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					                          Employment Rights Update
July 2011


In this month’s Bulletin we have cases of                    may have impacted upon the principles of
                                                             natural justice in the context of a review.
Race Discrimination, Notice Pay, TUPE,
                                                                Although the review application would
and Negligent Misstatement.
                                                             “almost always” be the appropriate route,
    We hope you find the information                         the Aslam case is an example that this is
interesting and useful.                                      not always the case.
                                                              Notice Pay – Ex-gratia payments
        Race Discrimination –
       Review of Fresh Evidence                                  In Publicis Consultants v O’Farrell, the
                                                             EAT gave authority for the proposition
   In Aslam v Barclays Capital Services and                  that the meaning of the words used by an
Others, the EAT overturned a Tribunal                        employer in a letter of dismissal in which
decision that a former employee did not                      they paid monies to an employee as an
suffer Race Discrimination when he was                       “ex-gratia payment” was a question of
not considered for a new role. The                           law.
employee’s Appeal to the EAT was                                 An employee was entitled to three
supported by fresh evidence which, once                      months notice but was dismissed with 4
admitted, rendered the original Tribunal                     days notice. The letter stated that she
Hearing unfair.                                              would receive an ex-gratia payment
   The usual practice is that when a party                   equivalent to 3 months salary. She
appeals to the EAT and seeks to introduce                    brought a claim for breach of contract.
fresh evidence which was not before the                      She believed her employer had failed to
original Tribunal, the application is                        pay her salary for the 3 months notice
considered in accordance with the COA                        period. The employer argued that the ex-
ruling in Ladd v Marshall. A party seeking                   gratia payment was made in respect of
to rely upon fresh evidence must show                        the notice pay. The Tribunal found that
that the evidence could not, with                            the payment was truly ex-gratia and that
reasonable diligence, have been obtained                     the employer was in breach of contract.
for use at the Tribunal, that it is relevant                 The employer had to pay the 3 months
and will probably have had an important                      notice pay in addition to the ex-gratia
influence on the result of the case, and                     payment.
that it is apparently credible.                                  This case supports the contention that
   The Aslam case, was a rare example of                     if the letter of dismissal is ambiguous then
a fresh evidence challenge in which it                       it is appropriate to construe its wording
would have been inappropriate for the                        against the employer and in favour of the
original Tribunal to conduct a review. The                   employee.
EAT believed that the risk of referring the                                     TUPE
matter back to the original Tribunal was
that the Tribunal members could have                            In Parkwood Leisure Limited v Alemo –
been at risk of being swayed by previous                     Herron & Ors, the Supreme Court has
Judgments they had made in this case so                      made a reference to the European Court
it was remitted to a fresh Tribunal. This                    of Justice (ECJ) to determine whether
                                                             European law requires national courts to


Morrish Solicitors LLP         Head Office – Oxford House, Oxford Row, Leeds LS1 3BE          Tel 0113 2450733
http://www.morrishsolicitors.com            info@morrishsolicitors.com    Offices also at Bradford, Yeadon, Pudsey
                          Employment Rights Update
July 2011


give a “dynamic” or “static” interpretation                      The Claimant brought a claim against
to Regulation 5 of the TUPE Regulations                      the College for negligent misstatement
2006, which concerns the transfer of                         and breach of contract. He relied upon
collective agreements on TUPE transfer.                      the fact that the e-mail amounted to an
   This case is of critical importance to                    inaccurate reference and the College had
unions. Employers argue that on transfer,                    failed within its duty to take reasonable
any collective agreement covering the                        care when preparing it. The College
transferred employees is preserved                           disputed that the e-mail was a reference
statically, with its terms in effect frozen in               or that they had any duty of care.
place. On the other hand, employees and                          The Judge concluded that it was fair,
unions argue for a dynamic approach,                         just and reasonable to impose a duty of
meaning that the collective agreement                        care in the circumstances and therefore
would continue to evolve. In this                            upheld      his    claim    for     negligent
particular case, the question is whether                     misstatement.
transferred employees are entitled to                            This case highlights and establishes
benefit from pay rises agreed after the                      that an employer’s duty of care to former
TUPE transfer, under the collective                          employees is not confined to the provision
agreement, in a negotiating forum of                         of references, but, can extend to
which the employer was not a member.                         comments made when passing on any
         Negligent Misstatement                              information to subsequent employers.
                                                             Therefore, an employer should think very
    In McKie v Swindon College, the High                     carefully and check his facts before
Court (QBD) held an employer liable in                       making any comment that could lead to
negligence for comments made by one of                       the former employee being dismissed
the employer’s managers about an                             from his current job. Otherwise, the
employee to the new employer some 6                          employer could find themselves liable for
years after the employment relationship                      damages in negligence if it turns out that
ended. These comments led to the                             they had provided a false or misleading
employee being dismissed.                                    impression, even if the comment was
   By way of background, the Claimant                        made in good faith.
was employed in a teaching post at                               This case also highlights that the scope
Swindon College in 1995. He left in 2002.                    for duty of care of employers extends
In 2008 he commenced work with the                           beyond references and how careful
University of Bath. Part of his duties                       employers have to be when releasing
involved him attending his old employer’s                    information about a former employee
premises at Swindon College. The College                     even if it is a considerable time after the
sent an e-mail to Bath University to                         employee worked for the employer.
explain that the College had “Safe
Guarding Concerns” for its students and
                                                             We welcome your feedback on our
there were serious staff relationship
                                                             Employment Rights Update. Please feel
problems during the Claimant’s time
                                                             free to email us with any comments or
there. As a result, the Claimant was
                                                             suggestions    for   improvement     to
dismissed by the University.
                                                             david.sorensen@morrishsolicitors.com


Morrish Solicitors LLP         Head Office – Oxford House, Oxford Row, Leeds LS1 3BE          Tel 0113 2450733
http://www.morrishsolicitors.com            info@morrishsolicitors.com    Offices also at Bradford, Yeadon, Pudsey
                          Employment Rights Update
July 2011



                            -

For further information, please contact
our Employment Rights team at -

             Morrish Solicitors LLP
                          on
                  0113 245 0733
                            -

            Please visit our website
         www.morrishsolicitors.com
    or see our Employment Rights blog
       morrishsolicitors.blogspot.com




Morrish Solicitors LLP          Head Office – Oxford House, Oxford Row, Leeds LS1 3BE          Tel 0113 2450733
http://www.morrishsolicitors.com             info@morrishsolicitors.com    Offices also at Bradford, Yeadon, Pudsey

				
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