General Update and EAT cases

CONTENTS
1. Commencement dates
2. Procedure - Wrongful Dismissal Claims
3. New EAT Decisions
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1. Commencement Dates


The government has set a target date of 6th June 2000 for implementation of the new Trade Union compulsory recognition procedures.

It is hoping to implement the new Right to be Accompanied at Disciplinary and Grievance Procedures in June or July, but is apparently waiting for ACAS to produce the final version of its new Code on Disciplinary and Grievance Procedures (which contains a section on the right to be accompanied). This has been delayed due to the large number of responses received by ACAS following its consultation over the draft Code, which closed in March.


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2. Procedure - County Court Wrongful Dismissal Claims


The Access to Justice Act 1999 (Destination of Appeals) Order 2000 [SI 2000/1071] (what a title!) came into force on 2nd May 2000.

It provides that in all county court cases, except specialist proceedings and family cases, the following are the new routes of appeal:

• Small Claims: All appeals to the circuit judge (as before)

• Fast Track: All appeals now to go to the High Court, not the Court of Appeal

• Multi-Track: Appeals from all interlocutory orders now go the High Court. Appeals from final judgments/orders remain with the Court of Appeal.
Transitional provisions: If a party has filed its Notice of Appeal, or applied for permission to appeal, before 2nd May, then the old rules still apply.

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3. New EAT Decisions

These decisions have been placed on the EAT website recently. The transcripts can be downloaded from http://wood.ccta.gov.uk/eat/eatjudgments.nsf


Montgomery v (1) O&K Orenstein (2) Johnson Underwood Ltd. [18.4.00, Charles J.]

A case of great significance, which sadly raises as many questions as it answers. This deals with the common problem of agency workers - if a temp is dismissed, does she claim against the employment agency or the de facto employer?

Mrs Montgomery signed on as a temp with O&K Orenstein ('the agency') in June 1995. She was immediately assigned as a receptionist to Johnson Underwood ('the employer') and remained there until her dismissal in November 1997. She claimed unfair dismissal. The employment tribunal held that she was employed by, and should claim against, the agency but not the employer.

The EAT unanimously agreed that she was not an employee of Johnson Underwood (the employer). There was no contract between her and it, thus she could not be working under a contract of employment.

The majority (the lay members) of the EAT held that she was an employee of the agency. They considered the traditional tests and decided that it could not be said that the employment tribunal had made any error of law or perverse decision.

The minority (Charles J.) held that she was not an employee of the agency - and thus could not bring unfair dismissal proceedings against anyone. He relied on the lack of mutual obligation between Mrs Montgomery and the agency - she had not entered into any obligation to provide her work and skill in the performance of some service for the agency. Further, there was a lack of control by the agency over the day-to-day work of Mrs Montgomery, this being fatal to an employer/employee relationship.

The EAT states that this is an area that is crying out for legislative interference, and recommends that the government clarifies this area of the law.


Attorney-General v Wheen [18.4.00, Lindsay J.]
This is the first case in which the EAT had made a Restriction of Proceedings Order under section 33 of the Employment Tribunals Act 1996. This Order, which is advertised in the London Gazette, prohibits a vexatious litigant from commencing claims in employment tribunals unless s/he has first obtained permission from the EAT.

The EAT issued the Order against Mr Wheen, noting he had commenced 13 separate sets of proceedings (many of which were discrimination claims - Mr Wheen being a non-disabled, white male). The decision makes good reading because of the relaxed demolition by Lindsay J. of each one of Mr Wheen's arguments! Of more legal interest is a suggestion by Lindsay J. that an undertaking by a 'vexatious' applicant not to commence further proceedings except on the advice of lawyers might have a bearing on the exercise of the EAT's discretion. No such undertaking was offered in this case.


Pearce v Mayfield Secondary School [7.4.00, Burton J.]
A lesbian schoolteacher was harassed and 'bullied' by her pupils on grounds of her sexual orientation. The EAT confirmed that discrimination on grounds of sexual orientation did not fall within the SDA 1975 unless a homosexual of one gender was treated less favourably than a homosexual of the other gender. It rejected the argument that the use of gender-specific words such as 'dyke' and 'lezzie' amounted to less favourable treatment (on the grounds that a gay man would not be called 'dyke' etc.). This was because it could not be said that it is less favourable to call a lesbian woman a 'dyke' yet simulataneously less favourable to call a homosexual male by gender-specific words (the example used in the decision was 'bugger') - they could not both be less favourable than each other.


Air Canada & Alpha Catering v Basra [21.2.00, HHJ Peter Clark]
A lengthy and complex decision on issue estoppel. It turns mainly on the facts (which are too long to set out in this summary!), but does contain a useful trawl through the authorities.


DTI v Henson [13.3.00, Burton J.]
Yet another analysis on the circumstances when the DTI is obliged to pay monies out of the central fund relating to redundancy and notice payments due to employees of insolvent employers.



Robinson & Tanner v Swallowfield [21.2.00, HHJ Peter Clark]
The two Applicants were ordered to pay a deposit of £50 as a condition of proceeding in their unfair dismissal claim by the ET during a Pre-Hearing Review. The EAT overturned this decision on the facts, but the case is of interest because of the explanation given by the court for the phrase 'no reasonable prospect of success'. The two lay members thought it meant that the application is almost certain to fail. HHJ Peter Clark, a very experienced judge, thought it meant simply less than a 50% chance of success. This will spawn further argument!