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By Michael Scutt, 25/01/2010 10:07 am

There have been some interesting reported cases over the last couple of weeks on a broad range of topics.  For instance,

Legal Representation at Internal Disciplinary Hearings

In G v X School, a Court of Appeal case, it was held that a teaching assistant was entitled to legal representation at an internal disciplinary/grievance hearing in circumstances where that person’s right to practise in the profession was at risk.  In this particular case G was a teacher accused of sexual contact with a pupil at the school where he taught.  He was dismissed following investigation but was not allowed to have legal representation at the internal disciplinary hearing.  Subsequently the school reported him to the relevant regulatory body for consideration of whether he should be barred from working with children.   The case of Kulkarni v Milton Keynes General Hospital NHS Trust [2009] was followed and it was held that Article 6 of the ECHR required G to have legal representation because of the effect his dismissal would have on the decision of the ISA.  Note in both these cases they were against public authorities and the same result would not necessarily be the case if the employee was working in the private sector.  For example a banker facing a disciplinary hearing for an alleged offence of dishonesty would probably not be entitled to rely on this case even though his dismissal would be reported to the FSA and could lead to him losing his registration to practise.

Age Discrimination

The Employment Equality (Age) Regulations 2006 prohibit behaviour that subjects someone to less favourable treatment on the basis of a person’s age.  However, it can be permissible to discriminate against someone on the ground of their age if there is a “genuine occupational requirement”. The case of Wolf v Stadt Frankfurt Am Main heard before the European Court of Justice (ECJ) held that it was lawful for an upper age limit of 30 to be applied by the Federal state of Hesse in Germany on recruiting firemen.  However, in another German case before the ECJ, Petersen v Berufungsausschuss fuer Zahnaertze fuer den Bezirk Westfalen-Lippe it was not justifiable for a maximum age of 68 to be imposed on doctors and dentists practising in the state medical system where it was alleged that the rule was necessary to protect patients from a decline in performance as doctors and dentists got older: no such age limit existed in the private sector.   In other words, age limits on occupations can be imposed, but there will need to be a good reason for doing so.

Disability Discrimination

The definition of disability contained in the Disability Discrimination Regulations 1995 is a complex one and requires that the impairment be permanent or lasts for at least one year.  The case of Patel v Oldham MBC, heard before the Employment Appeal Tribunal (EAT) decided that when assessing whether the impairment will last for 12 months or more, it is necessary to consider whether another illness is likely to develop or has developed for the purpose of Schedule 1 paragraph 2 of the DDA.   In other words, if the secondary condition develops, or is likely to develop, from the original impairment it can be aggregated onto the original condition for the purpose of the section.  In other words, don’t just consider the original illness/injury but consider what secondary consequences there could be. 

 If you need advice on any of the above issues, or on anything to do with employment law, please contact me at Dale Langley & Co – 0207 464 8433 – or michaelscutt@dalelangley.co.uk

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By Michael Scutt, 20/11/2009 11:16 am

Just two this time.  An upsurge in work has meant I haven’t been blogging as assiduously as usual.  There also haven’t been very many interesting cases around – apart from these two below.

Diggins v Condor Marine Crewing Services [2009] EWCA Civ 1133

The Court of Appeal has ruled that an seaman employed by a company operating from and registered in Guernsey, on board a ship registered in Nassau, but which spent its time sailing between Portsmouth and the Channel Islands could bring a claim for unfair dismissal.  The Claimant lived in Suffolk.  The Court held that the important factor was where his duty began and ended – which was Portsmouth.   He can proceed with his claim for unfair dismissal.

Cook v MSHK Limited [2009] EWCA Civ 624

This case is authority for the proposition that where an employee commits a fundamental breach of contract, the employer must take action, which will usually be summary dismissal, without delay.  In this case the employer didn’t commence disciplinary proceedings quickly enough and was held to have affirmed the contract, thus losing the right to rely on that breach.  Alternatively, the employer should reserve its rights to take such action if the employee is subsequently absent on sick leave, as in this case.

 If you need any advice or have queries on these please call me – details on the side bar. 

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By Michael Scutt, 06/11/2009 6:10 pm

There have been some noteworthy cases over the last couple of weeks, such as;

Grainger plc v Nicholson UKEAT/0219/09/ZT

Climate change can be a philosophical belief and thus capable of protection within the terms of the Employment Equality (Religion or Belief) Regulations 2003. Please see my previous post on this high profile case.

Autoclenz  Ltd v Belcher & ors [2009] EWCA Civ 1046

A case on the distinction between employee, worker or self-employed.  The Respondents were car valeters.  All the factors usually considered in determining whether a person was employed or self-employed suggested they were employees. The “contract” they signed said they were “sub-contractors” but that did not reflect the reality of the situation.  The CA held they were employees.

Attridge Law v Coleman UKEAT/0071/09/JOJ

The EAT has confirmed that “associative discrimination” is covered under the Disability Discrimination Act 1995 (DDA).  In other words, a mother who sought flexible working from her employers in order to care for her disabled son, but whose employment was subsequently terminated, can bring a claim under the DDA as a result of being treated less favourably.

X v Mid-Sussex CAB   [2009] UKEAT 0220_08_3010

Another DDA case. Volunteers are not protected by the DDA or the EU Framework Directive.   

Abbreviations

ET = Employment Tribunal

EAT = Employment Appeal Tribunal

CA = Court of Appeal

Please contact me for further details on 0207 464 8433 or at michaelscutt@dalelangley.co.uk

These summaries contain my understanding of the law.  They do not constitute legal advice and you should not act upon or rely upon anything contained in this summary (or anywhere in this blog) as legal advice.