of contract in the Employment
provision for a bonus. Under her                 Tribunal as currently pleaded and
contract of employment dated 17th                unless the Claimant indicates within 14
June 2003 she was entitled to notice,            days of the promulgation of this
but Harrods reserved the right to pay            decision that she intends to proceed
her in lieu of notice. The provision,            with the claim of breach of contract in
clause 3, read:                                  the Employment Tribunal that claim will
“The Company will be required to give            be dismissed on withdrawal under rule
you 6 months’ notice …..             The         25(4) of the Employment Tribunal Rules
Company reserves the right to pay your           of Procedure 2004”
salary in lieu of notice”                        Rule 25 of the 2004 Rules provides:
On 14th February 2005 Mrs Verdin was             25. (1) A claimant may withdraw all or part of
dismissed.        The reason for her             his claim at any time - this may be done either
                                                 orally at a hearing or in writing in accordance
dismissal was a matter in dispute                with paragraph (2).
between the parties. She alleged that            (2) To withdraw a claim or part of one in writing
she was dismissed because the                    the claimant must inform the Employment
Chairman of Harrods suspected that               Tribunal Office of the claim or the parts of it
                                                 which are to be withdrawn. Where there is more
she was pregnant so that Harrods                 than one respondent the notification must specify
discriminated against her on the                 against which respondents the claim is being
grounds of her sex, and her dismissal            withdrawn.
was automatically unfair, as being for a         (3) The Secretary shall inform all other parties of
reason related to her pregnancy. She             the withdrawal. Withdrawal takes effect on the
                                                 date on which the Employment Tribunal Office
instructed solicitors. She served a              (in the case of written notifications) or the tribunal
questionnaire       under     the    Sex         (in the case of oral notification) receives notice of
Discrimination Act 1975. Harrods, on             it and where the whole claim is withdrawn,
the other hand, contended that she was           subject to paragraph (4), proceedings are
                                                 brought to an end against the relevant
dismissed for reasons relating to her            respondent on that date. Withdrawal does not
performance and conduct. Harrods                 affect proceedings as to costs, preparation time
started to pay the notice period on a            or wasted costs.
monthly basis but stopped payment on             (4) Where a claim has been withdrawn, a
19th     April.     Proceedings     were         respondent may make an application to have the
                                                 proceedings against him dismissed. Such an
commenced on 13th May. The claims                application must be made by the respondent in
included unlawful deduction from                 writing to the Employment Tribunal Office within
wages,       unfair     dismissal,   sex         28 days of the notice of the withdrawal being
discrimination, breach of contract and           sent to the respondent. If the respondent's
                                                 application is granted and the proceedings are
victimisation. It was alleged that the           dismissed those proceedings cannot be
Respondent victimised the Claimant by            continued by the claimant (unless the decision to
ceasing to pay the notice monies                 dismiss is successfully reviewed or appealed).
because she had done a protected act.            (5) The time limit in paragraph (4) may be
In June 2005, the Claimant’s solicitors          extended by a chairman if he considers it just
                                                 and equitable to do so”.
sought to withdraw the breach of
                                                  The EAT commented that there are
contract claim on the basis that the full
                                                 three legal principles which operate to
notice monies would be paid if the
                                                 bar or restrict litigation of similar
victimisation claim succeeded but
                                                 matters on different occasions:
limited to £25,000 if the claim only             “Firstly, where a cause of action has been
succeeded in breach of contract.                 determined in litigation between two parties, as
Having considered Rule 25 (see below)            a general rule that cause of action cannot be
the Chairman held “The decision of the           raised again in subsequent litigation between
                                                 them. The technical term for this principle is
Chairman is to refuse the application for        cause of action estoppel. Secondly, where an
leave to amend to withdraw the                   issue has been determined in litigation between
complaint of breach of contract” and             two parties, as a general rule that issue cannot
                                            16
Employment law bulletin
Issue 1 January 2006


be raised again in subsequent litigation                   intending to resurrect the claim in fresh
between two parties. The technical term for                proceedings, would it be an abuse of the
this principle is issue estoppel. Thirdly, even            process to allow that to occur? If the answer to
where a cause of action or issue has not been              either of these questions is yes, then it will be
determined in prior litigation between two                 just to dismiss the proceedings. If the answer
parties, there may be circumstances in which it            to both these questions is no, it will be unjust to
would be an abuse of process for the cause of              dismiss the proceedings.
action or issue to be raised between them. The              I agree with a submission made by Mr.
categories of abuse of process are not closed.             Nicholls, that where one party withdraws the
There may be an abuse of process if a party                other party will generally be entitled to have the
seeks to litigate an issue which should have               proceedings dismissed. This is because the
been raised in earlier proceedings. There may              party who withdraws will generally have no
be an abuse of process if a party seeks to                 intention of resurrecting the claim again, or if he
litigate an issue which has been decided in a              does will generally have no good reason for
test case by which it was understood he would              doing so. There is sometimes a temptation for
be bound.”                                                 a litigant, as the day of battle approaches, to
HHJ Richardson referred to Rule 25 as                      withdraw a claim in the hope of being better
having the following effect:                               prepared on another occasion. That will be
                                                           unacceptable.      Tribunals will no doubt be
“There are only two ways in which a claim or
                                                           astute to prevent withdrawal being used as an
part of a claim may be withdrawn. It may be
                                                           impermissible substitute for an application for
withdrawn in writing, or it may be withdrawn
                                                           adjournment. Occasionally, however, there will
orally at a hearing. If it is withdrawn in writing,
                                                           be good reason for withdrawing and bringing a
withdrawal takes effect on the date on which
                                                           claim in a different way.”
the employment tribunal office receives
notification of it. Withdrawal does not depend             Where part of the proceedings are
on any decision by the tribunal. The consent of            withdrawn the party against whom part
the opposite party is not required. All that is            of the claim is withdrawn does have a
required is that the opposite party is notified. If        right to apply to have that part
the withdrawal is given orally at a hearing,
withdrawal takes effect when the tribunal                  dismissed.     Rule 25(4) does not
receives notice of it. Again withdrawal does not           expressly say “the whole claim”, and
depend on any decision by the tribunal. The                the EAT thought that the words “the
consent of the opposite party is not required.             claim” should be read as meaning any
 The whole claim
 Where the whole claim is withdrawn, rule 25(3)
                                                           cause of action, and that “the
sets out the effect of withdrawal.             The         proceedings” should be read as
proceedings are brought to an end. But there               meaning the proceedings in respect of
are two exceptions. Firstly, there may still be            that cause of action. The ET had
proceedings as to costs, preparation time or               erred in dismissing the claim. The
wasted costs. Secondly, there may be an
application for the proceedings to be                      approach should have been to ask:
dismissed.      It is plain, however, that no              “Does Mrs. Verdin intend to abandon the
application to dismiss is necessary to bring the           withdrawn claim, or to bring it elsewhere? If
proceedings to an end; rule 25(3) expressly                she intends to bring the withdrawn claim
says the proceedings are at an end.”                       elsewhere, will that be an abuse of the
                                                           process? If the Tribunal Chairman had applied
It was stated that cause of action                         such a test, she would have concluded, since
estoppel cannot arise unless there is                      she correctly regarded the case as on a par
an order disposing of the proceedings.                     with Sajid, that it was not an abuse to bring the
Cause of action estoppel cannot arise                      claim elsewhere.”
on a withdrawal which takes effect                         (NB; Sajid v Sussex Muslim Society
automatically. The position was set out                    [2002] IRLR 114 referred to.)
with regard to the whole of the
proceedings:                                               EAT NOTE: Practice & Procedure:
“So a party who receives a notification of                 Appearance/Response,         Review &
withdrawal of the whole proceedings, and                   Appellate Jurisdiction/Burns-Barke
wishes to establish once and for all that there is
to be no further litigation on the same                     When a Respondent has been
questions, may apply for dismissal.           The          debarred from         taking   part in
subsequent hearing will then concentrate on                proceedings under ET Rule 9, he may
the question, which Mummery LJ identified in               request Reasons from the ET for the
Ako. Is the withdrawing party intending to
abandon the claim? If the withdrawing party is
                                                           purpose of an application for review,

