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Besong v Connex Bus (UK) Ltd
Employment – Unfair dismissal – Constructive dismissal – Part-time discrimination – Employment tribunal dismissing employee’s complaints – Correctness of decision.
The appeal would be dismissed.
On the evidence, there was no basis for interfering with the decision of the tribunal.
The appeal tribunal were not persuaded that the tribunal had erred in law in relation to its conclusion. Further, the tribunal considered the procedures adopted in the employee’s case were reasonable and the appeal tribunal were not persuaded that the tribunal had misunderstood the employee’s case.
Hynd v Armstrong and others
Employment – Employment Appeal Tribunal – Decision – Employment Appeal Tribunal granting employee leave to appeal – Grounds of appeal before court differing from those on which leave to appeal granted – Discretion of court.
The court ruled:
An applicant for leave to appeal should show something of the nature of probabilis causa in relation to a genuine point of law which was of some practical consequence.
It was plain that it was not open to the court to entertain any question of law which had not been the subject of the granting of leave, either by the EAT or by the present court where that court was the relevant appeal court. In the instant case, there was considerable difficulty in relating what had been stated in the letter of 16 November 2004 to the alleged error of law on the part of the tribunal which had been alleged in the grounds of appeal. However, the grounds of appeal raised a question of law which was appropriate for determination by the court. Accordingly, leave to appeal would be granted in respect of the grounds of appeal.
National Union of Maritime Aviation and Shipping Transport and another v P & O Scottish Ferries and others
Employment – Transfer of undertakings – Relevant transfer – Sea-going vessels – Award of tender for ferry services to new company – Extension or exclusion of protection – Transfer of Undertakings(Protection of Employment) Regulations 1981, SI 1981/1794, reg 2(2).
Regulation 2(2) of the Transfer of Undertakings (Protection of Employment) Regulations 1981, SI 1981/1794, provides: ‘References in these Regulations to the transfer of part of an undertaking are references to a transfer of a part which is being transferred as a business and, accordingly, do not include references to a transfer of a ship without more.’
The appeals would be dismissed.
Regulation 2(2) was not ultra vires.
To include within the scope of TUPE a group of workers who might otherwise be excluded from protection was not an improper use of the regulation making power. In respect of the second and third issues, on the facts, the tribunal’s conclusions were correct.
Cross and others v British Airways plc
Employment – Unfair dismissal – Indirect sex discrimination – Direct sex discrimination – Employees claiming to be entitled to work beyond employer’s normal retirement age – Transfer of Undertakings (Protection of Employment) Regulations 1981, SI 1981/1794.
The appeals would be dismissed.
(1) The position was that, unknown to all, the CRA of the transferred employees was 60, but notwithstanding such contractual entitlement in 1988, by 2001 on any basis the normal retirement age (NRA) was 55. It had been ratified and applied constantly over that 13-year period. If the contractual term for those transferred employees, who had long since been fully integrated with the other pilots and cabin crew, so that they all held the same position, in fact gave them a CRA of 60, derived from TUPE 13 years earlier, that fact did not render impermissible, or in any way alter, what was plainly the NRA.
The claims of the TUPE employees therefore failed.
(2) Although the position relating to the pre-1971 employees did amount to indirect discrimination, it was justified.
The claims of the SDA employees therefore failed.
(3) In the light of the failure of the SDA claim, the piggy-back claim also failed.
Daly v NPower Yorkshire Ltd
Employment – Employment tribunal – Costs – Unreasonable conduct – Tribunal refusing to make costs order – Correctness of decision.
The appeal would be allowed.
The decision of the tribunal to refuse to award costs in favour of the employer and against the applicant was flawed because it failed to take account of important considerations. Instead, the tribunal relied on factors which were either erroneous or had little or no weight.
The tribunal in the instant case had been obliged to find the claim by the applicant against the employer as misconceived and having no reasonable prospect of success. Although, in those circumstances, the tribunal was obliged to consider making an order for costs, it was significant that it was given a discretion whether or not to make such an order. On the facts, the tribunal erred in its finding that the applicant had not acted unreasonably and it was not a conclusive or a proper answer to the claim for costs that a misconceived application was ‘genuinely brought’. Accordingly, the tribunal failed either to consider or to take into account two important factors, and each omission amounted to an error in law.
The question of costs had to be remitted for reconsideration.
Hope v PGS Engineering Ltd (in administration)
Employment – Transfer of undertakings – Unfair dismissal – Employee’s dismissal automatically unfair – Employment tribunal finding liability transferred to transferee – Correctness of decision.
