New Faces / EAT cases

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CONTENTS

1. New Faces and Places
2. New EAT decisions

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1. New Faces and Places

The government lineup for employment posts is as follows:

Work & Pension Secretary - Alastair Darling
Minister for Trade - Baroness Symons
Minister for Work - Nick Brown
Minister for Pensions - Ian McCartney
DTI Minister of State for Employment Relations and Regions - Alan Johnson

(I know it's not particularly interesting news, but occasionally it is useful to have a check list of who's who!)

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2. New EAT Decisions

These cases are unreported (although some may be reported in due course). The transcripts were posted on the EAT website (http://wood.ccta.gov.uk/eat/eatjudgments.nsf) on 12th June 2001.


Jiad v BBC World Service [Hooper J., 5th June 2001]
An appeal by a litigant in person on grounds, in essence, of inadequate reasoning/perversity. The decision contains no points of law, but is of interest because of a costs order granted to the successful Respondent at the end of the appeal. This costs order was made despite stating that the appeal had been conducted properly by the Appellant, on the ground that the appeal was "of no merit and should never have been brought". Is this a sign of things to come under the new costs test (not yet in force)?



Asda Stores v Malyn [Lindsay J., 6th March 2001]
A long-standing ASDA employee allowed her son to use her 10% staff discount card. This was in breach of a very clear store policy, which the employee had signed and had drawn to her attention (in writing) on a number of occasions, stating that misuse of the card was gross misconduct. Despite the fact that the discount achieved was only £3, ASDA dismissed her because it said it had to be seen to apply the disciplinary rules consistently between all employees. The ET found the dismissal was unfair because, during the disciplinary process, the staff member has said she had not realised that gross misconduct would result in dismissal. The EAT overturned that decision. It laid down the following four rules (albeit tentatively, saying that it was overturning the decision on other grounds and the four principles did not form the ratio):

A dismissal will be fair, despite the employee's ignorance as to the actual consequences of an act, if:

1. there is a provision in the disciplinary code stating that a particular act or omission would amount to gross misconduct, with the possible sanction of dismissal (and it was reasonable in the industry to have that as an act of gross misconduct);
2. the employer takes reasonable steps, including asking the employee to sign it, to bring the disciplinary code to the attention of employees;
3. the employee knows he is doing wrong under the code; and,
4. the employee had access to the code.

Lana v Positive Action Training in Housing Ltd. [Mr Recorder Langstaff QC, 15th March 2001]
Ms Lana was a trainee quantity surveyor. She had a contract with Positive Action for Positive Action to find her a training contract / work placement for a year. Positive Action placed her with a firm (W) for training. After five months, she told W that she was pregnant, and W immediately cancelled the remainder of her placement. Positive Action subsequently terminated their contract on the basis that the placement had been terminated by W in circumstances beyond their control, and they had no alternative placements to offer. The tribunal found that this was a non-discriminatory reason for terminating the contract, and dismissed the claim under the Sex Discrimination Act. The EAT overturned this finding. It held that W was the agent of Positive Action for the purpose of providing training, and that Positive Action was accordingly vicariously liable for any discrimination by W under section 41 of the SDA 1975. Accordingly it remitted the case to a fresh tribunal.