                                                      17
Employment law bulletin
Issue 1 January 2006


but not for any other purpose (and,                       (see Rule 4(1)). 28 days from the 29
consequently, at least pending any                        April expired on 27 May. There was no
legislative change to Rule 9, a request                   explanation given by the Respondent
for such Reasons intended solely for                      as to why it, or its solicitors, waited
the purpose of considering an appeal                      until the very end of that 28-day period
can only be achieved by asking the                        to put in what, in fact when lodged,
EAT to exercise its powers under Rule                     was a relatively substantial response
30(3)(b)). Because of the draconian                       to the claim. It contained an assertion
effect of a Rule 9 order, a Tribunal                      that there was no unfair dismissal
must be aware of disproportionate                         because there was a genuine
consequences, for example the effect                      redundancy, and it put forward a case
on a Respondent of being debarred                         as to why a consultation exercise in
from resisting quantum as well as                         the instant case was inappropriate and
liability. In any event, review                           that there were no alternative positions
opportunities at the EAT (by reference                    available. In fact, the ET3 did not
to Pendragon where appropriate)                           arrive at the Employment Tribunal by
should be taken up. Doubted whether                       the time of expiry of the 28 days on 27
there is power to order or lay down a                     May. The explanation was that there
condition that an undisputed sum be                       must have been some delay at the
paid over by an appellant.                                sorting office. A Chairman found that
M MUSIC LTD v MR J H LEEFE                                the response had not been presented
Burton P sitting alone                                    in the statutory time limit, and therefore
UKEAT/0663/05/CK                                          could not be accepted, and that the
By    the     Employment    Tribunal’s                    Respondent could take no part in the
(Constitution and Rules of Procedure)                     proceedings. A review application was
Regulations 2004 Schedule 1, Rule 8                       rejected. At the hearing the Claimant
“8. (1) In any proceedings if the relevant time           was found to be unfairly dismissed and
limit for presenting a response has passed, a             the        Respondent received the
chairman may, in the circumstances listed in              judgment entered on 18 August by a
paragraph (2), issue a default judgment to
determine the claim without a hearing if he
                                                          document sent to the parties on 22
considers it appropriate to do so”.                       September 2005. That was a simple
By Rule 9:                                                setting out of the judgment of the
“9. A respondent who has not presented a                  Tribunal that the Claimant was unfairly
response to a claim or whose response has not             dismissed and that the Respondent
been accepted shall not be entitled to take any           was ordered to pay the sum in the
part in the proceedings except to -
(a) make an application under rule 33 (review of          judgment. The note concluded with
default judgments);                                       the statement that “Any application for
(b) make an application under rule 35                     review of this judgment or any request
(preliminary consideration of application for             for written reasons for this judgment
review) in respect of rule 34(a) and (b) or (e);
(c) be called as a witness by another person; or
                                                          must be made within 14 days of this
(d) be sent a copy of a document or corrected             date”. A request for written reasons
entry in accordance with rule 8(4), 29(2) or 37”          was made on 5th October, which
…“and in these rules the word ‘party’ or                  elicited the response:
‘respondent’ includes a respondent only in                “A Chairman, Mr M D Ross, has directed that
relation to his entitlement to take such a part in        your request on behalf of the respondent for
the proceedings, and in relation to any such              written reasons is refused. The respondent’s
part which he takes”.                                     response to the claim was not accepted and
 A claim was issued by the Claimant on                    therefore, in accordance with Rule 9 of the 2004
 26 April, which was sent by the                          Rules of Procedure, the respondent was not
 Tribunal to the Respondent on 29 April                   entitled to take any part in the proceedings.
                                                          Taking part includes requesting written
 2005. The time for the lodgement of a                    reasons”.
 response by a Respondent is 28 days                      In its Notice of Appeal the Appellant
 from the date when the claim form is                     stated that it wished to protect its
 sent to the Respondent by the Tribunal
                                                     18
Employment law bulletin
Issue 1 January 2006


 position so far as quantum                     is         MR S KUTTAPPAN
 concerned. Burton J stated:                               Rimer J, Dr Fitzgerald,              Mr
 “I can see no basis upon which the decision by
 the Tribunal in this case that a request for
                                                           Jenkins
 reasons simpliciter in the letter of 5 October            UKEAT/0478/05/RN
 was outside Rule 9 can be challenged. It may              The Attorney General applied for a
 be that, on any rule revision, consideration              restriction of proceedings order under
 should be given as to whether a request for
 reasons should be included as a specific
                                                           section 33 of the Employment
 exception to any rule relating to debarring               Tribunals Act 1996.
 proceedings and there may also need to be                 Between 1996 and April 2005 the
 more careful consideration as to whether it is            Claimant      commenced at least 33
 really appropriate to have two apparently                 claims     in     the   London     South
 entirely separate procedures at the option of the
 Tribunal.”                                                employment tribunal, his most recent
 He further stated that:                                   application being presented on 25
“First, if there is a request for reasons by a             April 2005. Such had been his contact
Respondent in a case such as this which,                   with that tribunal that his telephone
hopefully, in future, will positively indicate that        accounts revealed it as his “best
those reasons are required for the purposes of
consideration of the making of a review
                                                           friend”. The two main targets of his
application under Rule 9(b), or as stimulated by           claims were his former employer,
a letter by the Tribunal raising such a question,          Customs, against whom he brought at
then I am satisfied that a request for reasons of          least 12 claims; and the London
such a kind, with a view to the making of an               Borough of Croydon (“Croydon”), all
application under Rule 35 brings such a
request within the ambit of Rule 9(b) even as              but one of his nine claims against
presently drafted. Mr Lennard, in his helpful              them      having been based on
submissions, conceded (and, if he had not                  complaints arising out of failed job
conceded, in any event I would have found that             applications. He also brought claims
it must be) that once there is an exception for a
Respondent who has not presented a response
                                                           against a miscellany of other
to have the opportunity of making an                       respondents. Most of his applications
application under Rule 35 for review of a                  included claims against individual
judgment which has been entered into in his                respondents (for example, he joined
absence, after he had been debarred, then that             Croydon’s Chief Executive, Mr David
would allow for and subsume the making of a
preparatory request for reasons for the purpose            Wechsler and Customs’ Chairman). All
of making such an application for review.                  claims included allegations of race
 In furtherance of the overall objective in order          discrimination; and all or most included
to achieve fairness and in order to ensure                 allegations of victimisation. Some
proportionality in terms of the consequence of
Orders (and, if necessary, by reference to
                                                           included       allegations    of     sex
Article 6) I would hold that a request for                 discrimination. The great majority of
reasons with a view to the making of an                    his claims failed (many of his claims
application under Rule 35 would fall within Rule           including a multiplicity of complaints),
9(b), and would be one of the exceptions, even             but he did achieve successes in at
on the present Rules, to a bar on a respondent
taking any step. “                                         least five contested complaints,
Burton J stayed the appeal to ask the                      although two of them were described
ET to give its reasons so that the                         by the tribunals as “technical” victories
Respondent could consider whether                          and       achieved       only    modest
there were grounds for appeal.                             compensation. In two others he
                                                           recovered compensation totalling just
Whether     a    “restriction of                           under £5,700. As for the fifth, the
                                                           evidence did not disclose what, if any,
proceedings order” under section                           remedy he achieved. All his successes
33 of the Employment Tribunals                             were in respect of claims which were
Act 1996 should be made against                            brought together with other claims
the Respondent.                                            which failed. He also issued at least
HER MAJESTY’S ATTORNEY v                                   four review applications, all of which

                                                      19
Employment law bulletin
Issue 1 January 2006


failed, and presented at least nine                        claims he has brought, he achieved success in
appeals to the EAT. His various                            at any rate five of the contested complaints
                                                           amongst the countless overall number of
proceedings occupied over 125 days                         complaints that he made in those claims,
of tribunal time. He had also acted as                     although two of such successes were
a representative for others in                             described as merely “technical”. In our view,
employment tribunal proceedings                            however, this relatively tiny number of
                                                           successes is not by itself sufficient to redeem
The EAT set out the detail of the claims                   the prosecution of the claims as a whole. The
at paragraphs 11 to 65. The Claimant                       fact is that the overwhelming majority of
also had made serious allegations of                       complaints did not just fail, but in many of them
bias and institutional racism against                      it is plain that the tribunals were satisfied that
Tribunal Members, the Attorney                             the primary motivation behind them was the
                                                           pursuit by Mr Kuttappan of his equality
General and the Lord Chancellor as                         campaign rather than to obtain redress for a
well as the EAT.         The Claimant                      genuine personal grievance. He was therefore
complained      about   the     Attorney                   using the resources of the employment
General’s stance in relation to the                        tribunals for a purpose other than that for which
                                                           they were intended, and was doing so in a way
application.                                               which was often found to be manifestly
The EAT stated that there were two                         oppressive and burdensome to his opponents.”
issues:                                                    The EAT stated that the Claimant had
“First, whether we are satisfied that the                  habitually and persistently, without any
condition in section 33(1)(a) of the 1996 Act is
satisfied, that is that Mr Kuttappan “has                  reasonable        ground,       instituted
habitually and persistently and without any                vexatious      proceedings      in     the
reasonable ground – (a) instituted vexatious               employment tribunal and EAT and that
proceedings, whether … in an employment                    therefore the precondition of the
tribunal or before the Appeal Tribunal, and
whether against the same person or against
                                                           exercise of jurisdiction in section
different persons …”. It is the Attorney                   33(1)(a) was satisfied. There were
General’s case that he has (we did not                     good reasons not to accept the offered
understand any reliance to be placed on the                undertaking and make the order
alternative condition in section 33(1)(b)).                sought. The AG had stated that there
Secondly, whether or not, if that condition is
satisfied, this is a case in which this tribunal           are or may be difficulties in enforcing
should exercise its discretion to make a                   such an undertaking; and that anyway
restriction of proceedings order.”                         an undertaking could not be advertised
The EAT interpreted the affidavit from                     in the London Gazette and the
the Claimant as admitting that he had                      Edinburgh Gazette in the way that an
abused the process of the employment                       order could and must (see section
tribunal but that he would cease doing                     33(5)), so that the public would not
so. He accepted he needed to listen to                     receive the same protection as they
what people like the ET president told                     would from an order. He also had
him. He offered an undertaking in the                      submitted that       the case was a
early stages of the application which                      particularly extreme case of vexatious
the AG declined to accept. The EAT                         litigation that called for nothing less
stated that:                                               than the usual form of order. The
“We will consider in a moment how we should                Order was made for an indefinite
deal with Mr Kuttappan’s offered undertaking,
but say first that we would not be prepared to
                                                           period.
find that the section 33(1)(a) condition was
satisfied merely on the basis of Mr Kuttappan’s
admission as to his serious personal                       EAT NOTE: Order for costs of failed
shortcomings        with    regard      to      his        unfair dismissal claims/discrimination
commencement and prosecution of his many
claims to employment tribunal. We consider                 claims by senior employee found by
that any such finding must be based on an                  Tribunal to have been untruthful; he
objective assessment of the number, nature                 found guilty of gross misconduct. Costs
and outcome of his many claims, and of the                 were to be assessed by the County
manner in which they were conducted, not
forgetting that in the course of the (at least) 33
                                                           Court; the Respondent’s bill before

