Qualifying for rights
Pacitti Jones v O'Brien [2005] IRLR 888


Ms O'Brien commenced employment on 8 April 2002. On 27 March 2003, her employer delivered a letter to her home terminating her employment with one week's notice from that date. She was away and did not receive the letter until 31 March.


A tribunal found that the period of notice commenced on 28 March and expired on 3 April and that, accordingly, she had not been continuously employed for one year and thus could not claim unfair dismissal.


On appeal, the Employment Appeal Tribunal (EAT) held that the period of notice commenced on 1 April and expired 7 April and that the claim for unfair dismissal was therefore admissible.


Before the Court of Session, both parties accepted that the period of notice expired on 7 April, but the employer argued that after that date the employee had not been continuously employed for one year, because the period of 12 calendar months commencing on 8 April does not expire until 8 April in the following year.


The Court of Session rejected that argument. In determining whether an employee has one year's continuous employment, the day on which he or she started work is to be included in the reckoning.




Tribunal procedure

Sodexho v Gibbons [2005] IRLR 836


This case, involving the striking-out of an unfair dismissal claim, illustrates the complexities of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.


Specifically, the EAT upheld a chairwoman's decision that she had power to review an earlier judgment of a chairman, striking out the claim on the ground that the claimant had failed to comply with an order to pay a deposit within 21 days as a condition of being permitted to continue with his claim.


A strike-out on this basis is a 'judgment' that is reviewable. Under the 2004 rules of procedure, there is no distinction between a strike-out for a non-payment of a deposit and a strike-out for other reasons. The EAT noted: 'There is a serious point emerging from this case.'


It explained: 'The gradual modification and sophistication in employment tribunal rules of procedure over the years should be viewed not as a trap for the unwary, but a procedure designed to do justice between the parties.


'The introduction of the overriding object and the increased powers of employment tribunal chairmen to make orders on their own initiative should be seen as valuable signposts to chairmen to exercise their independent judgement to ensure fairness between the parties.'




Restrictive covenants

First Global Locums Ltd and others v Costas [2005] IRLR 873


This case involved an unusual blend of legal issues: restrictive covenants and the Protection from Harassment Act 1997.


A recruitment consultant 'considered by his co-workers to be a person of variable and unpredictable moods' was dismissed for gross misconduct. He became aggressive and made threats.


The company and five of its employees obtained an order from the High Court, partly for the personal protection of the individual claimants under the Protection from Harassment Act, and partly in relation to post-termination covenants in the consultant's contract.


When the matter came before the High Court again, the order under the Protection from Harassment Act was continued. The irrationality of the defendant's behaviour, the evidence of fluctuating moods and of sudden, unpredictable and barely controlled rages, together with his tendency to respond to what he perceived as unwelcome action on some other person's part with recriminations, justified the continuing protection, subject to a time limit of a further 24 months.


The order restraining the defendant from disclosing confidential information was also continued. The company had a legitimate interest in protecting information in its database regarding the personal details of those seeking employment through the recruitment consultancy and in ensuring that no former employee took it with them or passed it on to any other person. The information was obtained only with the expenditure of considerable effort and costs and it was unlikely that a significant part of the information would be in the files of other recruitment companies or in the public domain.


The other post-termination covenants were reasonable, apart from an obligation 'not to solicit any client', which was too wide and therefore deleted. The judge's stinging assessment of the defendant's credibility when giving evidence (his answers were given 'without much regard for the truth. They betrayed the fact that he is not very intelligent') clearly played a part in the decision on the facts.




Compensation

Aon Training Ltd and another v Dore [2005] IRLR 891


The Court of Appeal ruled that, where a dismissed employee attempts to mitigate his loss by setting up his own business, and the tribunal is satisfied that mitigation was reasonable in the circumstances, the conventional way to assess compensation, both under the Employment Rights Act 1996 and under the Disability Discrimination Act 1995, requires the tribunal first to calculate what sum represents loss of remuneration.


It should then consider the costs incurred in mitigating loss and such a sum, if reasonably incurred, should be added to the loss. From that sum should be deducted the earnings from the new business. The principles discussed in Gardiner v Roland Berger Technics Ltd [1982] IRLR 598, continue to hold good.




Dismissal for asserting a statutory right

Elizabeth Claire Care Management Ltd v Francis [2005] IRLR 858


An employer's failure to pay the claimant her monthly salary in time constituted a deduction from her wages and thus an infringement of a relevant statutory right in terms of section 104 of the Employment Rights Act 1996. She was dismissed for asserting that right.


Therefore, a tribunal held that she had been unfairly dismissed, even though she lacked the usual qualifying period of one year's continuous service. The EAT upheld that ruling. If the reason for dismissal is that the employee has alleged in good faith that the employer has delayed paying wages, the employee will be regarded as having been unfairly dismissed.




Religion or belief

Copsey v WWB Devon Clays Ltd [2005] IRLR 811


An employee was dismissed following his refusal, because of his religious beliefs, to agree to a contractual variation in his working hours that meant that he could be required to work on Sundays.


A tribunal found that the dismissal was fair, given that the employers had compelling economic reasons for requiring the change in hours, that they had done everything they reasonably could to accommodate the employee's wish not to work on Sundays, and all alternatives to dismissal had been fully explored.


The tribunal considered that the employee's right to freedom of religious belief under article 9(1) of the European Convention on Human Rights was not engaged.


According to the Court of Appeal, which upheld the tribunal's ruling, the dismissal would still have been fair even had that right been engaged.




Constructive dismissal

Judge v Crown Leisure Ltd [2005] IRLR 823


An employee claimed constructive dismissal on the basis that his employer failed to fulfil a binding contractual commitment to increase his salary.


He claimed that during a conversation at the employer's Christmas party, a director explicitly promised the pay rise. The Court of Appeal held that the tribunal correctly directed itself that, for there to be a legally binding and enforceable contractual commitment, there must be certainty as to the contractual commitment entered into or, alternatively, facts from which certainty can be established. Otherwise, a promise amounts to nothing more than a statement of intentions.


A promise to achieve pay parity within two years might well be sufficiently certain to be capable of enforcement. However, a promise to achieve parity 'eventually' or 'in due course' is too vague to amount to a binding contractual commitment.




Age discrimination

Royal & Sun Alliance Insurance Group Plc v Payne [2005] IRLR 848


The EAT has emphasised that the 'normal retiring age' of a member of a group of employees cannot be lower than the contractual retirement age.


Since it is not normal for an employee to be compulsorily retired before reaching their contractual retirement age, an employee with a contractual retirement age of 65 would have the reasonable expectation that their employment would continue until their 65th birthday, and so their normal retiring age would be at least 65. Conversely, it is clear that the normal retiring age can be higher than the contractual retirement age.


The editor of the IRLR points out that this case makes it clear that employees with a contractual retirement age of over 65 are entitled to bring an unfair dismissal claim if the employer purports to retire them before their contractual retirement age - even if they are over 65. But under the government's draft age discrimination regulations, those employees would be excluded from the right to claim unfair dismissal. Thus, ironically, the legal protection afforded to such employees would be diminished by implementation of the Framework Employment Directive.


By Martin Edwards, Mace & Jones, Liverpool and Manchester