Printer friendly

Return to homepage

May 2009 Updates

Constructive unfair dismissal

The Employment Appeal Tribunal has decided in Bournemouth University Higher Education Corporation v. Buckland. that the 'range of reasonable responses' test used in unfair dismissal cases should not be used when considering whether an employee has been constructively unfairly dismissed. By way of reminder, a constructive unfair dismissal claim is typically based upon a breach of the implied term of trust and confidence. This requires the employee to show that the employer has, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between them. The Employment Appeal Tribunal held that the focus of a constructive unfair dismissal claim should not be on whether the employee's decision to resign fell within a range of reasonable responses. Instead, the questions to ask in a constructive unfair dismissal claim are:

  1. What was the conduct complained of?
  2. Did the employer have reasonable and proper cause for that conduct?
  3. If not, was the conduct complained of calculated to destroy or seriously damage the employer/employee relationship of trust and confidence?

Part-time workers

The Employment Appeal Tribunal has decided in the case of Carl v The University of Sheffield that:

  1. A Claimant seeking to establish unlawful less favourable treatment under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 must be able to point to a real comparator who amounts to a "comparable full-time worker". It is not possible to rely upon a comparator who is hypothetical only.
  2. It is not necessary for part-time status to be the sole reason for the unlawful treatment. Part-time working must be the effective and predominant cause of the less favourable treatment complained of, but need not be the only cause.

Awarding costs when a claim is based on a lie

The Employment Appeal Tribunal has held in the case of Daleside Nursing Home Limited v Mathew that, where the central allegation in a claim is a lie, a Tribunal should conclude that the Claimant has acted unreasonably and an application for costs should generally be allowed.

The Employment Tribunal in this case rejected Mrs Mathew's claim of direct race discrimination, which was based on an allegation that her manager had called her a 'black bitch'. On the facts of the case, the Tribunal found that her manager had not said the words and the claim accordingly failed. However, the Employment Tribunal rejected the employer's application for costs as it did not consider that Mrs Mathew and her representative had acted unreasonably.

The Employment Appeal Tribunal allowed the appeal against that decision. It held that, where there is a clear-cut finding that the central allegation of a claim is a lie, it is perverse for a Tribunal to conclude that this does not constitute a person acting unreasonably.

Length of service as a selection criterion in redundancy and
age discrimination

The Court of Appeal has held in the case of Rolls Royce plc v Unite the Union that the inclusion of a length of service criterion in a redundancy selection policy can constitute a proportionate means of achieving a legitimate aim. It also found that the use of length of service as a criterion could be considered a 'benefit' under the Employment Equality (Age) Regulations 2006 (the "Regulations").

In this case, the employer and the union had entered into a collective agreement relating to redundancy. The collective agreement provided that redundancy selection would involve a points scoring system, under which employees were assessed in various categories. Each employee was also to receive one point per year of continuous service. A dispute arose over whether this length of service criterion complied with the Regulations.

The Court of Appeal held that, while the criterion was age discriminatory, it was objectively justified as it achieved a legitimate aim (namely to reward loyalty and create a stable workforce in the context of a fair redundancy selection process). Furthermore, the court held that the agreement would fall within the general exemption provided by the Regulations regarding benefits. The exemption states that certain benefits based on length of service are permissible even if they discriminate on the grounds of age. According to the Court of Appeal, allotting points for long service in a redundancy selection procedure may mean workers keep their jobs, which could properly be described as a "benefit".


In order to view the embedded animation, you must first enable Javascript and/or get the Adobe Flash Player. We apologise for the inconvenience.

SRA number 404293