                                                      20
Employment law bulletin
Issue 1 January 2006


assessment was £130,000.         Were             the reasons in a letter. The President
Tribunal’s reasons for costs order                decided that no further action should
sufficient and compliant with the new             be taken on the appeal and the
requirements of Rule 30(6) of Schedule            Claimant put in a new Notice of Appeal
1 to 2004 Regulations? Answer – yes,              within 28 days under Rule 3(8) of the
appeal dismissed.                                 Employment Appeal Tribunal Rules
MR P    SHARMA v LONDON                           1993 (as amended). The Grounds
BOROUGH OF EALING                                 alleged that the ET had failed to give
Judge Burke QC, M Beynon, Mr                      adequate reasons as to why the
Haywood                                           Claimant had acted vexatiously,
UKEAT/0399/05/DM                                  abusively, disruptively or otherwise
Mr Sharma, was employed by the London             unreasonably in bringing the claim or
Borough of Ealing from 1989 as a                  that the claim was misconceived and
Principal Housing Officer.         He was         had failed to take into account the
dismissed when his fixed term contract            Claimant’s means. The appeal on the
ended on 31 March 2004. In January                latter point was dropped because
2004 he issued proceedings in the                 Kovacs v Queen Mary & Westfield
Employment Tribunal against the Borough           College [2002] IRLR 414 was still
and fourteen named individuals who were           good law at the time, the 2001
alleged to have been guilty of racial             Employment Tribunal Regulations
discrimination    and    victimization  on
                                                  being applicable.
grounds of race and sex discrimination. At
an interlocutory hearing on 30 April 2004,        Rule 30(6) of Schedule 1 to the 2004
eight of the individual Respondents were          Regulations did apply:
discharged, leaving as Respondents the            “Written reasons for a judgment shall include
                                                  the following information-
Borough and six individuals. On the same          (a)       the issues which the tribunal or
day, Mr Sharma issued a second                    chairman has identified as being relevant to the
Employment Tribunal claim alleging unfair         claim;
dismissal and breach of contract, his             (b)       if some identified issues were not
contract of employment having by then             determined, what those issues were and why
been terminated. The two claims were              they were not determined;
consolidated and heard together by the            (c)       findings of fact relevant to the issues
Employment Tribunal, sitting at Watford           which have been determined;
and chaired by Mr Mahoney. The hearing            (d)       a concise statement of the applicable
                                                  law;
took up 2 Tribunal reading days, 13               (e)       how the relevant findings of fact and
hearing days and 2 days of consideration          applicable law have been applied in order to
by the Tribunal before, on 14 November,           determine the issues; and
the Tribunal gave an oral judgment in full        (f)       where the judgment includes an award
with lengthy and detailed reasons which           of compensation or a determination that one
were promulgated in writing on 28 January         party make a payment to the other, a table
2005. After the two reading days, when            showing how the amount or sum has been
the hearing commenced Counsel for Mr              calculated or a description of the manner in
Sharma withdrew all claims against the            which it has been calculated.”
remaining individual Respondents; and on           The letter from the ET had stated that
the penultimate day of the Tribunal               the Claimant had brought proceedings
hearing Mr Sharma’s claims of race                and made allegations he knew to be
discrimination and victimization were also        false, these dishonest and deceitful
withdrawn. All of the claims were                 claims resulting in very substantial
dismissed by the Tribunal. An order for           costs. The first proceedings were
costs was made that Mr Sharma should              vexatious whilst the second were
pay the whole of the costs incurred by the        misconceived and stood no chance of
Respondents to be assessed. The
                                                  success.        The letter effectively
Claimant appealed to the EAT. The ET
were ordered to provide reasons, which it         incorporated the liability judgment.
had not done at the time of making the            The EAT referred to the dicta in
Order. The ET Chairman wrote setting out          English v Emery Rheinbold [2003]

                                             21
Employment law bulletin
Issue 1 January 2006


IRLR 710 at paragraph 16; Meek v City                      be    provided    on    the    detailed
of Birmingham District Council                             assessment. Nor was there any
[1987] IRLR 250, Bingham LJ at                             requirement for the ET to refer to
paragraph 8 and Sedley LJ in Tran v                        proportionality. The EAT doubted
Greenwich Vietnam Community                                whether any failure to so refer was a
[2002] IRLR 735.                                           defect; the ET was “fully aware of the
On the argument that the ET did not                        importance and complexity of the issues with
hear any evidence, the EAT stated                          which they had just dealt in considerable detail;
                                                           they did not need, in our judgment, expressly to
“It seems to us to be clear that it was open to Mr
                                                           spell out that the result of the Costs Application
Sharma, through his representatives, to seek to
                                                           fell within the objective of proportionality.”
call evidence, to put himself forward for cross-
examination and to put before the Tribunal any             It was further argued that the reasons in
material, such as the letters, which it was thought        the costs letter were inadequate as they
might assist his case as to costs. No attempt to           merely incorporated the judgment on
do so was made… In those circumstances we                  liability when that did not satisfy Rule
cannot see how the Tribunal can properly be
criticized for proceeding to make their costs              30(6)(c) and (d) and, further, that costs
decision on the basis of the material which had            were not justified for the whole of the
been before them over many days and in the                 proceedings so that an order for part of
light of which they had reached a detailed                 the costs from a specific date or on an
judgment which had, shortly before, been read
out to the parties.”
                                                           issue should have been made. The
It was argued that the ET had not set                      EAT referred to McPherson v B N P
out how Rule 30(6) had been complied                       Paribas [2004] IRLR 55 at paragraphs
with. The EAT stated at paragraph 23:                      26, 39-41 and concluded:
                                                           “We are satisfied that the findings of fact reached
“…in our judgment it seems to us that it is not
                                                           by the Tribunal, after a lengthy hearing and
necessary for a Tribunal, in giving their reasons
                                                           expressed by the Tribunal in considerable detail,
for any judgment, to set out under separate
                                                           justified the Tribunal’s findings on the costs
headings how and on what basis they are
                                                           issue. As in Salinas, so in this case the Tribunal
seeking to comply with those requirements.
                                                           were fully seized upon the facts; they found that
Many judgments of the Tribunal are set out in
                                                           Mr Sharma had been guilty of four of the five
such a way as to show, under a separate
                                                           allegations of misconduct; there could have been
heading, their conclusions and their reasons for
                                                           no question of mistake or confusion; either Mr
their conclusions under each relevant
                                                           Sharma had or had not committed the relevant
requirement of Rule 30(6); perhaps it is
                                                           acts. If he had, he must have known that he
preferable that they should be; but as long as a
                                                           had; and the Tribunal’s factual conclusions
judgment, as a whole, contains material which
                                                           inevitably meant that he was not telling the truth
satisfies the requirements to the extent set out
                                                           about the central cause of the disciplinary
in the authorities to which we have earlier
                                                           process and about the matters which lay at the
referred, that judgment should not properly be
                                                           heart of his complaints of discrimination and
open to criticism. “
                                                           victimization. “
It was agued that the ET should have
                                                           It did not matter that the ET had not
had an idea of the sum of costs at
                                                           stated that the costs order was the
stake before making an order. The
                                                           exception rather than the rule. Because
EAT disagreed at paragraph 25:
“It is not an essential prerequisite of the making
                                                           the reasons incorporated the liability
of such an order that the Tribunal should have             judgment they were sufficient, but:
a clear idea of the eventual sum. In this case              “If the reasons letter had stood alone without
the Tribunal demonstrated, by the use of the               any reference to the Tribunal’s liability decision,
words “very substantial costs” in the reasons              that question would have had to have been
letter that the eventual sum was going to be               answered in the negative; but the position, as we
just that, very substantial…The Tribunal must              see it, is very different when the clear
be taken, therefore, to have had broad                     incorporation within the Tribunal’s reasons for
knowledge of the likely effect of their costs              their costs decision of their findings of fact and in
order; and it is clear from their reference to             particular the findings of fact which we have
“very substantial costs” in the reasons letter             already identified is put into the balance. If the
that they had that knowledge and took it into              subject matter of those references had been set
account in reaching their decision as to costs.”           out again in the reasons letter, the Tribunal’s
It was not necessary that there be a                       reasons would, in our view, have amply satisfied
                                                           the requirements of Rule 30(6)(a)(c) and (e) and
table under Rule 30(6)(f) as that would                    the principles set out in the authorities. It was

