New EAT Decisions

Mansi & Mansi v Straw (HHJ Birtles, 20/5/03)

A short case which is authority for the proposition that tribunals are not obliged to make an award of compensation under regulation 11 of TUPE for failure to consult with affected employees. It is lawful to make a nil award.

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X v Y (HHJ Peter Clark, 11/6/03)

The Applicant, a male adult, worked with young people on probation. Whilst off duty, he "pulled into a lay-by where there was a transport café and went to the toilet. There he engaged in consensual sexual activity with a man of about his age whom he had never met before". He was arrested and accepted a caution for gross indecency. He lied to the police about what he did for a job (not revealing he worked with young people) and sought to withhold the fact of the conviction from his employers. When they discovered it, they dismissed him - not for the underlying offence but for lying to the police and placing the employer at risk of embarrassing publicity.

The tribunal found the dismissal was fair. The Applicant appealed on the basis that the tribunal had failed to take into account article 8 of the Human Rights Act 1998, namely a right to respect for his "private and family life".

The EAT held that article 8 only protects acts that are "private". They held:

"We think that the offence known as ‘cottaging’ falls on the other side of that dividing line. The offence here took place in toilets to which the public had access. The activities in which the Applicant engaged were ‘genuinely’ in public, to paraphrase the Court in ADT."

Accordingly article 8 was immaterial and the tribunal's failure to consider it was not an error of law.

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Emms v UCATT (HHJ Ansell, 28/3/03)

An entirely uninteresting appeal against a tribunal's refusal to grant a costs warning. It is, however, worth a mention because:

(a) the Appellant's representative was 'Mr A Scargill' of the National Union of Mineworkers; and,

(b) costs were ordered against the Appellant on the grounds the appeal was 'unnecessary'.
Of course, it could be said it was just as unnecessary for me to report this case. But I couldn't resist it!