Friday 25 August 2000

New EAT cases

Not much happens in August - just a few new EAT cases of interest...

These cases are unreported (although some may be reported in due course). All transcripts can be found at

Barnes Thomas & Co -v- Leavesley [13.7.2000, HHJ Peter Clark]

What happens to employees of a solicitors' firm when the firm is intervened in by the Law Society? Are they deemed to be dismissed, under section 136(5) of the ERA 1996, for the purpose of redundancy? The EAT thought not in this case, and that the contracts of employment remained operative. However, it remitted the case back to the ET for further consideration on the facts, and to allow the Law Society to make representations.

Charnos v Donnelly [27.7.2000, Lord Johnson]

In a conduct dismissal, the employer promised an 'informant' employee that his identity would remain confidential. The tribunal ordered the employer, who was giving evidence, to produce documents and answer questions that would identify the employee (it not being possible to anonymise the relevant document). The EAT held that the interests of a full and fair hearing will not always override an employer's desire to honour a promise of anonymity. It reversed the tribunal's decision and held that the employer did not need to produce the documents or answer the questions.

Clark v Watford Borough Council [4.5.2000, HHJ Peter Clark]
Another example of the EAT saying that employment tribunals should only allow applications of 'no case to answer' in the rarest circumstances, and that it is usually incumbent on the tribunal to hear both parties' evidence before deciding the case.




2 Gray's Inn Square Chambers invite you to two seminars on the Human Rights Act 1998, on 13th and 27th September 2000.

The following topics will be covered:

Part 1 - 13th September

• an overview of the Human Rights Act
• principles and interpretation
• making a Human Rights claim
• judicial approaches

Part 2 - 27th September

The practical impact of the Human Rights Act on:
• employment
• civil litigation
• crime
• children proceedings and ancillary relief
• housing


The Conway Hall, Red Lion Square, Holborn WC1


£90 + VAT (totalling £105.75) for Part 1 and Part 2
£50 + VAT (totalling £58.75) for one part only.

For further information and a booking form, please contact Martin Poulter, senior clerk, on 020 7440 8450 or via Email on

Tuesday 15 August 2000

General Update


1. DTI Consultation - Work and Parents
2. TUC on the lookout for the next workplace plague
3. Recent EAT Decisions
4. Advertisement


1. DTI Consultation - Work and Parents

A couple of months ago, the DTI set up a review team to report on the effectiveness of the UK's family friendly policies. In particular, it was to deal with the issue of whether parental leave should be paid (rather than unpaid, as it is at present).

The review team has called for submissions from the public on various matters within its terms of reference. In a novel fashion, it has set up a response form on the internet! The URL is


2. Unions urged to identify the next workplace plague

The TUC is today (Tuesday) calling upon trade unions to be on the lookout for new workplace diseases, in the hope of discovering the `next big thing' after RSI and stress.

In a special report in the TUC-backed quarterly safety magazine Hazards, union safety reps are urged to ask their workmates what health problems they are experiencing, so that detailed research can identify previously hidden occupational diseases. Safety reps are to be trained by the TUC in techniques such as "body mapping", which involves workers marking on a map of the body where they are experiencing pain, collating the results and identifying any links with work.


3. New EAT Decisions

These cases are unreported (although some may be reported in due course). All transcripts can be found at

D'Souza v London Borough of Lambeth [27.6.2000, Morison J.]
Another appellate decision in the long-running battle by Mr D'Souza against his former employers. This raises an interesting point. Section 4 of the Race Relations Act 1976 prohibits discrimination when offering employment and during employment. In Post Office v Adekeye (no. 2), the Court of Appeal held that section 4 cannot be relied upon by an ex-employee who complains about the way s/he is treated after dismissal. Mr D'Souza attempted to argue that Adekeye was wrongly decided, being contrary to a purposive construction of the RRA 1976. The EAT agreed that Akekeye appeared to be contrary to parliamentary intent: however, it held that it was bound by Adekeye and therefore Mr D'Souza's appeal must fail. The EAT also suggested that the Court of Appeal might like to review its decision in Adekeye following the ECJ's decision in Coote v Granada Hospitality (discriminatory references after dismissal can found an action).

Giraud UK v Smith [26.6.2000, Maurice Kay J.]
A contract of employment provided that if an employee failed to give his contractual notice when resigning, it would result in a deduction from his wages equivalent to the number of days short. The EAT upheld the employment tribunal's decision that this was a penalty clause (and thus invalid). It was not a liquidated damages clause (which would be enforceable) because it was not a genuine pre-estimate of the loss to the employer if the employee failed to give proper notice, and did not prohibit the employer from seeking further damages (in addition to docking pay) through the courts.

West Yorkshire Police v Vento [8.6.2000, Lindsay J.]
In a sex discrimination claim, if there is no actual male comparator and the tribunal has to rely on a hypothetical male comparator, the best way to do it is to look at how the employer treated men in similar (albeit not identical) circumstances. It is dangerous, albeit not impermissible, to rely on evidence from witnesses who are asked how they would have treated men - since such witnesses would know their answers cannot be disproved.


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