The tribunal fell into error in holding that reg 5(4A) did not apply. There was no need for the employee to object to the transfer in any particular way and he had made it clear that he was not prepared to be transferred. Further, the tribunal fell into error in holding that the liability to compensate the employee for his unfair dismissal was transferred to GMS Ltd. Since the employee objected to the transfer, his employment had not been transferred. Accordingly, the obligation to compensate the employee for his unfair dismissal remained with the employer.
Muscat v Cable and Wireless plc
Employment – Employment Appeal Tribunal – Preliminary hearing – Status of respondent – Status resolved in accordance with case authority – Correctness of decision.
The appeal would be dismissed.
The appeal tribunal was unable to accept that the Court of Appeal case could be distinguished on its facts. Further, the appeal tribunal was satisfied that the tribunal had been correct to follow the guidance of that authority and that it, also, had to follow it and leave it to the Court of Appeal to determine whether it was decided per incuriam.
The Employment Appeal Tribunal and the employment tribunals were bound by the case authority and that decision was not decided per incuriam.
Dacas v Brook Street Bureau (UK) Ltd  All ER (D) 125 (Mar) applied.
Robertson and others v Department for Environment Food & Rural Affairs
Discrimination – Sex discrimination – Employment – Equal pay and treatment – Comparator – Something more than bare fact of common employment required for comparability purposes – Simple fact of common employment by Crown not sufficient to attribute terms and conditions to Crown as ‘single source’ responsible for determining levels of pay in two different departments of Civil Service – EC Treaty, art 141.
The six male employees, who were all civil servants employed by the Department for Environment Food & Rural Affairs (DEFRA), presented originating applications to an employment tribunal, invoking the direct effect of the equal pay principle in art 141 of the EC Treaty. Three of the employees were executive officers, and the other three were administrative officers. They all argued that a comparison should be made between their pay and the higher pay received by two female civil servants, who worked at the relevant date as senior personal secretaries in the Department of Transport, the Environment and the Regions (DETR). Although the employees and the chosen female comparators worked under different terms and conditions of employment set respectively by DEFRA and DETR acting under powers delegated to them, they were all employed by the Crown. The tribunal considered as a preliminary issue the question whether it was permissible for civil servants in an equal pay case to use as comparators civil servants of the opposite sex who worked in a different government department under different pay and conditions set by that different government department. The tribunal ruled on the preliminary point in favour of the employees and approved the choice of the female comparators. DEFRA’s appeal was allowed by the Employment Appeal Tribunal, and the employees appealed.
Two issues arose on the appeal: (i) whether the principle of equal pay always and automatically applied whenever the applicants and the comparators of a different sex were employed by the same employer; and (ii) whether, on the facts of the instant case, the difference in pay between the employees working for the Crown in DEFRA and the female comparators working for the Crown in DETR could be ‘attributed to a single source’ as laid down in Lawrence v Regent Office Care Ltd  IRLR 822.
The appeal would be dismissed.
(1) Something more than the bare fact of common employment was required for comparability purposes.
It was not necessarily the person with whom workers had a contract of employment that determined comparability. The relevant body was the one which was responsible for the inequality and which could restore equal treatment. The body responsible would often be the same employer of both the applicants and the comparators, but that was not necessarily so.
Lawrence v Regent Office Care Ltd  IRLR 822,  All ER (D) 84 (Sep) applied.
(2) There was no single source to which the pay of the employees and that of the comparators was attributed.
It was for the national court to apply the single source approach to the selection of appropriate comparators in an equal pay claim under art 141 on the facts of the particular case. In the instant case, DEFRA was the ‘single source’ responsible for the employees’ and conditions of employment, and DETR was the ‘single source’ responsible for the comparators’ pay and conditions of employment. The simple fact of common employment by the Crown was not sufficient in the instant case to attribute the terms and conditions to the Crown as the ‘single source’ responsible for determining levels of pay in both DEFRA and DETR.
Oakley Inc v Animal Ltd and others
Constitutional law – Ministers – Derogation – European Communities – Claim for infringement of design right – Validity of Regulations – European Communities Act 1972, s 2 – Registered Design Regulations 2001, SI 2001/3949, reg 12.