                                                      22
Employment law bulletin
Issue 1 January 2006


not inappropriate for the Tribunal, rather then           promulgated during the litigation so
taking a longer and repetitious course to                 that a claim of discrimination could be
incorporate the important parts of their liability
judgment by reference as they did; and we                 made after dismissal in relation to an
conclude that, when the reasons letter and the            appeal process. It had been conceded
judgment are read as a whole, the basis on                at a directions hearing that the claims
which Mr Sharma lost and Ealing won the costs             of discrimination were outside the
application and the reasons why the Tribunal
reached the conclusions that they did upon that
                                                          three months time limit. However, by
application adequately and sufficiently appear. “         the time of the third directions hearing
                                                          this concession appeared to have
Claim of race discrimination out of time.                 been disregarded and the issue
ET judgment out of time. No point of                      whether the claim was in time was
law on appeal.                                            ordered to be considered.               A
KHAN v ROYAL MAIL PLC                                     preliminary issue was heard but
Court of Appeal. Mummery, Gage,                           nothing was said by Mrs Khan about
Latham LJJ                                                discrimination continuing over the
[2006] EWCA 2                                             period of the internal appeals process,
The Claimant was dismissed on 7th                         the evidence being about victimisation
January 2001 for alleged misconduct.                      as a reason for dismissal and less
Two internal appeals, on 23rd                             favourable treatment by her managers.
November 2001 and 23rd January                            Concern was expressed about delay in
2002, were dismissed. She presented                       the appeal process but not about the
an application to the ET on 2nd                           process being discriminatory. The CA
January       2002 claiming unfair                        held that in these circumstances the
dismissal. She made no complaint for                      Employment Appeal Tribunal correctly
race discrimination or victimisation                      concluded that Mrs Khan was raising a
though she alleged the dismissal was                      new point on appeal when another
based on race discrimination and this                     new counsel appearing for her
was confirmed in F&BPs in February                        attempted to argue that time ran from
2004. No racial complaint was made                        the conclusion of the internal appeals
about the appeal process. The claim                       process on 23 January 2002. That
was dismissed on 2nd June 2004. A                         point had not featured in the
second     application    had    been                     originating application or in the list of
presented on 12th April 2002 claiming                     issues made by the chairman at the
race discrimination and victimisation,                    third directions hearing nor had it been
the latter being based upon a                             argued by leading counsel in the
complaint she had made in 1998 when                       employment tribunal. It was raised for
her ET claim had been dismissed in                        the first time in the Notice of Appeal to
August 1999. On 7th January 2004 an                       the Employment Appeal Tribunal.
ET gave extended reasons why the                          Mummery LJ therefore concluded:
                                                          “It is well established in the authorities binding
second claim was not in time under s                      on this court that the Appeal Tribunal is
68(1) RRA 1976 and why it was not                         entitled, in the exercise of its discretion, to
just and equitable to extend time. The                    refuse to allow a represented party to take for
EAT dismissed the appeal on the                           the first time on appeal a new point of law
                                                          which goes to jurisdiction and has been
ground that there was no error of law.                    decided by the employment tribunal on the
Sedley LJ ordered that the question of                    basis of evidence given to it: see Glennie v.
whether time began to run from the                        Independent Magazines (UK) Ltd [1999]
conclusion of the appeal process or                       IRLR 719; Kumchyk v. Derby City Council
the summary dismissal be referred to                      [1978] ICR 116. The Appeal Tribunal should
                                                          not allow a new point to be taken unless there
a full court for permission to be                         are exceptional circumstances: Jones v.
considered. In the CA, Mummery LJ                         Governing Body of Burdett Coutts School
noted that Rhys-Harper v. Relaxation                      [1999] ICR 38 at 47. In this case there were no
Group plc [2003] 4 All ER 1113 was                        exceptional circumstances. Indeed, the list of
                                                          race discrimination issues agreed at the third
                                                     23
Employment law bulletin
Issue 1 January 2006


directions hearing made it clear that Mrs Khan              surprising that the wing member in question did
was not then making any discrimination or                   not take great pains, after this matter had been
victimisation claim in respect of the internal              raised, to assume an appearance at least of
appeals.”                                                   intelligent interest, but he apparently did not.”
The appeal was dismissed.                                   The EAT thought that there had not
                                                            been a waiver when the parties
EAT note: One of the lay members                            continued but the layperson fell asleep
appeared to be asleep. Parties raised                       again so that the case was remitted to
the issue with Tribunal and then agreed                     another Tribunal.
to continue the hearing.       The lay
member then appeared to resume his                          Practice          &          Procedure:
slumbers. No further objection made at                      Appearance/Response        &     Review
the hearing but the losing employee,                        Review      of     default    judgment.
then raised issue as ground of appeal.                      Construction of ET Rule 33 (5) and (6).
Re-hearing        ordered      following                    Need to consider balance of prejudice
Stansbury v Datapulse plc.                                  in exercise of discretion (Pendragon v
MRS     P      FORDYCE     v                                Copus).
HAMMERSMITH      &  FULHAM                                  THE PESTLE & MORTAR v THE
CONSERVATIVE ASSOCIATION                                    PESTLE & MORTAR
HHJ Reid QC, Miss Wilson, Mr                                HHJ Peter Clark
Lyons                                                       UKEAT/0652/05/ZT
UKEAT/0390/05/CK                                            The Claimant was employed as a bar
One of the lay members was asleep for                       person from 3rd December 2004 to 1st
a significant amount of time. The matter                    January 2005. She lodged a claim on
was raised with the ET but both sides                       4th March claiming automatic unfair
wished to continue. He continued to                         dismissal due to pregnancy and
appear to fall asleep, though he turned                     unlawful sex discrimination. The
to the appropriate pages of the Bundle                      Response was to be entered within 28
when asked (though the EAT stated:                          days under the Employment Tribunal
“Whether or not that was, in fact, what he was              Rules of Procedure 2004, Rule 4(1)
doing or whether this was, in effect, the knee-             unless time was extended. An
jerk reaction that many a school child and,                 application was made within 28 days
indeed, I suspect, a number of junior Counsel
have learned over the years, we do not know,                on the ground of a director’s ill health
but he certainly gave sufficient appearance of              and an extension granted to 26th April
being asleep for it to be assiduously noted…).              but the Response arrived on 28th April,
No step was taken at that stage, but,                       two days late as it was sent by post on
after the Claimant lost, the point was                      25th. It has been faxed to ACAS in
taken as a ground of appeal. The EAT                        error. The Response was not accepted
referred to Stansbury v Datapulse plc                       and a review application was made
& Another [2004] ICR 523. and stated                        under Rule 33. The Chairman was
that:                                                       satisfied that there was a reasonable
“The bottom line, it seems to us, is that the               prospect of successfully responding to
matter turns on what is reasonable in the
particular circumstances of the case. One
                                                            the claim or part of it. He found that
circumstance is to consider whether an                      there was no good reason for the
objection should have been raised at an earlier             delay and held that the default
stage. We have already indicated that so far                judgment stood. On appeal, the EAT
as any passage of supposed sleep before the                 stated:
matter was raised with the Tribunal Chairman,
                                                            “Since the judgment below in this case, the
that is, in our view, now “water under the
                                                            President Burton J heard and determined an
bridge”. There was an informed decision by                  employer’s appeal in Pendragon v Copus
both Counsel and their clients (in full
                                                            (EAT/0317/05 – 11 July 2005). The principal
knowledge of what they had perceived) to
                                                            issue in that appeal was whether the Tribunal
continue. That waiver, if I can call it that, of any
                                                            had jurisdiction to review a default judgment. It
right of complaint clearly does not affect
                                                            did. However, the President also indicated
anything that happened thereafter.             It is
                                                       24
Employment law bulletin
Issue 1 January 2006


that, in deciding whether to exercise discretion         judgment standing.    The review
in reviewing a default judgment where the                succeeded and the default judgment
Respondent has failed to put in a response in
time, the principles laid down by Mummery P in           was set aside.
Kwik Save Stores Ltd v Swain [1997] ICR 49
dealing with the failure to enter a Notice of            EAT NOTE: Rule 25 of The
Appearance in time under the old rules apply.            Employment Tribunals Rules of
The President referred to his statement of the
principles in Moroak v Cromie [2005] IRLR
                                                         Procedure 2004           (i) Does an
535, paragraphs 26-28. In short, in exercising           employment tribunal have jurisdiction
the discretion, a Chairman should take account           to set aside a notice of withdrawal of a
of all relevant factors including the explanation        claim given under Rule 25(2) of The
or lack of explanation for the delay and merits          Employment Tribunals Rules of
of the defence, weighing and balancing them
one against the other and reach a conclusion             Procedure 2004? Held, that it does
which was objectively justified on the grounds           not. (ii) Was the Chairman’s decision
of reason and justice and, in doing so, to               to order the claimant to pay the
balance the possible prejudice to each party.”           respondent the latter’s costs of the
The EAT held that the Chairman was                       application for such setting aside a
entitled to find that no good reason had                 perverse one? Held, that it was not.
been put forward for the delay. In                       DR SAJID SAEED KHAN v
considering the prejudice to the                         HEYWOOD & MIDDLETON
Respondent, Judge Clark stated that
                                                         PRIMARY CARE TRUST
under: “Rule 33(5) uses the word “may” to
give a discretion to the Chairman to consider            Rimer J sitting alone.
revoking or varying a default judgment only if           UKEAT/0581/05/ZT
the Respondent has a reasonable prospect of              The        Claimant         commenced
successfully defending. That is the gateway to
the discretion. That is why the word “may” is
                                                         proceedings         alleging        race
used. It sets up the discretion. However, the            discrimination       following        his
use of the word “must” in sub-rule 6 merely              unsuccessful application for a position.
imports that in exercising that discretion, a            Heywood denied discrimination and
Chairman must take into account whether or               asserted that the position was not one
not there was a good reason for the delay. It
identifies a mandatory factor but it does not, in        where the Claimant would have been
my view, contrary to the approach of the                 an employee so that the ET did not
Chairman, elevate it into a significant factor as        have jurisdiction. At a CMD an order
he put it: that is to say a factor which                 was made that the Claimant had until
necessarily weighed more heavily in the
balance than the other factors.“
                                                         7th April 2005 to decide whether he
The Chairman had considered the                          wished to continue and that a CMD
balance of prejudice but had not put                     would be listed for the first available
into the balance the draconian effect                    date after the 7th. On 6th April the
on the Respondent of refusing the                        Claimant’s solicitors sent a letter in
review application. The EAT stated                       which it was stated that the Claimant
that the default judgment prevented                      “seeks to withdraw his claim from the
defending on liability and remedy. The                   Tribunal”. The ET wrote to both sides
Chairman therefore fell into error on                    on 11th to state that the file had been
two grounds: he misconstrued the                         closed. The Claimant instructed the
effect of the words “may” and “must”                     Bury Racial Council which wrote on
respectively in Rule 33(5) and (6) and                   21st June to ask the withdrawal notice
thereby misdirected himself into                         to be set aside. The Chairman
elevating the lack of a good reason for                  dismissed an application for an order
the delay to a status which it does not                  setting aside the notice and an
command under the Rules and                              application from the Respondent for
secondly, he failed to take into account                 dismissal of the claim but allowed an
the balance of prejudice in particular                   application for costs against the
the prejudice suffered by the                            Claimant. The EAT considered Rule
Respondent as a result of the default
                                                    25
Employment law bulletin
Issue 1 January 2006


