Tough line on time limit

Westley v SEBBCO Capital Markets Ltd EAT 1169/95 23 April 1996 (unreported) 

The Employment Appeal Tribunal has revisisted the question of when it is "not reasonably practicable" to present an Industrial Tribunal claim for unfair dismissal within three months from the termination of employment. 

Westley concerned an IT1 form which had been sent to the right address by first class post before the three month limit was up, but never arrived. 

The EAT held that even when an application is properly sent, the Applicant, or advisor, must make certain that the document has arrived on time. On the last day for lodging the claim the solicitor in the case had tried to check the application had arrived but was told over the phone that the Central Office of Industrial Tribunals could not tell him whether the form had been received because of a backlog of applications. The EAT refused to extend the three month limit saying the solicitor could have sent another copy by fax that day.

Staff get shirty with sweater shop over deductions from pay packets

Kerr v The Sweater Shop 1996 [IRLR 424] (EAT)
The Sweater Shop v Park 1996 [IRLR 424] (EAT) 

The Wages Act 1986 stops employers making unlawful deductions from wages under a contract of employment, service or apprenticeship. Employers can make lawful deductions from wages in certain situations. 

Where, for example, a contract of employment gives authority to make deductions and has been given, in writing, to the employee before the deductions have been made. 

In Kerr the Sweater Shop had displayed a notice in the factory changing the company rules so that accrued holiday pay would no longer be paid in gross misconduct cases that resulted in dismissal. The EAT ruled that for a contractual term authorising a deduction to be valid, its existence and effect must be "notified to the worker individually in writing". 

The decision means written notification must be given to each individual worker affected by the change. The public display of a notice within the employer's premises is not enough. 

In the related case of Park the EAT held that, where an employee was individually notified of a new contractual term, there is no requirement for the employee's consent to be given in writing in order for the change to be valid. Where the employee continues to work without objection after notification of the change, he or she may well have impliedly agreed to the new term.

Express track just the ticket

Grant v South West Trains Ltd IT Southampton 1784/96 

In issue 1 of LELR (Brink of a breakthrough?) we reported the European Court of Justice case of P v S and Cornwall County Council 1996 IRLR 347. The ECJ said it was a breach of the Equal Treatment Directive to discriminate against a male to female transsexual for a reason related to gender reassignment. 

We said that, logically, this decision should apply to discrimination on the grounds of sexuality. The Southampton tribunal in the Grant case would appear to agree with us. 
In Grant the IT said the decision in P v S "is at any rate persuasive authority for the proposition that discrimination on the grounds of sexual orientation is unlawful". 

South West Trains Limited refused to give Ms Grant a concessionary travel permit for her female partner. Ms Grant claimed this was an act of sex discrimination in breach of the Equal Pay Act 1970, Article 119 of the Treaty of Rome and/or the Equal Treatment Directive. 

She argued that, in view of P v S, the UK courts' interpretation of the Equal Treatment Directive in sexual orientation cases was wrong. Ms Grant argued the conclusion to be drawn from P v S is that discrimination against lesbians and gays is discrimination on the grounds of sex. The tribunal has put the case on the express track: it has referred Ms Grant's case direct to the ECJ, by-passing the EAT, Court of Appeal and the House of Lords.

Scots EAT flings a spanner in the TUPE works

Hay v George Hanson (Building Contractors) Limited [1996] IRLR 427 

The Transfer of Undertaking (Protection of Employment) Regulations 1981 (TUPE) transfer employees from one employer to another on the same terms and conditions. Usually TUPE works to the employee's benefit, but what if the employee does not want to transfer? 

If the new employer is offering substantially worse terms and conditions, then the employee can refuse to transfer and claim unfair dismissal; see for example Merckx v Ford Motor Co in Issue 1 of LELR (Do your rights survive the transfer?). 

There will be times when the employee does not want to transfer even where the new employer offers the same terms. TUPE Regulation 5(4A) says that if an employee tells either the new or the old employer that he objects to the transfer, his employment is not transferred but he cannot claim unfair dismissal or redundancy. 

The Scottish Employment Appeal Tribunal in Hay upheld the Industrial Tribunal's finding that the employee had objected to the transfer and could not claim unfair dismissal. Mr Hay had opposed the transfer. 

The EAT said that objecting meant 'a refusal to accept the transfer'. Mr Hay had objected to the transfer in principle, and communicated that objection by his attitude and conduct before the transfer. 

It seems an extraordinary decision. The EAT rightly observed that the consequences for the employee were 'draconian'. Yet it refused to adopt an approach to give effect to the purpose of the legislation by protecting employee rights. 

The EAT said objecting was 'a state of mind' and it was enough that this was 'communicated to the employer'. This cannot be right. 

The protection of TUPE should only be removed from those employees who specifically refuse to transfer. Protection should not be removed from those whose conduct shows they object to the transfer, but who may well have to accept the transfer in the absence of an acceptable alternative.

IT thaws pay freeze move

Ball v BET Catering (Industrial Tribunal, unreported 9 April 1996) 

Employees who transfer under TUPE have their terms and conditions preserved. Following the Employment Appeal Tribunal decision in Wilson v St Helens BC (see Issue 1 of LELR: Do your rights survive the transfer?), it is now much more difficult for employers to alter contracts when a transfer occurs. 

But what about gaining improvements to terms and conditions after the transfer and, specifically, pay rises after the transfer? A recent UNISON case shows employers cannot freeze pay where the contract of employment contains a clause requiring national pay increases. 

The Industrial Tribunal found the individual contracts of the employees incorporated national collective agreements. The national agreements provided for annual pay increases determined by a National Joint Council of unions and local authority employers. The employees were now employed by a contractor who could not participate in those discussions. 

The IT rejected the argument that only the mechanism for determining pay transferred, requiring the new employer to negotiate pay with the union. The IT decided the employees had a continuing right to national pay increases set by national agreements. 
This is being challenged on appeal. But it must surely be right that, where an employee's contract includes a collective agreement which provides a nationally negotiated pay rise, that contractual right transfers under TUPE. The new employer cannot escape liability.

Left on the Shelf

Addison & 157 others v Safe Service AB and others (Industrial Tribunal, unreported 5 July 1996) 

An Aberdeen indstrial tribunal has ruled that workers on mobile accommodation vessels in the North Sea are not covered by TUPE. The IT said the business was based outside the UK and was excluded from TUPE by Regulation 3(1).

The decision that the Continental Shelf is not in the UK denied the workers TUPE protection. This is surprising given that the Directive extends to all undertakings within the territory of the European Union. The territory of the European Union is not defined in the treaties and the IT decided it did not extend to the Continental Shelf. This leaves a substantial gap in protection for offshore workers.