Michael Duggan, EMPLOYMENT CASES
BULLETIN SUMMARY FOR
3 Kings Bench Walk North,
Temple EC4Y 7HR
The EAT have set out what is required for a Step 1 letter in the DD process in MR A
DRAPER v MEARS LTD, UKEAT/0174/06/ZT, HHJ Burke QC, Mr Evans.
HHJ Serota QC reiterates that it is not enough to put forward general assertions of
‘stress’ if there is an issue whether someone has a mental disability and that medical
evidence is normally needed: MRS P R BEALES v THE SECRETARY OF STATE
FOR WORK AND PENSIONS, UKEAT/0602/05/MAA, HHJ Serota QC, Mr Bleiman,
The European Court of Justice in Cadman v Health and Safety Executive, Case C-
17/05, ECJ Grand Chamber have held that length of service can normally be
appropriate to attain the legitimate objective of rewarding experience acquired which
enables the worker to perform his duties better, the employer does not have to
establish specifically that recourse to that criterion is appropriate to attain that
objective as regards a particular job, unless the worker provides evidence capable of
raising serious doubts in that regard. Bear in mind Age Discrimination issues may
Fixed Term Contracts
Where an employee is dismissed during a fixed term contract and is reinstated on
appeal after the term has expired, the date of the expiry of the fixed term is still the
EDT: MR R PRAKASH v WOLVERHAMPTON CITY COUNCIL,
UKEAT/0140/06/MAA, HHJ Serota, Mr Singh, Mrs Vickers.
ANDREA VASSALLO v AZIENDA OSPEDALIERA OSPEDALE SAN MARTINO DI
GENOVA E CLINICHE UNIVERSITARIE CONVENZIONATE. Case C-180/04, ECJ
is authority for the proposition that national legislation may preclude contracts being
turned into indefinite contracts in the public sector.
In MRS J PUGH v THE NATIONAL ASSEMBLY FOR WALES, UKEAT/0251/06/DA,
HHJ Serota QC, the EAT held that the ET had failed to properly consider a letter was a
grievance so that the claim was not premature and had misconstrued the meaning of
acts extending over a period of time.
The EAT in MR MARTIN LIPSCOMBE v FORESTRY COMMISSION, HHJ McMullen
QC, Ms Mills, Mr Worthington held that an failed correctly to construe the Claimant’s
resignation letter as containing a grievance in accordance with the 2004 Regulations
and wrongly struck out his claim. Alternatively this was an exceptional case justifying
the EAT allowing a point conceded below to be re-opened on appeal. The finding of the
Employment Tribunal that the Claimant was not prevented by harassment from
complaining was correct and the appeal on this ground was dismissed.
In LONDON BOROUGH OF LAMBETH & OTHERS v MR ROBERT WILFRED
CORLETT, UKEAT/0396/06/DA, HHJ Clark reserved his position as to whether
Bisset v Martins and Castlehill Housing Association Ltd (UKEAT 0022/6 and
0023/06 (which holds that time is not extended under the dispute legislation in
relation to discrimination claims against co employees) was correct.
CHAIRMAN & GOVERNORS OF AMWELL VIEW SCHOOL v MRS C DOGHERTY,
UKEAT/0243/06/DA, MR Recorder Luba QC, Mr Lewis, Ms Tatlow is an important
case in which the EAT held that clandestine recordings of disciplinary hearings by the
employee were admissible but the recordings of the private deliberations of the panel
were not admissible. See the detailed summary of this case in the Bulletin as there
arguments are well set out by the EAT.
It was held, in a case where orders of the ET were repeatedly flouted, that striking
out on liability but allowing employers to argue or remedy was a proportionate
response to serious defaults: PREMIUM CARE HOMES LTD v MRS V OSBORNE,
UKEAT/0077/06/ZT, HHJ Ansell, Ms Drake, Mr Warman.
The conduct, procedure and decisions of a Police Disciplinary Board are immune
from suit because it is a judicial body: MR T LAKE v BRITISH TRANSPORT
POLICE, UKEAT/0154/06/LA, HHJ Serota QC.
Transfer of Undertakings
The EAT refused to accept a submission that Berriman was wrongly decided in
LONDON METROPOLITAN UNIVERSITY v DR K A SACKUR AND OTHERS
UKEAT/0286/06/ZT, HHJ McMullen QC, Mr Ezeikiel, Mr Lyons.
The CA considered detailed arguments about outsourcing in BALFOUR BEATTY
POWER NETWORKS LTD, INTERSERVE INDUSTRIAL SERVICES LTD v MR C
WILCOX & ORS,  EWCA Civ 1240, LORD JUSTICE BUXTON
LORD JUSTICE MAURICE KAY, SIR PETER GIBSON. It held that an outsourcing
contract can be a "stable economic entity" though it does not contain any guarantee
of the amount of or the continuation of work and it can be terminated at will or others
can be brought in to do the work in substitution. The fact that plant and equipment is
leased by the transferor and therefore cannot transfer to the transferee does not
prevent there being a TUPE transfer
In Commission of the European Communities v United Kingdom of Great
Britain and Northern Ireland, C-484/04, ECJ Third Chamber it was held that UK
Guidance which stated that Employers are not required to ensure that the workers
are actually invoking and benefiting from the rest periods to which they are entitled,
but merely that those who wish to claim such periods are not prevented from doing
so, was in breach of EU law. The Government is now likely to change the Guidance.