25 of the Rules of Procedure 2004.                        for rejecting the claim of indirect sex
The EAT concluded:                                        discrimination
“I accept Mr McCluggage’s submission that,                MRS E RICE v MR T AND MRS S
despite the inadequacy of the drafting, the true
sense of the last sentence of paragraph (4) is            WALKER T/A KITCHEN SHOP
to convey that the consequence of the                     HHJ Richardson, Mr Jenkins
dismissal of a previously withdrawn claim will            OBE, Professor Wickens OBE
be to prevent the claimant from starting a
further claim based on the same cause of                  AT/0498/05/ZT
action, whereas (by inference) a mere                     The Claimant worked for the Walkers
withdrawal of the claim will not. I arrive at this        as a shop assistant at a shop in Union
conclusion by the following reasoning. First, for         Square, Torquay. They had another
reasons given, I do not accept that paragraph
(4) is directed at conferring any jurisdiction to
                                                          shop in the Strand. She worked
set aside a notice of withdrawal. I consider that         varying shifts until August 2003 when
its sole purpose is to preserve a respondent’s            she asked to work two fixed days per
right to apply for a dismissal of a withdrawn             week as she had a seven year old son
claim. Second, it follows that the last sentence          who had major medical problems and
of paragraph (4) is concerned only with the
consequences of the success or failure of such            was finding varying shifts stressful.
an application (whether originally or on a                She worked a total of 15 hours on
review or an appeal). Third, the primary thrust           Tuesdays and Thursdays.               In
of the language of that sentence is directed at           September 2004 the lease in Union
saying that, if the claim is dismissed, “those
proceedings cannot be continued”. Whilst that
                                                          Square was surrendered and other
is more naturally to be read as meaning that              premises fell through so that, of the
the dismissed claim cannot be continued, if that          eight members of staff in the two
were the intended meaning the message would               shops, four were to be made
be so valueless as not to have been worth the             redundant. The Claimant was offered
draftsman’s candle; and I cannot accept that it
is the intended message. In the context of a              work at the Strand shop. By letter
Rule concerned exclusively with the withdrawal            dated 18th September all four were
of proceedings, but which also deals with the             advised of proposed hours but the
effect of the dismissal of such withdrawn                 Claimant stated she could not accept
proceedings, I prefer the view that the Rule
was, in the latter respect, directed at providing
                                                          any of these though she would accept
that, if a withdrawn claim is also dismissed, the         15 hours on flexible arrangements.
claimant cannot start a fresh claim based on              She was offered 13 ½ hours over
the same cause of action as that on which the             three days in 4 ½ hour shifts. This was
dismissed claim was based.”                               accepted     and      a  trial   period
The appeal was dismissed. The                             commenced on 4th October. She was
appeal on the costs order was also                        on holiday the first week but after
dismissed on the ground that the                          working two weeks she told Mrs
Chairman acted within his discretion.                     Walker on 23rd October that she was
                                                          not coping with the hours and wished
REDUNDANCY                                                to leave. By 28th October it was known
                                                          another employee was going to leave
                                                          so that Mrs Walker told the Claimant
EAT NOTE: Redundancy: Constructive                        she could return to fixed hours. This
Dismissal & Sex Discrimination: Indirect                  was confirmed in writing the following
The Tribunal did not err in law in                        day but the Claimant stated that 28th
finding that the second offer satisfied                   had been her last day and she was
s.141(1) and was suitable in relation to                  astonished to receive a further offer.
the claimant and was unreasonably                         She did not come in to work some
refused.                                                  further sessions that she had stated
The Tribunal did not err in law is                        she would work as a favour. She
rejecting the claim of unfair dismissal.                  asserted that she had left because all
The Tribunal gave no proper reasons                       trust and confidence had been
                                                          destroyed as a request she had made
                                                     26
Employment law bulletin
Issue 1 January 2006


on 23rd to work fixed hours had not                       is made to the employee “before the
immediately received a response and                       end of his employment”, so long as
she felt she could no longer work. She                    renewal or re-engagement takes place
claimed a redundancy payment, unfair                      either immediately on or after an
dismissal and indirect discrimination.                    interval of not more than four weeks
The ET found that the dismissal was                       after “the end of his employment”.
by reason of redundancy, but stated:                      The EAT held that the offer of renewal
“The offer was made within the trial period. We           had been in time so long as it had been
consider that the trial period did not commence           made before the employment was
until the claimant returned from her week’s
holiday        and          actually       started        terminated at the Strand and was to
working…s.138(3)(b)(ii). We are satisfied that            take place not more than four weeks
that amounted to an offer of suitable                     after that time. The ET had found that
employment.       We have considered the                  there had been no resignation by 28th
claimant’s reason for rejecting that. She stated
that the respondent’s failure immediately to
                                                          October and the ET was entitled to
accede to her request for fixed day shift working         reach the conclusion that the
destroyed trust and confidence. We disagree.              employment had not terminated by 1st
The claimant had agreed to accept a flexible              November. A sufficient and suitable
working arrangement, albeit on a trial basis. She         offer of reengagement had been made
only worked a very few shifts under that
arrangement and as soon as Tara McAreavey                 during the currency of the original
gave in her notice she was told that she could            contract. The EAT stated that the offer
return to a fixed day basis. We find that her             was “essentially a return to what she
refusal of that employment was unreasonable               had had before.” The second offer was
and accordingly she is not entitled to a
redundancy payment”.
                                                          not discriminatory. The appeal on
The EAT stated that it was necessary to                   constructive dismissal was also
consider the two offers and their                         dismissed,
consequences. The first offer had been                    The EAT noted that the ET failed to
terminated during the trial period within                 deal with the indirect discrimination
section 138(4) ERA 1996. The ET had                       claim. The ET had held:
                                                          “If the requirement to work flexible shifts
not found that the employment was                         amounted to a provision, criterion or practice
suitable or unreasonably terminated; it                   imposed by the Respondent it was one to which
did not deal with this issue so that if it                the claimant assented, if only on a trial basis.
had not been for the second offer the                     When the claimant's resigned the respondents
                                                          immediately notified her that she could return to
Claimant would have been entitled to a                    fixed day working. This was exactly what she
redundancy payment. The EAT noted                         had wanted and what had been satisfactory
that there may be a further offer and                     before. On that footing we have no hesitation in
trial period as section 138(5) provides                   saying that the claim for sex discrimination has
for successive renewals or re-                            been brought and pursued unreasonably.”
engagements but section 138(1)                            The EAT held that the finding was not
applies to a re-engagement under a                        adequate as assent is not a defence to
new contract of employment if, and only                   a discrimination claim. The claim was
if, it is pursuant to an offer made before                remitted to the Tribunal. The appeal on
the end of the employee’s employment                      costs was also allowed.
“under the previous contract”. Under
this section the offer which leads to the
second reengagement must be before
the end of the first reengagement. The
EAT noted that there was no second
reengagement as the offer had been
refused so that section 141(1) had to be
considered. Section 141(1) applies
where an offer of renewal or re-
engagement, whether in writing or not,

