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28/08/2009
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Booth v. Oldham MBC establishes that once a person has culpably failed to use a statutory dispute resolution procedure, which is at his disposal, he cannot then seek redress at the law courts. It confirmed at paragragh 20 for the principle set out in Crossley v Faithful and Gould Holdings [2004] EWCA Civ 293, that there is "no duty on the Council to protect an employee's economic well being generally or to give advice as to pension rights specifically." The appellant had been dismissed from his work at the Oldham Council on grounds of incapacity (incapacity was also incorporated into the terms of the employment contract). At issue was whether the appellant could claim his pension early on grounds of permanent incapability. A procedure for this was set out in the Local Government Pension Scheme Regulations of 1997 whereby the relevant authorities i.e. his scheme employer would determine whether he was indeed permanently incapable and if there was a disagreement between the applicant and the scheme employer, then the applicant could apply to the Secretary of State to reconsider the application. At Regulation 97(9) it was stated that "Before making a decision as to whether a member may be entitled under regulation 27 or under regulation 31 on the ground of ill-health, the Scheme employer must obtain a certificate from an independent registered medical practitioner as to whether in his opinion the member is permanently incapable of discharging efficiently the duties of the relevant local government employment because of ill-health or infirmity of mind or body." In fact the scheme employer had failed to obtain evidence from an independent medical practioner and had failed to advise Mr. Booth to apply to the Secretary of State to reconsider the application. Mr Booth claimed for breach of contract by the Council and in the high court it was found that it would not have made a difference to the applicants case if an independent medical practitioner had been consulted - even though this seems to have been in contradiction to evidence given by medical consultants asked by the applicant at a later date to give evidence. As concerns the fact that he had not been advised to make an application to the Secretary of State it was confirmed that there was no general obligation on the council to advise him to his general welfare in such a manner, and that since he had knowingly avoided using such statutory rights as were at his disposal, (paragragh 11) it was not possible for him to succeed in the courts to seek the same rights of redress there that he had been given by statute and had knowingly relinquished. In the light of the fact that the claimant was judged not to be a disabled person for the purposes of the Disability Discrimination Actt 1995 (DDA 95) he could not argue that the council should medically assess him.
Not being judged to have a disability under the DDA means that permanent incapacity under the Pensions Regulations can not be established and therefore such a claim fails.
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Other recent cases:- 2009 Employers can not hide behind 'substantial equivalence' arguments to justify post TUPE contract changes - TAPERE v SOUTH LONDON AND MAUDSLEY NHS TRUST - [2009] UKEAT 0410_08_1908 The EAT rejects the refusing of the sole candidate for a job by citing conflict of interest and health and safety arguments - Amnesty International v Ahmed - [2009] UKEAT 0447_08_1308 Human Rights Legislation Fails To Protect Unions Against TULCRA - Employers must be informed promply of strike ballot results - METROBUS LIMITED v UNITE [2009] EWCA Civ 829 There is a right to legal representation at internal disciplinary hearings under Article 6 of the European Convention on Human Rights - Kulkarni v Milton Keynes Hospital NHS Trust [2009] EWCA Civ 789 unofficial industrial action can justify a fair conduct dismissal (not protected by EU and Human Rights law)- SANDHU v GATE GOURMET LONDON LTD - UKEAT 0264/08/RN Sham contracts apart, clear and unambiguous contract clauses are determined in accordance with their terms