Addison v. Royal Mail Group plc;1401045/05; 1401605/05; EOR 156 p.30; ET

Disability discrimination – unreasonable instructions and unjustified warning

A was a mail sorter from 1989. In 2001 he had an accident at work causing leg pain and vulnerability to further injury. In 2003 occupational health advised that he should not work in a busy area where he risked further knocks to his leg. In 2004 he refused an instruction from a manager (not his usual manager) to return to a busy area. He brought a grievance against the manager which was upheld, and changes were made to relevant working practices. In June 2005 A refused an instruction to work in the trailer of an articulated lorry while a powered pallet truck was being used in the vehicle. He was later disciplined and given a serious warning to remain on his record for 2 years. The ET found that the incident in 2004 was unjustified less favourable treatment for a disability-related reason and failure to make a reasonable adjustment. Otherwise, there was no general failure to make reasonable adjustments and most of the incidents relied upon by A were unrelated to his disability or justified on the facts. However, the incident in June 2005 was unjustified less favourable treatment for a disability-related reason. Whilst the request to work in the trailer was reasonable, it was unreasonable to persist with the instruction given the history and A’s genuine concern about harm to his leg. Therefore the penalty was also unjustified.

Brash-Hall v. Getty Images Ltd; Telegraph 18/05/06; IDS Brief 811 p.5; CA

Unfair dismissal – sex discrimination – remedy – severance payment

Reported in the May/June update. Now also reported at IDS Brief 811 p.5.

Brooks v. Secretary of State for Work and Pensions; 2403254/04; EOR 155 p.32; ET

Disability discrimination – reasonable adjustments

B was an administrative assistant at S’s jobcentre, with a history of depressive illness. The jobcentre was rebranded as a “jobcentre plus”. B was given the role of dealing directly with the public, some of whom could be difficult. She took extended sick leave with depression in summer 2003. She was referred to S’s occupational health providers for a report, but the report was not provided until December 2003, by which time she was off sick again. She said she felt unable to return to the jobcentre or to deal directly with the public. Her manager tried unsuccessfully to obtain HR advice and no attempt was made to carry out a structured analysis of B’s needs, aspirations, skills and knowledge, or to find out where it might be convenient for her to work. S wrongly assumed that she was seeking work only in the Manchester district. 2 possible posts were rejected by B as unsuitable. There were other posts, not in the Manchester district, which could have been taken by her but were not offered. She resigned. The ET found that there was a duty to make reasonable adjustments and that there were jobs in the locality which B could have done and should have been offered. She needed a transfer away from dealing directly with the public and needed help to cut through the red tape to access available jobs. As there were suitable vacancies, it was reasonable to redeploy her. The ET was dismayed that the branch of government responsible for helping people into work and employing specialist advisors to help the disabled into work “hopelessly failed” to take the basic steps to avoid B’s resignation. She should have been given a professionally conducted structured interview to determine what work she could do and where, with the results being written up and agreed. There should have been positive steps to look for alternative work, with artificial barriers between districts being swept away. Given its resources and skills, S could not justify the failure to find suitable alternative employment.

Chacon Navas v. Eurest Colectividades SA; C-13/05; [2006] IRLR 706; IDS Brief 810 p.9; ECJ

EC law – disability discrimination – discrimination Directive

See below (EC law).

Chard v. Telewest Communications plc; 1401078/05; 1401786/05; EOR 155 p.29; ET

Disability discrimination – ET procedure – dispute resolution regs – whether grievance

See below (ET procedure).

Cheshire and Wirral Partnership NHS Trust v. Abbott & others; The Times 10/05/06; [2006] IRLR 546; CL July para 180; [2006] ICR 1267; CA

Sex discrimination – indirect discrimination – comparators – appropriate pool

Reported in the June and July updates. Now also reported at [2006] ICR 1267.

Clarke & Others v. Redcar & Cleveland Borough Council; Wilson & Others v. Stockton-on-Tees Borough Council; [2006] IRLR 324; CL July para 175; [2006] ICR 897; IDS Brief 811 p.3; EAT

ET Procedure - Conciliated settlements & compromise agreements – Sex Discrimination – Equal Pay

Reported in the June and July updates. Now also reported at IDS Brief 811 p.3.

George v. H & M Bottomley Ltd; 1802591/05; EOR 155 p.31; ET

Disability discrimination – reasonable adjustments – rheumatoid arthritis – driver – power-assisted steering

H sells and distributes confectionery and soft drinks. G was a travelling sales rep for whom driving was essential. H had two small vans. The green one allocated to G did not have power steering. The white one allocated to a colleague did. G had undergone surgery to both hands to treat pain, stiffness and lack of function in his wrists. As a temporary measure following his return to work, he agreed to work a 3-day week on light duties until fit to resume full employment. He was diagnosed with rheumatoid arthritis in November 2004. He told H this and said that it was a long-term debilitating condition. He had difficulty driving the green van because of problems gripping and pain and fatigue in his wrists and shoulders. He said he was willing to use the white van, but no swap was made and no alternative vehicle obtained. H gave no explanation for the failure. G continued temporarily to perform light duties and carry out local calls on foot, 3 days a week. The ET found that from February 05 he would have been willing and able to work 5 days per week if a suitable van had been provided, but had instead worked 3 days per week and, from April, 2 days per week following the reduction of his hours by H. He reiterated to H that he would not act contrary to medical advice and drive the green van, but that he would drive the white van or a similar one. H rejected this offer and G resigned. The ET concluded that he was DDA disabled, and that H failed to make the reasonable adjustment of swapping the vans or leasing an alternative suitable vehicle. G suffered a detriment and was subjected to disability discrimination. However, his constructive dismissal claim failed because it was found that he resigned because he had obtained a better job, not due to a breach of contract.

Grainger v. Record Automatic Doors (UK) Ltd; 2303638/05; EOR 156 p.30; ET

Disability discrimination – time off for treatment – assumptions – adjustments

G was a warehouse assistant who suffered from epicondylitis or golfer’s elbow. He could do his job effectively with painkillers. R was unaware of his condition until his solicitors sought information in connection with a PI claim against a 3rd party. Shortly afterwards R gave him notice of dismissal after 3 months of employment and expressed regret that he had misrepresented his fitness to work to the company at interview. His appeal was rejected with no hearing. The ET found that, ignoring the use of painkillers, the effects of his condition were such that it amounted to a disability. It found that G was dismissed because he was considering whether to take time off for an operation, and R did not want to deal with his absence from work. This amounted to discrimination for a disability-related reason which could not be justified because R had failed in its duty to make reasonable adjustments and did not discuss the situation to assess what adjustments might be needed before dismissing him as unfit. Justification would have been rejected as a defence anyway because no enquiries were made as to how much time off would be needed and when. R had no procedures recommended by the DRC, such as equal ops and monitoring policies. The recruitment procedure was fairly informal, with no application form and no enquiry as to whether G had a disability. He had therefore made no misrepresentation and had coped well with the job. His claim of direct discrimination was dismissed on the basis that the ET was satisfied that a non-disabled person needing an operation would also have been dismissed. His award for loss of earnings was reduced by 25% to reflect the possibility that his disability would have left him unable to work in any event. He was awarded £7,500 for injury to feelings and an uplift of 25% because of R’s numerous failings to follow the SDP.

