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Appeal No. UKEAT/0496/10/RN Land Rover v Mr C Short
PRACTICE AND PROCEDURE- Bias, misconduct and procedural irregularity
This was a successful appeal by the Respondent in an action for disability discrimination and unfair dismissal.
The Claimant worked on the production track line for Land Rover. He was recognised as being disabled, suffering from persistent upper extremity symptoms. That had the consequence that he could not perform the core functions of his allocated employment. He was dismissed on 5 December 2008 because Land Rover, despite its size, could not identify any alternative position in its employment for which the Claimant, with his disability, was suitable. A number of jobs which he had mentioned were unavailable. One of the of roles was “occupied by employees who were unwilling to move”.
At the ET, a list of issues was agreed between the parties. It was unclear whether the list permitted exploration of and argument about whether an employee could be required in breach of a collective agreement to move to another job so that a disabled employee no longer capable of doing his own job could take the vacated post. When the employer’s witnesses were cross-examined about this, counsel objected that an amendment would be needed, and if permitted would wish to call further evidence and might need an adjournment to do so. The Claimant’s counsel responded that no amendment was needed. The ET failed to rule, or give any view as to whether the issue was or was not before them for determination until making its decision. The ET found in favour of the Claimant.
The Respondent appealed on this issue. The EAT held that by failing to give a view on whether the issue was to be determined, the ET deprived the Respondent of the opportunity of asking for an adjournment. In all the circumstances of the case, this was significantly unfair. The case was remitted to the same tribunal for re-determination.
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Appeal No. UKEAT/0177/11/DA Mr K Eaton v Messrs Spencer, Cox, Da Vinci & Conroy and Wiggles Experience (a firm)
PRACTICE AND PROCEDURE – Striking-out/dismissal
This was a successful appeal by the Claimant in an action for unfair dismissal, sexual orientation discrimination, victimisation and harassment.
The Claimant commenced employment in April 2007 at a nightclub called Bent. He is homosexual and the club was, at that time, promoted as a venue for the gay community. Many of the staff were also homosexual. The club changed hands in about September or October 2008. By this time the Claimant had been promoted from barman to Assistant Manager. His employment transferred under the provisions of the TUPE Regulations 2006. The new owners wished to rebrand the club as a heterosexual venue. On 12 December 2008 the Claimant was dismissed.
An ET a default judgment was issued in favour of the Claimant and he was awarded compensation totalling £5,328.36 in respect of unfair dismissal and £2,700 for injury to feelings in the discrimination claims. The Claimant appealed against the level of compensation awarded in the discrimination claims.
The EAT allowed the appeal and set aside the award of compensation in respect of sexual orientation discrimination, harassment and victimisation. The remedy issue was remitted for re-consideration by a different employment judge sitting alone.
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Appeal No. UKEATPA/0569/11/DM Mr B Hinton v Argos Ltd
VICTIMISATION DISCRIMINATION- Whistleblowing
This was an unsuccessful appeal by the Claimant in an action for victimisation discrimination.
The EAT held that there was no error of law. The Employment Tribunal clearly found that the Claimant was dismissed fairly by reason of redundancy. That finding meant that the claim that he was dismissed for whistleblowing failed.
It is reasonably arguable that the claim of pre-employment detriments which failed as a matter of construction of Employment Rights Act 1996 s43B and application of Cavendish Munro Professional Risks Management Ltd v Geduld was wrong.
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Appeal No. UKEAT/0210/11/SM Mr D Joao v Jury’s Hotel Management UK Ltd
VICTIMISATION DISCRIMINATION – Health and safety
This was a successful appeal by the Claimant in an action for unlawful deduction from wages and unfair dismissal.
The Respondent had rostered the Claimant to work nine consecutive nights and dismissed him after he complained. The Claimant alleged that he had been unfairly dismissed as a result of raising queries about the health and safety of his working environment.
An ET rejected his claim for unfair dismissal, holding that the working pattern was lawful under the WTD. The claim for unpaid wages was upheld. The Claimant appealed against the unsuccessful elements of his claim.
The EAT allowed the appeal and held that the ET had failed to consider whether the Claimant reasonably believed that the working pattern was lawful. Instead it concluded that, since it was not unlawful, no-one could think otherwise. The claim was remitted to a fresh tribunal for determination.
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Appeal No. UKEAT/0381/11/ZT Ms S Minakova v Brownlow Properties Ltd.
PRACTICE AND PROCEDURE – Admissibility of evidence
This was an unsuccessful appeal by the Claimant in an action for unlawful deduction from wages. At the ET, the Claimant had sought to introduce documentary evidence for first time during closing submissions. The ET ruled that the evidence was inadmissible. The Claimant appealed to the EAT.
The EAT dismissed the appeal, holding that the ET was correct to rule the evidence inadmissible. In any event, the evidence was unlikely to advance the Claimant’s case on unlawful deductions which she was unable to establish.
