Rosemary Connolly and Jenine McCourt, Partners at Rosemary Connolly Solicitors, Warrenpoint and Belfast write regular emails on GB case law that they think will interest employment lawyers and HR professionals. Sometimes they will discuss the importance of cases that we have already reported on via or weekly review emails. Other times they will refer you to entirely new cases that you might not have seen before. Highlighted on this occasion are:

1. JP Morgan Europe Ltd v Russell Chweidan [2011] EWCA (disability discrimination)
2 . Burns v Santander UK PLC UKEAT (unlawful deductions from wages)
3. Dabson v David Cover & Sons UKEAT (redundancy scoring)
4. Deer v Walford and Anor UKEAT (statutory questionnaires)

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1. JP Morgan Europe Ltd v Russell Chweidan [2011] EWCA Civ 648

DISABILITY DISCRIMINATION

At the Tribunal the Claimant was found to be discriminated against due to direct disability discrimination but his claim of disability related discrimination was unsuccessful. JP Morgan appealed to the EAT.

The Claimant was employed as an executive director. He injured his back on a work skiing trip in 2007. He was off work for a month and then went back for a year on reduced hours. Occupational Health deemed him disabled and said that he should continue to have flexibility and leave work at 3 or 4pm.

One aspect of his claim was that he was given a small bonus due to his disability. Shortly after lodging his case to the Tribunal he was dismissed by reason of redundancy. The Tribunal found that he had been unfairly dismissed and that he had been directly discriminated against in respect of bonus and dismissal.

The EAT found that the findings on direct discrimination could not stand and remitted the case back to the Tribunal for the issue of direct discrimination to be decided afresh. The company appealed to the Court of Appeal.

The Court of Appeal decided that the Tribunal had erred in their reasoning for dismissal however they did not agree with the EAT that the case should be remitted back to the Tribunal. The Court of Appeal decided the following:

“The findings of the Tribunal identify the reasons for the claimant’s treatment and recognise that they are for reasons related to the Claimant’s disability but are not because of the disability itself. Since a non-disabled person would be treated the same way, the claims for direct disability discrimination could not succeed. No purpose would be served by sending the cases back.”

The appellants succeeded. They did not commit acts of discrimination in respect of either bonus or dismissal.
http://www.bailii.org/uk/cases/UKEAT/2010/0286_09_2608.html

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2 . Burns v Santander UK PLC UKEAT/2011/0500

UNLAWFUL DEDUCTION FROM WAGES

The Claimant commenced employment as branch manager in 2007. In 2009 he was arrested and charged with 13 criminal offences. He remained in custody until 17 August 2009 when he was found guilty of some crimes resulting in a suspended sentence combined with unpaid work and a supervision order.

During his time on remand the Respondent wrote to him stating that he would not be paid whilst in custody.

Harvey on Industrial Relations and Employment Law Vol 1, section B(I), para 14 (a) states:

“A worker who is ready and willing to perform his contract but is unable to do so by reason of sickness, injury or other unavoidable impediment may, if the contract continues and subject to its terms, still be able to claim his wages thereunder”.

The EAT found that the Tribunal was entitled to find that the Claimant’s remand in custody was an avoidable impediment giving rise to circumstances where it was to be implied that he was not entitled to his wages for the relevant period. Appeal dismissed.
http://www.bailii.org/uk/cases/UKEAT/2011/0500_10_2303.html

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3. Dabson v David Cover & Sons UKEAT/2011/0374

REDUNDANCY SCORING

The Tribunal dismissed the Claimant’s claim of unfair dismissal. The Respondent entered into a redundancy exercise. One proposal included redistributing the work carried out by the Operations Manager (Mr Taylor, the “appointed” representative), the Transport Manager (the Claimant) and the Transport Assistant (Ms Watts) and to remove one post with the duties distributed between the other two.

Mr Taylor obtained the highest scores in the competition for Transport Manager and he was called upon to mark the scores for the post of Transport Administrator, of which he was not a candidate. The Claimant felt that past fiction with Mr Taylor would mean that he would receive a lower mark. Mr Taylor scored the Claimant and Ms Watts and Ms Watts scored one point higher than the Claimant.

The Claimant’s reasoning that the scoring was unfair rested on a mark of 1 for “ability to assist with route planning” as he had received a 2 in the competition for Transport Manager for “Ability to plan routes”. He argued that the criteria were identical.

The EAT found that the Tribunal had correctly directed itself and was entitled to find on the facts that a dismissal for redundancy was fair; that the selection process was fair and applied reasonably. It was not appropriate for the Tribunal to scrutinise the marking in redundancy selections in the absence of obvious mistake or absence of good faith.
http://www.bailii.org/uk/cases/UKEAT/2011/0374_10_0905.html

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4. Deer v Walford and Anor UKEAT/2011/0283

STATUTORY QUESTIONNAIRES

In 2007 the Appellant brought proceedings for sex discrimination. The claim was settled in 2008. Late 2008 the Appellant asked Professor Walford if he would be prepared to be a referee. He agreed initially but on considering the fellowship advised that he did not consider her suitable and provided reasons for her unsuitability (based on the CV supplied by the Appellant).

The Appellant considered that his failure to draft the reference was due to her earlier sex discrimination claim. On 2 February 2009 she served a statutory questionnaire. He replied on 18 February 2009. The Appellant asked the Tribunal to draw inferences from what she deemed to be evasive answers to the statutory questionnaire.

The Tribunal dismissed the claims. They decided that Professor Walford did not have prior knowledge of claims and that no inferences would be drawn from the statutory questionnaire. They also awarded costs to the Respondent.

The Appellant appealed to the EAT. The EAT dismissed the appeal and held that the Tribunal had been entitled to dismiss the claim and further the answers to the questionnaire did not justify inference of discrimination.
http://www.bailii.org/uk/cases/UKEAT/2011/0283_10_2004.html

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Legal-Island would like to thank Jenine McCourt, who provided the main content of this email. Jenine is a partner in Rosemary Connolly Solicitors with offices in Warrenpoint and Belfast. Jenine works exclusively in employment law and can be contacted on 028 4175 3121 or 028 9066 0823.
http://www.solicitorsni.net/default.asp

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Legal-Island
20 June 2011

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