Grylls v. Guildford Timber Frame; 2302105/05; EOR 155 p.31; ET

Disability discrimination – mental illness – lack of risk assessment – dismissal

G worked on payroll and HR duties and suffered serious depression and paranoid schizophrenia. She was told that HR functions were to be centralised so that she would be a payroll officer. She brought a grievance, referring to her illness. Gu obtained a report from her GP with a prognosis. There was a discussion of the changes to the HR function during which G became very emotional and made remarks that caused Gu concern, such as that because she was disabled she could murder one of them and get away with it. After the meeting, texts were received from G’s phone. One said “blood on the carpet, blood on your hands”. A manager questioned G, who made various allegations about the manager’s competence and made a comment along the lines of “my job or die”. She was summoned to a disciplinary meeting at which she swore, banged the table, screamed and said she would “call God”. She was summarily dismissed for gross misconduct for the text messages and her behaviour leading up to and at the hearing. It was conceded that she was disabled, and Gu’s reason for dismissal was accepted. The ET concluded that this reason related to G’s disability in that her behaviour was related to or symptomatic of her condition, and no attempt was made to explore, appreciate, understand or manage the risk G posed. There was no sound evidential basis for concluding that her behaviour was “bad” and posed a real risk to the health and safety of others. The decision to adopt a disciplinary procedure put her at a substantial disadvantage because it led to her dismissal. Various reasonable adjustments could have been made or considered, including obtaining a proper assessment of the effect of her disability, conducting a risk assessment and assessing whether the procedure was appropriate in the circumstances. Had Gu done this, it might have concluded that G’s behaviour was linked to her disability and should not necessarily be regarded as gross misconduct. The dismissal was also unfair.

Gudka v. Department for Work and Pensions; 3302505/04; EOR 156 p.31; ET

Disability discrimination – delay in conducting ergonomic assessment

G was a full-time administrator from 2001, spending 80% of her time on data input tasks. In 2002 she injured her hand in an accident at work and was subsequently diagnosed with reflex sympathetic dystrophy syndrome, or complex regional pain syndrome. Under D’s sick pay policy, those on leave with an industrial injury may qualify for an additional 6 months on full pay. In her sick notes, G made it clear that she was off because of an industrial injury. D treated her as being on long-term sick leave and reduced her to pay to half from March 2003, not making a decision on the industrial injury element until September 2004 (when she was given back-dated pay). G returned to work part-time in June 2003, after her GP advised she could return on light work. She was still in pain and unable to perform her full duties. D obtained no medical assessment to ascertain her capabilities. There was a workstation risk assessment in July 2003, following which G’s union representative requested a specialist ergonomic assessment to ensure that her work was not detrimental to her health. D obtained an OH report in August 2003 but G and her representative complained that the report was inadequate. The full ergonomic assessment was carried out in September 2004 and a further OH referral was organised following G’s return to full-time work. However, she found some of the comments in the accompanying manager’s report offensive and complained of disability discrimination. The ET found that she was substantially disadvantaged by the failure to carry out the ergonomic assessment during the relevant period. Despite making other reasonable adjustments, this would have been a reasonable adjustment and D had failed in its duty. This was not justified by relying on the OH report from August 2003, as the report was defective and had not in any event been properly discussed with G. D could not rely on its own systems (which required a first referral to OH) when those systems led to such substantial delay. That failure was also unjustified less favourable treatment for a reason related to disability. The failure to treat G’s absence as industrial leave for an unacceptably long time also constituted less favourable treatment for a disability-related reason. Following procedures was insufficient justification given the delay. Failure to maintain full pay (irrespective of any duty under the industrial injury scheme) amounted to a failure to make reasonable adjustments. The ET had regard to Notts County Council v. Meikle and held that G had been attempting to return to work since March 2003, at which time she applied for and was interviewed unsuccessfully for another post with D. At that time D was in breach of its duty by its failure to carry out the ergonomic assessment, and should have considered returning her to full pay to alleviate the disadvantage at that stage.

Harden v. Eden Park Surgery & others; 1100367/05; EOR 155 p.30; ET

Disability discrimination – redundancy selection

H worked for E as an administrator from 1987 to 2004 when she was dismissed by reason of redundancy. There was a reduced requirement for administration so E decided that either H or the lady who assisted her would be made redundant. H had been diagnosed with multiple sclerosis in 1988. She had a few weeks’ MS-related sickness absence in 1999 and 2001 but her prognosis was good, she had no bad attacks in 2004 and her doctor had reassured her 2 months before her redundancy that her MS remained relatively mild. In the past she had worked partly from home but by 2004 was, as she originally had been, in the office for 3 days per week. H was selected for redundancy. One of the doctors said that her sickness record meant that she would be less likely to render regular reliable service in the medium to long term and that they believed her colleague would be able to render more reliable service in the medium to long term. The ET found that H was DDA disabled and had made out a prima facie case of less favourable treatment on grounds of disability. E apparently based its decision on her sickness record because they considered her more likely to be ill in future. E’s witness could give no details of the sickness record. E had not proved that they did not treat her less favourably on grounds of disability and had therefore directly discriminated. In any event, there was disability-related discrimination for which no justification was put forward. The dismissal was automatically unfair for failure to follow an SDP. £31,699 compensation was ordered, including interest, 25% uplift for failure to follow the procedure and £5,000 in respect of injury to feelings.

Lewis v. John Denny Agencies Ltd; 1501368/05; EOR 156 p.32; ET

Disability discrimination – harassment

L has a deformed left hand. This is in no way attributable to thalidomide. However, at work in May 2005, J’s managing director called her a “stupid flid” and a “spaz”. She was upset and resigned the same day. J apologised and asked her to reconsider her resignation. She refused. J admitted that the word “flid” was used in L’s presence and hearing, but denied that it was directed as her, saying that it was uttered in frustration after a telephone conversation with a difficult client. The word “spaz” was denied. The ET found that although the word was not directed at her, she was genuinely upset when she heard it and that J’s behaviour constituted disability-related harassment. The ET was not persuaded that the word “spaz” was used. L had failed to establish constructive dismissal, because although the harassment was a breach of contract, it was insufficiently serious to justify resignation, being an isolated incident for which J had immediately apologised.

Napier v. (1) Reliance Security Services Ltd; (2) First Business Support; (3) Mr Norris; 3302674/04; 3300038/05; 3300663/05; EOR 155 p.29; ET

Disability discrimination – ET procedure – dispute resolution regulations – extension of time

See below (ET procedure).

Peacock v. CIE International Ltd; 1501277/05; EOR 156 p.32; ET

Disability discrimination – reasonable adjustment – harassment

P started work with C in 2002, working as an administrator/design clerk producing computer-aided drawings. He started to experience pain in his right (dominant) arm in January 2004, was diagnosed with tendonitis and by March was in such bad pain that he commenced continuous sick leave lasting about 14 months. A medical report in April diagnosed “work-related upper limb disorder”. In May an ergonomic consultant made an assessment and recommended various alterations involving 10 items of furniture and equipment, and listing suppliers and prices. At about the same time, P was told by a senior colleague that his physical capabilities were under question and that C was watching him. In November he attended C’s premises and sought access to his personal file. He was not abusive or impolite but C’s receptionist became upset and he was ordered to leave. When he obtained his file on disclosure, he discovered that C had written to its medical expert “apologising” for his abusive conduct towards the expert, even though (as the expert confirmed) this was entirely unfounded. In March 2005 there were discussions about a return to work. P got the impression that C proposed to make him redundant. C denied this and sought a further medical examination which determined that P could return to work in May, given that the adjustments advised by the ergonomic consultant were implemented and sufficient rest breaks given. P contacted the managing director to discuss his return, in particular the adjustments, but met with a dismissive and unhelpful attitude. He concluded that there was no hope of a return and resigned. The ET found that he was disabled and that various aspects of his treatment constituted harassment; notably the reference to “speculative” redundancy issues, the failure to provide reassurance that his case was of genuine concern, the implications that he was not a person of integrity, and the failure to obtain comprehensive availability and installation information about the necessary equipment. The last of these also constituted failure to make reasonable adjustments. He was unfairly constructively dismissed because he was entitled to resign in response to the discriminatory treatment and C advanced no reason for the dismissal.

Richards v. Secretary of State for Work and Pensions; C-423/04; [2006] ICR 1181; ECJ

Discrimination – EC law – refusal of pension to transsexual on grounds of non-attainment of male pensionable age

See below (EC law).

Serco Ltd v. Redfearn; [2006] EWCA Civ 659; IDS Brief 807 p.5; Times 27/06/06; Independent 08/06/06; [2006] IRLR 623; CA

Race discrimination – elected BNP councillor working with people of Asian origin – dismissal – whether decision to dismiss was racial discrimination – racial considerations

Reported in the May/June & July updates. Now also reported at [2006] IRLR 623.

