1. Bateman and others v Asda Stores Ltd (Variation of Terms of Employment)
2. Dean v Latona Luxury Ltd (Unpaid Wages/TUPE Transfer)
3. Chagger v Abbey National plc & anor (Stigma Damages)
4. R v Governors of X School and Y City Council (Legal Representation at Internal Hearings)

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Bateman and others v Asda Stores Ltd (EAT) [2010] ALL ER (D) 277 (Feb) UKEAT/0221/09ZT

Unlawful deduction from wages; breach of contract; variation of terms

This Employment Appeal Tribunal dismissed the employees appeal on the basis that in all the circumstances, the staff handbook had permitted the employer to make the changes to the pay and work regimes without obtaining the consent of the employees.

The employer wished to change the pay structure to bring everyone in line. 9,300 employees agreed to the new regime, 8,700 did not. The employer imposed the change and justified the decision by relying on provisions within the staff handbook. 700 claims were brought by employees claiming unauthorised deduction from wages, breach of contract and in some unfair dismissal.

The Tribunal held that the employer had acted in pursuance of a clear and unambiguous power to vary contractual terms:

The wording included the following that the employer:

“reserved the right to review, revise, amend or replace the contents of this handbook, and introduce new policies from time to time reflecting the changing needs of the business...”

It concluded that the staff handbook had permitted the employer as a matter of contract to do what it had. The employees appealed. The EAT agreed with the Tribunal.


Dean v Latona Luxury Ltd (EAT) [2010] All ER (D) 71 (Mar) UKEAT/0377/09/SM

Unpaid Wages/TUPE Transfer

The employee worked as a night porter with Wrenwell Hotels Ltd. In 2006 the assets were transferred on a winding up petition to the employer. A letter informed staff of this transfer. The employee received no contract of employment and left claiming unfair dismissal, unpaid holiday pay and unpaid wages.

The unfair dismissal claim was dismissed as he did not have the necessary service. He was given holiday pay but no payment for wages.

The EAT held that the Tribunal had erred in rejecting the claim for unpaid wages as the staff announcement had made it clear that there was going to be total continuity. Had the judge not been oblivious of that letter, he would inevitably have held that the staff announcement letter was an offer of employment on the pre-existing terms which the employee accepted by continuing to work. Had he come to that conclusion, it was inevitable that he would have upheld the claim for unpaid wages.


3. Chagger v Abbey National plc & anor (Court of Appeal) [2010] IRLR 47

Stigma Damages

The Tribunal upheld Mr Chagger’s complaints of unfair dismissal, racial discrimination and breach of contract and awarded him compensation of £2.4million. This included an uplift of 2% in respect of the bank’s failure to follow the statutory dismissal procedures.

The Claimant’s efforts to mitigate his loss included applications for 111 jobs and 26 recruitment agencies. He finally retrained as a teacher. The Tribunal awarded him continuing loss of earnings for the rest of his career. The Tribunal found that the difficulty that he encountered in finding work was due to the ‘stigma’ of bringing a legal case against his employer.

The EAT upheld the bank’s appeal against the tribunal’s decision that it should not consider whether the claimant would have been dismissed in any event. The EAT held that a Polkey type deduction could be made in discrimination cases. It also overruled the Tribunal regarding stigma damages and limited the award to loss of earnings as no victimisation case had been lodged.

Mr Chagger appealed to the Court of Appeal.

The Court of Appeal upheld the EAT on the following grounds:
1. The tribunal should take into account the suggestion that the claimant would have been dismissed.
2. The level of compensation could be an exceptional circumstance.

The Court of Appeal overturned the EAT on the following grounds:
1. The Tribunal was correct not to limit loss to the period that the claimant would have been employed.
2. The Tribunal could take into account losses that flowed from the stigma.

The Court of Appeal thought that the decision would be limited in value and not open the floodgates as tribunals will not usually have to determine whether there has been stigma loss and what percentage of loss is attributed to stigmatisation.


R v Governors of X School and Y City Council [2010] EWCA Civ 1

Legal Representation at Internal Hearings

The claimant was employed as a teaching assistant at a primary school where allegations were made that he had kissed and had sexual contact with a 15 year old boy who was on work experience. The claimant was suspended and disciplinary proceedings commenced. The offences could also constitute criminal offences.

The claimant asked to have legal representation at the internal meeting. This was refused and he was reminded of his right under school procedure (and statutory dismissal procedure) of a colleague or trade union representative. The claimant was subsequently dismissed.

The governors were obliged to make a reference to the Secretary of State to prevent the Claimant from working with children again. The Secretary of State refers to the findings of the disciplinary panel when making this determination.

The claimant appealed and again requested legal representation. This was refused. The claimant brought Judicial Review proceedings in the High Court in relation to this refusal. He referred to Article 6 – right to a fair hearing. The Judge held that the claimant should have been entitled to legal representation.

The Governors appealed to the Court of Appeal who held that the claimant was entitled to legal representation and that Article 6 applied to an internal disciplinary process which is determinant of a claimant’s civil right to practise his profession.

In contrast a recent NI Judicial Review was unsuccessful when the plaintiffs challenged the decision of Down District Council declining permission to bring a legal representative. The Judge held that in this case, Article 6 was not engaged and therefore legal representation as a protective measure was not required.