the inevitable monthly TUPE item!

For sad TUPE anoraks, Landsorganisationen i Danmark v Ny Molle Kro and Daddy’s Dance Hall are classic cases, where transfers of leases of a bar and nightclub respectively were found to be transfers of undertakings. LOM Management Ltd v Sweeny (Transfer of Undertakings) [2012] UKEAT was a case where the daughter of tenants of a Glasgow pub maintained that she was transferred to the new tenant when the lease was transferred. She argued that her situation was the same as in those cases. The employment tribunal agreed, but the Employment Appeal Tribunal took the view that while it was possible for the reversion of a pub tenancy to the brewery and reletting to a second to amount to a transfer of an undertaking, it would not do so unless there was evidence of a transfer of an economic entity which retains its identity, and according to the EAT there was no such economic entity in this case.

Interestingly (at least to anoraks),


complex redundancy selection criteria not always necessary

When advising on redundancy procedures, employment lawyers tend to emphasise that employers should take care to ensure that they use objective criteria when selecting from a pool of employees. And very good advice it is too. Mitchells v Tattersall, however, shows that this does not inevitably mean a box ticking exercise is required.

Mitchells, the brewery, had a senior management team (“SMT”) of five. They ran into financial difficulties and the board decided to look at cutting the SMT to reduce expenses. They identified the property manager as the manager who contributed least, and was least likely to contribute, to bringing in revenue and on that basis decided that he should be made redundant. He successfully claimed unfair dismissal. The employment tribunal found that the dismissal was unfair because the board had used subjective criteria when selecting for redundancy, and that the procedure followed was unfair. However, they considered that he would have been made redundant if a fair selection method and procedure had been followed, and on the basis that there was a one in five chance of his being made redundant in any event, reduced compensation by 20%


changing the effective date of termination of employment

It is a truth universally acknowledged that an employer and employee cannot agree between them to change the date on which employment is regarded as ending for the purposes of calculating time limits in tribunal cases. This is known as the “EDT” or effective date of termination and is imposed by statute. In cases of summary dismissal the EDT will nearly always be the date on which dismissal took place.
Hawes v Curtis is an example of the rare case when the EDT may not be the original date of dismissal. The circumstances were that two employees, who were both keyholders, were dismissed for misconduct after stock shortages were discovered, but their employer was not able to identify which individual employee was responsible.


union did not victimise member by refusing to continue representation

Croad v UCU is a case concerning a university lecturer with disabilities who sought help from her union to bring a disability discrimination claim against her employers. She became dissatisfied with how they were handling the matter for her and complained. They eventually withdrew from acting for her, for number of reasons, including that she had ignored their advice. She alleged that they had failed to make reasonable adjustments, and had victimised her.
The Employment Appeal Tribunal upheld the tribunal’s decision that the union’s solicitors had not acted unlawfully in refusing to continue to act for her against the university, once proceedings had started against the union. Professionally, they could not continue where there was a potential conflict of interest.


ET1s should be kept brief

Employment tribunal claimants have a tendency to submit lengthy ET1 claims, effectively outlining the whole of their evidence. This can be frustrating for respondents, and, it seems, Employment Judges, because it is necessary to sift through a lengthy document to identify what claims are being made, and what matters of law and fact are in dispute. The practice has, most likely, grown up for a number of reasons. In the case of unrepresented claimants, this could be for fear of “missing something out” or not being sure what to include; in the case of represented claimants, it might be to save the costs of drafting another document. In a recent case, it seems that the hope was that disclosing the full case would prompt an offer of settlement. The reaction of the employment tribunal judge looking at the case was to make an order requiring claimants who had submitted such lengthy documents to cut them down to fit on one side of A4 paper. The claimants appealed against the order, on the basis that restricting their written claim to an arbitrary length could result in them missing out an essential part of their claim.

