Friday 7 August 2015

Fees paid by Union can be Reimbursed

Thanks to Karen Jackson of didlaw for preparing this case summary
Can the consistent application of the same rule policy or practice across a series of separate contracts amount to "a series of similar acts" where there is no continuity of employment?

Yes, held the EAT in Ibarz v University of Sheffield.

Does the fact that employment tribunal fees were paid by a union preclude a successful Appellant from recovering fees?

No, they are recoverable per rule 34A(2A) of the Employment Appeal Tribunal Rules.

Dr Ibarz taught Spanish and Latin American Studies at the university between 2004 and 2013 under a series of fixed-term contracts which the employment tribunal held did not amount to continuous employment since there were gaps between the periods. Most of the complaints brought under the Part-Time Workers Regulations 2000 and the Fixed-Term Employees Regulations 2002 were out of time unless he could demonstrate that events in the last contract in May 2013 were part of a series of similar acts or could be shown to be extending over a period per sections 48(3) and 48(4) of the Employment Rights Act.

The employment tribunal held that the consistent application of the same rules, policies and practices was incapable of being sufficiently linked so as to amount to a series of similar acts. The EAT held that this erroneous finding was based on a misreading ofArthur v London Eastern Railway Ltd which was an error of law. The EAT quashed this part of the earlier decision and remitted the case.

On costs, the EAT followed the judgment in Mardner v Gardner v Others which is authority for the proposition that it would be contrary to public policy to allow a Respondent to avoid costs consequences where an insurer had met costs. In the judgment of Mr Justice Wilkie, the recent EAT decision of Goldwater and Others v Sellafield is wrong.

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