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3 April 2014 0 Comments Posted in Employment, Opinion

Discrimination and identifying an agent

Posted by , Partner

In Kemeh v Ministry of Defence the Court of Appeal has confirmed that common law principles should be used when determining whether an individual is an agent for the purposes of discrimination legislation. The leading authority of Yearwood v Metropolitan Police Commission remains good law, namely that while the employee of one person can also be the agent of another, there must be very strong evidence to support the contention that the duties of the employee were being undertaken as the agent for the other party. Here, there was no evidence to demonstrate the submission that a sub contractor’s employee was acting as an agent for the Claimant’s employer. This was recognised by the Court as potentially leaving the Claimant without a remedy in respect of an act of race discrimination committed by that employee.

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Vicarious Liability for injury caused by prisoner

Posted by , Partner

In Cox v Ministry of Justice, the Court of Appeal has held that the Ministry of Justice is vicariously liable for the injury caused to a staff member by one of the prisoners. The staff member worked in the catering department and the prisoner worked in the kitchens. The prisoner was considered to be so integral to the work, business and organisation of the prison that the Court of Appeal felt it was only just and equitable to make the Ministry of Justice responsible for his negligence. The prisoner was carrying out paid work under the supervision of the catering manager, who was not strictly speaking an employee but had day to day charge of all the catering in the prison.

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Fair dismissal despite employer not following appeal panel decision

Posted by , Partner

In a case which may turn on its facts but is really quite interesting nonetheless, Kisoka v Ratnpinyotip (t/a Rydevale Day Nursery) is an EAT decision which held that a decision to dismiss for gross misconduct was fair even though on appeal the independent appeal panel overturned the employer’s decision to dismiss.

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Failure to make reasonable adjustment did not start clock running

Posted by , Partner

In Secretary of State for Work and Pensions (Job Centre Plus) v Jamil and others, the EAT has held that the employer’s refusal to transfer a disabled employee to an office closer to her home, which would have been a reasonable adjustment, was an on-going failure to make the adjustment and time did not start to run from the date upon which the initial decision was made, for the purposes of bringing a claim. Furthermore, the employer had specifically stated that it would keep the decision under review and it was therefore clear that the duty will continue until it was fulfilled.

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Post termination victimisation is unlawful

Posted by , Partner

In a case which has been making its way through the lower courts, Jessemey v Rowstock Limited has now reached the Court of Appeal. This was the case which centred on whether post termination victimisation could be brought as a cause of action because, under the Equality Act section 108(7), this is specifically excluded.

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Expiry of fixed term contracts does not trigger duty to consult

Posted by , Partner

In quite an interesting case concerning the expiry of fixed term contracts and collective redundancy, the Inner House of the Court of Session has given judgement in University and College Union v University of Sterling.

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Inappropriate manifestation of religion can cause unfair dismissal

Posted by , Partner

In Grace v Places for Children the EAT has upheld an Employment Tribunal decision that a Claimant who is dismissed following complaints from colleagues about the way in which she manifests her religious belief in the workplace had not been directly discriminated against because of her religion. The EAT held that the reason for her dismissal was not her religion but the inappropriate ways in which she had chosen to manifest it. These included unauthorised training sessions for staff causing complaints from some of them;  the Claimant’s response to a pregnant member of staff revealing the contents of a dream to the Claimant, which scared the pregnant lady into believing she would suffer a miscarriage; and upsetting staff members when she told a colleague that something would happen in the nursery which would have a “massive ripple effect”.

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Unproven allegation renders dismissal unfair

Posted by , Partner

In Z v A the EAT has upheld an Employment Tribunal decision that it was unfair to dismiss a school caretaker on the basis that he had in the past sexually abused a child, where there was no evidence to support this allegation. It was held that there was no substantial reason to justify the dismissal of a person holding the position that he held and the school had not established a fair reason for dismissal.

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Injunction granted to prevent disciplinary hearing

Posted by , Partner

In an unusual case which probably turns on its facts in terms of the breaches concerned, West London Mental Health MHS Trust v Chhabra is a Supreme Court decision granting an injunction to prevent the NHS Trust from pursuing a disciplinary process against a medical practitioner over allegations of breach of patient confidentiality. The Supreme Court overturned the Court of Appeal decision and held that an injunction to prevent the disciplinary proceedings would be granted to require the Trust to restart and complete an investigation under its disciplinary policy. There had been a number of serious irregularities during the disciplinary proceedings which cumulatively rendered the convening of a disciplinary hearing unlawful as a material breach of the contract of employment. The Supreme Court did note that it would be generally inappropriate for a Court intervene to remedy minor irregularities in the course of disciplinary proceedings; but these were of a serious nature.

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Sunday working – religion or belief

Posted by , Partner

In Mba v Mayor and Burgesses of the London Borough of Merton the Court of Appeal has upheld the decision of the Tribunal and the EAT in holding that, on the facts of the case (a Christian care officer working in a residential children’s home who was required to work on a Sunday), Sunday working requirement was justified in the particular circumstances as there was no viable alternative.

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Penalty clause or genuine pre-estimate of loss

Posted by , Partner

In Cleeve Link Limited v Bryla the EAT has considered whether a clause in a contract was a penalty clause designed to deter breach of contract, or a genuine pre-estimate of loss and so a liquidated damages clause.

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Ill health dismissals – constitutes reasonableness?

Posted by , Partner

In BS v Dundee City Council the Inner House of the Court of Session has given useful guidance on the points employers need to consider when looking at dismissing on the grounds of ill health.

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