New EAT Decisions

The following decisions have been placed on the EAT website in the last few days.

Securiplan v Bademosi (HHJ McMullen, 9th May 2003)

A TUPE case, dealing with the issue of whether an employee was assigned to the part of the undertaking which transferred (provision of security services at a magistrates' court). Mr Bademosi had worked on another site for many years, but had been transferred temporarily to the magistrates' court for a period of one year. The TUPE transfer occurred a few weeks before he was due to return to the other site.

The EAT upheld the tribunal's decision that Mr Bademosi was not assigned to the magistrates court - and therefore did not transfer under TUPE - because his assignment to the magistrates court was as a temporary placing. It was not appropriate to look at where he worked immediately before the transfer (i.e. the magistrates court); rather, the wider circumstances should be examined to determine whether he was truly assigned to the magistrates court contract - and he was not.

Bolch v Chipman (Burton P., 19th May 2003)

This decision provides guidance on when a tribunal should (and should not) strike out one side's case/pleading on grounds of unreasonable behaviour under rule 15(2)(d) of the 2001 Rules. The primary point is that unreasonable conduct does not, of itself, mean a case should be struck out; rather, there has to be EITHER contumelious default OR no prospect of a fair trial. Tribunals should always consider sanctions short of striking out, for example, allowing the defaulting side to attend for a limited purpose (such as a remedies hearing, or testing the evidence of the other side).

The relevant paragraph of the judgment is paragraph 55.

Kear v Neural Technologies (HHJ Levy, 2nd June 2003)

Another case on unreasonable conduct; this time relating to costs in the EAT rather than striking out a pleading.

A litigant in person accused the solicitor on the other side of various improper actions, such as "colossal incompetence and corruption", that he had "fabricated" an EAT precedent, and that "you are not fit to practice law."

The EAT held that this was unreasonable conduct in conducting the proceedings, and awarded costs of (sadly only) £300, which was a broad reflection of the additional expense the solicitor had been put to.