Smith v. Stannard t/a The Blakeney Hotel; 1500946/05; EOR 156 p.29; ET

Disability discrimination – lack of genuine efforts to re-employ

Sm was a kitchen porter. Despite a club foot which affected his mobility, his ability to do the job, including strenuous physical tasks, was never questioned. In 2000 he had an accident at work and injured his right thigh bone. He was still off work in 2002 and at that underwent surgery on his left foot, which had been giving pain since 1998. In 2003 he was deemed fit to work, but his orthopaedic consultant advised against heavy listing and carrying. St had not dismissed him and from February 2004 he sought a return to work. In October 2004 an occupational health advisor made various suggestions, including a part-time return to work on a trial basis, but noted that St was “negative” about Sm and refused to consider even simple adjustments, such as a telescopic mop or assistance with filling the flour bins. In November 2004 St dismissed Sm, and later rejected his appeal, on the grounds that his re-employment would pose a risk to the health and safety of other employees, preferring the opinion of Sm’s GP to that of another, more optimistic, medical expert. The ET was satisfied that St consistently sought to place barriers in the way of a return to work and refused to consider possible adjustments. On the facts, it was unjustified and unreasonable to rely on the GP’s opinion. There was direct discrimination and unjustified less favourable treatment for a disability-related reason. There was blatant prejudice based on stereotypical assumptions regarding Sm’s disability and/or its health and safety implications, which led to discrimination in respect of both the dismissal and the appeal. There was a failure to make reasonable adjustments, notably allowing the return to work for a trial period, re-allocating duties to colleagues, adjusting working hours, modifying or buying equipment, modifying cleaning procedures and providing additional support from colleagues. His dismissal was both unfair and automatically unfair because of failure to follow an SDP. However, his claim of disability-related harassment failed as his treatment was not such as to give rise to hurt over and above the indignation and sense of wrongdoing normally experienced when an employer acts in an unfair or discriminatory manner.

Taylor v. OCS Group Ltd; Telegraph 08/06/06; IDS Brief 808 p.3; [2006] IRLR 613; Times 12/07/06; CA

Unfair dismissal – fairness of proceedings – appeal – review – disability discrimination

Reported in the May/June and July updates. Now also reported at [2006] IRLR 613 and Times 12/07/06.

Tarbuck v. Sainsbury’s Supermarkets Ltd; [2006] IRLR 664; IDS Brief 811 p.7; EAT

Disability discrimination – reasonable adjustments – Unfair dismissal – sufficiency of reason – procedure – ET procedure – opportunity to make submissions

T worked for S as a business analyst and IT project manager. She had a history of depression and it was agreed that she was DDA disabled. In 2002 she was off work with depression. It was agreed that she would return to work in March 2003 on a rehabilitation programme, with reduced hours, ongoing OH support and psychological counselling. In June 2003 S notified T amongst others that she was at risk of redundancy. This gave priority status for applying for vacant posts within her own division, but T considered that this placed her under stress during her rehabilitation period. She successfully challenged her “at risk” status but her sickness absence worsened. In August 2003 she was interviewed for a vacancy but not appointed. In September her current assignment ended and she had nowhere to go. At the time she was unwell with depression. She considered that she was at a disadvantage by not having priority status for other jobs, so was formally categorised as “at risk” again. In October she was offered, but rejected, a 3-month assignment. In November she was given formal notice of redundancy. Her internal appeal failed. The ET upheld her DD claim in part, finding that there was a failure to make reasonable adjustments in several respects: failure to provide necessary equipment, failure to provide proper and adequate support for her job-seeking whilst “at risk”, failure to consult following her successful challenge in order to agree the steps required to eliminate her disadvantage in the competition for jobs. The ET referred to the case of Mid-Staffordshire General Hospitals NHS Trust v. Cambridge. The ET also upheld her unfair dismissal claim, finding that the appeal process failed to address her complaints, particularly as regards DD. T appealed to the EAT. The EAT held that the ET did not err in respect of the shifting burden of proof by not seeking S’s explanation as to why it failed to interview T for a post advertised internally in circumstances in which nobody was in fact interviewed because S decided that the post should not be filled. In those circumstances there was no less favourable treatment or failure to make relevant adjustments. There is no obligation to create specifically a post which is not otherwise necessary merely to create a job for a disabled person. The ET recognised that S might have been willing to create a job artificially but they would be acting reasonably in not so doing. It could not be a required adjustment in terms of their statutory obligation. However, the ET did err in not making explicit what it meant when it held that it was not a reasonable adjustment for S to have reinstated T’s priority status “as an immediate reaction” to accepting her challenge to her “at risk” status. It was unclear whether the tribunal was concluding that it would not be a reasonable adjustment to give priority status in time to be considered for a particular vacancy for which she applied. The appeal would be allowed and remitted on this point. The ET also erred in concluding that S failed to make reasonable adjustments because it did not consult with T over what reasonable adjustments she might need to assist her in finding alternative employment. This issue was not identified in T’s claim, was not raised as one of the potential areas where there was a failure to make reasonable adjustments, and was not identified by her representative in a list of issues produced after evidence had been heard. It is a fundamental principle of natural justice that a party should have the right to make submissions on any issue which is the subject of the dispute and in relation to which adverse findings may be made. That did not occur here. It was not legitimate, after the hearing and the conclusion of submissions, for the ET to raise the point effectively of its own motion and determine it without reference to the parties. In any event, there is no separate and distinct duty of reasonable adjustment to consult about what adjustments might be made. The reasoning to this effect in Mid-Staffordshire was incorrect. The only question is whether the employer has, objectively, complied with his obligations, although it will always be good practice for the employer to consult and will potentially jeopardise his legal position if he does not do so, because he cannot then use the lack of knowledge which would have resulted from consultation as a shield against a complaint of failure to make adjustments. If the employer makes the required adjustments, whether or not he consulted about it or knew that he was under the obligation is irrelevant. It may be fortuitous and unconsidered compliance, but that is enough. Conversely, if the employer fails to do what is required, it is of no avail that he has consulted. S’s cross-appeal on this point was allowed. However, the ET did not err in finding that the dismissal was unfair on grounds that the internal appeal process was unsatisfactory, even though there was no suggestion that the appeal process could have demonstrated a flaw in the first instance decision. The case of Post Office v. Marney is inconsistent with the decisions of Polkey and Tipton and is no longer good law. The significance of an appeal is that it may enable further matters to be advanced, or representations made, which may affect the outcome. In those circumstances, the denial of that right, or the failure to apply the appeal process fairly and fully, is capable of rendering a dismissal unfair. If the dismissal was likely to occur in any event, that goes to compensation but not to the finding of unfairness itself.

Blockbuster Entertainment Ltd v. James; [2006] EWCA Civ 684; IDS Brief 809 p.12; [2006] IRLR 630; CA

ET procedure – striking out – order on day of hearing

Reported in the July update. Now also reported at [2006] IRLR 630.

Chard v. Telewest Communications plc; 1401078/05; 1401786/05; EOR 155 p.29; ET

Disability discrimination – ET procedure – dispute resolution regs – whether grievance

C claimed disability discrimination including alleged failure to make reasonable adjustments by allocating light duties on return from sickness absence. At a PHR, when he was unrepresented, his claim was struck out for failure to submit a grievance before presenting his claim. He accepted that he had not written to T complaining of the alleged failure to make reasonable adjustments. However, the chairman later became aware of the decisions in Shergold v. Fieldway Medical Centre and Commotion Ltd v. Rutty and reviewed her decision. During his sickness absence, C had e-mailed his line manager saying that he would be seeing his chiropractor and that he was “still waiting to hear about light duties”. He subsequently submitted to T 2 letters from his chiropractor. The first made it clear that C was able to return to work in an altered capacity and set out those duties which aggravated his condition. The 2nd, written soon after his return, said that he had attended the clinic complaining of symptoms which reoccurred following a specific manoeuvre at work and requesting a suitable health and safety/ergonomic assessment and training. The chairman concluded that these amounted to requests for reasonable adjustments and that the 2nd letter implied a complaint, and that in light of the decisions mentioned above, these were sufficient to satisfy the requirement for a grievance under s32 because they were a request for T to consider a particular course of action and because they complained of an exacerbation of symptoms following a particular manoeuvre. The fact that the chiropractor had written the letter did not prevent C relying on it, because it was submitted by C and written on his behalf.

