Pay and Benefits

Adegbuji v Meteor Parking Ltd [2011] All ER (D) 39 (Dec)

The employee had sought to bring claims, inter alia, of race discrimination before the employment tribunal (the tribunal). The employer had taken the point that no grievance had been lodged by the employee and therefore, by virtue of s 32 of the Employment Act 2002, the tribunal had no jurisdiction to hear the claims. In September 2009, the tribunal found that the employee had not, contrary to his evidence, raised a grievance in respect of the claims he had sought to bring. Accordingly, the tribunal decided that it had no jurisdiction to hear those claims. The employee appealed and sought to produce fresh evidence from a new witness. The notice of appeal was rejected on the sift and the employee requested an oral hearing.

 

The principle issue that arose for determination was whether the employee could, with reasonable diligence, have adduced the evidence from his new witness before the tribunal in September 2009. The appeal would be dismissed.

 

On the facts, the employee had been unable to demonstrate that he could not have obtained the evidence of his new witness sooner than he had. The employee had not done all that he reasonably could have done to obtain the evidence from his new witness for the hearing in September 2009 (see [11]–[12] of the judgment).

 

Per curiam: Where a party seeks to have a decision of an employment tribunal overturned on the basis of fresh evidence, the right course will almost always be to apply to the original tribunal for a review under r 34 to 36 of sch 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, SI 2004/1861, relying on r 34(3)(d). The Employment Appeal Tribunal only has jurisdiction to correct errors of law on the part of an employment tribunal. It is hard to see how an employment tribunal, which decides a case properly on the evidence before it, can be said to have made an error of law simply because evidence is subsequently produced which says that the decision was wrong (see [7] of the judgment).

 

Korashi v Abertawe Bro Morgannwg University Local Health Board [2011] All ER (D) 40 (Dec)

The employee was a doctor of Egyptian nationality and Arabic descent. In January 2005, he complained to the General Medical Council about the treatment of six patients by another doctor. In May 2006, he complained to the police about four deaths which had occurred in the years up to September 2004. In June 2006, he had disclosed 120 cases relating to the care of patients and the absence of informed consent to procedures for which they had been admitted. He brought a claim in the employment tribunal in respect of alleged detriments he had suffered as a result of making those disclosures. His claim also included complaints of race discrimination and victimisation. The tribunal dismissed all of his claims save for the direct race discrimination claim on which it did not provide a decision. The employee appealed.

 

The Employment Appeal Tribunal (EAT) dealt with the appeal and the employee’s application to adduce fresh evidence. In respect of the appeal, issues arose as to: whether the tribunal had been correct to find that the employee’s disclosures had not been made in good faith; if the tribunal had been correct to find that the disclosures in January 2005 and May 2006 had also been made without the employee having a reasonable belief in the truth of the disclosures; whether it was clear that the tribunal would have dismissed the employee’s direct race discrimination claim; if the tribunal had erred in dismissing the victimisation claim; whether the tribunal had been correct to rule that claims had been brought out of time; and whether the tribunal’s reasons were compliant with the approach set out in Meek v City of Birmingham District Council [1987] IRLR 250. The EAT further considered whether it should allow the employee’s application. In relation to the latter matter, consideration was given to PD 8.2 of the Practice Direction 2008. PD 8.2 of the PD stated that the correct approach of the EAT in dealing with an application to adduce new evidence would be to apply the principles set out in Ladd v Marshall [1954] 3 All ER 745 and to have regard to the overriding objective. Against that background, the issues were whether the material was really new, and if it would have had an impact on the tribunal’s decision. The appeal would be dismissed.

 

In the instant case, the tribunal had been entitled to come to all of the conclusions that it had come to. Further, the tribunal’s reasons had been Meek compliant (see [112] of the judgment).

 

On the facts, the evidence could have with been brought before the tribunal. It could not have had a significant impact upon the tribunal. Accordingly, neither of the tests in Ladd v Marshall were met and the evidence was also not new (see [133]–[134] of the judgment).