                                                     27
Employment law bulletin
Issue 1 January 2006


                                                            course this question should be decided
                                                            according to established principles of
TERRITORIAL JURISDICTION                                    construction, giving effect to what Parliament
                                                            may reasonably be supposed to have intended
                                                            and attributing to Parliament a rational scheme.
Section 94, 196 ERA 1996. Territorial                       But this involves the application of principles,
                                                            not the invention of supplementary rules…On
Jurisdiction                                                the other hand, the fact that we are dealing in
SERCO LTD v LAWSON :                                        principles and not rules does not mean that the
BOTHAM (FC) v MINISTRY OF                                   decision as to whether section 94(1) applies
                                                            (and therefore, whether the Employment
DEFENCE : CROFTS & ORS v                                    Tribunal has jurisdiction) is an exercise of
VETA LTD & ORS                                              discretion. The section either applies to the
[2006] UKHL 3                                               employment relationship in question or it does
                                                            not and, as I shall explain later, I think that is a
House of Lords                                              question of law, although involving judgment in
The Appellants appealed against the                         the application of the law to the facts.”
CA decisions at (2004) EWCA 12,                             In relation to peripatetic employees:
(2005) EWCA 599. Serco was a                                “As Croft v Veta Ltd shows, the concept of
substantial UK based company which                          employment in Great Britain may not be easy
engaged Lawson to work as a security                        to apply to peripatetic employees. The Act
                                                            continues to make specific provision for one
guard on Ascension Island. The MOD                          class of peripatetic worker, namely mariners,
had employed Botham at various                              but I do not think that one can draw any
establishments in Germany as a UK                           inferences about what Parliament must have
based youth worker. The CA held that                        intended in relation to other peripatetic workers
                                                            such     as     airline    pilots,   international
section 94 did not apply as the basing                      management consultants, salesmen and so
in the UK was not sufficient. In the                        on.. the common sense of treating the base of
case of Crofts the time spent in the UK                     a peripatetic employee as, for the purposes of
was sufficient as Mr Crofts was based                       the statute, his place of employment, remains
                                                            valid.”
at Heathrow, which enabled him to live
                                                            In relation to expatriate employees,
in the United Kingdom                                       Lord Hoffman stated:
The House of Lords considered what                          “36. The circumstances would have to be
connection with the Great Britain was                       unusual for an employee who works and is
required so that section 94(1) was                          based abroad to come within the scope of
applicable. The cases of Serco and                          British labour legislation. But I think that there
                                                            are some who do. I hesitate to describe such
Lawson were remitted to the ET for                          cases as coming within an exception or
rehearing.                                                  exceptions to the general rule because that
Lord Hoffman stated:                                        suggests a definition more precise than can be
“In my opinion the question in each case is                 imposed upon the many possible combinations
whether section 94(1) applies to the particular             of factors, some of which may be unforeseen.
case, notwithstanding its foreign elements. This            Mr Crow submitted that in principle the test was
is a question of the construction of section                whether, despite the workplace being abroad,
94(1) and I believe that it is a mistake to try to          there are other relevant factors so powerful that
formulate an ancillary rule of territorial scope, in        the employment relationship has a closer
the sense of a verbal formula such as section               connection with Great Britain than with the
196 used to provide, which must then itself be              foreign country where the employee works.
interpreted and applied. That is in my respectful           This may well be a correct description of the
opinion what went wrong in the Serco case.                  cases in which section 94(1) can exceptionally
Although, as I shall explain, I think that there is         apply to an employee who works outside Great
much sound sense in the perception that                     Britain, but like many accurate statements, it is
section 94(1) was intended to apply to                      framed in terms too general to be of practical
employment in Great Britain, the judgment                   help. I would also not wish to burden tribunals
gives the impression that it has inserted the               with inquiry into the systems of labour law of
words "employed in Great Britain" into section              other countries. In my view one should go
94(1). The difference between Lord Phillips of              further and try, without drafting a definition, to
Worth Matravers MR and the majority of the                  identify the characteristics which such
court in Crofts v Veta Ltd was about how these              exceptional cases will ordinarily have.
words should be construed. But such a                          37. First, I think that it would be very unlikely
question ought not to arise, because the only               that someone working abroad would be within
question is the construction of section 94(1). Of           the scope of section 94(1) unless he was
                                                       28
Employment law bulletin
Issue 1 January 2006


working for an employer based in Great Britain.            Aviation Security GmbH & Co.
But that would not be enough. Many
companies based in Great Britain also carry on             KG,
business in other countries and employment in              ECJ    THE COURT (Third Chamber),
those businesses will not attract British law              composed of A. Rosas, President of the
merely on account of British ownership. The                Chamber, J.-P. Puissochet, S. von Bahr, A.
fact that the employee also happens to be                  Borg Barthet (Rapporteur) and U. Lõhmus,
British or even that he was recruited in Britain,          Judges, Advocate General: M. Poiares
so that the relationship was "rooted and forged"           Maduro
in this country, should not in itself be sufficient        Securicor Aviation (Germany) Ltd had
to take the case out of the general rule that the          the contract for providing security
place of employment is decisive. Something                 checks at Düsseldorf airport until 31st
more is necessary.
    38. Something more may be provided by the
                                                           December 2003. The contract was
fact that the employee is posted abroad by a               then transferred to Kötter Aviation
British employer for the purposes of a business            Security GmbH & Co. KG. The
carried on in Great Britain. He is not working for         Claimants      were     employed       by
a business conducted in a foreign country                  Securicor as security attendants to
which belongs to British owners or is a branch
of a British business, but as representative of a          carry out security checks on
business conducted at home. I have in mind,                passengers and their baggage at the
for example, a foreign correspondent on the                airport. They were dismissed when the
staff of a British newspaper, who is posted to             contract ended, their notice expiring on
Rome or Peking and may remain for years
living in Italy or China but remains nevertheless
                                                           31st December. The new contractor
a permanent employee of the newspaper who                  took on over 150 workers but not the
could be posted to some other country. He                  two Claimants. They intended to bring
would in my opinion fall within the scope of               proceedings but as a preliminary
section 94(1).”                                            matter wished to know whether they
Lord Hoffman further commented that:                       should sue Securicor or Kötter; the
“Another example is an expatriate employee of
a British employer who is operating within what            latter on the basis that there had been
amounts for practical purposes to an extra-                a transfer of an undertaking within the
territorial British enclave in a foreign country.          meaning       of    Council     Directive
This was the position of Mr Botham working in              2001/23/EC. Kötter argued that there
a military base in Germany. And I think,
although the case is not quite so strong, that
                                                           had not been a transfer of an
the same is true of Mr Lawson at the RAF base              undertaking so that Securicor was
on Ascension Island. While it is true that Mr              the proper Defendant. One of the
Lawson was there in a support role, employed               issues was whether there had been a
by a private firm to provide security on the               transfer of assets       Under German
base, I think it would be unrealistic to regard
him as having taken up employment in a                     case law a transfer of assets can exist
foreign community in the same way as if Serco              "only if the assets are used on an
Ltd were providing security services for a                 independent commercial basis" The
hospital in Berlin.”                                       assets were items such as walk-
Their Lordships dismissed the appeal                       through metal detectors, a baggage
in Crofts v. Veta Limited and allowed                      conveyor belt with automatic X-ray
the appeals in Serco Limited v.                            screening and hand-held metal
Lawson and Botham v. Ministry of                           detectors and explosives detectors
Defence.                                                   which belonged to and were
                                                           maintained by the airport authorities so
TRANSFER OF UNDERTAKINGS                                   that they were not used on an
                                                           independent commercial basis. The
                                                           ECJ held that the requirement that
Transfer of undertakings.               Use     of         assets had been transferred on an
assets. Commercial basis.                                  independent commercial basis was not
Nurten Güney-Görres (C-232/04),                            an essential criterion in deciding
Gul Demir (C-233/04) v Securicor                           whether there had been a transfer
Aviation (Germany) Ltd, Kötter                             between contractors.
                                                           The following questions were asked:
                                                      29
Employment law bulletin
Issue 1 January 2006


“(1)     In examining whether there is –                   consider all the facts characterising the
irrespective of the question of ownership – a              transaction in question, including in particular
transfer of a business within the meaning of               the type of undertaking or business concerned,
Article 1 of Directive 2001/23/EC in the context           whether or not its tangible assets, such as
of a fresh award of a contract, does the transfer          buildings     and    movable      property,   are
of the assets from the original contractor to the          transferred, the value of its intangible assets at
new contractor – having regard to all the facts –          the time of the transfer, whether or not the
presuppose their transfer for independent                  majority of its employees are taken over by the
commercial use by the transferee? By                       new employer, whether or not its customers are
extension, is conferment on the contractor of a            transferred, the degree of similarity between
right to determine the manner in which the                 the activities carried on before and after the
assets are to be used in its own commercial                transfer, and the period, if any, for which those
interest the essential criterion for a transfer of         activities were suspended (see, inter alia, Case
assets? On that basis, is it necessary to                  C-29/91 Redmond Stichting [1992] ECR I-
determine the operational significance of the              3189, paragraph 24, and the cases cited above
contracting authority’s assets for the service             Spijkers, paragraph 13, Süzen, paragraph 14,
provided by the contractor?                                and Ablerand Others, paragraph 33).
(2)     If the Court answers Question 1 in the             34 However, all those circumstances are
affirmative:                                               merely single factors in the overall assessment
(a) Is it precluded to classify assets as being            which must be made and cannot therefore be
for independent commercial use if they are                 considered in isolation (see inter alia Spijkers,
made available to the contractor by the                    paragraph 13; Süzen, paragraph 14, and Abler
contracting authority solely for their use and             and Others, paragraph 34).
responsibility for maintaining those assets,               35 The national court, in assessing the facts
including the associated costs, is borne by the            characterising the transaction in question, must
contracting authority?                                     take into account the type of undertaking or
 (b) Is there independent commercial use by                business concerned. It follows that the degree
the contractor when, for the purpose of                    of importance to be attached to each criterion
conducting airport security checks, it uses the            indicating a transfer within the meaning of
walk-through metal detectors, hand-held metal              Directive 2001/23 will necessarily vary
detectors and X-ray equipment supplied by the              according to the activity carried on, or
contracting authority?”                                    indeed the production or operating
The ECJ reiterated the approach to be                      methods employed in the relevant
taken in deciding whether there has                        undertaking, business or part of a
been a transfer:                                           business (see Süzen, paragraph 18;
“31. According to that case-law, the aim of                Joined Cases C-173/96 and C-247/96
Directive 2001/23 is to ensure continuity of               Hidalgo and Others [1998] ECR I-8237,
employment relationships within an economic                paragraph 31, and Abler and Others,
entity, irrespective of any change of ownership.           paragraph 35). “
The decisive criterion for establishing the                The ECJ ruled:
existence of a transfer within the meaning of
that directive is, therefore, whether the entity in
                                                           “Article 1 of Council Directive 2001/23/EC
question retains its identity, as indicated inter          of 12 March 2001 on the approximation of
alia by the fact that its operation is actually            the laws of the Member States relating to
continued or resumed (see, inter alia, Case                the safeguarding of employees’ rights in
24/85 Spijkers [1986] ECR 1119, paragraphs                 the event of transfers of undertakings,
11 and 12; Case C-13/95 Süzen [1997] ECR I-                businesses or parts of undertakings or
1259, paragraph 10 and Case C-340/01 Abler                 businesses, must be interpreted as
and Others [2003] ECR I-14023, paragraph                   meaning that in examining whether there
29).                                                       is a transfer of an undertaking or business
32 For Directive 2001/23 to be applicable the
transfer must relate to a stable economic entity
                                                           within the meaning of that article, in the
whose activity is not limited to performing one            context of a fresh award of a contract and
specific works contract (see inter alia Case C-            having regard to all the facts, the transfer
48/94 Rygaard [1995] ECR I-2745, paragraph                 of the assets for independent commercial
20). The term ‘entity’ thus refers to an                   use is not an essential criterion for a
organised grouping of persons and assets                   finding that there was a transfer of those
facilitating the exercise of an economic activity          assets from the original contractor to the
which pursues a specific objective (see inter              new contractor.”
alia Süzen, cited above, paragraph 13 and
Abler and Others, cited above, paragraph 30).
33 In order to determine whether the
                                                           EAT      NOTE:        Claimant      sought
conditions for the transfer of an organised                compensation for unfair constructive
economic entity are met, it is necessary to                dismissal and failure to consult prior to a
                                                      30
Employment law bulletin
Issue 1 January 2006


