Employment Law News

Employment

• O'Brien (Appellant) v Ministry of Justice (Formerly the Department for Constitutional Affairs) (Respondents), [2010] UKSC 34, 28/07/2010
  This appeal raises questions of European Law concerning the rights of part-time workers, as well as questions of domestic law about the status and terms of service of judges in England and Wales.
  
  The Appellant, Mr O’Brien, is a barrister. On 1 March 1978, he was appointed by the Lord
  Chancellor’s department as a recorder (a part-time judge) under the Courts Act 1971. Mr O’Brien had his appointment extended a number of times until he retired on 31 March 2005. He was remunerated, as were other recorders, by way of a fee paid for each day that he sat. Unlike full-time judges and parttime salaried judges, however, Mr O’Brien and other recorders were not given a pension upon retirement.
  
  The Supreme Court unanimously referred the appeal to the ECJ. The Court asked the ECJ to consider two questions: (1) whether it was for national law to determine whether or not judges as a whole are ‘workers who have an employment contract or employment relationship’ within the meaning of clause 2 (1) of the Framework Agreement, or whether there was a European Community norm by which this matter must be determined and (2) If judges are workers who have an employment contract or employment relationship within the meaning of clause 2 (1), whether it was permissible for national law to discriminate (a) between full-time and part-time judges, or (b) between different kinds of part-time judges in the provision of pensions.
  
  
• HM Land Registry v Mr P Grant UKEAT/0232/09
  

  Sexual Orientation Discrimination/Transexualism

  An Employment Tribunal accepted that 6 out of 12 complaints of discrimination, and 5 out of 12 of unlawful harassment, were made out.  None of the acts complained of, save possibly one, was obviously and intrinsically discriminatory.  Each finding relied on the validity of the others. The first and second in the sequence involved accepting that the Claimant had suffered less favourable treatment, to his detriment, where his manager had mentioned to someone who had met the Claimant that he, the Claimant, was gay.  In its analysis the Tribunal did not deal at all with a fact which was common ground, and heavily relied on by the employer, namely that the Claimant had himself chosen to make his sexual orientation known when working in a large branch of the employer’s undertaking at Lytham, prior to moving to a branch at Coventry, and that the manager concerned knew this.  Nor did the Tribunal express any clear view whether it thought that the manager’s actions sought to undermine the Claimant at work because of his sexuality rather than being clumsy and unnecessary comment, which though not determinative of the issues raised in a discrimination case was highly relevant.  It was held that the Tribunal needed to deal with these matters which were central to the issues, and its overall decision could not stand in the light of its failure to do so. The case was remitted to a fresh tribunal.
  

  
  
  
• (1) Mr N Nazir (2) Mr M Aslam v (1) Mrs A Asim (2) Nottinghamshire Black Partnership (debarred) UKEAT/0332/09
  

  Sex Discrimination - Direct

  Unincorporated association – practice and procedure.  The Claimant was employed by the management committee of an unincorporated association.  By the time of the hearing the only Respondents were (1) the unincorporated association in its own name and (2) two individual members of the management committee alleged to bear responsibility  for racial and sexual harassment and discrimination.   It was argued that (1) it was impermissible to name the unincorporated association as such, (2) all the members of the committee had to be joined as respondents and (3) the two individuals were not properly on notice that they were joined as members of the committee rather than individual perpetrators.  Arguments rejected.  It remained good practice to join an individual member of the committee as a representative -   Affleck and others v Newcastle Mind and others (1999) IRLR 405 considered and applied.  In any event it was permissible, in employment tribunal procedure, for an employee to make a claim against the employing management committee of an unincorporated association using the name of the unincorporated association.  Observations on matters to be considered by a Tribunal when managing proceedings where an unincorporated association is a respondent.

  Sexual and racial harassment and discrimination – burden of proof.  The Tribunal wrongly applied the burden of proof provisions within the Sex Discrimination Act 1975 and the Race Discrimination Act 1976:  Madarassy v Nomura [2007] ICR 867 applied. Specific criticisms of individual findings were also upheld.
  

  
  
  
• Mr M Brill v Interactive Business Communications Limited UKEAT/0062/09 & UKEAT/0097/09
  

  Practice and Procedure - Amendment

  An Employment Judge erred in refusing permission to amend an ET1 to add an associative disability discrimination claim on the ground that no statutory grievance had been raised in respect of such a claim. If the proposed amendment was of or included complaint of discrimination by dismissal no such grievance was required. The application to amend and the application for setting aside the revocation of permission to amend was remitted to an Employment Judge for determination.

  An Employment Judge did not err in revoking an unless order and restoring an ET3 which had been automatically struck out on the date of non-compliance with the order. The Employment Judge did not err in concluding that such steps were disproportionate to enforce an order requiring disclosure of the address of a potential witness. In any event the imposition of an unless order on 30 December 2008 for compliance by 2 January 2009 was unreasonable. The order did not and could not have been expected to come to the attention of the Respondent until after the time for compliance had passed.
  

  
  
  
• Mr S Lezo v OCS Group UK Limited UKEAT/0104/10
  

  Jurisdictional Points - Extension of time: reasonably practicable

  It was not reasonably practicable for the Claimant to present his unfair dismissal claim in 3 months. But by waiting a further 11 days he went beyond a reasonable period: Employment Rights Act 1996 s111(2). The authorities on “reasonably practicable” for primary limitation, and fault of advisers, were applicable to deciding what was a further reasonable period: Northumberland County Council v Thomson UKEAT/0209/07. The Employment Judge decision was upheld.