The claimant and first defendant were rival makers of designer sunglasses. On 10 May 1996, the claimant sold, in the United Kingdom, sunglasses made according to their disputed design. On 10 June, the claimant applied for design protection. The first defendant subsequently brought out a competing design. The claimant issued infringement proceedings against the first defendant. The claimant contended that the first defendant’s sunglasses were too close to its registered design. The first defendant argued, inter alia, that the claimant’s design was invalid, and should be declared to be so, following the claimant publishing its design before taking proper steps to register it. The first defendant’s case was founded on the law as to prior publication as governed by the Registered Designs Act 1949. The claimant contended, however, that the law of prior publication was governed by the scheme of EC Directive 98/71, on the legal protection of designs, which contained a grace period of 12 months for filing an application for design protection. The deadline for transposing the Directive into national law was 28 October 2001. In respect of the validity of existing regulations, the UK had the option to derogate from the Directive, meaning the UK could adopt the law of validity prescribed by the Directive, or it could keep its old national law. On 9 December 2001, pursuant to s 2 of theEuropean Communities Act 1972, the Registered Design Regulations 2001, SI 2001/3949, came into force giving effect to the Directive. By reg 12 the UK purported to avail itself of the derogation, and accordingly the validity of existing registrations continued to be governed by the 1949 Act. The claimant contended that if the option to derogate was to be exercised at all, it should have been done by Act of Parliament and not a mere regulation made by the Executive, that reg 12 was contrary to the constitution of the UK, and was ultra vires. Irrespective of that, the claimant further argued that if the option was to be exercised at all it had to have been exercised by 28 October 2001, with the result that the purported exercise of derogation was contrary to the law of the European Union and was ultra vires. As a preliminary point in the infringement proceedings the court had to consider the validity of reg 12 which was dependent on whether or not the Secretary of State had power to make it and the true construction of s 2 of the 1972 Act.
Specifically, two issues for the determination of the court were (i) whether a government minister or department could use the powers under s 2(2) to make regulations that brought about a result that was not mandated by a European obligation, and if there was such a power, how far did it go, and (ii) to what extent, if at all might a member state avail itself of a derogation after the final date by when a directive was supposed to have transposed the directive into its internal law as a matter of urgency.
The court ruled:
(1) Regulation 12 as currently worded would be ultra vires because the Secretary of State had no power under s 2(2) of the European Communities Act to make regulations that breached Community obligations. Parliament itself could do it, but then it would have to be an enactment expressly defying the 1972 Act or repealing it. However, because of the doctrine of substantial severability, the court considered that reg 12 took effect subject to the revision the court adumbrated and, thus revised, was valid so far as United Kingdom international law was concerned.
(i) It was clear that the combined effect of s 2(2) and 2(4) was to enable the Executive, in appropriate circumstances, to make legislation with all the force of an Act of Parliament, and even to amend an existing or future Acts of Parliament. Thus s 2(2) combined with s 2(4) was an instance of what was known as a ‘King Henry VIII clause’, a power granted by Parliament to the Executive to make subordinate legislation which itself counted as if it were primary legislation. The courts presumed that Parliament did not take lightly the exceptional course of delegating to the Executive the power to amend primary legislation and any such power was to be scrutinised carefully and should receive strict and narrow interpretation. Any doubt should be resolved against the Executive. It was undoubtedly the general purpose of the 2001 Regulations to implement a Community obligation however reg 12 was not made for the purpose of fulfilling a Community obligation. If anything, it was the opposite. Section 2(2)(b) did not enable the Executive to make secondary legislation, with the potential to amend or repeal even an Act of Parliament, and to achieve a result not required by a Community obligation, just because its purpose was in some way related to or arose out of that obligation. In short, if s 2(2) was given a narrow but purposive construction, as it had to be, it did not enable the attainment of a substantive result that was required neither by the Community nor by Parliament itself. The effect of reg 12 as worded would be to retain the old (1949 Act) law of validity in respect of existing registrations. The decision was a significant policy choice and had to be implemented by primary legislation. Accordingly the Secretary of State did not have the power to make that decision – one way or the other – and to implement it by secondary legislation. Such a legislative act would be ultra vires.
(ii) The purpose of the secondary legislator in the instant case was to transpose a European directive. Even if he had exceeded his powers in one respect, such as by mistaking the true scope of the directive, or by legislating contrary to the directive, or by attempting to produce a substantive result required neither by the Community nor by Parliament, it would normally be clear that the substantial purpose of the rest of the instrument was to implement a Community obligation. That being compulsory anyway, it would be strange if the court felt obliged to cut down the whole. It could instead delete the offending part or even rewrite it so as to make it conform to the directive. Whether the UK was to avail itself of the derogation or not was clearly a significant policy choice. The power to make that choice and implement it in national law might have lain with Parliament alone, or it might have been available to the Secretary of State. But what was absolutely clear was that it did not lie with the courts. Were the court to accede to the claimant’s submissions the end result would be that the UK would have a law of registered designs which, as regards the validity of existing regulations, was chosen neither by Parliament or (if that were relevant) the Secretary of State, nor required by the European Community. The 2001 Regulations purported to amend the text of the 1949 Act. That text was passed and amended by Parliament, and by Parliament alone. Thus Parliament enacted a particular legislative scheme which was to govern at least the validity of existing regulations. The somewhat paradoxical consequence was that the old law of validity as defined by the 1949 Act continued to apply to existing registrations, because that was what Parliament provided, just as it would have continued to apply if, instead of purporting to adopt the derogation, the Secretary of State had purported to eschew it.