Chris Project v. Hutt; 06/04/06 (EAT/0065/05); IDS Brief 810 p.12; EAT

ET procedure – impression of bias – comment by chairman

H claimed unfair dismissal against C. In its notice of appearance, C said that H was dismissed for gross misconduct. Just before the start of the full hearing, the chairman made a comment to C’s representative that left him with the impression that the chairman thought that C would not succeed in defending the claim. After leading evidence from one of C’s witnesses, the representative sought and was granted an adjournment. When the tribunal reconvened, the representative conceded on C’s behalf that H was unfairly dismissed. Compensation was awarded in the sum of £4,933. C appealed alleging, inter alia, bias on the part of the chairman, specifically that he said to the representative before the start of the hearing “you have an uphill struggle here”, which the representative took to mean that the tribunal had prejudged the question of whether there was a defence and, C argued, gave the impression of prejudgment and therefore the appearance of bias. The representative further contended that the concession of unfair dismissal was only made because, in the light of the comment he considered the case “dead in the water”, and that C ought therefore to be permitted to withdraw the concession. The notice of appeal was sent to the chairman for his comment. He responded that he had no recollection of using the phrase, but may have made an observation to the representative that there might be some difficulty in maintaining that H was dismissed for misconduct as there was no indication from the evidence lodged by C that that was the reason for the dismissal. He denied that he would have given any indication as to C’s prospects. The EAT noted that justice must be seen to be done and referred itself to the test as set out in Porter v. Magill and the decision in Ellis v. Ministry of Defence. To give the impression that the case has been prejudged is to give the impression of bias. This could be given by the appearance of a closed mind against a party on a matter which the tribunal has to decide before that party has presented evidence and submissions. On the facts of this case, the EAT observed that the representative was a lay representative who had appeared to the EAT to be anxious and who it was easy to envisage would be vulnerable to pressure. Moreover, the exchange took place before any evidence had been heard, and the chairman’s comments were therefore indicative of the view that he had considered the papers beforehand and did not consider that they supported C’s defence. There could be few occasions where a tribunal could properly comment on the difficulties in a case before having heard any evidence. To do so would plainly risk giving the parties the impression of prejudgment, unless it was made clear that the views expressed were provisional which was not done in the instant case. The EAT concluded that whatever was intended by the chairman, an objective observer would have considered that his comments and their circumstances indicated a real possibility that the tribunal had closed its mind and decided that there was no merit in the defence. Further, the effect of the comments was to place the representative under pressure, causing him to make the concession. C was permitted to withdraw the concession and the appeal was allowed, with the matter being remitted to a freshly constituted tribunal.

Clarke & Others v. Redcar & Cleveland Borough Council; Wilson & Others v. Stockton-on-Tees Borough Council; [2006] IRLR 324; CL July para 175; [2006] ICR 897; IDS Brief 811 p.3; EAT

ET Procedure - Conciliated settlements & compromise agreements – Sex Discrimination – Equal Pay

Reported in the June and July updates. Now also reported at IDS Brief 811 p.3.

Fraser v. HLMAD Ltd; [2006] EWCA Civ 738; IDS Brief 809 p.3; Independent 20/06/06; [2006] IRLR 687; CA

Wrongful dismissal – damages – statutory cap – whether balance recoverable in civil courts

Reported in the July update. Now also reported at [2006] IRLR 687.

Napier v. (1) Reliance Security Services Ltd; (2) First Business Support; (3) Mr Norris; 3302674/04; 3300038/05; 3300663/05; EOR 155 p.29; ET

Disability discrimination – ET procedure – dispute resolution regulations – extension of time

R refused to appoint N to the position of regional HR manager on 14/10/04. He contended that this amounted to disability discrimination. The extended time limit in which to claim was 14/04/05. His grievance was submitted on 21/12/04. He presented his first ET1 without waiting 28 days. When he understood that requirement, he submitted a new claim on 25/04/05. The ET concluded that s32 EA02 applied to the claim against the 3rd Respondent. It also concluded that it was possible to extend the extended time limit according to the relevant test (just and equitable in a DDA claim). It then decided that it would be just and equitable to extend time. The claim was 11 days out of time, and the reason for the delay was the lack of appreciation of the 28-day rule not only by the parties but also their representatives and the tribunal itself. N had acted promptly once he understood the position, and if the discretion was not exercised in his favour he would lose the opportunity to make his claim. R had disclosed no disadvantage if the discretion were granted: it had effectively known the nature of the claim since December 2004.

Singh t/a Rainbow International v. Taylor; 27/06/06 (EAT/0183/06); IDS Brief 810 p.11; EAT

Unfair dismissal – ET procedure – time limits – automatic extension – calculation of date

T resigned from employment with S on 20/06/05 in circumstances which he said amounted to unfair constructive dismissal. He did not bring his claim within 3 months but did raise a grievance, so time was automatically extended by 3 months. He presented his ET claim on 20th December. S claimed that this was outside the extended time limit so that there was no jurisdiction to hear T’s claim. The ET, at a PHR, held that the normal time limit expired on 19th September, but that the dispute resolution regs provide that time is extended by 3 months “beginning with the day after the day on which it would otherwise have expired”. On that basis, the day after the expiry of the normal time limit was 20th September, so the extended time limit, counting forward, expired on 20th December and T was in time. S appealed. The EAT found no error in the ET’s approach. The approach in the CA case of Pacitti Jones v O’Brien had no application here.

Sutton v. The Ranch Ltd; 30/03/06 (EAT/0072/06); IDS Brief 810 p.11; [2006] ICR 1170; EAT

ET procedure – costs – failure to attend hearing

S made various claims against R to the ET. R failed to file a response to any of those claims, resulting in a default judgment for S. The chairman sitting alone awarded compensation and also made a costs order against R in the sum of £5,500 on the basis that it conducted the proceedings unreasonably. R sought an extension of time to apply to review the default judgment, which was refused, and applied to review the remedy decision, the review being granted but not being successful. When reviewing the remedy judgment, the chairman looked again at the costs decision. He concluded that rule 9 applied and that there was therefore no power to make an order for costs under rule 38(4). He therefore revoked the costs order. However, he then found that costs could be awarded in respect of the review proceedings by virtue of rule 9. S appealed. The EAT upheld the ET decision.

Tarbuck v. Sainsbury’s Supermarkets Ltd; [2006] IRLR 664; IDS Brief 811 p.7; EAT

Disability discrimination – reasonable adjustments – Unfair dismissal – sufficiency of reason – procedure – ET procedure – opportunity to make submissions

See above (discrimination)

Alexander v. Bridgen Enterprises Ltd; [2006] IRLR 422; CL July para 174; [2006] ICR 1277; EAT

Unfair dismissal – statutory disciplinary procedures – failure to follow – automatically unfair dismissal – redundancy – fairness – consultation and selection – remedy

Reported in the June and July updates. Now also reported at [2006] ICR 1277.