Archer-Hoblin v MacGettigan - [2009] UKEAT 0037_09 Equal value claims under section 1 Equal Pay Act 1970 during job evaluation scheme implementation will not be automatically successful - Hovell v St Peters NHS Trust - CA 2009 A failure to consider adjustments under the DDA 1995 meant that the dismissal was discriminatory - Fareham College v Walters – EAT 2009 House of Lords overturns previous court rulings as to when a disability is 'likely' to recur – threshold now lower - SCA Packaging Limited v Boyle [2009] UKHL 37 An ongoing difficulty in doing everyday activities (independantly of when this occurs)indicates the existence of disability - Chief Constable of Dumfries & Galloway v Adams [2009] UKEAT 0046_08_0304 An employment tribunal needs to first identify loss suffered by the employee at the time of dismissal before estimating compensation Saunders v OCS Group Ltd [2009] UKEAT 0051_09_2805 Major EAT boost to TUPE service provision change protections – A “common sense and pragmatic approach is required” - Metropolitan Resources v Cambridge EAT 2009 Former employee sued (Unsuccessfully)for fudging medical history - Cheltenham BC v Christine Laird – High Court QBD – 2009 Constructively dismissed can claim notice pay without needing to offset against income from new job - Peters Ltd v Bell EAT [2009] Redundancy was a sham in response to protected disclosures - El-Megrisi v Azad University - UKEAT - [2009] When deciding compensation the ET was entitled to speculate on the future losses of the claimant. - Islam Channel Ltd v Ridley [2009] UKEAT - [2009] Apprentice was discriminated against when his employers ignored experience gained prior to 18 years of age - Hutter v Technische Universität Graz - Case C-88/08 3rd Div ECJ 2009 - [2009] Non-payment of a tribunal award was basis of claim for post decision victimisation claim - Rank Nemo Ltd & Ors v Coutinho - [2009] EWCA Civ 454 With reinstatement orders, the claimant's behaviour must be taken into account by the ET - Central & NW London NHS Trust v Abimbola - EAT 2009 Post decision vexatious behaviour lost the claimant his compensation - Aryeetey v Tuntum Housing Association [2009] EAT Workers may claim for unpaid holiday not only under regulations 13,14 and 16 of the Working Time Regulations (WTR) but also as unauthorised deductions of pay - - HMRC v Stringer and others - HoL 2009 'Illogical' to only award costs for counsel but not solicitor after warning to respondent about 'hopeless' strikeout attempt - HARROGATE NHS TRUST v MOCKFORD - EAT 2009 Constructive unfair dismissal claim valid even where only some of the claimant's complaints in grievance - Parsons v Burworth Estates - EAT 2009 Pyrric Victories - half of workers fail to receive their employment tribunal awards Not Awarding Costs Over False Allegations Was 'Perverse' - > Daleside Nursing Home v Mathew - EAT 2009 Constructive Dismissal:- 1) An Employer's Breach Of Contract Can Be Repaired 2) 'Reasonable Range' Rule Does Not Apply - Buckland v Bournemouth University - EAT 2009 Redundancy - Length of service may be taken into account - ROLLS-ROYCE PLC v UNITE UNION - CA 2009 Tribunals Have Discretion Regarding Time Extensions For Originating Applications (ET1) - Carter v London Underground Limited EAT 2009 Blacklisting of Workers To Be Outlawed Disability and avoidance of adjustments at interview - Limits of employer's 'ignorance' plea defined - EAT 2009 - Eastern v Grey - EAT 2009 The Court of Appeal's unreasonable affinity for the 'Range of Reasonable Responses' London Ambulance v Small [2009] Employment tribunals will first consider whether the case is in time. - Farr v Ryefell Ltd - EAT - [2009] Council fails in GMF defence to equal pay claims - COVENTRY CITY COUNCIL v NICHOLLS - EAT 2009 Novacold Overuled, Malcolm Confirmed; Comparator test in discrimination cases Is now higher - Stockton Council v Aylott |
Forcible Retirement -
