EMPLOYMENT BULLETIN 65
HOUSE OF LORDS
Holidays
Revenue and Customs Commissioners v Stringer [2009] UKHL 31
Holiday pay under the Working Time Regulations 1998, including termination payments, are included in the definition of wages under s27 Employment Rights Act 1996 ("ERA") and therefore can be claimed as an unauthorised deduction from wages. more info
EMPLOYMENT APPEAL TRIBUNAL
Costs
Verma v Harrogate and District NHS Foundation Trust UKEAT/0155/09/ZT
It was illogical to order the Respondents to pay the Claimant's counsel's fees for attending the PHR and preparing a skeleton argument, but not to permit the Claimant to recover the costs incurred by his solicitors in carrying out the directions in preparing for the hearing and in attending upon counsel at the hearing. more info
Case management
McBride v Standards Board for England UKEAT/0092/09/MAA
Under Rule 17(1) an Employment Judge sitting alone at a Case Management Discussion may decide that certain evidence from potential witnesses is inadmissible or irrelevant, or that under Rule 16(1) the hearing or part of it may be held in private. more info
GBM Services Ltd v Taj UKEAT/0063/09/ZT
The Tribunal had not erred when at the beginning of the hearing it added two complaints of discrimination which were not identified at the CMD, but which were contained in the ET1 and had not been abandoned. Although the Respondent had no legal representation the person presenting their case was asked for their views before a decision was given. more info
Amendments
Barwick v Avon and Somerset Constabulary
The Employment Judge erred in refusing the Claimant permission to amend where he was not seeking to add a new cause of action but to correctly label his existing claim. Although the ET1 had stated that the claim was for constructive dismissal it also clearly set out that it was as a result of the Claimant having been a victim of several very serious incidents of racially motivated discrimination, harassment and bullying. more info
Evidence
Hussain v Mitie Security Ltd UKEAT/0342/08/RN
Where the Tribunal made a critical finding in support of the Respondent's case on evidence which had not been in the Respondent's witness statements prior to the hearing, and which could not have been anticipated in advance by the Claimant, the EAT allowed the introduction of fresh evidence on the point and remitted the matter for re-consideration of the findings on the relevant issues in light of the new evidence. more info
Review
Euro Hotels (Thornton Heath) Ltd v Alam UKEAT/0006/09/DM
In declining to revisit a decision on review, the Tribunal erred in taking into account an irrelevant consideration or giving it too much weight, that is that the Respondent's representatives who were at fault in not attending the hearing could recover from their insurers. Further a phone call should have been made by the Tribunal to determine why the Respondent had not attended. more info
Statutory dismissal procedure
Eagles v Rugged Systems Ltd UKEAT/0018/09/2T
In the circumstances the Claimant was entitled to rely on the negotiations legally funded by the Respondent over a compromise as a dismissal procedure falling under Regulation 15(2) of the Employment Act 2002 Dispute (Resolution) Regulations 2004 and thereby the period for presentation of the claim was extended. more info
Unauthorised deduction from wages
Briggs & ors v Nottingham University Hospitals NHS Trust UKEAT/0483/08/RN
As a matter of construction, Agenda For Change, as incorporated into the Claimants' contracts did not entitle them to the Recruitment and Retention Payments made to the craftspersons they supervised, even though all were required to have the same qualifications and the Claimants did do some work "on the tools". more info
Unfair dismissal
Knight v Treherene Care and Consultancy Ltd UKEAT/0384/08/MAA
The Tribunal erred when it found the employee was not unfairly dismissed, as there had been no disciplinary hearing. It had wrongly concentrated on the conduct of the Claimant and not upon the conduct of the Respondent (London Ambulance Service NHS Trust v Small [2009] EWCA Civ 220). Further, a charge of deliberate falsification or lying has to be put squarely (Strouthos v London Underground Limited [2004] IRLR 402 CA). more info
Central and North West London NHS Foundation Trust v Abimbola UKEAT/0542/08/LA
The Tribunal had failed to take into account relevant factors in exercising its discretion to order re-instatement, including the Respondent's genuine belief in the misconduct alleged, and therefore took too narrow a view of s116(1) ERA. more info
LEGISLATION
National Minimum Wage
The Government has published draft regulations which, as well as uprating the level of the National Minimum Wage, exclude service charges, tips, gratuities and cover charges paid through the employer's payroll from counting as payment. Due to come into effect on 1 October 2009. more info
