Employment case law round up

Latest decisions added to the Tribunals Service website.

06 February, 2012

New employment tribunal decisions and summaries published to the Tribunals Service website -

Working Time Regulations 1998 (‘WTR’). Time bar. Interpretation of WTR paragraph 30(2). On appeal, held that time started running on each occasion that the Claimants did not receive the daily rest to which they were entitled (or compensatory rest) and the Tribunal had not erred in finding that their claims were not time barred.

  • UKEAT/0254/11 - Sexual Orientation Discrimination/Transexualism

The Employment Tribunal correctly applied the law relating to detriment in a case of sexual orientation discrimination; see Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337. The Tribunal also made adequate findings of fact before reversing the burden of proof; see Igen v Wong [2005] IRLR 258. Appeal dismissed.

In this case the Employment Tribunal found that the Claimant was unfairly dismissed due to his trade union activities. On the findings of fact the ET make, this was a decision clearly open to the ET as the appeal was dismissed. There was a factual basis on which the ET was entitled to draw an inference.

The Respondent employer, a school, was debarred from defending, and the Employment Tribunal found that Claimant was unfairly dismissed. The ET found that the Appellant would have been dismissed - not on the basis of evidence but as a result of a submission. Case remitted to another ET to consider again basis upon which compensation awarded. Complicated by fact Appellant now deceased.

In this case the Claimant had not been diagnosed as having dyslexia but he did have certain difficulties and it was common ground that with his sleep apnoea he was disabled. The Employment Tribunal was entitled to hold that it was the Claimant’s refusal to co-operate that frustrated any attempt to assist the Claimant. In construing a decision a broad approach should be taken and it was wrong to subject a decision to myopic scrutiny when on an overview it was clear why an ET had reached a particular decision.

  • UKEAT/0138/11 - Contract of Employment - Disciplinary and grievance procedure

At the disciplinary hearing matters were raised of which the Claimant was given no advance warning. However the matters had arisen after the disciplinary hearing had been arranged. The Claimant resigned in protest at the way in which the hearing was conducted and claimed constructive dismissal. Appeal allowed and sent back to a different Tribunal. There are a number of occasions in which it is difficult to see what findings the Employment Tribunal made. No finding at all as to whether the resignation was caused by the alleged breach of contract or whether the Claimant had decided to resign rather than be dismissed. Appeal allowed and sent back to a new Tribunal.

The Respondent’s case, as pleaded, was that the Claimant was guilty of dishonesty. This was never fully adjudicated upon although it seems this was a matter raised at the Employment Tribunal for determining the issues of the reason for dismissal, and in particular, whether it was a reason connected with the employee’s disability; it was vital that the ET make full findings as to the allegations set out in the ET3.

The Claimant submitted medical evidence to the effect that he was unfit to attend the hearing of his claim by reason of a respiratory infection. The Tribunal refused his application for an adjournment and proceeded to hear the claim without his participation. Held: the Tribunal’s refusal of an adjournment was wrong in law. Teinaz v London Borough of Wandsworth [2002] IRLR 721, Andreou v Lord Chancellor’s Department [2002] IRLR 728, Terluk v Berezovsky [2010] EWCA Civ 1345 (25 Nov 2010) and Osborn & Booth v Parole Board [2010] EWCA Civ 1409 discussed.


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