Articles by ‘Gemma Ospedale’

In Hall v Xerox UK Limited, the EAT has upheld a Tribunal decision regarding the application by a fixed term employee that he suffered a detriment under the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations as a result of a potentially discriminatory term in an income protection policy.

In Mardner v Gardner and others, the EAT has overturned an Employment Tribunal’s refusal to make a costs order because the Claimant had legal expenses insurance. It considered that the Claimant’s case fell squarely within the category in relation to which costs could be awarded but the Employment Judge refused to do so on the basis that the Claimant would not be out of pocket due to having legal expenses insurance funding. The EAT considered that this was irrelevant and was also contrary to public policy. It held that the paying party should not be able to avoid the costs  consequences of their unreasonable conduct purely because the Claimant was the recipient of insurance which covered his costs.

The EAT case of Fuller v United Healthcare Services Inc and another, is another decision on the UK Tribunals’ jurisdiction to hear claims for unfair dismissal, automatic unfair dismissal for whistleblowing, and sexual orientation discrimination.

In Costain Limited v Armitage and another, the EAT has overturned a Tribunal decision which found that the employee concerned was part of an organised grouping of employees which transferred to a new contractor under a service provision change.

In Moorthy v HMRC, the First-Tier Tribunal has held that a payment in compensation for discrimination and injury to feelings made on termination of employment is taxable in circumstances where the discrimination is connected to the termination i.e. that the termination of employment is of itself discriminatory. Section 401 of the Income Tax (Earnings and Pensions) Act 2003 provides that payments made directly or indirectly in consideration, or in consequence, of or otherwise connected to the termination of employment may be paid tax free up to £30,000. If part or all of the payment is an award for injury to feelings for discrimination, and the discrimination is connected to the termination of the employment, then this sum will also be taxable under section 401. However if the discrimination has occurred before the termination of the employment, HMRC accepts that it will be wholly exempt from tax.

The Court of Appeal, in CreditSights Limited v Dhunna, has upheld an EAT decision declining jurisdiction for the Respondent (the Claimant in the Tribunal proceedings) to bring a claim for unfair dismissal. The EAT had overturned the Tribunal decision but the Court of Appeal held that the Tribunal’s original decision was correct.

In Shuter v Ford Motor Company Limited, an Employment Tribunal has given Judgment on a father’s claim that it was directly and indirectly discriminatory on the grounds of sex for him not to be paid full pay when he took additional paternity leave after his wife went back to work, in circumstances where the woman would have received full pay.

In Cockram v Air Products Plc the EAT considered the situation whereby the Claimant, who had 3 months contractual notice, resigned giving 7 months notice and whether or not this was fatal to his claim for constructive unfair dismissal.

Employers found guilty of paying staff differently because of their sex will be ordered to carry out an equal pay audit (EPA) and to publish the results.

In Horizon Security Services Limited v Ndeze and another, the EAT, in applying the Court of Appeal decision in Hunter v McCarrick, held that there was no service provision change and therefore no application of TUPE in circumstances where a security company’s contract was terminated and a different organisation engaged a different security company to temporarily continue the services.

In Cadogan Hotel Partners Limited v Ozog, the EAT has confirmed that awards for injury to feelings in discrimination cases are subject to a 10% uplift after the Court of Appeal’s decision in Simmons v Castle. It also held that the employer’s failure to deal with an oral grievance did not attract the uplift in compensation as a result of an unreasonable failure to follow the ACAS Code of Practice – because the grievance was made verbally and not in writing, and the Code requires the grievance to be in writing.

In Mr Clutch Auto Centres v Blakemore, rather surprisingly the Tribunal found that the employee’s employment continued in circumstances where both parties considered that it had ended – the employer on the basis that the employee had resigned, and the employee on the basis that he had been dismissed. The EAT considered that the Tribunal had been wrong to find this. The employee’s claims for unfair and wrongful dismissal indicated that he was effectively accepting the employer’s alleged repudiatory breach of contract and that the Tribunal had misdirected itself in finding that the Claimant’s employment had continued, especially where there was no dispute between the parties that the employment had in fact ended.