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Cases Review
Ryan Amesbury reviews further recent Employment cases.
B & C v A - UKEAT /0503/08/DA
Sex Discrimination - summary dismissal of man alleged to have raped colleague - whether inference can be drawn
A female employee (X, Director of a department of B, a local authority) made allegations of rape and sexual harrassment against the A, (the Claimant and Assistant Director of a different department). X informed C, who was the Chief Executive of B, and had reported the matter to the police. C had been a colleague of X for many years, and was inclined to believe her complaints, but he apparently asked the police whether her account was credible. They informed him that it was. C summarily dismissed A without a hearing, informing him that he did so on specific legal advice, and that if he was to hold a hearing it would only be a question of whether he believed X, which he did.
A's
The EAT agreed that the conduct of C in dismissing without any investigation was sufficiently surprising to call for an explanation, and that the explanation offered by C for his failure to do so (avoiding repeat violence) was irrational, since he could have avoided the risk in the same way through suspension. However, it was held that the fact that C's conduct requires explanation does not of itself get A past the first stage of the Igen v Wong test, because there must be reason to believe that the explanation could be that that behaviour was attributable (at least to a significant extent) to the fact that the Claimant was a man, and nothing in C's conduct or the circumstances justified that supposition. The only way the Tribunal could have concluded as it did was on the basis that there is a stereotype in existence that men are more prone to violence than women, and this was mere speculation. There was not sufficient evidence before the Tribunal to justify their finding that that the conduct of C in dismissing was attributable to the A's gender.
On the evidence there was an obvious reason why C believed that A posed a continuing threat of violence which was C's belief that he had acted violently towards X.
Shrewsbury & Telford NHS Trust v Lairikyengbam - UKEAT/0499/08/DM
Ultra vires contract - whether individual 'works under contract of employment'
Dr Lairikyengbam was employed as a locum consultant cardiologist. By virtue of the National Health Service (Appointment of Consultants) Regulations 1996 locum posts are only to last 12 months, but after several renewals of his fixed term contract, Dr Lairikyengbam had been at the Trust for over 3 years.
The EAT held that the Tribunal was wrong to find that that the contract was not ultra vires.
However, applying Eastbourne BC v Foster [2002] ICR 234 it held that although the continuation of the contract after 12 months was ultra vires, Dr Lairikyengbam was nonetheless to be treated as performing his duties under a contract of employment during that period, as he was suitably qualified to occupy a consultant post, was regarded as competent, there was no general prohibition on the Trust employing him and there was no suggestion that the parties saw the relationship as anything other than one of employment.
Westmoreland v Renault UK UKEATPA/1571/08/JOJ
Extension of time for appeal - impossibility - 'reasonably practicable'
When considering whether to extend time for an appeal lodged out of time, it is not necessary for the Appellant to show that throughout the entire 42 days it was impossible, or not reasonably practicable, to lodge an appeal, or to withhold discretion if there was a stage in the 42 days when the Notice of Appeal could have been lodged.
HHJ McMullen held that impossibility is 'not just a good excuse, it is perfect'. Reasonable impracticability (as per s111 ERA) is also not the correct test of itself, but can be a useful guide. The discretion in the Registrar or judge is an open one to be exercised judicially in accordance with established principles.
The out-of-time appellant needs to provide an acceptable explanation, excusing inaction or imperfect lodging of the appeal, during each stage within the 42 days, or a compelling other reason.
OCS Group v Jones UKEAT/0038/09/CEA
TUPE - service provision change - canteens
The Claimants were employed as chefs at a restaurant and 'deli-bar' run by the Respondent at the BMW car plant in Cowley. The Respondent's catering contract was determined, and a new service provided by MIS, which consisted of kiosks selling pre-packaged sandwiches and salads.
The issue was whether there was a service provision change under r3(b)(ii) such that 2006 Regulations applied. The Tribunal held that there was not such a service provision change as the operation changed from a full canteen service to kiosks, where the work would be that of sales assistants.
The EAT held that the tribunal had to take a common sense and pragmatic approach and had to ask itself whether the activities carried on by the alleged transferee were fundamentally or essentially the same as those carried out by the transferor (following Metropolitan Resources v Churchill Dulwich).
The tribunal had defined the activities carried out under the Respondent's contract as the provision of a full canteen service, which it described as a wholly different operation from that run by M. It found that the differences between the two operations were more than merely changes of menu or style of food, and that the job of a skilled chef was not the same as that of somebody selling sandwiches.
According to the EAT, once the tribunal had correctly identified O's activity not merely as the provision of food but as the provision of a full catering service, it was entitled to come to the view that there were substantial differences between the old and new contracts and the tribunal was not to be criticised in its approach.
Ryan Amesbury
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