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3 January 2014 0 Comments Posted in Employment, Opinion

Third party dismissal communication is effective

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In Robinson v Bowskill and others, the EAT has followed the Supreme Court decision in Gisda Cyf v Barratt and held that summary dismissal takes effect only when the employee either learns about it or has had a reasonable opportunity to learn about it and this applies even where the dismissal is communicated through a third party.

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Evidence of spent conviction admissible

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In A v B, the EAT upheld a Tribunal decision that an employer was permitted to submit evidence of an employee’s spent conviction as part of its defence to claims for race discrimination and unfair dismissal because the evidence was so important to the issues that justice could not be done without it.

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Dismissals – Inconsistency in decisions

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The case of Scottish Prison Service v Laing is an interesting case about inconsistent decisions on dismissal by an employer.

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12 December 2013 0 Comments Posted in Employment, Opinion

National Minimum Wage and working time

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In a case which has important implications for the social care sector, Whittlestone v BJP Home Support Limited is an EAT decision which held that an employee who worked for a care home and was paid on an hourly rate basis with a flat rate for “sleepovers” was not in receipt of the national minimum wage. The Claimant provided care services to clients of the Respondent in their own homes. She travelled from home to home providing care for the service users and was paid £6.35 per hour for the time she actually spent providing care at the home of the service users. She was not paid for the time travelling in between homes. Additionally she was expected under her contract to cover some on-call work at nights, which encompassed shifts from 11pm to 7am, called sleepovers. These shifts are common in the social care industry. The purpose was to provide any care needed during the night for the adults under her care. She was able to sleep at the home and was provided with a bed and bedding. During the hours that the Claimant was undertaking the sleepovers, she was paid a flat rate of £40 per week. When the Claimant resigned, she brought a claim that she should have been paid the national minimum wage for her sleepovers, and also for the time she spent travelling between houses.

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Payment of private counselling is a reasonable adjustment

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In a case which is probably fact specific but interesting nonetheless, Croft Vets Limited and others v Butcher is an EAT decision upholding a Tribunal decision that the employer breached its duty to make reasonable adjustments under the Equality Act by not paying for the employee to have private psychiatric counselling and cognitive behavioural therapy to treat her work related stress and depression. These adjustments were recommended by a consultant psychiatrist, who considered the stress to be sufficiently job related to fall within the ambit of the legislation. The support would have assisted the employee to return to work and cope with her work related difficulties and the employer’s payment for the support would have facilitated her access to the treatment. The EAT emphasised in its decision that this was not a case about employers generally being obliged to pay for private medical treatment. Hence the case probably being very fact specific.

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Non-solicitation covenant valid despite scope

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In Coppage and another v Safetynet Security Limited, the Court of Appeal has dismissed the appeal of a former employee and director of the company against the order to pay a minimum of £50,000 following the breach of the post termination restrictive covenant, a decision made in the Mercantile Court.

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Test for determining constructive dismissal claims

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In Wright v North Ayrshire Council, the EAT has clarified the requirements for establishing a claim for constructive unfair dismissal. It held that a repudiatory breach only has to be “an” effective cause of resignation, not “the” effective cause.

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Offer of reduced workings hours not a breach of reasonable adjustments duty

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In Secretary of State for Work and Pensions (Job Centre Plus) v Higgins, the EAT has overturned a Tribunal decision that the employer had breached the duty to make reasonable adjustments in agreeing the employee’s reduced working hours without specifically stating these would be reviewed and extended if necessary.

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Shambolic reorganisation not age discriminatory

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Osoba v Chief Constable of the Hertfordshire Constabulary is a case more of anecdotal interest than legal but it is worth a mention nonetheless. The EAT upheld a Tribunal decision that, while a scoring matrix which was applied to a restructure organisation in order to reduce headcount was shambolically operated and incompetently constructed, it was not deliberately discriminatory such to ensure that one police officer who was able to retire on a full pension would be redeployed. When questioned, he had stated that if he decided not to retire (which was open to him), he would prefer to stay in this role rather than be redeployed, if selected for redundancy. The Tribunal held that the incompetence of the whole process was sufficient to rebut a prima facie case of age discrimination and no further explanation was necessary.

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Gross misconduct – is dismissal always fair?

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In Brito – Babapalle v Ealing Hospital NHS Trust, the EAT considered whether dismissals for gross misconduct would always fall within the range of reasonable responses available to the employer under section 98(4) of the ERA. The Tribunal had stated that where employees were dismissed for proven gross misconduct, this would always fall within the range of reasonable responses; but the EAT held that this did not consider mitigating circumstances such as the employee’s long service, any previous unblemished record, and the consequences of dismissal.

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Termination of contract by employment agency constitutes dismissal

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In Francis v Pertemps Recruitment Partnership Limited, the EAT has held that an employee was dismissed by an employment business in circumstances where the employee’s contract was with the employment business and which specified a particular client of the employment business to which the employee would be assigned. When the work with the particular client ceased so that there was no longer a requirement for the services of the employee, the EAT held that a dismissal took place. This was endorsed by the fact that the employment agency had offered to pay the employee a redundancy payment or look for alternative work for the employee; all of which was consistent with dismissal rather than consensual termination, as was argued by the agency.

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The importance of wording in binding agreements

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In Newbury v Sun Microsystems, the High Court has offered valuable views on what constitutes a binding agreement. In this particular case, the parties exchanged letters to the effect that an offer was made, was agreed, and it was stated that the agreement would be recorded in a “suitably worded agreement”. Neither letter referred to being subject to contract.

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