Daniel Barnett's Latest - September 27th
Daniel Barnett's Latest News
The following case summaries are provided courtesy of Daniel Barnett:
'Reasons' Appeals
21 September 2006
The Court of Appeal has handed down another judgment dealing with
'reasons' appeals, deprecating the attempt by an unsuccessful
employer to attack the tribunal's reasons.
Several points of interest emerge:
* Buxton LJ repeats the view, challenging orthodoxy, that the
Court of Appeal is concerned with reviewing the Employment Appeal
Tribunal's reasoning and not the original employment tribunal's
decision (para. 3)
* there is a suggestion that the well-known decision in Tran v
Greenwich Community Village Project has been overtaken by the
technical requirements about the content of a decision contained
in rule 30(5) of the 2004 Employment Tribunal procedural rules
(see paras. 24 and 25, para. 69)
* the fundamental test remains whether a party knows why it has
lost on the facts (para. 64)
Balfour Beatty v Wilcox
BAILII Judgment
Statutory Dismissal Procedure
8 September 2006
The EAT has handed down an important decision on the necessary
content of a step 1 dismissal letter.
An employee was dismissed for being found in a company van, about
to drive, having consumed alcohol. He was in breach of a 'zero
tolerance' rule. The step 1 letter simply referred to ""conduct
which fails to reasonably ensure Health and Safety of oneself and
others."
The EAT held that that the letter was sufficient to comply with
step 1 of the statutory dismissal procedure (adopting an
analogous position to the grievance letter cases such as
Shergold).
Further, if the words of what is put forward as a Step 1 letter
are ambiguous or a Tribunal is doubtful as to whether they are
sufficient, the Tribunal is entitled to look at the whole
context, including whether the employee knew what the allegations
against him were, in deciding whether there had been compliance
with Step 1. Interestingly, the tribunal left open for another
day the question of whether just putting 'misconduct' in the
letter would suffice (para. 49).
Draper v Mears Ltd
BAILII Judgment
Amending Claim Forms to Add Newly Accrued Claims
8 September 2006
The EAT has held that it is permissible to amend a Claim Form, so
as to include a claim which did not exist at the time the Claim
Form was originally presented.
To put it more technically, an Employment Tribunal has
jurisdiction to exercise its discretion to allow a claim that is
presented prematurely to be amended so as to permit a claim to be
included that could not have been included when the claim form
was originally presented, because the claim had accrued at a
later date. A claim may be presented pursuant to section 111(2)
of the Employment Rights Act 1996 by way of amendment to an
existing claim form as well as by the presentation of a claim
form. The discretion to allow such an amendment must be exercised
by the ET in accordance with the well-known principle set out in
Selkent Bus Company v Moore.
This is an important procedural decision - previously it was
standard practice for an employee to have to issue a second Claim
Form and apply for the two cases to be heard together.
The EAT's reasoning is at paragraphs 61-63, and is very much a
(sensible) policy argument.
The case is also authority for what might seem the
uncontroversial proposition that a successful appeal against
dismissal, taking place after a fixed term contract would
otherwise have expired, does not have the effect of extending the
employee's employment beyond the agreed date of expiry of the
fixed term contract.
Prakash v Wolverhampton City Council
BAILII Judgment
Take a look at the following items from Daniel Barnett, barrister
(http://www.danielbarnett.co.uk):
Law Society Handbook on Employment Law
by Daniel Barnett and Henry Scrope
Third edition just published
£49.95
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