 

The application to adduce new evidence would be refused (see [138] of the judgment).

 

McBride v Falkirk Football and Athletic Club [2011] All ER (D) 41 (Dec)

The employee was a football coach at the employer club. Around June 2009, he was appointed as manager/head coach of the club’s under 19s team. His role included training, coaching, development and team selection. Nothing was said to him about what might happen if or when the club appointed a director of their youth academy. In December 2009, the overall manager of the club had become extremely angry with the employee. He spoke to the director of the club’s youth academy and told him that he was to pick the team in future. The director was also told to inform the employee of the change. The employee was very unhappy about the change to his role and resigned, claiming that he had been constructively dismissed. The employment tribunal found that the change to the employee’s role had not been a breach of contract as the real intention of the club at the material time had been that the employee would be replaced, in time, by the director of the youth academy once he had been appointed. The tribunal implied a term into the employee’s contract to that effect. The tribunal also found that the lack of prior consultation with the employee had not been a breach of the term of trust as an autocratic style of management was normal practice in football. The employee appealed.

 

The employee submitted that: there had been no proper basis on which the term implied into his contract could have been so implied; and that the tribunal had erred by finding that the term of trust and confidence had not been breached. The appeal would be allowed.

 

It was only appropriate to imply a term in the contract where, on a consideration of the express terms of the agreement and the facts and circumstances that surrounded it, an implication arose that the parties had actually intended the term in question to be part of their original contract (see [54] of the judgment).

 

The tribunal had had no proper basis in its findings of fact for implying a term that the employee would relinquish responsibility for selecting the team once the new academy director was in place. Quite apart from such a term being too imprecise to be enforceable, nothing had been said to that effect when the employee had been appointed. The express term that the employee would have unqualified control of the team without interference had been contrary to the term implied by the tribunal. Further, as the tribunal had accepted that the change in the employee’s role had been causative of his resignation, it failed to find that the club had been in breach of contract when it imposed a unilateral variation of contract on the employee. The change had plainly been a fundamental breach of contract (see [48], [54], [56]–[57], [59]).

 

The tribunal had further erred in finding that there had been no breach of the term of trust and confidence. The tribunal had accepted that the employee should have been consulted. The club could not pray in aid that it and others in the industry treated all employees badly. Therefore, treating an employee badly could not amount to a breach of the duty to maintain trust and confidence. The tribunal’s approach had involved a one-way duty of trust and confidence, rather than a mutual one, and that had not been right. The approach of the club had been a plain breach of the term of trust and confidence and the employee had resigned in response to it (see [60]–[61], [63]–[65] of the judgment).

 

A finding of unfair dismissal would be substituted and the matter remitted to a freshly constituted tribunal to determine remedy (see [66] of the judgment).

 

F v G [2011] All ER (D) 42 (Dec)

The employee was a care enabler at a college. The college introduced a formal Relationships and Sexuality Policy. The policy recognised that disabled students who were physically unable to masturbate should be entitled to assistance. That took the form of being provided with an aid. The staff member was not present during the act.

 

The employee’s duties included the washing of students. The employee resigned and brought a claim of constructive dismissal. She alleged that having to wash male students after such acts constituted unlawful harassment contrary to the Sex Discrimination Act 1975, and further constituted direct discrimination under that Act.  

 

In November 2009, a restricted reporting order (RRO) was issued. In November 2010, a permanent anonymity order was issued. The order granted anonymity to the employee, the college, its staff and its students. The employee appealed against the order.

 

Issues arose as to whether the order had been correctly issued, and if not, whether it would have been issued had the correct approach been taken. The appeal would be dismissed.

 

It was likely that the impact of publication of the identity of the college would engage art 8 rights. However, the rights of the employee had to be balanced against the disabled students. There was no specific reason for revealing the college’s identity. Consequently permanent anonymisation was justified (see [48], [50]–[52] of the judgment).