NEW EAT DECISIONS

These cases are unreported (although some may be reported in due course). The transcripts were recently posted on the EAT website.


CHIEF CONSTABLE OF WEST YORKSHIRE v A
(Lindsay J., 2nd October 2001)
The police were entitled to refuse to employ a transsexual as a police constable, since the job involved making intimate body searches and thus it needed to be undertaken by one gender to preserve decency or privacy (SDA 1975, s7(2)(b))


HEWLETT-PACKARD v O'MURPHY
(Douglas Brown J., 26 September 2001)
Mr O'Murphy worked for Hewlett-Packard through the medium of a limited company which, in turn, had been engaged via an employment agency. The EAT held that he was not an employee for unfair dismissal purposes. The contract between Hewlett Packard (the client company) and the employment agency stated that "staff provided…will be under the control of [Hewlett Packard] regarding performance and discipline and shall obey all reasonable and lawful instructions given by [Hewlett Packard]" - thus there was clear control by the client company. However, because there was no contractual nexus between Hewlett Packard and Mr O'Murphy, save for a confidentiality agreement, there could be no contract of employment implied between them.


MORROW v SAFEWAY STORES
(Ms Recorder Cox QC, 21 September 2001)
A breach of the term of trust and confidence, ie conduct calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee, will always amount to a fundamental breach of contract entitling the employee to resign. In other words, it is an error of law for a tribunal to find that a breach of trust and confidence has occurred, but then go on to say it was not sufficiently fundamental to entitle the employee to resign.


TITCHENER v DTI
(Ms Recorder Cox QC, 21 September 2001)
Under s186 of the Employment Rights Act 1996, the DTI is obliged to make payments of arrears of wages to employees of an insolvent employer, subject to a statutory cap (then £220, now £240) for each week's pay. The issue in this case was whether the cap should be applied before or after deductions for tax and national insurance (the former being more favourable to the DTI, the latter more favourable to the employee). The EAT confirmed pre-existing authority that the cap should be applied before deductions for tax and national insurance: thereby resulting in the employees recovering less that the statutory cap for each week's pay.


MIDDLESBOROUGH BOROUGH COUNCIL v TGWU & UNISON
(HHJ Peter Clark, web transcript undated 2001)
The Council proposed to make about 350 staff redundant - thus triggering obligations to consult with the recognised unions at least 90 days before the first dismissal took place (s188 TULCRA 1992). For that purpose, 'dismiss' meant the date on which notice of dismissal takes effect, not (as previous authority suggested) the date that notice of dismissal is given. Moreover, it is not open to an employer in such circumstances to argue that dismissal would be futile (as in a Polkey redundancy case) - subject to the statutory defence, the duty to consult is mandatory.


BARLOW v LONDON BOROUGH OF SOUTHWARK
(Ms Recorder Slade QC, 13 September 2001)
When exercising discretion whether to extend time under the 'just and equitable' jurisdiction of the Race Relations Act 1976, the tribunal is under a duty to make a finding as to the reason for the delay in presenting the claim. Failure to make such a finding is an error of law.