Labour & European Law Review
04 August 2011
In a landmark judgment last week, the Supreme Court confirmed that valeters working for Autoclenz were employees and not self-employed contractual workers.
Decisions made by public bodies are open to scrutiny by the courts in certain circumstances under a process known as judicial review (JR). In R (on the application of) Sharon Shoesmith v Ofsted and ors, the Court of Appeal said that Ms Shoesmith was entitled to a JR of the decision by Haringey Council to dismiss her summarily from her post as director of children’s services (DCS).
To avoid a finding of unfair dismissal on the ground of capability, employers have to show they have a reasonable belief that the person is unable to return to work. In DB Schenker Rail (UK) Ltd v Doolan, the Employment Appeal Tribunal (EAT), said that the decision to dismiss was ultimately a managerial, not a medical one, and that employers have to make their own assessment (informed by experts) of the risks involved in a return to work.