TUPE and Constructive Dismissal (Important Case)

[Thanks to Ed McFarlane of EEF for preparing this case summary]

The EAT has handed down its decision in Tapere v South London & Maundsley NHS Trust, which is authority for the proposition that:

1. post-transfer, the test for whether a substantial change to working conditions - which covers contractual terms - is to the material detriment of a transferred employee, under TUPE 2006 reg 4(9), follows Lord Scott's formulation for detriments in Shamoon, a discrimination case, looking at the impact of the change from the employee's reasonable viewpoint, not by balancing the views of the employee and employer.
   
   
2. transferees cannot use a 'substantial equivalence' argument to defend breaches of pre-transfer terms, except when terms present practical difficulties, like share options. A mobility clause is unchanged upon transfer.

On these facts, changing the place of work, to a transferred employee's detriment, led to a dismissal. The EAT remitted the questions of fairness of the dismissal and redundancy pay to a new tribunal.

Disability Discrimination and Local Government Pensions

[Thanks to Emma Price of 1 Temple Gardens for preparing this case summary]

The Court of Appeal has handed down its decision in Booth v Oldham MBC, an interesting case about 1) the effect of a failed DDA claim on a breach of contract action brought in relation to an employer's decision about pension entitlement and 2) the need for exhaustion of remedies provided by the 1997 Pension Regulations before resort to litigation.

Mr Booth was dismissed in August 2001 on grounds of capability, having been signed off for stress and depression. He brought an ET claim for disability discrimination. Had he been deemed permanently incapable of discharging efficiently his duties of employment because of ill-health or infirmity of mind or body then - under regulation 27 of the Pension Regulations (which govern the Local Government Pension Scheme) - he would have been entitled to additional pension benefits. However, after the ET held that Mr Booth was not a disabled person for the purposes of the DDA 1995, the Council decided not to medically examine Mr Booth to establish if he qualified for those additional pension benefits. Whilst Mr Booth appealed the ET decision (unsuccessfully) he did not avail himself of all of the dispute resolution remedies provided by the Pension Regulations.

Mr Booth brought a breach of contract action several years later, arguing that, had they referred him for medical assessment, he would have satisfied the criteria for ill-health under regulation 27 and he would have been awarded permanent ill-health retirement.

The claim was dismissed by the High Court and, subsequently, by the Court of Appeal. The Court of Appeal held:-

• given the finding of the ET in relation to disability, Mr Booth could not successfully contend that the Council remained under a duty to medically assess him. Lord Justice Thomas stated that there was no need to consider whether a person who is found not to be under a disability under the DDA will always fail to establish permanent incapacity under the Pensions Regulations since there was clear evidence in this case that Mr Booth did not satisfy the latter test.
  
  
• as the Pension Regulations provided dispute resolution machinery by which to challenge the Council's decision, which Mr Booth had not availed himself of, he had no right to bring his claim at all.

Discrimination: Motive of Employer

[Thanks to Lionel Stride of 1 Temple Gardens for preparing this case summary.]

[Listen to Daniel Barnett discussing this case on LBC 97.3]

The EAT (Underhill P) has handed down its decision in Amnesty International v Ahmed, where it upheld the original tribunal's decision that Amnesty was in breach of the RRA 1976 by refusing to appoint a Sudanese woman to the post of Sudanese researcher, on grounds that the organisation would appear to lack impartiality.

In reaching this conclusion the EAT discussed the relationship between James v Eastleigh Borough Council [1990] 2 AC 751 and Nagarajan v London Regional Transport [2000] 1 AC 501, emphasising that the ultimate question in both cases (whether the discrimination is intentional, as in Nagarajan, or simply the unintended result of a benign policy as in Eastleigh) was the ground of the treatment complained of (i.e. the reason why it occurred).

The 'two-stage approach' advocated by Amnesty, applying a 'but for' test as to causation followed by an analysis of the motivation of the discriminator, was rejected. Accordingly, as Amnesty's decision not to appoint the Claimant as a researcher was solely based on her ethnic origins, there had been direct discrimination. Motive was irrelevant.

Industrial Action: Strikes and Ballots

[Thanks to Ed McFarlane of EEF for preparing this case summary.]

The Court of Appeal has handed down its decision in Metrobus v UNITE, which is authority for the propositions that:

• a union is obliged to inform an affected employer of the result of a ballot on industrial action as soon as is reasonably practicable, regardless of whether the ballot supports action or the union decides not to take action.
  
• where affected members are partly covered by 'check off' arrangements, a union is obliged to provide with ballot and strike notices sufficient information to enable an employer to readily deduce the numbers, types and workplaces of 'non-check off' employees by providing lists and figures of affected employees, and an explanation of how they were arrived at, along with details of the 'check-off' employees

The Court rejected arguments that the ballot and notice provisions of TULR(C)A 1992 were so onerous as to be incompatible with ECHR Article 11.