Employment Law News

Employment

• Mr G Hill v. G & R Pollard Engineering Ltd, UKEAT/0059/11/CEA, Judge Birtles, Mrs L Tinsley & Mr M Worthington, 13 March 2012
  
  
   
  UNFAIR DISMISSAL – Compensation

  This was an unsuccessful appeal by the Claimant in an action for unfair dismissal. The Employment Tribunal had previously found that Mr Hill was constructively unfairly dismissed and awarded him compensation.

  The Claimant appealed to the EAT on the basis that the ET wrongly assessed the level of his compensation under s.31 of the Employment Act 2002 and also in applying a particular cut off date.  The EAT dismissed the appeal on the basis that there was adequate material upon which the Employment Tribunal could reach the conclusions it did.  Cross appeal also dismissed for the same reason.

   

  
  
  
• Eddie Stobart Ltd v. (1) Mr J Moreman & Others (2) Fjg Logistics Ltd (3) Mr M Cooper (4) Messrs Hart & Hopkinson (Debarred), UKEAT/0223/11/ZT, Mr Justice Underhill, 17 February 2012
  
  
   
  TUPE – Service Provision Change

  This was an unsuccessful appeal by the Respondent in an action brought under the Transfer of Undertakings (Protection of Employment) Regulations 2006. The Claimants in these proceedings, who number 35, were employed by Eddie Stobart Ltd (“ES”) at a site at Manton Wood in Nottinghamshire.  ES closed the site on 20 April 2009. 

  At the ET the Claimants argued that their employment transferred to FJG Logistics Ltd, who had taken over part of the contract for running the site. FJG refused to accept them and insisted that they were the employees of ES. The ET found in favour of FJG and held that the employees were dismissed by ES. Although the employees in question worked mainly on the contract which transferred, they were not specifically assigned to that contract, nor organised by reference to it.

  ES appealed, arguing that, in the logistics industry, it would be rare to have identified teams of the kind required on the Judge’s approach.  Accordingly in a case where a customer moved to a different supplier, as here, employees would not have the protection of TUPE.  As a matter of policy that would be undesirable. There was a grouping of employees, namely those identified by ES as working mainly on the contract in question and their principal purpose was to carry out those tasks. 

  The EAT rejected that argument and dismissed the appeal. An “organised grouping of employees [whose] principal purpose is the carrying out of … activities … on behalf of [a particular] client” within the meaning of regulation 3 (3) (a) (i) of TUPE will only exist where the employees in question are organised by reference to the provision of services to the relevant client.

  
   

  
  
  
• Weatherford UK Ltd v. Mr Charles Forbes, UKEATS/0038/11/BI, Lady Smith, 21 December 2011
  
   
    
  PRACTICE AND PROCEDURE- disclosure

  This was a successful appeal by the Respondent in an action for unfair dismissal. At a Pre Hearing Review on 13 Jun 2011, the Aberdeen Employment Tribunal had ordered the employer to produce certain documents and provide additional information in connection with an employee’s claim of unfair dismissal.

  Some of the documents were held in the USA and were protected by legal privilege in that jurisdiction. The Respondent argued that they were outwith the scope of the Tribunal’s documentary recovery powers. The Employment Judge held that the applicable law was Scots law, under which the documents were not privileged and ordered that the documents be produced.

  The Respondent appealed against that order, submitted that the document order was incompetent and that the Employment Judge had erred in concluding that Scots law applied.

  The EAT upheld the appeal and held that the order was incompetent and therefore fell to be revoked.

   

  
   

  
  
  
• UPS Ltd v. Mr S Harrison, UKEAT/0038/11/RN, Judge Richardson, Ms V Branney, Mr G Lewis, 16 January 2012
  
  
   
  UNFAIR DISMISSAL- Band of reasonable responses test

  This was a successful appeal by the Respondent in an action for unfair dismissal. The Claimant had been dismissed for breaching a “three strikes” rule at UPS- i.e. he had had three accidents within 12 months which UPS regarded as avoidable. The Employment Tribunal sitting in Newcastle held that the dismissal was unfair.

  The Respondent argued that the Tribunal had erred in law by substituting its own view for that of the employer. This was the wrong starting point. The Tribunal should have started with the employer’s reasons for dismissal.  The Tribunal approached the matter on the basis that Mr Harrison drove carefully. This was not the opinion of UPS. The Tribunal ought to have found the reason to relate to conduct instead of capability.

  The EAT upheld the appeal and remitted the case for hearing by a fresh Tribunal.

   

   

  
  
  
• S G Baker Ltd v. Mr Garry Haggart, UKEATS/0007/11/BI, Lady Smith, 9 November 2011
  
  
   
  DISABILITY DISCRIMINATION

  This was a successful appeal by the Respondent in an action for disability discrimination. The Claimant had fallen down the stairs at his home and suffered severe concussion. Over the next four months he suffered severe headaches, nausea and dizziness and was unable to work. The prognosis was that he would be able to return to work, without adjustments, within twelve months of the accident. However, the Respondent proceeded to dismiss the Claimant.

  The Dundee Employment Tribunal held that the Claimant was disabled and that the dismissal was unlawful discrimination. The Respondent appealed on the grounds that the Tribunal had considered whether the Claimant was disabled at the date of the Tribunal, a consideration that was of no relevance.

  The EAT held that the Tribunal had no business making any findings about the Claimant’s condition as at the date of the hearing. The only conclusion open to the Employment Judge was that the Claimant was not a disabled person at the relevant time. The appeal was upheld the EAT found that the Claimant was, as the relevant date, not a disabled person.