New EAT Decisions

Some new EAT decisions, posted on the EAT website in the last week.

London Borough of Hillingdon v Thomas (Ms Recorder Slade, 26/9/02)

Hillingdon dismissed a senior personnel officer who had been caught accessing pornography on the internet at work. The staff handbook provided that this amounted to misconduct. The employment tribunal held that whilst it may be misconduct, it was not gross misconduct and so the dismissal was unfair. The EAT held this finding was perverse, and substituted a finding that it was within the range of reasonable responses for Hillingdon to dismiss a staff member for accessing pornography. This authority is going to be very helpful for all employers who dismiss for similar offences, although it must still be borne in mind that the employee must have been told that accessing pornography is prohibited.


Cape Industrial Services v Ambler (HHJ Peter Clark, 20/12/02)

This case contains a plethora of appeal points: most uninteresting. Two interesting points shine through.

First, at paragraph 47, the EAT says that an employer who complies with a contractual grievance procedure will not be in breach of the term of trust and confidence if the employee has requested departure from that procedure (but the employer insists on sticking to the contractual procedure). It is not clear whether the EAT intended this statement to apply in all cases, and some caution should be exercised in following it rigorously.

Second, at paragraphs 51-52, the EAT restates that in a constructive dismissal case, the employer is not required to justify its conduct (i.e. the constructive dismissal) under ERA 1996, s98(1), but merely to show the reason for the constructive dismissal.

Flexible Working Regulations

The draft of the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2003 have been published.

These are in addition to the Flexible Working (Procedural Requirements) Regulations 2003, which were summarised in the bulletin of 25th November 2002 (reproduced at the foot of this bulletin).

The new Regulations provide:
• a request for flexible working can only be made if the employee has been continuously employed for six months;

• a penalty if the employer fails to hold a meeting with the employee, or fails to notify the employee of his decision, of up to eight weeks' pay. The explanatory notes make it clear that the statutory cap on a week's pay applies (which, when the Regulations come into force in April 2003, will be £260 per week.

Note that there is no enforcement mechanism where the employer has unreasonably refused a request to work part-time, or where the reason given is not one of the prescribed reasons in (the new) section 80G of the Employment Rights Act 1996, although s80H of the Act does give the Secretary of State a broad power to impose penalties in this regard. So, provided employers hold a meeting and notify the employee in writing of a refusal, employers can still get away with paying lip-service only to the flexible working provisions.