Articles

Bournemouth University v Buckland 

 

The Claimant was a Professor employed by the Respondent University. A number of exam papers sat by his students were re-marked after a high proportion of them failed. The revised marks were accepted, and he was not consulted on this decision. After an internal inquiry was concluded, he resigned, and claimed constructive unfair dismissal. 

 

The EAT (HHJ Peter Clark presiding) took the opportunity to clarify the law regarding constructive dismissal and more particularly whether, and if so at what stage, the ‘band of reasonable responses’ test has any operation. The judgment dealt with the recent Claridge v Daler Rowney line of cases, as well as the very foundations of this area of the law (Wester Excavating v Sharp) and laid down clear guidance on the proper approach to determining whether an employee has been constructively dismissed and if so whether the dismissal is fair.

 

The judgment will repay careful reading but in essence, it was confirmed that the band of reasonable responses test has no application whatsoever to the question of whether the employee has been constructively dismissed under s95(1)(c) of ERA. That is to be determined on the ‘contractual’ basis – there must have been a fundamental breach, which the employee can accept and walk away. This fundamental breach can include conduct calculated or likely to destroy the relationship of mutual trust and confidence, and this conduct is not to be judged on a ‘reasonable responses’ standard. It is then for the employer to show a potentially fair reason, and only if they can does the band of reasonable responses arise.


Carter v London Underground

 

Mr Carter was Line Standards Manager of the Northern Line of the Underground. He developed a depressive illness after his employer mishandled complaints against him. He was off sick from September 2004 until his dismissal in September 2006. In September 2005 his line manager (Mr Burton) decided to employ Mr Carter’s temporary replacement (a Mr Petersen) on a permanent basis. In August 2006, he recommended Mr Carter for a similar role on the Central Line. On the same day he did this, however, Mr Carter was in touch to say that he would not be returning to work at the end of the month as anticipated. He was not, in the event, informed of the Central Line position, and was dismissed on 1st September. At tribunal Mr Carter alleged that the failures to keep his old job open and to inform him of the new post amounted to disability-related discrimination contrary to s3A of the DDA. 

 

This meant that the effect of the decision in the House of Lords in Lewisham LBC v Malcom [2008] AC 1399, which appeared to have neutered the disability-related discrimination provisions of the Act, would have to be considered (again). In a nutshell, the effect of Malcom was that unless the disability itself was part of the reason for the less favourable treatment, there is no discrimination. Despite the fact that it was the reasoning of Mummery LJ in the previous leading case of Clark v Novacold [1999] ICR 951 (an employment case) which bore the brunt of the criticism of the majority in Malcom, it was argued on Mr Carter’s behalf that Lewisham was not binding, essentially because it related to the sections on housing (s24), and not to the employment provisions of the DDA. 

 

In a carefully argued judgment which not only followed previous post-Malcom decisions but carefully analysed the reasoning of the majority of their Lordships, Underhill P finally laid to rest any suggestion that Malcom does not apply in the employment context. In doing so, it was confirmed that Clark v Novacold was overruled by Malcom. It is of course to be noted that the new Equality Bill introduces the concept of discrimination ‘arising from disability’ which may, in effect, revive Clark v Novacold.

 

This case also made clear that Regulation 15 of the soon to be extinct Dispute Resolution Regulations, which allows a total six-month time limit for submitting a grievance (‘three plus three’), does not override the tribunal’s jurisdiction to extend time if it is just and equitable to do so. This ought to be plain from the wording of Regulation 15(5) itself (“..if there is to be no need for the tribunal… to… exercise any discretion”) but it was noted by the EAT that a number of employment judges in Central London had apparently been treating the six-month time limit as absolute.

Kovats v TFO Management LLP 

UKEAT/0357/08/ZT

 

Member of Limited Liability Partnership is capable of being employed; statute and common law tests relevant

Mr Kovats was Chief Investment Officer of the respondent LLP. Issues arose as to his performance, and he was asked to resign. He claimed that he was unfairly dismissed. The employment tribunal decided that it had no jurisdiction to hear his claim as he was not an employee.

 

The EAT held that the tribunal had applied the correct tests. By s4(4) of the Limited Liability Partnerships Act 2000 (held to be the correct starting point), the test for determining whether a member of an LLP was an employee of the LLP was the same as the test for determining whether a person was a partner or an employee of a partnership under the auspices of the Partnership Act 1890. Further, it does not follow that if a person is not a partner they must necessarily be an employee. The tribunal must still go on to apply the usual common law tests for deciding whether a person is employed or self-employed.

 

 

Date of summary dismissal can be the effective date of termination, if the employee knows about it

The claimant was a teacher, who was the subject of ongoing disciplinary proceedings. He was suspended as of October 2005. His union representative had negotiated a compromise agreement, including a draft reference and payment in lieu of notice on his behalf. There were a number of amendments but eventually he signed a slip suggesting that he would take advice and then execute the agreement. The date of termination in the agreement was 31st October 2006. Mr Radecki was removed from the payroll as of that date. He eventually refused to execute the agreement, and parted ways with his union. The authority wrote to him (in response to demands for payments of salary) on 5th March 2007, stating that his employment had terminated at the end of October 2006. Mr Radecki then brought a claim for unfair dismissal two days later. His claim was dismissed on the basis that he was out of time, as his employment had ended by ‘mutual consent’ on 31st October 2006. The employment judge did not accept his evidence that the first he knew of any termination was after reading the letter of 5th March.

 

The Court of Appeal held that effective date of termination should not be determined by reference to the technicalities of repudiation and acceptance, but it should be the date of summary dismissal, as long as that was known to the employee (Dedman v British Building & Engineering Appliances, [1974] 1 WLR 171; Robert Cort v Charman [1981] ICR 816). The judge was wrong to hold that the termination was consensual, but, the findings of fact that he made, namely that the authority had terminated Mr Radecki’s employment by only paying him up to the end of October 2006, and that Mr Radecki was aware of that despite his protestations to the contrary, meant that the conclusion must be that the claim was out of time.


Chief Constable of Dumfries & Galloway v Adams

 

Mr Adams suffered from ME. He had particular problems with working night shifts, when he was walking very slowly, needed assistance or a hand rail to climb stairs, required to be driven home at times because of difficulty in driving and sometimes required help with undressing when he got home. The respondent appealed against a finding that Mr Adams was disabled within the meaning of the DDA on the basis that his physical impairment did not affect his ability to carry out ‘normal day-to-day activities’, as the activities so affected were activities he carried out as a result of his job at night. Apparently they were not therefore ‘normal’. The EAT (Scotland) did not agree. Their approach was that part of the test should encompass whether the limitation was in an activity to be found across a range of employment situations. ‘Normal day-to-day activities’ should not exclude any feature of those activities that existed because the person was at work. If something that a person only does at work was to be found in different types of employment it could be called normal. Walking, driving, climbing stairs and undressing were plainly normal day-to-day activities, and night-shift working was plainly common across a range of industries. The appeal was dismissed.