ASLEF v. Brady; [2006] IRLR 576; EAT

Unfair dismissal – reason – conduct – evidence

B was elected A’s general secretary by a vote of the entire membership in 2003, but the executive committee and others in A’s hierarchy did not support the vote. From the time he took up office, B experienced hostility and measures introduced by the executive committee which made it difficult to perform his job effectively. At a barbeque at A’s headquarters there was a fracas and fight between B and the union president, S. An inquiry was critical of both B and S. B was charged with various disciplinary offences in relation to the incident, together with other unrelated offences including alleged failure to co-operate with an inquiry into the running of A. He was found guilty of 3 counts of misconduct and dismissed, with the dismissal upheld on appeal. S was charged with various offences in relation to the barbeque incident, but these charges were rescinded. B claimed unfair dismissal. The ET found that the true reason for his dismissal was not the alleged misconduct but the executive committee’s wish to get rid of him because of political antipathy. The commencement and conduct of the disciplinary proceedings were “opportunism”. The ET therefore rejected A’s assertion that the reason for dismissal was conduct and concluded that A had failed to show that there was a potentially fair reason. The dismissal was therefore unfair. In any event, there had been procedural defects which were not remedied on appeal and there was a difference in treatment between B and S which could only be justified by union factionalism. The EAT held that the ET did not err in that decision. Dismissal may be for an unfair reason even where misconduct has been committed. The question is whether the misconduct is the real reason, and it is for the employer to prove that. A tribunal is not obliged to reach a view as to whether the conduct was in principle capable of amounting to a dismissable offence. It can find that whether or not the conduct could in principle so amount, nevertheless, in the circumstances of the case the employer has not satisfied it that it was the real reason. It is not incumbent on the tribunal to make any findings as to the actual reason. It therefore does not follow that wherever there is misconduct capable of justifying dismissal, the tribunal is bound to find that that was the operative reason. Even a potentially fair reason may be a pretext for a dismissal for other reasons, for example where misconduct is used as an excuse to dismiss where others would not have been treated in a similar way. It follows that once an employee puts in issue, with proper evidence, a basis for contending that the employer dismissed out of pique or antagonism, it is for the employer to rebut this by showing that the principal reason was a statutory one. If the tribunal is left in doubt, the employer will have failed to do so. Evidence that others would not have been dismissed in similar circumstances would be powerful evidence against the employer, but it is open to the tribunal to find the dismissal unfair even the absence of such strong evidence. Where there are mixed motives, such as malice and misconduct, the principal reason may be malice even though the misconduct might have justified dismissal had it been the principal reason. On the other hand, the fact that the employer acted opportunistically in dismissing does not necessarily exclude a finding of a fair reason. There is a difference between a reason for a dismissal and the enthusiasm with which that reason is adopted. An employer may have a good reason to dismiss whilst welcoming the opportunity to dismiss which that good reason affords. In the present case there was ample evidence to justify the ET’s decision that the principal reason for dismissal was other than genuine belief in his guilt. The different treatment of S lent significant support to that decision.

Brash-Hall v. Getty Images Ltd; Telegraph 18/05/06; IDS Brief 811 p.5; CA

Unfair dismissal – sex discrimination – remedy – severance payment

Reported in the May/June update. Now also reported at IDS Brief 811 p.5.

Cross & another v. British Airways plc; [2006] EWCA Civ; Independent 18/05/06; IDS Brief 807 p.3; Times 05/06/06; [2006] ICR 1239; CA

Transfer of Undertakings – provisions about retirement age – unfair dismissal

See June update.

Fraser v. HLMAD Ltd; [2006] EWCA Civ 738; IDS Brief 809 p.3; Independent 20/06/06; [2006] IRLR 687; CA

Wrongful dismissal – damages – statutory cap – whether balance recoverable in County Court

Reported in the July update. Now also reported at [2006] IRLR 687.

G4S Justice Services (UK) Ltd v. Anstey & another; 30/03/06 (EAT/0698/05); IDS Brief 806 p.5; [2006] IRLR 588; EAT

Transfer of Undertakings – internal appeals – effect of reinstatement – liability of transferee

Reported in the May/June update. Now also reported at [2006] IRLR 588.

Singh t/a Rainbow International v. Taylor; 27/06/06 (EAT/0183/06); IDS Brief 810 p.11; EAT

Unfair dismissal – ET procedure – time limits – automatic extension – calculation of date

See above (ET procedure)

Tarbuck v. Sainsbury’s Supermarkets Ltd; [2006] IRLR 664; IDS Brief 811 p.7; EAT

Disability discrimination – reasonable adjustments – Unfair dismissal – sufficiency of reason – procedure – ET procedure – opportunity to make submissions

See above (discrimination).

Taylor v. OCS Group Ltd; Telegraph 08/06/06; IDS Brief 808 p.3; [2006] IRLR 613; Times 12/07/06; CA

Unfair dismissal – fairness of proceedings – appeal – review – disability discrimination

Reported in the May/June and July updates. Now also reported at [2006] IRLR 613 and Times 12/07/06.

Willow Oak Developments Ltd (trading as Windsor Recruitment) v. Silverwood & others; IDS Brief 808 p.6; [2006] IRLR 607; CA

Unfair dismissal – reasons for dismissal – refusal to sign new contract containing restrictive covenant – SOSR – whether reasonableness of covenant relevant

NB EAT decision reported in January, February and June updates.

Reported in the July update. Now also reported at [2006] IRLR 607

Barker v. Corus UK Ltd; [2006] UKHL 20; [2006] ICR 809; [2006] 3 All ER 785; HL

Tort – negligence – asbestos exposure – causation – uncertainty as to period – joint and several liability of employers

Reported in the July update. Now also reported at [2006] 3 All ER 785.

Corr (Administratrix of the Estate of T. Corr, deceased) v. IBC Vehicles; [2006] EWCA Civ 331; IDS Brief 810 p.7; [2006] ICR 1138; CA

Employer’s liability – psychiatric injury – suicide – Fatal Accidents Act

See below (employer’s liability).

Kiani v. Land Rover Ltd & Others; Telegraph 20/07/06; CA

Employer’s liability – breach of statutory duty – fatal accident – suicide

K was a cleaner at L’s plant. The claimant was his son. K was found dead in a sub-floor coolant tank managed by the employees of C (another company and defendant). His death was by asphyxia and he was relatively uninjured. L and C were found by the Court to be in breach of their statutory duties under the Workplace Regulations 1992. Their defence was that suicide was the probably cause of death, particularly as there were no appreciable injuries. However, this failed. The Court found that K had noticed that the hatch to the tank had been left open and went to investigate, but lost his balance and fell in. The sole issue on appeal was whether or not the finding of accident was open on the evidence. The defendants contended that the court should have started with the fact that an accidental fall was almost impossible and that the only logical conclusion was suicide, and should have accepted the evidence of a health and safety expert who could not imagine a situation, based on the evidence, where K could have fallen through the hatch accidentally without coming into contact with part of it and sustaining appreciable injuries. They contended that the Court should have found the case unproven. The CA dismissed the appeal. There was nothing wrong in the Court’s reasoning. After concluding that an accident was possible, it was a legitimate conclusion to discount the lesser of two possibilities, thus making the first likely on the balance of probabilities. It was permissible to find that suicide was less than probable and, without having a closed mind to the possibility of suicide, to conclude that there was a way in which K could have fallen into the tank accidentally. He could not be criticised for not setting out precisely how the accident could have occurred, nor for the way he dealt with the issues. He looked at the matter in the round and took the relevant evidence into account, including that of the expert. The expert did not go so far as to say that an accident was “impossible”. It seemed that the defendants were acting in breach of their statutory duties from the time the hatch was left open. If K had opened the hatch himself, it would have strengthened the proposition that he did so with the intention to commit suicide. The CA had regard to the burden of showing that the judge was wrong in his decision as to findings of fact.

Majrowski v. Guy’s & St. Thomas’s NHS Trust; [2006] UKHL 34; [2006] 3 WLR 125; [2006] IRLR 695; Times 13/07/06; IDS Brief 810 p.5; Independent 14/07/06; [2006] ICR 1199; HL

Employer’s liability – vicarious liability – harassment in workplace

Reported in the July update. Now also reported at [2006] IRLR 695, Times 13/07/06, IDS Brief 810 p.5, Independent 14/07/06 and [2006] ICR 1199.

McIntyre v. Harland & Wolff plc & another; [2006] EWCA Civ 287; [2006] ICR 1222; CA

Employer’s liability – fatal accidents – widow’s dependency – mesothelioma – dismissal

M’s husband worked in Libya for H. He was diagnosed with mesothelioma, following which he chose not to return to Libya but to spend time with his wife in England. Shortly afterwards he died. After his death payments (to which he was entitled on termination of employment) were made to his estate under H’s provident fund scheme and Libyan labour law. Had he not become ill he was expected to continue to work and on retirement he would have received enhanced payments from the fund. M, his sole beneficiary, claimed for damages under, inter alia, the Fatal Accidents Act for the tortious exposure of her husband to asbestos. She contended that the expected enhanced benefits were part of her dependency. H argued that M could not recover such payments because that would be double recovery. The court rejected that contention and held that M did not have to give credit for the sums already paid to the estate by virtue of s4 FAA. H’s appeal was dismissed. The award of damages had to place M in the position she would have been in had the tort not occurred. On the evidence, that position would have been that her husband would have lived to retire and receive the enhanced benefits. That was what was lost by reason of the premature death. As to double recovery, the payment made from the fund was not a payment to M and only benefited her because it formed part of her husband’s estate. That was precisely what s4 FAA said should not be taken into account and for which credit did not have to be given.

