Employment case law round up

Latest decisions added to the Tribunals Service website.

30 January, 2012

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

Deposit Order: Employment Tribunal Rules, rule 20. Amount. Claimant’s ability to pay; whether student loan could be taken into account. Whether sufficient reasons. Whether deposit order for £380 perverse.

Recovery of documents. Documents in USA. Haver in USA. Competency. Choice of law. Legal professional privilege. Post Litem Motam exclusion.

  • UKEAT/0547/10 - Jurisdictional Points - 2002 Act and pre-action requirements

Claims under the Race Relations Act 1976 – Judge wrong to hold that employee had failed to lodge a relevant grievance for the purpose of section 32 of the Employment Act 2002 (dicta of Elias P in Martin v Class Security Installations Ltd that the relevant issue was one of mixed fact and law preferred to decision of Judge Burke QC in in Commotion Limited v Rutty); but correct to hold that the relevant claims were nevertheless out of time since the Claimant did not satisfy the conditions for an extension of time under regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 in relation to either his complaint about his dismissal or his 'non-dismissal' complaints – As regards the former, Towergate London Market Ltd v Harris distinguished – As regards the latter, held that the regime for extending time under regulation 15 did not permit a claimant to rely on a 'dismissal complaint' held that the Appellant could not rely on his dismissal, in respect of which the Tribunal had no jurisdiction, as the final term of a 'an act continuing over a period'.

It was open to the Employment Judge to strike out part of the Claimant’s claim, the remainder being later dismissed at a full hearing. The Employment Judge was entitled to find that the Claimant jumped the gun in bringing her claim that the Respondent had not promptly investigated her complaint, and to award costs relating to that part of the claim. Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255, Dean & Dean [2-11] EWCA Civ 1331 and Arrowsmith [2011] EWCA Civ 797 applied.

  • UKEAT/0085/11 - Disability Discrimination - Reasonable adjustments

The Tribunal misapplied section 4A of the Disability Discrimination Act 1995 by holding that the provision, criterion or practice in question was not applied to the Claimant, and therefore that no duty was owed to him under section 4A. The Tribunal should have followed the statutory wording and asked whether a provision, criterion or practice applied by the Respondent placed the Claimant at a substantial disadvantage in comparison with persons who are not disabled. A provision, criterion or practice applied by the Respondent may affect a disabled person without being directly applied to him.

  • UKEAT/0508/10/DA - Jurisdictional Points - 2002 Act and pre-action requirements

The Employment Tribunal was in error to hold that it had no jurisdiction to entertain a claim that might have been spelled out in the originating application but was not set out in Particulars ordered by the Tribunal.

Unfair dismissal. Employee admitted (i) having continued to undertake driving instructor’s training course whilst off sick, without employer’s permission, (ii) having lied about having done so in the past and (iii) having been warned that it would be viewed as gross misconduct if he did so. Employee handbook provided that employees must not, without permission, engage in any activity (paid or unpaid) during working hours. On appeal, held that Employment Tribunal had erred in interpreting handbook as not prohibiting Claimant’s conduct and in finding that, in Burchell terms, they did not have reasonable grounds on which to sustain a belief in the Claimant’s misconduct. Finding of fair dismissal substituted.


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