End of employment
The Employment Appeal Tribunal has held that, when deciding whether or not a redundant employee's refusal of an offer of suitable alternative employment is reasonable, an employment tribunal is entitled to take into account the degree of suitability of the new job.
In Mayr v Bäckerei und Konditorei Gerhard Flockner OHG [2008] IRLR 387, the ECJ held that the protection afforded by the Pregnant Workers Directive against dismissal on grounds of pregnancy does not extend to a woman undergoing IVF treatment who was dismissed when in-vitro-fertilised ova existed but had not yet been transferred to her uterus. However, if she was dismissed essentially because she had undergone this advanced stage of IVF treatment, her dismissal would amount to direct sex discrimination contrary to the Equal Treatment Directive.
In Airbus UK Ltd v Webb [2008] IRLR 309, the Court of Appeal held that Diosynth Ltd v Thomson did not establish a rule of law that spent warnings must be ignored for all purposes. On the facts, where a spent warning was not part of the reason for the dismissal, but the basis for the employer's refusal to exercise leniency in respect of later gross misconduct, neither Diosynth nor the wording of s.98 of the Employment Rights Act 1996 rendered the dismissal necessarily unfair.
In Ralph Martindale & Co Ltd v Harris EAT/0166/07, the EAT held that a redundancy dismissal was unfair where the process for deciding who should be offered an alternative post involved no objective criteria and no attempt to assess the candidates against a job description. It was unfair for the employer to rely mainly on a subjective assessment of whose management style would best suit the new post.
In Davies v Farnborough College of Technology [2008] IRLR 14, the EAT held that a dismissal that involved a breach of step two of the statutory dismissal and disciplinary procedure was automatically unfair, even though a full and proper appeal had been heard. The tribunal was wrong to find that the appeal "cured" the defect in the original hearing. However, it was clear that a dismissal would have occurred even if the procedure had been properly followed, so the compensatory award was set at zero.
In Atkins v Coyle Personnel plc EAT/0206/07, the EAT held that, for an employee to claim successfully that his dismissal was related to the fact that he had taken paternity leave, there must be a causal link between the dismissal and the leave.
This article looks at some of the important judgments in the area of the transfer of undertakings over the past year.
In Hutchins v Permacell Finesse Ltd (in administration) EAT/0350/07, the EAT held that the starting point for determining a protective award is 90 days' pay, even where fewer than 100 redundancies are involved and the minimum consultation period is 30 days.
In Shaw v CCL Ltd EAT/0512/06, the EAT held that an employee whose request to work part time on her return from maternity leave was refused had been constructively unfairly dismissed.
In Klusova v London Borough of Hounslow [2007] EWCA Civ 1127, the Court of Appeal upheld a finding of unfair dismissal in the case of an employee who was dismissed on the grounds that she was no longer entitled to work in the UK. There was evidence to support the tribunal's finding that the employee was, in fact, legally entitled to work in the UK at the time of her dismissal. While the employer's mistaken belief about her immigration status was capable of amounting to "some other substantial reason" for dismissal, the fact that the employer had failed to follow the statutory dismissal procedure rendered the dismissal automatically unfair.
Employment law cases: HR and legal information and guidance relating to the end of employment.