Wednesday 13 October 2010

Supreme Court: Dismissal by Letter is Effective when employee reads it

The Supreme Court has, this morning, handed down its judgment in Gisada Syf v Barratt, dismissing the appeal from the Court of Appeal's decision.

Barratt dismissed Mrs Syf in a letter, delivered by recorded delivery and signed for by her son, on 30th November 2006. She was expecting the decision letter to arrive, but had to be away for a few days as her sister was giving birth. She did not open the letter, and learn about the decision until 4th December. She presented an unfair dismissal claim on 2nd March. If the effective date of termination was 30th November, her unfair dismissal claim was out of time. If it was 4th December, her unfair dismissal claim was presented within time.

The Supreme Court held that the effective date of termination was 4th December, ie when she actually read the letter. It held that she should not be criticised for wanting the letter to remain at home unopened, instead of asking her son to read to her, as its contents were private. As she neither knew of the decision until 4th December, nor had deliberately failed to open the letter or gone away to avoid reading it, then the effective date of termination would be the date she actually learned of the decision to dismiss. The Supreme Court stated that, on policy grounds, it was desirable to interpret the time limit legislation in a way favourable to the employee, and that strict contractual laws concerning termination of contracts should not displace the statutory framework.

Accordingly Mrs Syf's claim was presented within time.

TUPE: Failure to Inform and Consult

The EAT has handed down its decision in Todd v Care Concern, in which the EAT held that an award of 13 weeks' pay should NOT be the starting point for failure to inform and consult where the employer has done something (albeit not everything) to comply with the statutory obligations.

In this case, the employer gave some information the transferring employees, but not enough. It also failed to elect employee representatives. Underhill P, giving judgment, distinguished Susie Radin (see the line of cases), stating that the 13 week award should only be the starting point if there has been a complete failure to engage in the information/consultation process (para 29).

The case also held that the obligation to inform is engaged even where the transferor does not envisage any 'measures' will be taken.

Tuesday 12 October 2010

Compulsory Retirement and Age Discrimination

An important ECJ judgment on compulsory retirement has been handed down today.

In Rosenbladt v Oellerking Gebaudereinigungsges mBh, the ECJ held that a compulsory retirement age of 65 in a contract of employment - whilst prima facie discriminatory on grounds of age - is justified if the following conditions are met:

  • the contract (ie the retirement age) has been collectively negotiated with a union;
  • the employee will receive a pension (on the facts, a state pension, but presumably an occupational pension will do when the state pension age rises) so that they have replacement income; and,
  • compulsory retirement has been in widespread use in the relevant country for a long time without having had any effect on the levels of employment.

This has massive ramifications for employers seeking to justify a compulsory retirement age after the default retirement age is abolished in October 2011. However, be aware that UK tribunals have been reluctant to date (at least in those cases I am aware of) to follow the liberal approach of the ECJ when it comes to justifying age discrimination.

The relevant sections of the judgment appear at paragraphs 58-69.

Note that another ECJ judgment on age discrimination has also been handed down today (Anderson v Region Syddenmark), which is concerned with severance payments to older workers. I haven't had time to read it - if anyone fancies summarising it, please feel free.

Equality Act 2010 - Codes of Practice

The EHRC's Codes of Practice on the Equality Act 2010 were published and laid before parliament yesterday.

They are available on the EHRC website (labelled as 'draft', as technically they haven't been approved by parliament yet).

[Thanks to Peter Jones of Rawlinson Butler,
and Darren Newman of In Company Training, for telling me about this.]

Friday 8 October 2010

ACAS Settlements

[Thanks to James Medhurst of Employment Law Advocates for providing this case summary]

The EAT has handed down its decision in Allma Construction v Bonner, which is authority for the proposition that, in deciding whether a settlement has been concluded through ACAS, it is irrelevant whether the ACAS officer believes that a settlement has been reached or whether there are terms which have not been agreed that would normally be included in a COT3 agreement.

The consultant of the respondent communicated an offer directly to the solicitor of the claimant to settle the case for £1,000. The solicitor of the claimant indicated acceptance of the offer through an ACAS officer but did not say that the contract was subject to agreement of the wording of a COT3.

On the facts, it was held that a binding settlement had been reached. It is only necessary for the essentials of a contract to be agreed and this may consist of no more than an agreement that a sum of money be paid to bring litigation to an end. The ACAS officer had done enough to have "taken action" for the purposes of section 203 of the Employment Rights Act and, therefore, there was no need for the parties to enter into a written compromise agreement.

Wednesday 6 October 2010

Discrimination (Correction to 27th September Bulletin)

An error has been pointed out in the bulletin below (issued Monday, 27th September 2010), which stated that the EAT suggested apportionment of damages between the provider and recipient of a reference to reflect their culpability. In fact, the parties had agreed that approach and it was not endorsed by the EAT. An amended version appears below.

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

The EAT (Underhill P) has handed down its decision in Bullimore v Pothecary Witham Weld Solicitors, which is authority for the proposition that the provider of a discriminatory reference can be liable for loss of earnings even if the recipient also victimises a Claimant on the back of it.

The solicitor Claimant was victimised by a reference from a previous firm and a prospective employer withdrew a job offer. The Tribunal held that the claim for loss of future earnings against the reference provider was too remote. The EAT disagreed, observing that this was a not uncommon form of victimisation, and if the reference recipient were not also motivated by victimisation, the Claimant would have no remedy for loss of earnings.

The Claimant's appeal against quantum for injury to feelings ignoring inflation failed, the EAT observing that whilst such awards should be in "today's money", the Tribunal had clearly had regard to the current value of money.

Tuesday 5 October 2010

Continuity of Employment

[Thanks to Leanne Targett-Parker of Temple Court Chambers for providing this case summary]

The EAT has handed down its decision in Hussain v Acorn Independent College, stating that a teacher's continuity of employment is not broken by the summer holidays, notwithstanding that he was working under different types of contracts.

Mr Hussain worked from 25 April 2008 to 8 July 2008 as a cover teacher at the Respondent college, when a teacher fell ill. The ill teacher resigned on 8 July 2008, and the Claimant was offered permanent employment from 5 September 2008. The Claimant was dismissed on 12 June 2009.

The issue was whether there was continuity of employment of both contracts because of the temporary cessation of work during the summer holidays.

The EAT held that if the only reason for the termination of the first contract was a temporary cessation of work the two contracts were bridged by the interval due to the summer break (typical within an educational institution). It was not necessary that the teacher expected to return to work when he finished at the end of the summer time. The interval was short and temporary and the Claimant fulfilled both contracts in sequence for more than 12 months.

Monday 4 October 2010

TUPE - Temporary Cessation of Undertaking

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

The EAT (HHJ Peter Clark) has handed down its decision in Wood v London Colney Parish Council, which is authority for the proposition that a temporary cessation of activity will not prevent a transfer of an undertaking.

The First Respondent, a Social Club, employed the Claimant as a bar steward, and he was dismissed after the Club handed back its lease on the bar to the Second Respondent, the Club then surrendering its premises licence. The Second Respondent took over the bar and later obtained its own premises licence, running the bar with its own people.

The EAT held that the economic entity, the bar, was merely temporarily suspended by the loss of the premises licence and as the economic entity did not cease, there was still a relevant transfer.