Monday, 19 June 2000

Recent EAT Decisions

Recent EAT Decisions

These cases are unreported (although some may be reported in due course). All transcripts can be found at

Reid v Foxbar Hotel [9.6.2000, Lord Johnston]
The Applicant was subjected to acts of sexual harassment. Three months and 10 days after those acts ceased, during which period she was subjected to a period of silence from her employers, she was dismissed. The Respondent argued that the period of silence was sufficient, since it did not amount to less favourable treatment, to mean that there was no continuing act of discrimination and the claim was out of time. The EAT held that, in the absence of an explanation by the employer, the employment tribunal should infer that the period of silence was attributable to the period of sexual harassment and thus amounted to less favourable treatment in itself. Accordingly a finding of discrimination was substituted.

Highland Primary Care NHS Trust v MacDonald [6.6.2000, Lord Johnston]
Back to the range of reasonable responses! Mrs MacDonald, a long-serving nurse, was found intoxicated on duty. She was dismissed. The majority of the employment tribunal initially thought that this fell within the range of reasonable responses but, after the decision in Haddon v Van den Burgh Foods was published, changed their mind and decided that they would not have dismissed - thus the dismissal was unfair. On the facts of the case, the EAT upheld the tribunal's decision. The decision contains an attempt to reconcile the irreconcilable decisions of Haddon v Van den Burgh Foods and Midland Bank v Maddon but, regrettably, does not make matters much clearer.

Bradley v Leisure Promotions [5.6.2000, Lord Johnston]
The IT1 was posted to a tribunal within the 3-month period by recorded delivery. Due to a slight delay, it arrived one day after expiry of the 3-month period. The tribunal found it would have been practicable to present the claim in time, and declined jurisdiction. The EAT held that, notwithstanding the availability of the fax or 1st-class post to present the IT1, the Applicant should not be prejudiced by a slight delay caused by recorded delivery. It held that the employment tribunal's decision was perverse and held that the ET did have jurisdiction to hear the claim.

Lethbridge v British Steel [10.5.2000, HHJ Wilson]
The Applicants were employed by a company which was taken over by British Steel. They were told that there was no TUPE transfer and, on the basis of that representation, signed COT3 agreements to compromise their claims of unfair dismissal. The Respondent conceded before the EAT that the representation that there had been no TUPE transfer was wrong. The EAT held that the employment tribunal should decide, in determining whether the COT3 was effective, "whether the Appellants' decision to sign the COT3 was materially influenced by the admitted false representation that TUPE did not apply". If so, the COT3 was invalid and the Applicants could proceed with their claims.

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