(2) In respect of the claimant’s point that under the directive the very existence of the option to exercise the derogation vanished on 28 October 2001, and that once the deadline had passed the very opportunity to exercise the derogation had ceased to exist as a matter of Community law, that question was not acte claire. If the claimant wished to avail themselves of that point, the court would propose to refer the question to the European Court of Justice, pursuant to art 234 of the Treaty of Rome.
The preliminary point would be decided in favour of the first defendant.
Billfields Food Company Ltd v Kontemeniotis and another
Employment – Unfair dismissal – Constructive dismissal – Disability discrimination – Correctness of tribunal’s approach.
The appeal would be dismissed.
There were no merits in the grounds of appeal.
Having considered the documents and the submissions of the parties, there had been a concession made by or on behalf of the employer, and acted upon by the tribunal. In the instant case, the employer had not sought to justify any less favourable treatment, and in any event, the tribunal had found as a fact that the employee’s managers knew of his condition. The tribunal had fulfilled its obligation to explain its reasoning and had made it abundantly clear why there had been a finding of less favourable treatment. Furthermore, the procedure adopted by the tribunal in investigating the issue of mitigation of loss had been the correct one and it could not be said that its finding had been perverse.
Summers v Drivertime Manchester Ltd
Employment – Transfer of undertakings – Contract of employment – Pay – Holiday pay – Employment tribunal finding transfer of employment and entitlement to holiday pay – Correctness of decision.
The appeal would be dismissed.
The tribunal had been entitled to come to the conclusion it had.
The respondent had been responsible for continuing the employment relationship, such as it was, which included the responsibility for holiday pay.
European Commission v Italy (Case C-460/02)
European Communities – Transport – Air transport – Ground handling – System of opening up of market for groundhandling services in Community airports – Failure to fulfil obligations – Council Directive (EC) 96/67.
Council Directive (EC) 96/67 (on access to the ground handling market at Community airports) provided for a system of progressive opening up of the market for ground handling services in Community airports. The directive was transposed into Italian law by legislative decree, which included provisions concerning social protection and interim provisions. The Commission, having considered that the Italian legislation failed to comply with Community law in several respects, applied under art 226 EC for a declaration that Italy had failed to fulfil its obligations under the directive.
The Commission contended that the legislative decree was incompatible with art 18 of the directive, since it obliged the suppliers of ground handling services to ensure that, on each occasion of a ‘transfer of activity’, the staff of the previous supplier were transferred to the subsequent supplier in proportion to the volume of traffic or the scale of the activities being taken over by the latter. The Commission submitted that whilst measures to protect the rights of workers were permitted under art 18 of the directive, provided that did not prejudice the effective application of the directive as regards ground handling services, the legislative decree plainly went beyond the protection guaranteed by the directive and entailed the transfer of social costs borne by the state to the new undertakings providing the services, to the detriment of those undertakings, and contrary to the aim of the directive, which was to encourage competition in markets that were previously closed and monopolistic. The Commission further contended that the legislative decree was incompatible with the directive in that it provided an interim measure permitting undertakings with particular organisational arrangements to operate the at the same time as suppliers selected and/or licensed in accordance with the provisions of the directive.
The Court ruled:
In so far as the legislative decree incorporated a social measure which was incompatible with art 18 of the directive, and interim provisions which were not authorised under the directive, Italy had failed to fulfil its obligations under the directive.
Article 18 of the legislative decree applied, irrespective of the nature of the transaction concerned, to ‘any transfer of activity’ in the sector in question. Such a definition of a transfer went beyond the definition laid down in the directive. The social protection arrangements provided for under Italian national legislation were therefore incompatible with the directive. Moreover, the directive clearly specified the categories of undertakings which might provide ground handling services to third parties and self-handling users. It followed that entities which did not satisfy the criteria for self-handling set by the directive might operate only as suppliers of services to third parties, and the directive did not allow member states to adopt interim measures in that regard. In putting such interim measures in place, the legislative decree had adopted a regime which was incompatible with the directive. It followed that the Commission’s complaint was well-founded.