Norton Tool and Constructive Dismissal

Since 1976, tribunals have applied the controversial rule in Norton Tool v Tewson, which is authority for the proposition that employees are entitled to compensation for unfair dismissal for all of their contractual notice period, even if they found another job during that period or failed to mitigate their losses. This means that employees can benefit from double recovery, particularly when they have long notice periods.

In Stuart Peters v Bell, the EAT held that the same principle applies to constructive dismissals (as well as 'normal' dismissals). Although an appeal is unlikely in this case because of the small amounts involved, and because it would need the House of Lords to overturn Norton Tool, HHJ Burke concluded his judgment by expressing a hope that this principle might be reconsidered by the House of Lords when the opportunity arises.

Hot Stuff in the EAT

The Employment Appeal Tribunal admitted woolly hats as evidence of disability but, after hearing other evidence about underwear and thick overcoats, dismissed a claim that depriving an employee of his personal heater was discriminatory.

Mr Sawyer braved the breezy mid-20s temperatures of mid-August last year protected by no more than a heavy overcoat and two woolly hats, only to see his condition, that purportedly leaves him vulnerable to temperatures below 27 Celsius, dismissed as a disability in the EAT (Sawyer v Secretary of State for Work and Pensions). Mr Sawyer worked at Job Centre Plus and claimed for disability discrimination when his employer took away the personal heater that he had used (along with thick underwear, outer clothing and two woolly hats) to keep warm.

Spelling tests in tribunals?

The EAT has emphasised the importance of getting the spelling of the Respondent's details correct in the ET1.

In Anthony Chowles t/a Granary Pine v West, the EAT held that where a Respondent’s name had been misspelled and his address misstated on the ET1 (and that was the name and address to which it was posted by the Secretary), the claim had not been sent to him within the meaning of the Rules.

Accordingly, there was no need to enquire into the matter of fact of whether the intended Respondent had received the ET1. The usual consequences did not flow and, in particular, a default judgment that had been entered in the absence of a response was set aside.

The Claimant had been employed by Anthony Chowles but had entered the name 'Anthony Charles' on the ET1 and had made two errors in the address including omitting three digits from the postcode.

[Thanks to Anthony Cutler, pupil barrister at 1 Temple Gardens, for providing this summary]

Disability Discrimination - Reasonable Adjustments

Section 4A(3) of the Disability Discrimination Act 1995 provides that an employer is exempted from the duty to make reasonable adjustments if he did not know, and could not reasonably be expected to know, that someone is likely to be placed at a substantial disadvantage by a disability (my paraphrase). This defence is often used by prospective employers defending allegations of failure to make reasonable adjustments when (not) offering a job.

In Eastern & Coastal Kent PCT v Grey, the EAT has held that this requires each, not merely one, of the following four limbs to be satisfied, namely that:-

• does not know that the disabled person has a disability
• does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled;
• could not reasonably be expected to know that the disabled person had a disability; and
• could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.

Michael Duggan's Case Index

Michael Duggan of Littleton Chambers has published the latest edition of his excellent case index. He has made it available to all - download it here.

NOTE: it is a large file and there is likely to be a lot of simultaneous demand to download it. Please try again later if it does not download immediately.

Care Workers - POVA List Unlawful

The House of Lords has, this morning, handed down a decision impacting on those advising or working in the care sector.

The case concerns care workers who look after vulnerable adults or children. Under current legislation, if the employer dismisses the employee because they have harmed (or placed at risk of harm) a vulnerable person, then their name must be included on a list held by the Secretary of State and they are banned from employment by any other care provider.

The problem is that people get placed on this list with little, if any, enquiry (and with no right to make representations). It takes many months for the appeal process to work, during which time the employee cannot work, and the majority of those who appeal succeed in their request to be removed from the list.

The House of Lords has held that the list is inconsistent with Article 6 of the European Convention on Human Rights, and has issued a Declaration of Incompatability. Of course, the consequence of such a declaration is that the legislation remains effective until amended by parliament (s4(6) of the Human Rights Act 1998), so it's all a bit meaningless, but it's a case that practitioners should be aware of.

R v Secretary of State ex p Wright & ors

Holiday Pay for Long-Term Sick Workers

The ECJ has, this morning, handed down its opinion in Stringer v HMRC (previously known as Ainsworth v HMRC. The judgment should be available this afternoon here, but for now, we simply have a Press Summary.

According to the Press Summary (which isn't entirely clear), the ECJ has held:

• a worker who is on sick-leave for the whole of an annual leave year is entitled to a period of four weeks' paid annual leave, despite the fact they are not actually at work. The national courts can decide whether the paid leave can be taken during that year, or whether it should be carried over to another year, but either way the employee is entitled to be paid at some point
• the right to paid annual leave is not extinguished at the end of a leave year if the worker was on sick leave for the whole of that year, or if he was absent on sick leave for part of the year and was still on sick-leave when his employment terminates

This is not going to be a popular decision with employers. The House of Lords will now give a final judgment, and (in the light of the ECJ opinion) will no doubt overturn the Court of Appeal's decision from April 2005 that the right to paid holiday leave did not accrue during periods of sickness absence.

[Thanks to Gillian Cumming of Just Employment Law for telling me about this]

TUPE Consultation

The EAT has decided, in Amicus v Glasgow City Council, that a transferee is not obliged to consult with transferred employees after a transfer, in relation to 'measures' it proposed taking in relation to them.

[Thanks to Lesley Murphy of Shepherd & Wederburn, acting for one of the successful Respondents, for telling me about this case.]

Employment Law Preview for 2009

I've just read Wragge & Co.'s employment law preview for 2009. It's so good, I'm sending the link around for everyone to read.

They've also produced a review of 2008, which is also worth a read.

Amendments to 2004 Procedural Rules

The Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2008 have been laid before Parliament. They make the following amendments to the 2004 procedural rules:-

• consequential amendments resulting from the Employment Act 2008, which repeals the existing statutory workplace dispute resolution procedures and makes changes to conciliation by Acas
• removing Employment Judges’ discretion not to issue a default judgment in certain circumstances;
• providing that, where electronic communications are used in public hearings, and oral evidence is given, the public must be able to see and hear all parties to the communication, and where the hearing is to be held in private and oral evidence is given the tribunal or Employment Judge must be able to see and hear all parties to the communication;
• clarifying provisions on the withdrawal and dismissal of proceedings, and a new rule providing for the automatic dismissal of proceedings, where the parties to an Acas settlement have confirmed in writing their understanding that the proceedings covered by the settlement will be dismissed and the claimant has withdrawn the claim;
• enabling an Employment Judge sitting alone to hear Stage 1 equal value claims

plus a whole host of minor and consequential amendments. The amendments take effect from 6th April 2009.

[Thanks to John Bowers QC of Littleton Chambers for telling me about this]

Striking Out Claims

[Thanks to Martin Fodder of Littleton Chambers, who appeared for the successful Appellant. Martin Fodder appears today at 2pm speaking on Update on Transfers of Undertakings in a live internet webinar.]

The EAT has handed down its decision in Neary v St Albans' Girls High School. It is authority for the following propositions:-

• in deciding whether to review a strike-out, an employment judge should consider the factors listed in CPR 3.9 ('Relief from Sanctions')
• but if the judge fails to mention all nine factors in CPR 3.9 in his judgment, the decision will not be appealable unless the omission is relevant to the facts of the case. A mere failure to mention the factors is not correctable on appeal (para. 34)