Viasystems (Tyneside Ltd) v. Thermal Transfer (Northern) Ltd, S & P Darwell Ltd v. CAT Metalwork Services; Independent 12/10/05; [2005] IRLR 983; IDS Brief 792 p3; [2005] 4 All ER 1181; [2006] ICR 327; [2006] 2 WLR 428; [2006] QB 510; CA

Vicarious liability – tort – negligence – dual liability

Reported in the November, December, January and March updates. Now also reported at [2006] QB 510.

Woodward v. Abbey National plc; [2006] EWCA Civ 822; Independent 27/06/06; [2006] IRLR 677; Times 11/07/06; IDS Brief 810 p.3; CA

Whistleblowing – protected disclosure – detriment after termination of employment – jurisdiction

EAT decision reported in the December and CA in June updates.

Reported in the July update. Now also reported at [2006] IRLR 677, Times 11/07/06 and IDS Brief 810 p.3.

Adeneler & others v. Ellinikos Organismos Galaktos; C-212/04; [2006] IRLR 716; ECJ

EC law – fixed-term employees – fixed-term work Directive & framework agreement

The Directive required member states to transpose its provisions into national law by July 2002. Greece did not do so until April 2003. A and 17 other claimants were employed by E (a milk organisation in the public sector) on a succession of fixed-term contracts of 8 months each between May 2001 and July 2002. In each case, the contract was for the same post each time and was separated by a period of time ranging from 22 days to some 10 months. The last of these ended between June and September 2003 with no renewal. A brought proceedings seeking a declaration that the contracts had to be regarded as employment contracts of indefinite duration in accordance with the framework agreement on fixed-term contracts. The Greek domestic law implementing the Directive provided that “unlimited renewal of fixed-term employment contracts is permitted if justified by an objective reason”, objective reason defined as including “if the conclusion of a fixed-term contract is required by a provision of statute or secondary legislation”. The legislation also provided that contracts should be regarded as successive if concluded between the same employer and worker under the same or similar terms of employment and separated by a period not longer than 20 working days. It also provided that where the duration of successive contracts exceeds 2 years in total and unlimited renewal was not objectively justified, it would be presumed that the contract was “aimed at covering the fixed and permanent needs of the undertaking or operation” and would be converted into contracts of indefinite duration. Greek law 2190/1994 also provides that public services may employ staff on fixed-term contracts in order to cope with seasonal or other periodic or temporary needs, and prohibits reclassification of fixed-term contracts as being of indefinite duration. A claimed to have carried out regular work corresponding to “fixed and permanent needs”, so that the conclusion of the contracts was an abuse with no objective justification for the prohibition on conversion in 2190/94. The Greek court referred questions to the ECJ. The ECJ held that a Directive has legal effect for member states from the date of its notification. During the period prescribed for the Directive to be transposed into domestic law, Member States must refrain from taking measures liable seriously to compromise the attainment of the result prescribed by the directive. It is immaterial in this regard whether or not the eventual domestic law adopted after the directive enters into force is legislation concerned with transposing the directive. As all Member States are subject to the obligation to ensure that EC provisions take full effect, from the date on which a directive enters into force, the Member States’ courts must refrain as far as possible from interpreting domestic law in a manner which might seriously compromise attainment of the objective of the directive after the period for transposition has expired. Where the provisions of the directive do not have direct effect, the general obligation of the national courts to interpret domestic law consistently with the directive exists once the period for transposition has expired. After that date, domestic courts are bound to interpret domestic law as far as possible with a view to achieving the results sought by the directive, in the light of the wording and purpose of the directive. The interpretation of domestic legislation most consistent with the purpose of the directive is to be favoured in order to achieve an outcome compatible with the directive. The same date applies where a directive is transposed belatedly. The mere fact that the conclusion of a fixed-term contract is required by domestic legislation does not constitute an “objective reason” with the meaning of the Directive so as to justify the successive renewal of a contract. The concept of “objective reasons” requires justification by the presence of specific factors relating in particular to the activity in question and the conditions under which it is carried out. Precise circumstances characterising the activity are necessary which are capable of justifying successive fixed-term contracts. Such circumstances may result, in particular, from the specific nature of the tasks and their inherent characteristics, or the pursuit of a legitimate social policy objective. A national provision which merely authorises the use of successive fixed-term contracts in a general and abstract way does not meet the requirements. A national rule under which fixed-term contracts separated by longer than 20 working days are not “successive” is contrary to the framework agreement. Such an inflexible and restrictive definition would allow insecure employment of a worker for years and could exclude a large number of fixed-term employment relationships from the protection of the Directive and the framework agreement, negating their objective and permitting misuse of the relationships by employers. The framework agreement precludes domestic legislation which, in the public sector, prohibits a succession of fixed-term contracts, which are in fact intended to cover the employer’s “fixed and permanent needs”, from being converted into an indefinite contract. The provision in question was being used for improper purposes: instead of merely serving as a basis for fixed-term contracts designed to meet only temporary needs, it was being used to conclude fixed-term contracts designed to cover “fixed and permanent needs”.

Chacon Navas v. Eurest Colectividades SA; C-13/05; [2006] IRLR 706; IDS Brief 810 p.9; ECJ

EC law – disability discrimination – discrimination Directive

C worked for E, a catering firm. In October 03 she was certified unfit to work. She received incapacity benefit from that date. She remained off work. In May 04 E gave notice of dismissal with no reason stated. They acknowledged that the dismissal was unfair under Spanish law and offered compensation. C brought proceedings seeking reinstatement. In Spanish law a distinction is drawn between unlawful dismissal and void dismissal. A dismissal on grounds of unlawful discrimination is void. C argued that the dismissal was on grounds of her absence due to sickness and that this was discrimination. Spanish case law classifies dismissal on grounds of sickness absence as unlawful rather than void, because sickness is not expressly referred to as a prohibited ground of discrimination. However, the domestic court took the view that a sick worker might fall within the scope of Framework Directive 2000/78 (disability discrimination). They referred questions to the ECJ. The ECJ held that a person dismissed solely on account of sickness is not protected by the Directive. The concept of disability for the purpose of that directive must be understood as referring to a limitation resulting in particular from physical, mental or psychological impairments and which hinders the participation of that person in professional life. The concept differs from that of sickness and they cannot simply be treated as being the same. To amount to a “disability” it must be probable that the limitation will last for a long time. There is nothing in the Directive to suggest that workers are protected by the Directive as soon as they develop any type of sickness. Unfavourable treatment on grounds of disability is contrary to the Directive only in so far as it constitutes discrimination within the meaning of the directive. In accordance with recital 17, the Directive does not require the recruitment, promotion or maintenance in employment of someone who is not competent, capable and available to perform the essential functions of the post, without prejudice to the obligation to provide reasonable accommodation for people with disabilities. Accordingly, it precludes dismissal on grounds of disability which, in the light of the obligation to provide reasonable accommodation, is not justified by the fact that the person is not competent, capable and available to perform the essential functions of their post. Sickness cannot be regarded, per se, as an additional ground falling within the Directive. The Directive’s scope should not be extended by analogy beyond the discrimination based on the grounds listed exhaustively in Article 1.