While critical of the approach taken by the claimants, the Employment Appeal Tribunal held that an employment tribunal judge has no power to the make an order of this type, and that "It is for the Claimants to advance their claims as they see fit", although it could result in a costs order against them if they are found to have conducted the proceedings unreasonably.


not reasonable for employer to ignore medical report

BT v Daniels is a useful illustration of the impact of an employer’s size and administrative resources when looking at the fairness of a dismissal. It concerned a BT engineer dismissed for three offences of dishonesty. In the course of the disciplinary proceedings, a report was put forward pointing out that he had a history of significant stress related mental health issues. On the strength of this, three other allegations were dropped, but although the report expressed the view that the disciplinary process could exacerbate his condition, and suggested an occupational health report be obtained before proceeding, this step was not taken. The Employment Appeal Tribunal upheld the decision of an employment tribunal that a reasonable employer would have obtained an occupational health report. On behalf of the Claimant, is was argued that

The range of reasonable responses required an objective consideration by the employment tribunal of matters that included the fact that this is a large employer, the Claimant has a long standing relationship with it with no disciplinary record, and at the tribunal there was, essentially, no dispute about the facts.


Sunday workers’ rates of pay and the Olympics

In case you’re overcome with excitement at the prospect of the Olympic torch appearing on a High Street near you, here’s a quick reminder of the employment law impact of the suspension of the usual Sunday Trading laws from 22 July to 9 September.

Shop workers can opt out of Sunday working in larger shops by giving three months’ notice, provided they are not employed just to work on Sundays. To give these workers a chance to opt out in time to avoid longer Sunday working hours for the Olympic period, this notice period has been shortened to two months or the interval between the date notice is given and the day before the suspension starts, if that is longer. If workers want their opt-out to last only for the period of longer opening hours, they should specify this in their notice, otherwise it will continue indefinitely until they give notice to opt back in. The last date on which a shortened notice can be given is 9 July 2012.

In a separate development concerning Sunday trading an attempt by Boots to cut Sunday pay for some its staff has been ruled unlawful.


rights to a hearing by an impartial and independent tribunal

Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) is a useful case looking at the extent to which Article 6 rights under the European Convention on Human Rights will be engaged in NHS disciplinary procedures. It concerns a consultant dismissed for misconduct by the Chief Executive of the Trust he worked for, who appealed unsuccessfully against his dismissal to an external appeal panel. The reasons for dismissal included refusing to agree to a “re-skilling” plan of action proposed by the NHS Trust employing him after a long period of suspension (five years!).

Dr Mattu challenged the dismissal, saying that it had an impact on this ability to practice as a doctor, and so he had a right to have his dismissal considered by an impartial and independent tribunal under the Convention. He failed.

Lord Justice Stanley Burnton identified the issues concerning the overlap between Article 6 and employment aspects as follows


illegal working and employment rights

Illegal working and eligibility for employment protection is another topic which seems to have been keeping the courts busy this year. Possibly a reflection of a wider issue concerning the composition of the workforce, some of the working practices which have been disclosed in these cases give serious cause for concern.

In March we reported the decision in Zarkasi v Anindita and anor [2012] UKEAT in which a race discrimination claim by an au pair who had entered the UK to work using falsified documents failed, because the unfavourable treatment related not to her race but to her lack of any right to live or work in the UK. Hounga v Allen & Anor [2012] EWCA Civ 609 is a decision of the Court of Appeal concerning a similar situation, which arrives at the same result by a different route based on earlier Court of Appeal decisions on illegal contracts, including Hall v Woolston Hall Leisure Ltd (2001) and Vakante v Governing Body of Addey and Stanhope School (No 2) (2005).

Ms Hounga, with help from others (she being illiterate), obtained a passport in a false name in Nigeria and entered the UK on a 6 month visitor’s visa, ostensibly to visit her grandmother (who, if she existed at all, did not live in the UK), but in fact to take up a job arranged for her here as an au pair for a family with connections in Nigeria.


refusing a settlement offer

Can a claimant be found to have failed to mitigate their loss if they refuse an offer of settlement during the course of tribunal proceedings? No says the Employment Appeal Tribunal, unless the refusal is "wholly unreasonable".

In Konczak v BAE Systems (Operations) Ltd, an employer made a settlement offer of £75,000 which the claimant employee refused. She went on to succeed on liability but, at a separate remedies hearing, an employment tribunal considered that she should not be permitted to recover compensation for any period after she turned the offer down. (The offer had been made "without prejudice," but came out during the remedies hearing because the employee had waived privilege). The Employment Appeal Tribunal considered that this approach was wrong