Effective date of termination

[Thanks to Justina Togher of Royds RDW, which acted for the Appellant in this case, for sending me details of this decision]

Judgment has been handed down today in Fitzgerald v University of Kent at Canterbury. This is an important Court of Appeal decision concerning the effective date of termination ('EDT') in unfair dismissal claims.

The issue was whether the EDT, which by law sets time running for lodging an originating application in the employment tribunal, is to be objectively determined or can be fixed by agreement between employer and employee. On the facts, the tribunal found the parties had agreed an EDT of 28th February 2001, even though the agreement did not occur until 2nd March. If the EDT was truly 28th February, the claim was out of time. If the true EDT was 2nd March, the claim was presented within time.

In a very readable judgment, Sedley LJ holds that it is not open to the parties to agree to vary the plain wording of the Employment Rights Act. This is both on policy grounds (to prevent the parties agreeing an incorrect EDT to circumvent the one year qualifying period or the upper qualifying age) and on statutory grounds, since it is an attempt to contract out of the Act and is therefore void under ERA s203.

This decision resolves tension between inconsistent EAT decisions, and provides welcome certainty on a difficult point of law.

Disability Discrimination - Justification

[Thanks to the Disability Rights Commission, who funded Mr Collins' appeal, for notifying me of this decision]

"This appeal raises a new and sharp question of discrimination law: can an employer's failure to make adjustments to accommodate a disabled employee be unreasonable but justified?"


So says Sedley LJ, in the opening paragraph of Collins v Royal National Theatre Board Ltd. (handed down by the Court of Appeal today).

His conclusion, in para. 32, is:

"In my judgment the only workable construction of s.5(4) [justification defence for failure to make reasonable adjustments], in the context of the DDA and its manifest objects, is that it does not permit justification of a breach of s.6 [duty to make reasonable adjustments] to be established by reference to factors properly relevant to the establishment of a duty under s.6"

This is a quite horrendously complicated decision. The Court of Appeal are basically holding that the threshold for the justification defence is much higher for a failure to make reasonable adjustments (as the questions relating to whether the employer has acted reasonably have already been canvassed - and rejected - in deciding whether there was a breach of duty in the first place) than for treating an individual less favourably on grounds of disability (where the justification defence is low - see Jones v Post Office).


NB The justification defence to a claim of failing to make reasonable adjustments is abolished, with effect from 1st October 2004, by the Disability Discrimination Act 1995 (Amendment) Regulations 2003.

Guides to Bullying and Harassment

ACAS has updated its two guides on bullying and harassment: one for employees, and one for employers.

Although quite short, they contain very useful summaries of the law and suggestions for bringing or avoiding claims.

PS The Court of Appeal's judgment in Dunnachie v Kingston Upon Hull City Council (on whether you can recover damages for stress and injury to feelings in unfair dismissal) is being handed down at 10.30am today. I will send out a bulletin as soon as the result is known.

Dunnachie Overturned

The Court of Appeal has, today, overturned the EAT's decision in Dunnachie v Kingston upon Hull City Council.

In three separate judgments, the Court of Appeal unanimously hold that damages for non-pecuniary losses are available for unfair dismissal. This includes damages for injury to feelings flowing from the dismissal. In so deciding, the Court of Appeal held that the seminal case of Norton Tool Co v Tewson [1972] ICR 501 was wrongly decided.

Giving the leading judgment, Sedley LJ also stated that such damages will not flow in every case, but only where there is "a real injury to [the employee's] self-respect" - which will most frequently be seen in constructive dismissal cases (para 48).

He also made it clear he was notdeciding whether it was possible to recover damages for injury to feeling arising from the fact, rather than manner, of dismissal.

Dunnachie Overturned - correction

CORRECTION TO PREVIOUS BULLETIN

In my bulletin sent 30 minutes ago, I wrongly said that the Court of Appeal's decision was unanimous. In fact it was a majority decision (Brooke LJ dissenting). My apologies for the error - the corrected bulletin is below.

--------------------------------------------------------------------------------

The Court of Appeal has, today, overturned the EAT's decision in Dunnachie v Kingston upon Hull City Council.

In a majority, decision, the Court of Appeal hold that damages for non-pecuniary losses are available for unfair dismissal. This includes damages for injury to feelings flowing from the dismissal. In so deciding, the Court of Appeal held that the seminal case of Norton Tool Co v Tewson [1972] ICR 501 was wrongly decided.

Giving the leading judgment, Sedley LJ also stated that such damages will not flow in every case, but only where there is "a real injury to [the employee's] self-respect" - which will most frequently be seen in constructive dismissal cases (para 48).

He also made it clear he was not deciding whether it was possible to recover damages for injury to feeling arising from the fact, rather than manner, of dismissal.