Richards v. Secretary of State for Work and Pensions; C-423/04; [2006] ICR 1181; ECJ

Discrimination – EC law – refusal of pension to transsexual on grounds of non-attainment of male pensionable age

R was a UK resident registered male at birth. She underwent male to female gender reassignment. When she reached 60 (pensionable age for women born before 1950 under the Pensions Act 1995) she applied for a pension. This was refused on the basis that she was still regarded as male under the law as it stood at the material time, and had not yet reached 65 (the pensionable age for men under the same Act). On appeal to the Social Security Commissioner, the matter was referred to the ECJ. It was held that EC Directive 79/7 applied not only to discrimination on ground of sex per se but also to discrimination arising on gender reassignment, such as in the present case, where there was unequal treatment in comparison with women whose gender did not result from gender reassignment surgery, flowing from the non-recognition of the acquired gender. Article 7(1)(a) (which permits exclusion from the Directive of pensionable ages for pension purposes) was not in point because it only related to the determination of different pensionable ages for men and women. Article 4(1) precluded legislation denying a retirement pension to someone who had undergone male-to-female reassignment on the ground that she had not reached 65 when she would have been entitled to such a pension at 60 had she been held to be a woman for the purposes of national law. Further, the ECJ only limited the temporal effect of a judgment in specific circumstances where there was a risk of serious economic repercussions. In the present case there was no need to do so in view, inter alia, of the change to the relevant UK law as from April 2005 with the coming into force of the Gender Recognition Act 2004.

Barker v. Corus UK Ltd; [2006] UKHL 20; [2006] ICR 809; [2006] 3 All ER 785; HL

Tort – negligence – asbestos exposure – causation – uncertainty as to period – joint and several liability of employers

Reported in the July update. Now also reported at [2006] All ER 785.

Corr (Administratrix of the Estate of T. Corr, deceased) v. IBC Vehicles; [2006] EWCA Civ 331; IDS Brief 810 p.7; [2006] ICR 1138; CA

Employer’s liability – psychiatric injury – suicide – Fatal Accidents Act

T was employed by I as a factory worker. He was seriously injured in an accident at work, which I accepted was caused by its negligence. Following that accident he suffered tinnitus and severe headaches and needed to undergo several painful operations. He had no prior history of psychiatric problems but started to suffer PTSD, lapsing into deep depression and showing suicidal tendencies. 6 years later he committed suicide. His widow (also the administratrix of his estate) brought a negligence claim against I on behalf of his estate for damages in relation to his psychiatric and physical injuries. She also claimed in her own right under the Fatal Accidents Act for dependency arising from his death. The High Court accepted that I breached its duty of care to protect T from psychiatric harm, and awarded £85,000 to his estate for negligence. It dismissed the widow’s claim, holding that the employer’s duty did not extend to taking care to prevent its suicide. Further, given that he had been a happy, well-balanced family man, ambitious in his work and with no past psychiatric problems, the High Court concluded that the suicide was not a reasonably foreseeable consequence of the breach. The CA considered the scope of I’s duty to its employees. It accepted that there was no specific duty to protect an employee from self-harm. However, this did not necessarily exonerate the employer from responsibility for suicide if that was a consequence of the employer’s wrongdoing for which it must be held responsible. On the evidence before it, there was an obvious link between the breach of duty and the decision by T to take his own life. The expert psychiatric evidence clearly indicated that the accident caused the PTSD which, in turn, led to the depression and suicide. The CA then considered whether the suicide was a new act breaking the chain of causation. It observed that earlier case law generally provided that the suicide of a sane individual making a voluntary, deliberate and informed decision to take his own life would serve to break the chain of causation. However, law and psychiatry had moved on since those cases. Much of the case law on suicide related to a time when it was illegal and therefore reflected a situation where an individual would be benefiting from an immoral and illegal act. It was now accepted that people who commit suicide do not forfeit the regard of society or the ordinary protections of the law. The CA therefore favoured the New South Wales approach in Holdlen Pty Ltd v Walsh, in which it was held that suicide may be the product of a will so overborne or influenced by the worker’s circumstances that it should not be regarded, though deliberate, as an intentional act breaking the chain of causation. On the facts of the present case, the medical evidence clearly established that T’s sense of hopelessness was so strong and powerful as to dominate his decision. Whilst he was legally sane, he was driven by an ever-deepening depression over which he plainly had no control and which resulted in his suicide. Therefore the suicide could not properly be described as a voluntary act and the chain of causation was not broken. The court then considered foreseeability, and considered by a majority that the suicide was reasonably foreseeable. It was observed that it was not necessary to establish at the time of the accident that the particular outcome was reasonably foreseeable (Simmons v British Steel plc), rather that the kind of harm (psychiatric injury) for which damages were sought was foreseeable. If it was foreseeable, it was necessary to establish whether the eventual harm was nevertheless to be regarded as too remote on grounds of policy or fact. On the facts of the present case, depression (the class of harm) was on I’s own admission a reasonably foreseeable consequence of its negligence. Uncontroverted evidence before the court indicated that suicide was not an uncommon consequence of severe depression, and the evidence disclosed no other cause for the suicide than depression. This was enough to establish I’s liability not just for the depression but also, in the absence of some element of fact or policy, for the suicide. There was no surviving legal policy ground for excluding suicide from recoverable damages. It could only be excluded if the evidence in the particular case failed to establish that it was the depression which drove the deceased to take his own life. In the instant case, the medical evidence showed that the suicide resulted entirely from the post-accident depression, and therefore that I was liable for the suicide. Ward LJ dissented on the basis that the question was whether the suicide was reasonably foreseeable at the time of the accident.

Kiani v. Land Rover Ltd & Others; Telegraph 20/07/06; CA

Employer’s liability – breach of statutory duty – fatal accident – suicide

See above (civil proceedings).

Majrowski v. Guy’s & St. Thomas’s NHS Trust; [2006] UKHL 34; [2006] 3 WLR 125; [2006] IRLR 695; Times 13/07/06; IDS Brief 810 p.5; Independent 14/07/06; [2006] ICR 1199; HL

Employer’s liability – vicarious liability – harassment in workplace

Reported in the July update. Now also reported at [2006] IRLR 695, Times 13/07/06, IDS Brief 810 p.5, Independent 14/07/06 and [2006] ICR 1199.

McIntyre v. Harland & Wolff plc & another; [2006] EWCA Civ 287; [2006] ICR 1222; CA

Employer’s liability – fatal accidents – widow’s dependency – mesothelioma – dismissal

See above (civil proceedings).

Viasystems (Tyneside Ltd) v. Thermal Transfer (Northern) Ltd, S & P Darwell Ltd v. CAT Metalwork Services; Independent 12/10/05; [2005] IRLR 983; IDS Brief 792 p3; [2005] 4 All ER 1181; [2006] ICR 327; [2006] 2 WLR 428; [2006] QB 510; CA

Vicarious liability – tort – negligence – dual liability

Reported in the November, December, January and March updates. Now also reported at [2006] QB 510.

Majrowski v. Guy’s & St. Thomas’s NHS Trust; [2006] UKHL 34; [2006] 3 WLR 125; [2006] IRLR 695; Times 13/07/06; IDS Brief 810 p.5; Independent 14/07/06; [2006] ICR 1199; HL

Employer’s liability – vicarious liability – harassment in workplace

Reported in the July update. Now also reported at [2006] IRLR 695, Times 13/07/06, IDS Brief 810 p.5, Independent 14/07/06 and [2006] ICR 1199.

Stewart v. Moray Council; [2006] IRLR 592; [2006] ICR 1253; EAT(S)

Information & consultation regulations – Central Arbitration Committee – “pre-existing agreement” – whether valid – obligation to consult

NB CAC decision reported in the February update.

