Cases Update

The Royal Bank of Scotland v McAdie

The Employment Appeal Tribunal has ruled that an employer being the cause of an employee's illness does not make that employee's dismissal on the grounds of ill health automatically unfair, but it is a factor to be taken into account.

It was agreed that the bank had failed to deal effectively with this employee's grievance, however, given the long term nature of the absence and the fact that Mrs McAdie was adamant that she would not return to work, the Employment Appeal Tribunal ruled that the resulting dismissal was fair even taking in to account the fault of the employer who's actions had caused her absence in the first place.

TGWU v Brauer Coley

Under section 188 of the Trade Union and Labour Relations (Consolidation) act 1992, a union can obtain a protective award of up to 90 days gross pay for each affected employee against an employer if they fail to consult a recognised trade union where collective redundancies are proposed, however, only employees represented by the union can benefit from that award.

The Employment Appeal Tribunal in this case confirmed that employees may not rely on a protective award obtained by a trade union if they fall outside of the particular category of employees for which it is recognised. They would in this circumstance be required to bring their own individual claim.

McLean V Rainbow Home Loans Ltd

McLean regularly worked 60 hours a week without having signed a working time opt-out clause, his employers required him to work further additional hours which he refused to do. He didn't have the necessary twelve months service for an unfair dismissal claim so he claimed he was automatically unfairly dismissed for asserting a statutory right under the working time regulations. The tribunal found in favour of the employer but the EAT reversed that decision and stated that the employer had made an unlawful request, McLean won his case.

Scott-Davies V Redgate Medical Services

The claimant lacked twelve months service to be able to claim unfair dismissal and tried to claim he had been unfairly dismissed because the employer didn't follow the statutory dismissal process. The tribunal struck out the claim and the EAT supported this decision - the statutory dismissal process is not considered as a statutory right with the same force as the working time regulations in the aforementioned McLean case.

HM Revenue & Customs v Leisure Employment Services Ltd
Revenue and Customs are tasked with enforcing the National Minimum Wage (NMW). They served an  enforcement order on Leisure Employment Services for failing to pay the full amount of the minimum wage. The company had made a £6 fortnightly deduction from its employees for the cost of gas and electricity for their live-in accommodation. The £6 charge was deemed to be for the employers own use and exceeded the amount laid down as an allowance that can be deducted for accommodation under the NMW Act, the enforcement order was upheld by the EAT after a legal challenge by Leisure Employment Services.

James V Greenwich Council

James was an agency worker supplied to the council & who went off sick. The council requested a  replacement worker. When James returned she was told she was no longer needed and tried to claim unfair dismissal. The problem for James was that she was employed by an agency and not the Council. To be able to claim unfair dismissal she had to demonstrate that her contract employment in practice was under the control of the Council. She was unable to do this as the EAT found that she wasn't entitled to any of the normal contractual benefits of Council staff and that the Council was under no obligation to provide her with work. James' claim failed.

Abbey National V Fairbrother

Since the introduction of the statutory dispute resolution procedures that specify grievance processes there has been an increase in the number of employees claiming constructive dismissal. In this case Fairbrother raised a grievance stating she had been harassed. Before the first grievance meeting she submitted additional complaints which Abbey decided not to consider at that point, her grievance was not upheld and she appealed, at the grievance appeal the additional complaints were considered but her grievance was still not upheld. She complained that in failing to initially consider her additional complaints she had been constructively dismissed and submitted a claim of unfair dismissal. The EAT held that she had not been constructively dismissed because Abbey had considered all of her complaints, the EAT stated that in considering constructive dismissal relating to a grievance the whole grievance process should be considered and not the separate parts of the process.