National Council on Ageing (Age Concern England v. Secretary of State for Business (Heyday) - ECJ Case C-388/07 2009 The tribunal must not elaborate when answering questions put by the EAT (Burns-Barke procedure) - WOODHOUSE SCHOOL v WEBSTER - [2009] EWCA Civ 91 Sham Contracts - Protectacoat Firthglow Ltd v Szilagyi - CA 2009 EAT Guidance For Harassment Cases - RICHMOND v DHALIWAL 2009 Dismissal for proselytising not unfair or discriminatory - Chondol v LCC - EAT 2009 When does the clock start ticking in a disability discrimination case? - Matuszowicz v Kingston CC - CA 2009 Collective agreements negotiated after a transfer still bind the transferee - Alemo-Herron v Parkwood Ltd EAT 2009 Agency workers are to receive the same pay and conditions as permanent staff 2008 Starting off on the wrong foot - those little details - Chowles v West - EAT 2008 Absence of dismissal warning in Step 1 email was automatically unfair Zimmer v Brezan - EAT 2008 A punch that caused injury was closely enough connected with the employment to make the employer vicariously liable for tortious assault. - Gravil v Carroll [2008] EWCA Civ 689 Tribunals should give 'candid, intelligible, transparent and coherent' reasons - CLARK v CLARK CONSTRUCTION - 2008 Fair Employment Initiative - much government spin; some substance. ECJ Recognises Carer's Right To Claim 'Discrimination By Association' - Coleman v Attridge Law and Steve Law - ECJ - Case C-303/06 Employment tribunals may award compensation only for damages resulting from an unfair dismissal, not an employer's prior conduct Robins Ltd v Triggs [2008] EWCA Civ 17 Intimidation Results In Strikeout - Force One Utilities v Hatfield Constructive Dismissal - Absence Of Intent but Contract Still Undermined - Parsons v Bristol St Motors - EAT 2008 When Your Employer Changes Your Contract Robinson v Tescom Corporation – EAT 2008 Homophobic bullying provisions don't protect heterosexuals - ENGLISH v THOMAS SANDERSON BLINDS – EAT 2008 Re-Engagement Orders should specify into which job the Claimant will be re-engaged - Home Office v Khan & King - EAT 2008 The existence of a contract is a question of fact to be decided upon by the employment tribunal James v Greenwhich Borough Council - CA 2008 Expired Disciplinary Warnings May Be Taken Into Account Airbus V Webb - CA 2008 Internal Appeal Ending On Last Day Did Not Prevent 3 Month Extension Ashcroft v Haberdashers - EAT 2008 A Protective Award Is Subject To Mitigation, But Starts At 90 days Evans & Ors v. Permacell Finesse Ltd - EAT 2008 Tupe Applies Outside The UK Metal Industries v GMB - EAT 2008 2007 Equal Pay Does Not Necessarily Mean Being Paid The Same CHIEF CONSTABLE OF WEST MIDLANDS POLICE v BLACKBURN & MANLEY Creative Law or 'How To Wrongfoot Your Employee' part II (TUPE) NEW ISG LIMITED v VERNON - [2007] EWHC 2665 (Ch) The implied term of mutual trust and confidence RDF Media Group v Clements - QBD [2007] EWHC 2892 (QB) Sleight Of Hand Given Thumbs Down By Employment Appeals Tribunal ROYAL BANK OF SCOTLAND v BEVAN - EAT 2007 TUPE Rights Implementing Council Directive 2001/23/EC cannot be waived REGENT SECURITY SERVICES LIMITED v POWER - CA [2007] EWCA Civ 1188 Disabled Park Worker Wins Record Compensation Tupe Safeguards Existing Rights - Doesn't Confer New Ones JACKSON v COMPUTERSHARE INVESTOR SERVICES PLC - CA [2007] EWCA Civ 1065 Inflexible Grievance Procedures Can Break Mutual Trust And Confidence GMB v BROWN - EAT [2007] UKEAT 0621_06_1610 Lawyer Loses Age Discrimination Case - Ramifications For Workers - Bloxham v Freshfields - ET 2007 Agency Workers Out In The Cold Again - Wood Engineering v Robertson - EAT 2007 Employment Appeals Tribunal (EAT) Removes Employee Contract Illegality Bar In Unfair Dismissal Cases - PAYNE v ENFIELD TECHNICAL SERVICES LTD and GRACE v BF COMPONENTS LTD - EAT 2007 - Employment Tribunal Applications Down The EAT Has made its first award against an employer for a failure to inform and consult - Amicus Trade Union v Macmillan publishers ltd - EAT 2007 Policeman With Minor Dyslexia Is Considered Disabled Under The DDA - Patterson v Commisioner of Police - EAT 207 No Reversed Burden of Proof For Victimisation In Race Cases - Oyarce v Cheshire County Council - EAT 2007 No Recourse To Mangold For Over 65's Unfairly Dismissed Before October 1 2006 - Briden v Worthing College - EAT 2007 Payments In Lieu Of Notice - Morrish v NTL - Court of Session [2007] CSIH 56 Statutory Dispute Regulations Being Repealed |
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