Case report round-up: Blind employee was not allowed to withdraw disability concession

XpertHR's latest case reports cover:

  • "Continuous harassment can be ‘unwanted" even when the employee does not complain In (1) Munchkins Restaurant Ltd (2) Moss v Karmazyn and others EAT/0359/09, the EAT held that the employer and manager were jointly and severally liable for the sexual harassment of four waitresses, notwithstanding that the waitresses put up with such conduct over a significant period of time and even initiated talk of a sexual nature as a method of coping with and diffusing the manager’s behaviour. (Employers' Law)
  • Advice from non-lawyers can be subject to litigation privilege In Scotthorne v Four Seasons Conservatories (UK) Ltd EAT/0178/10, the EAT held that documentation that allegedly showed that an employer was considering taking action against the claimant before an alleged act of misconduct and that it had sought advice from its legal expenses insurer was subject to litigation privilege and could not be disclosed. (Employers' Law)
  • Disciplinary proceedings were not brought because of trade union activities In Gayle v Sandwell and West Birmingham Hospitals NHS Trust EAT/0338/09, the EAT agreed with an employment tribunal that disciplinary proceedings against the claimant were because of a genuine management issue and did not constitute a detriment on the ground of trade union activities. However, it found that the tribunal had not considered whether or not the disciplinary action was victimisation under the Race Relations Act 1976 and so sent the case back to the tribunal. (Employers' Law)
  • Assertion made by claimant that she is not "disabled" could not be withdrawn In London Borough of Redbridge v Baynes EAT/0293/09, the EAT held that a claimant who is blind in her right eye could not withdraw her concession that she is not disabled within the meaning of s.1 of the Disability Discrimination Act 1995. (Employers' Law)
  • Mistaken information given by employer to did not mean time limit should be extended In Northamptonshire County Council v Entwhistle [2010] IRLR 740 EAT, the EAT held that the fact that an employer had misinformed a dismissed employee about his time limit for bringing a tribunal claim did not mean that it was "not reasonably practicable" for him to bring his claim in time. (Employers' Law)
  • Constructive dismissal: Changes following a TUPE transfer In Nationwide Building Society v Benn and others EAT/0273/09, the EAT held that an employment tribunal was correct in holding that the claimants had been dismissed constructively following a TUPE transfer, for an organisational reason entailing changes in the workforce. Although the changes affected a section of the workforce - the transferred employees - they did not have to affect the whole of the workforce. However, the EAT determined that the tribunal had wrongly taken into account a perceived breach of the TUPE consultation requirements in deciding whether or not the dismissals were fair. (Personnel Today)

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