TUPE transfer of a bookmaker’s business               took place on 3rd October at which the
for which the claimant worked. Her                    manager stated there would be
contract of employment described her job              difficulties if the other employee was
as that of clerk. She had, though, on                 appointed DM. The point was raised
occasion performed deputy manager
                                                      again on 8th October and it was stated
duties. She resigned, giving as her reason
for doing so that she had lost all trust and          that the DM would be required to
confidence in the respondents. At the                 deputise- since the Claimant went on
hearing before the tribunal, evidence was             holiday with her husband she could
led regarding the claimant’s grievance                not do this. The Claimant was told she
surrounding the fact that she had not                 could remain on the same terms and
received       confirmation     from       the        conditions as before but was not told
respondents that she would be their                   that she could be deputy manager.
deputy manager. The tribunal found, on                Reference was made to the difficulties
the facts, that that grievance had not been           of going on holiday together on 14th
effectively     communicated        to     the
                                                      October and at a further meeting on
respondents until very shortly prior to the
claimant’s resignation. On appeal, it was             20th October the Claimant was again
argued that the tribunal had applied the              not told that she could be DM. The
wrong test and also that there had been               Claimant sought legal advice and on
an unexplained and unreasonable delay in              19th November she made it clear for
dealing with the claimant’s grievance. The            the first time that she considered she
Employment Appeal Tribunal held that the              had been deputy manager when Toals
tribunal had been entitled, on the facts              had been running the business. Toals
found by them, to reach the conclusion                confirmed that she had been DM. The
that they did and that they had not applied           Claimant resigned. The ET decided
the wrong test. They were , however ,
                                                      that the Claimant had not been unfairly
satisfied that the tribunal had erred in their
assessment of compensation in respect of              dismissed or discriminated against but
the failure to consult .They held that the            that the Respondents had failed to
same approach required to be adopted as               inform and consult under TUPE and
in redundancy cases and , applying the                an award of six weeks pay was made.
guidance set out in Susie Radin Ltd v                 The EAT considered the argument that
GMB & ors reassessed the compensation                 the Respondent had not properly dealt
at the maximum available level in respect             with her grievance and stated:
that the failure had been found by the                “It is also well established that there is an
tribunal to be serious and gross.                     implied term in a contract of employment that
MS M SWEETIN v CORAL                                  employers will reasonably and promptly afford
                                                      a reasonable opportunity to their employees to
RACING                                                obtain redress of their grievances: W A Goold
Lady Smith, Ms Martin, Mr Pagliari                    (Pearmak) Ltd v McConnell & anr although,
EATS/0039/05/RN                                       despite the reference by Mr Justice Morrison, in
                                                      that case, to the requirement to do so being
The Claimant worked for Toal as a                     ‘fundamental’ we are not of the view that the
clerk at their office in Stranraer. Her               failure to provide such an opportunity will, as
husband was the manager and she                       seemed to be the claimant’s argument,
occasionally deputised. The business                  automatically give rise to a finding that a
was transferred to the Respondents on                 breach of the duty of trust of confidence has
                                                      occurred in the manner discussed above so as
28th/29th  September       2003.    The               to amount to a repudiatory breach. We can
Claimant told the Respondent’s District               see that it could but much would depend on the
Manager that she was the Deputy                       individual facts and circumstances of the case.
Manager, though it had been thought                    What is, though, fundamental is that an
                                                      employee cannot complain that an employer
that another employee was the Deputy                  has failed to deal properly and appropriately
Manager from a visit that took place on               with their grievance if it has not been effectively
21st September when the Claimant’s                    communicated to him. An employer cannot
husband was not present as it was                     reasonably be expected to take steps where an
thought the DM would cover for the                    employee is nursing an unexplained grievance
manager’s absences. A further visit
                                                 31
Employment law bulletin
Issue 1 January 2006


or has made assumptions of which the                      The EAT held however that the ET
employer is ignorant.”                                    had erred in the approach it had taken
The EAT stated that “It is clear that the                 to compensation. It stated:
tribunal formed the view that it could                     “there is no indication of them recognising the
not be said, on the evidence, that the                    need to focus on the punitive and deterrent
respondents knew or ought to have                         nature of any such award and no attempt is
known that the claimant had a                             made by them to consider whether there were
grievance, prior to 17 November                           any mitigating factors, in circumstances where
                                                          they begin by finding that the employers’ failure
2003.” The Tribunal could not be said                     was serious and gross. Had they done so, on
to have erred in its approach to                          their findings in fact, the answer would have
constructive dismissal.                                   had to be that there were no mitigating factors
The EAT referred to Regulation 11 of                      and they would then have been left with a
TUPE and s188 of the Trade Union                          failure by the respondents which was at the top
                                                          end of the range of possible severity. In these
and Labour Relations (Consolidation)                      circumstances, a sum which represents less
Act 1992 and stated:                                      than half of what it was open to them to award
“The wording of the two sets of provisions can,           is not defensible.”
accordingly, be seen to reflect each other.               The compensation was increased to
They both underline the importance of                     the maximum amount.
compliance with the duty to consult. They both,
significantly, instruct the tribunal, when
assessing compensation, to focus on the                   UNFAIR DISMISSAL
nature and extent of the employers’ default.
That gives rise to the inevitable inference that
Parliament intended the awards in each case to
be penal in nature, rather than solely                    EAT SUMMARY
compensatory albeit that, in our view, the use            The Tribunal rejected the employee’s
of the words ‘just and equitable’ would entitle a         claims that there had been constructive
tribunal also to have regard to any actual loss
that a claimant employee showed that he had
                                                          unfair     dismissal     and     disability
in fact suffered as a result of the failure to            discrimination. On her appeal:
consult.”                                                  (1)     In deciding to reject the
The EAT concluded:                                        constructive unfair dismissal claim the
“We have considered whether the fact that the             Tribunal failed to consider whether the
compensation claimed in this case is in respect           accumulation of matters of which the
of a failure to consult under TUPE rather than
under the requirements of Trade Union and                 employee complained amounted to a
Labour Relations (Consolidation) Act 1992                 fundamental breach of the implied term
regarding consultation prior to redundancy,               of trust of confidence and considered
makes any difference.             Certainly, the          only whether each matter was a breach.
consequences of redundancy are liable to be
more serious. It means no job whereas, in a
                                                           (2)     The Tribunal failed to approach
TUPE transfer, the employee’s job is secure. It           what was said to be the last straw on
is not the job and all that that implies for the          the basis that it did not have to be a
employee’s financial well-being and social and            breach of contract.
personal status that is immediately at risk.               (3)     The Tribunal’s answers to
However, the EU have considered the legal,
economic and social implications of a business            questions posed by the EAT formed
transfer to be so important as to have agreed             part of their judgment as a whole but did
that proper consultation is a vital element to the        not remedy the faults.
safeguarding of employees’ rights in the event            (4)      The Tribunal’s conclusions as to
of such a transfer (Council Directive
2001/23/EC). In these circumstances, we do
                                                          individual       acts     of     disability
not see that we can infer that Parliament, when           discrimination were unassailable.
using the same terminology as in the case of              Lewis v Motorworld, Meikle and
payments due for failure to consult in a                  Omilaju applied. Appeal allowed in
redundancy situation, intended that the                   part. Remission of U.D and D.D by
approach to the assessment of compensation
payable be any different. We cannot see that              dismissal to new Tribunal.
there would be any real justification for drawing         MRS E BARKE v SEETEC
a distinction between the two.”                           BUSINESS       TECHNOLOGY
                                                          CENTRE LIMITED
                                                     32
Employment law bulletin
Issue 1 January 2006