The Regs provide a number of circumstances in which employers must commence negotiations with employees with a view to establishing an information and consultation framework in the workplace. One is where, absent a valid pre-existing agreement, 10% of the employees in the undertaking request such negotiations (Regs 7(1) and 7(2)). Where there is a valid pre-existing agreement, the obligation only arises automatically if the request is made by at least 40% of the workforce. Between 10% and 40%, the employer is entitled to hold a workplace ballot and is only obliged to consult if at least 40% of employees in the undertaking endorse the request on ballot. Regulation 8(1) determines the criteria which a pre-existing agreement must meet in order to be “valid”. In the present case, between 10% and 40% of employees requested negotiations. It fell to the CAC to determine whether the existing agreements were a valid pre-existing agreement. M relied on 3 agreements. The issue was whether they covered all the employees in the undertaking, were approved by the employees, and set out in sufficient detail how the employer was to give information to the employees. S argued that the agreements provided for consultation with unions only, contained no mechanism for consultation with non-union members and thus could not be said to cover all employees. However, the CAC rejected that argument. It was satisfied that all M’s employees fell within the auspices of the agreements, which related to negotiation and consultation for M’s employees without differentiating between members and non-members. S contended that the collective agreements had been approved by union representatives only, with no attempt to seek the endorsement of non-union members, notwithstanding that M’s employees had signed contracts of employment which referred to the agreements. The CAC accepted that the employees had not given retrospective approval simply by entering into contracts of employment. Nevertheless, the approval by union representatives amounted to approval “by the employees” for the purposes of Reg 8: “Whether or not individual employees choose to join a trade union does not alter the fact that, firstly, trade union representatives represent all employees and, secondly, a majority of the workforce belongs to one of the recognised unions”. However on the third issue, the CAC decided that the statement in the agreement that the Joint Negotiating Committee under the “Framework Agreement” would be “a forum for discussion and/or consultation on a range of matters not subject to national bargaining” was an insufficiently detailed description of the way M should inform and consult teaching staff. Therefore the agreement did not fulfil the requirements of Reg 8 and was not a valid pre-existing agreement.

The EAT held that the CAC did not err in finding that the existing agreements did not meet the requirements of reg 8(1) so as to entitle the employers to ballot the workforce to determine whether the pre-existing agreements should continue, where one of the agreements in question failed to meet one of the conditions set out in reg 8(1). Where more than one pre-existing agreement is relied upon, although reg 8(1)(b) has to be met by the agreements read together, each of the other requirements has to be met by each individual agreement, and it is not enough for merely one of the agreements to do so even if it covers the majority, or a substantial proportion, of the employees. The CAC correctly found that one of the agreements was too lacking in detail to comply. The employer’s appeal would be dismissed with the effect that negotiations would have to be initiated to reach an information and consultation agreement pursuant to reg 7. The CAC was also correct to hold that the agreements relied on by the employers covered all employees within the meaning of reg 8(1)(b), even though they provided only for consultation with union representatives. Employees are covered by an information and consultation agreement if they fall within the category of employees intended to be regulated by that agreement. Whilst trade unionists may, indirectly, have a greater influence on the outcome of consultation by virtue of their direct access to union representatives, that does not mean that non-unionists are equally covered by the agreements. Further, the CAC was correct to hold that an agreement can be “approved by the employees” for the purposes of reg 8(1)(c) where it is approved by union representatives and the majority of employees were members of the recognised unions, notwithstanding that the non-unionists had no opportunity to approve or reject it. Approval by the employees means by the majority. Reg 8 does not prescribe any particular means of demonstrating approval, but there must be evidence from which the CAC can properly infer that the majority of employees covered by a particular agreement have approved it. It is usually legitimate to infer such approval if, at the time of the agreement, the majority of employees covered by it were members of the union(s) which are party to it. If union members were in the minority it would not be appropriate to infer the approval and it would be necessary for the employer to establish the relevant approval in some other way, such as formal ballot. Even if unionists are in the majority, the inference will not always be appropriate, for example if there is evidence of a degree of opposition to the agreement at the time from employees within the union itself. However, the CAC erred in considering the agreements in the aggregate when analysing employee approval. Where there is a number of agreements, the necessary approval is only obtained if each agreement is approved by the employees covered by it, and the CAC should have satisfied itself of approval in respect of each agreement separately. In the circumstances of the employer’s appeal having been dismissed, this made no material difference to the outcome. The employees’ cross-appeal was dismissed.

Cheshire and Wirral Partnership NHS Trust v. Abbott & others; The Times 10/05/06; [2006] IRLR 546; CL July para 180; [2006] ICR 1267; CA

Sex discrimination – indirect discrimination – comparators – appropriate pool

Reported in the June and July updates. Now also reported at [2006] ICR 1267.

Richards v. Secretary of State for Work and Pensions; C-423/04; [2006] ICR 1181; ECJ

Discrimination – EC law – refusal of pension to transsexual on grounds of non-attainment of male pensionable age

See above (EC law)

Vauxhall Motors Ltd v. TGWU; 22/02/06 (EAT/657/05); [2006] ICR Part 5 “Recent points” p.xiv; IDS Brief 804 p.8; [2006] IRLR 674; EAT

Redundancy – consultation – protective awards

Reported in the May/June update. Now also reported at [2006] IRLR 674.

Allan Janes LLP v. Johal; [2006] EWHC 286 (Ch); [2006] ICR 742; [2006] IRLR 599; High Court

Restraint of trade – restrictive covenant – solicitor – enforceability of covenants

Reported in the May/June update. Now also reported at [2006] IRLR 599.

Willow Oak Developments Ltd (trading as Windsor Recruitment) v. Silverwood & others; IDS Brief 808 p.6; [2006] IRLR 607; CA

Unfair dismissal – reasons for dismissal – refusal to sign new contract containing restrictive covenant – SOSR – whether reasonableness of covenant relevant

NB EAT decision reported in January, February and June updates.

Reported in the July update. Now also reported at [2006] IRLR 607.

Cross & another v. British Airways plc; [2006] EWCA Civ; Independent 18/05/06; IDS Brief 807 p.3; Times 05/06/06; [2006] ICR 1239; CA

Transfer of Undertakings – provisions about retirement age – unfair dismissal

Reported in the June and July updates. Now also reported at [2006] ICR 1239.

G4S Justice Services (UK) Ltd v. Anstey & another; 30/03/06 (EAT/0698/05); IDS Brief 806 p.5; [2006] IRLR 588; EAT

Transfer of Undertakings – internal appeals – effect of reinstatement – liability of transferee

Reported in the May/June update. Now also reported at [2006] IRLR 588.

North Wales Training and Enterprise Council (t/a Celtec) v. Astley & others; [2006] UKHL 29; IDS Brief 809 p.7; Times 23/06/06; Telegraph 29/06/06; [2006] ICR 992; [2006] IRLR 635; HL

Transfer of undertakings – date of transfer – voluntary agreement – effect – continuity of employment

Reported in the July update. Now also reported at [2006] IRLR 635.

British Airways plc v. Noble; Telegraph 08/06/06; [2006] IRLR 533; [2006] ICR 1227; CA

Working Time – Shift workers – holiday entitlement – payment

Reported in the June and July updates. Now also reported at [2006] ICR 1227.

Coleman v. Attridge Law

Disability discrimination – association with disabled person – EC law

The EOR reports that in this case an ET has made a reference to the ECJ asking whether the EC Framework Employment Directive covers discrimination against an employee on the ground of his or her association with a disabled person. C was a legal secretary and sought to argue that she was discriminated against because of being the primary carer for her disabled son. The DDA is confined to discrimination “against a disabled person”. The other discrimination legislation refers to discrimination “on grounds of…” [race, sex, sexual orientation etc]. The Directive uses the same term “on the grounds of” for all types of discrimination including disability. The 2003 DDA (Amendment) Regulations implement changes required to UK law by the Directive but did not extend the definition in this way. The employer has appealed to the EAT against the making of the reference by the ET.

Khan v. Heywood & Middleton Primary Care Trust; [2006] IRLR 345; [2006] ICR 543; CL June para 160; EAT

ET procedure – costs – withdrawal of claims

Reported in the June and July updates. Dr Khan has petitioned the House of Lords for leave to appeal. A decision is awaited. Thanks to the Bury Metro Racial Equality Council for this information.

Please keep us posted if you are involved in a case which is subject to appeal to the CA or HL.

Guidance, Codes of Practice etc:

Redundancy and insolvency payments

The DTI has published a guidance note on the application and effect of TUPE 2006 on payments made by the Secretary of State to employees under the ERA 1996 upon insolvency and redundancy..

Consultation, Lobbying etc:

Health & Safety

The Department of Health has launched a pub