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February 2011 Updates

Unfair dismissal

The Court of Appeal has decided, in Orr v Milton Keynes Council, that an employer cannot be held to know key mitigating facts which are known to other employees about an individual, including their line manager, if the employer's decision maker wasn't aware of them at the relevant time and couldn't reasonably be expected to have found them out.

In this particular case, the Claimant was involved in two separate incidents, which included him being rude to his line manager. His employer decided that both amounted to gross misconduct and dismissed him. However, the person who took the decision to dismiss was unaware that the second incident was provoked by the discriminatory conduct and language of the Claimant's line manager.

Defamatory comments in correspondence

The High Court has decided, in Wallis & GHP Securities Limited v Justin Meredith, that if an employee sends a letter alleging unlawful conduct by their employer to their employer's solicitor, this does not amount to a substantial act of defamation.

Abolition of the default retirement age

The Government has now published the Draft Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011, which phase out the default retirement age of 65 from 6 April 2011. As expected, the Government has introduced an exception to the age discrimination rules so as to permit employers to stop offering employees insured benefits, such as life assurance and private medical cover, beyond whichever is the greater of age 65 and the employee's state pension age.

Costs orders

The Employment Appeal Tribunal has decided, in G4S Services v Rondeau, that a failure to consider a reasonable settlement offer, which doesn't necessarily have to go any further than making a reasonable counter-offer, can constitute unreasonable conduct which justifies a costs order.

Right to request time off for training

The Department for Business, Innovation and Skills has announced that the right to request time off for training is not going to be extended to all employees from April 2011, as was previously intended.

The right to request time off for training was introduced for employees of large employers (250 or more employees) in April 2010, with a view to it being extended to all employers from April 2011. In November 2010, the Government announced that employers with fewer than 50 employees would be exempt.

The maximum penalty for an employer which fails to consider a request for time off for training in breach of this legislation is eight weeks' actual pay.

An expansion of claims which can be brought in the UK

The Court of Appeal has decided, in British Airways Plc v Ms Eliza Mak & Ors, that an Employment Tribunal has jurisdiction to hear claims as long as the employee does part of their work in the UK.

The Claimants were cabin crew of Chinese nationality and were based in Hong Kong. The Court of Appeal found that there was no error of law in the Employment Tribunal's ruling that the Claimants did their work partly in the UK despite the fact that this made up a small percentage of their overall work. Accordingly, the Tribunal was able to hear the Claimants' discrimination claims.

Employer's intention and constructive unfair dismissal

The Court of Appeal has emphasised, in Tullet Prebon Plc and ors v BGC Broker LP and ors, that an employer's intention, objectively assessed, is of paramount importance when considering whether its actions towards an employee amount to a repudiatory breach of contract entitling the employee to resign and claim constructive dismissal.


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SRA number 404293