HHJ Burke QC, Ms Switzer, Miss                               back at work were exceptionally hot due to record
                                                             temperatures.
Wilson CBE
                                                             4. This placed the Respondents in a dilemma
UKEAT/0917/04/RN                                             because Mrs Barke's workstation was set up in a
The Claimant was a Programme                                 room which did not have air conditioning.
Manager. From July 2000 she                                  5. In moving Mrs Barke to an air conditioned room
suffered from fibromyalgia, with her                         the Respondents solved one problem.
                                                             6. Mrs Barke in her last week or so before her
symptoms being substantial though                            resignation had a number of problems in parking or
they fluctuated. The Claimant was                            moving her car and found this understandably very
disabled within the DDA 1995.                                irritating.
There was a long history leading up                          7. The last straw it appears to the Tribunal, was that
to her resignation on 19th                                   Mrs Barke anticipated that there would be a sizeable
                                                             reduction in her pay packet on 20 August 2003 but
September 2003. The Tribunal                                 could not obtain any indication of what she would
found against the Claimant, the                              receive.
EAT asked a number of questions                              8. Mrs Barke suggested that one of the Respondents'
of the ET (which resulted in the CA                          employees told her that she was instructed not to tell
                                                             Mrs Barke the position, but we do not believe that
decision at [2005] ICR 1373). The                            this is what happened and consider it more likely that
Chairman        answered       those                         the employee at that point did not know the actual
questions by letter dated 24th                               figure.
January 2005. There were a                                   9. Indeed Ms Conway stated in evidence that there
                                                             was a degree of uncertainty about the amount
number of issues during the
                                                             because the Respondents realised that if they made
Claimant’s employment including                              the full deduction Mrs Barke would receive nothing
obtaining a medical report, hours of                         that month whatsoever.
work, having a shorter dinner                                10. It does not seem to this Tribunal that there was
break (which the Claimant wanted                             any breach of contract with regard to the pay.
                                                             11. It was open to the Respondents to claw back the
to make up hours), problems with                             overpayment made in the previous month and Mrs
parking, problems with working at                            Barke knew thus her concern -that there would be
home and problems with her                                   such a claw back.
workstation. The last straw was                              12. It is further of note that Mrs Barke was
                                                             encouraged to resign by her husband because just
when the Claimant asked what her
                                                             prior thereto she came home and burst into tears and
August salary would be (as she                               admitted she could not carry on.
knew money was to be clawed                                  13. Mr Barke felt that enough was enough and that
back) and could not be told. The                             his wife should indeed resign.
ET correctly addressed itself as to                          14. The question for us though is whether Mrs Barke
                                                             was justified in resigning.
the principles of constructive
                                                             15. The Respondents' Counsel has suggested Mrs
dismissal.                                                   Barke resigned because it was all getting too much
However, it decided against the                              for her and that this was understandable for
Claimant in a passage which the                              somebody who suffered as she did.
EAT examined sentence by                                     16. We have to decide whether Mrs Barke resigned
                                                             because of a fundamental breach of contract by the
sentence and which is therefore set                          Respondents.
out here:                                                    17. Mrs Barke says that she had lost trust and
1. With regard to constructive dismissal, it is to be        confidence in the Respondents because of the way
noted that Mrs Barke in her evidence stated that she         they had treated her.
had thought of leaving a at a much earlier stage and         18. We conclude that Mrs Barke was frustrated
had been looking around for an alternative job.              because she expected everything to be as she
2. Mrs Barke was ill for some time and when she              wished.
came back to work on 5 August 2003 the                       19. One should not forget that persons without
Respondents had already put in                               disability run into problems at work with regard to
         place the recommendations of Medic                  their job description, relationship with managers, car
International with regard to equipment.                      parking and so on.
3. Mrs Barke accepts that some of the days she was           20. Mrs Barke was entitled to special treatment as

                                                        33
Employment law bulletin
Issue 1 January 2006


she was disabled but it does not mean that nothing             failed to ask whether the accumulation
will ever go wrong.                                            of acts or omissions constituted a
21. The Respondents can be criticised in a number of           breach as opposed to whether each
respects.
                                                               act or omission was a breach, that it
22. It is surprising that Ms Conway did not follow up
the fact that she never received Dr Wong's report.
                                                               asked whether the last event was a
23. It is also surprising that an assessment was not           breach and not whether there were a
carried out in house after Mrs Barke had filled out the        series of acts which amounted to a
standard form.                                                 breach and that the ET wrongly
24. There was some uncertainty as to what                      concluded that if        the Claimant
happened next because Mrs Barke was supposed to                resigned in part for reasons which did
get in touch with Mr Hecker.                                   not constituted a breach there could
25. We do not know whether she did or not.
                                                               not be a constructive dismissal. After
26. It is also surprising that nobody spoke to Mrs
Barke about the intention to claw back the overpaid
                                                               referring to Lewis v Motorworld
wages.
                                                               Garages Ltd [1986] ICR 157, Omilaju
27. However, in this last respect the Tribunal has             v Waltham Forest LBC [2005] ICR
noted that the decision to resign was made prior to            481 and Meikle v Nottinghamshire
Mrs Barke knowing what wages she would actually                CC [2005] ICR 1 the EAT summarised
receive.                                                       the principles as being:
28. Although Mrs Barke anticipated there would be a            “1)       where in a constructive dismissal case
reduction, she only knew what the true position was            a course of conduct culminating in a last straw
after she had in fact resigned.                                on the part of the employers is relied upon as
29. Mrs Barke made a particular point of saying she            amounting to a fundamental breach by the
was very concerned about doing external                        employer of the implied term of trust and
assessments which would require her to drive to and            confidence, the Tribunal must consider whether
                                                               the course of conduct cumulatively amounts to
park at a different location.
                                                               such a breach; it is not necessary for each
30. However, after the fibromyalgia was diagnosed
                                                               individual incident which makes up the course
Mrs Barke never did a single external assessment.              of conduct or the last straw to be of itself a
31. Mrs Barke was encouraged to start external                 breach of conduct. (Lewis, Meikle). The
assessments, but no real pressure was applied and              question is – does the cumulative series of acts
when Mrs Barke refused a particular assignment no              or omissions taken together (our emphasis)
sanction was imposed.                                          amount to a breach of the implied term;
32. Accordingly we do not believe that any acts of the         2) the conduct which is said to constitute the
Respondents in this respect amounted to breaches of            last straw need not be unreasonable or
contract nor that Mrs Barke's concern was any part of          blameworthy; but it must contribute something
the reason for her resignation.                                to the breach of the implied term, although
                                                               what it adds may be relatively insignificant; but
33. It may well be that Mrs Barke did lose trust and
                                                               it will not be sufficient if the last straw is an
confidence in the Respondents, but we do not
                                                               entirely innocuous act. (Omilaju);
consider that they acted in such a manner that was             3) the employee must leave in response to the
calculated or likely to destroy or seriously damage            repudiation; but it is enough that the employee
the relationship of confidence and trust.                      resigns at least in part in response to the
34. The Respondents were trying to meet Mrs                    repudiation; the repudiation does not have to
Barke's concerns and we conclude that they did not             be the effective cause of the resignation.
in fact wish to lose her as an employee.                       (Meikle);
35. The failures of the Respondents which we have              4) the test as to repudiatory conduct is
noted were mostly at an earlier date in the series of          objective. (Lewis, Meikle, Omilaju)”
events and we do not conclude that, even if there              On the accumulation issue, the EAT
had been breaches of contract, they were part of the           thought that the ET had looked at the
reasons for Mrs Barke's final resignation.                     history on an individual and not on a
36. The Respondents' Counsel may well be right                 cumulative basis or it would have used
when he submitted that Mrs Barke could not cope                different language to that in paragraph
with the pain she suffered, driving to and from work
                                                               79. On the final event issue, the last
and working.
37. In any event, we are not satisfied that Mrs Barke
                                                               straw had been the failure to give any
was constructively dismissed.
                                                               information as to the extent of the
The claims of constructive dismissal                           deductions from salary. The EAT
and disability discrimination failed. On                       referred to sentences 8, 9, 10, 26 to 28
appeal it was contended that the ET                            and found that the ET did not
                                                          34
Employment law bulletin
Issue 1 January 2006


approach the issue of failure to                 have concluded in the Respondent’s
respond to the inquiries on the basis            favour but the Chairman had stated in
that they could constitute the last straw        his letter that ‘certain’ failures were not
in a course of conduct which                     the reason for the resignation. The
cumulatively might amount           to a         EAT held that the ET did not apply the
breach without itself being a breach of          third proposition set out above, based
contract. In his letter, the Chairman            on Meikle. The case was remitted to a
described the last act as innocuous              different ET. The appeal on disability
but this was inconsistent with sentence          was dismissed save in so far as it was
26. The ET were held to have erred in            based upon dismissal.
law.
On the reasons issue, the ET referred
to sentences 32 to 35 and would



Please address any queries (or send unreported cases) to:

Michael Duggan




3 Kings Bench Walk North, London, Temple EC4 Y7HR.
mduggan@littletonchambers.co.uk or mdugg@aol.com
Telephone: 02077978600. Facsimile: 02077978699/98




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