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June 2010 Updates

Conditional resignations

The Employment Appeal Tribunal decided, in Heaven v Whitbread Group, that the date of termination in a "conditional resignation" claim depends on what actually happened between the parties. The parties' wishes, or subsequent agreement as to a different date, are irrelevant. Therefore, even though the employee in this case had later stated that his resignation should be effective from the date of his conditional letter of resignation, the Employment Appeal Tribunal held that the statutory date of termination still ran from the date on which he confirmed his intention to resign several days later. This is important for employees to bear in mind when considering the time limit for lodging a Tribunal claim.

Disability discrimination

In the case of Aitken v Commissioner of Police of the Metropolis, the Tribunal held that treatment on the basis of a mistaken perception that an employee is suffering from a particular disability does not fall within the definition of direct disability or disability-related discrimination. This is different from other pieces of discrimination legislation, where an individual is able to present a claim in respect of discrimination based on a perceived characteristic (such as that they are gay, or Muslim), whether that perceived characteristic is right or wrong.

Employment consultants and legal privilege

In Scotthorne v Four Seasons, the Employment Appeal Tribunal held that advice given by employment consultants about how to deal with an alleged act of gross misconduct did not have to be disclosed because it was protected by litigation privilege.

The Employment Appeal Tribunal found that the reason for following a disciplinary procedure is to avoid litigation, and so the dominant purpose for seeking the advice was litigation and it did not matter that the consultants were not legally qualified.

This case does not, however, mean that advice from non-qualified advisers at an earlier stage in a process would necessarily attract legal advice privilege.

Unfair dismissal and time limits

The Employment Appeal decided, in Northamptonshire County Council v Entwhistle, that it remains reasonably practicable for an employee to file their unfair dismissal claim within the usual time allowed (three months from the date of termination), even though their employer has mistakenly advised them that the time limit for claiming unfair dismissal runs from the date of the rejection of their appeal.


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SRA number 404293