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1. Brown v Baxter t/a Careham Hall UKEAT 0354_09-0707

References; stigma damages

The Claimant in this case appealed the Tribunal’s decision on two grounds, firstly that 30% uplift for failing to follow the statutory Dismissal Procedures and secondly the Tribunal’s refusal to consider or allow stigma damages following from a bad reference. The Appeal was dismissed.

The EAT decided in this recent case (July 2010) that losses for stigma damages claimed by an employee who has been unfairly dismissed and later fails to secure another job due to a bad reference, are not attributable if the employer would have provided the reference in any event.

As the same reference would have been provided had the ex-employee remained an employee, those losses were not directly attributable to the dismissal and therefore could not be claimed as loss.
http://www.bailii.org/uk/cases/UKEAT/2010/0354_09_0707.html

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2.Ward Hadaway Solicitors v Love, Scott & Capsticks Solicitors UKEAT25/03/2010

TUPE

This appeal will be on interest to any organisation which wins a contract for services from another but will be of particular interest to legal firms.

Ward Hadaway Solicitors (WH) was on a panel that provided legal services to the Nursing and Midwifery Council (NMC). Although a contract was in place there was no obligation on the NMC to offer cases or for WH to accept. In 2007 NMC decided to tender out its work to a single provider for legal services. By the time of the tender WH still had about 6 months of work (approx 100-140 cases) which they retained.

NMC decided to employ Capsticks as its principal legal advisor rather than a panel of 4. WH dismissed Mr Love and Mrs Scott when it lost the contract. They brought proceedings for unfair dismissal.

It became an issue during the Pre Hearing Review whether the two Claimants had transferred to Capsticks by way of TUPE as they had worked solely on the NMC contract. WH argued that there had been a service provision change and that all employees who had worked mainly on that contract had transferred to Capsticks. Capsticks argued that TUPE did not apply.

The Tribunal looked at the work carried out by both firms. It was agreed that some work had remained with WH and further they decided that the work that had been transferred to Capsticks was different to the work carried out by WH therefore TUPE did not apply.

WH appealed. The EAT held that the service provision change provisions of TUPE do not apply where a law firm wins a contract from another law firm if there is a substantial ‘run off’ in the handing over of the files. It seems clear that if there had been a handover of existing files and the contract had transferred to Capsticks in its entirety that the EAT would have decided that TUPE applied.
http://www.bailii.org/uk/cases/UKEAT/2010/0471_09_2503.html

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3. Nicolson Highlandwear Ltd v Nicolson (2010) EAT

Costs

Mr Nicolson was employed as a retail manager by Nicolson Highland Wear Ltd (a quasi-partnership between himself and a Mr Chalmers). In October 2008 Mr Chalmers visited the shop and found evidence of mismanagement, of Mr Nicolson running a competing business from the same premises and evidence that Mr Nicolson had been passing off his own business as the company's business and/or diverting orders to the competing business.

On 26th October Mr Chalmers resolved to dismiss Mr Nicolson because of the irregularities which had come to light during his visit. Having already written a letter dismissing Mr Nicolson for these irregularities, Mr Chalmers summoned Mr Nicolson to a disciplinary hearing on 28th October 2008. This ended in Mr Nicolson's dismissal.

Mr Nicolson brought an unfair dismissal claim in the Employment Tribunal. The Tribunal found that he had been unfairly dismissed as no procedure had been followed but found that the Claimant had contributed to his dismissal and reduced his compensation by 100%.
The Company made an application for costs. The Tribunal refused this request as the Claimant had won his unfair dismissal claim and also he was entitled to seek a declaration. The Company appealed to the EAT and were successful.

The EAT referred to the fact that the Claimant had admitted most of the misconduct and had lied and therefore costs were payable. The EAT also stated that the fact that the Claimant’s solicitors ceased to act does not of itself suggest that the Claimant is not listening to legal advice. They also interestingly held that a Claimant cannot argue that he was acting reasonably in bringing a claim because he wanted a declaration.
http://www.employmentappeals.gov.uk/Public/Upload/EATS.0058.09.BIFINAL.doc

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4. J v DLA Piper UK LLP UKEAT/2010/0263_09_1506

Perceived Disability Discrimination

J brought a claim against DLA Piper when DLA withdrew a job offer after she disclosed her history of depression. DLA cited a recruitment freeze due to the credit crunch as the reason. She complained of both disability related and direct discrimination and argued that she suffered from clinical depression.

DLA disputed that J had a disability and after 3 days of hearing the Tribunal struck out her claim of disability discrimination on the basis that she was not disabled.

J appealed to the EAT and argued that she was not required to prove that she was disabled as DLA had rescinded the offer based on her perceived disability.

The EAT held that the Tribunal had failed to take account of J’s GP who saw her more regularly, preferring the more sceptical evidence of a specialist. The EAT refused to deal with the question of whether ‘perceived disability’ was covered under the DDA as it felt that it couldn’t decide without a reference to the ECJ.
http://www.bailii.org/uk/cases/UKEAT/2010/0263_09_1506.html