INDUSTRIAL DISPUTE - 10 cases to watch out for in 2008

10 cases to watch out for in 2008

On 7 Jan 2008 in Case law

Did you spend the Christmas break fretting about what employment law cases are coming up in the next 12 months? Help is at hand, with XpertHR’s round up of 10 significant decisions expected in 2008.

• Levenes Solicitors v DalleyThe Court of Appeal is considering this common issue for employers: is it unfair for an employer to dismiss an employee for a disciplinary offence, where other employees have not been dismissed for the same offence in the past? The Employment Appeal Tribunal found that the dismissal was fair in this case. Ms Dalley, a solicitor, was dismissed mainly for missing a deadline to issue proceedings in a case. It emerged that other solicitors had not been dismissed for that reason in the past.
• Fairbrother v Abbey plcAnother significant case on dismissal is scheduled to go before the Court of Appeal. The Employment Appeal Tribunal had held that, in the context of a constructive dismissal claim, the question that should be asked is whether or not the employer’s actions during the grievance procedure fell within the range of reasonable responses.
• Corr v IBC VehiclesEmployment-related decisions from the House of Lords are few and far between, so this one is worth looking out for. It is an appeal against the Court of Appeal’s ruling that the widow of a man who committed suicide when severely depressed as a result of injuries sustained in a workplace accident was entitled to recover damages under the Fatal Accidents Act 1976.
• McDougall v Richmond Adult Community CollegeThe Employment Appeal Tribunal held that, in determining whether a condition is likely to recur for the purposes of determining if it is long term, it is relevant to consider matters occurring up to the date of the hearing, not just the claimant’s condition at the time the tort was committed. The case now proceeds to the Court of Appeal.
• Oyarce v Cheshire County CouncilIn this controversial decision, the Employment Appeal Tribunal found with “some degree of hesitation and disquiet” that the reversal of the burden of proof does not apply in race victimisation cases. This leads to an unsatisfactory situation where the test in race victimisation is different to the other strands of discrimination. The Court of Appeal will attempt to sort out the mess.
• Attridge Law and another v Coleman A reference to the European Court of Justice that could have a substantial impact on disability discrimination legislation across Europe. Ms Coleman claims that she was discriminated against contrary to the Disability Discrimination Act 1995 because she is the primary carer for her disabled son. This raises the question of whether or not the Framework Employment Directive covers discrimination against an employee on the ground of their association with a disabled person. Given that the right to request flexible working was extended to carers in April 2007, this is an important case from a UK perspective.
• James v London Borough of GreenwichWith no sign of European-level agreement on giving agency workers clear employment rights, it looks like the strand of cases on when a contract of employment can be implied between a temp and an employer is here to stay. The principles are so confused that all tribunal cases about the status of agency workers have been halted pending the outcome of this decision, in the hope that the Court of Appeal can provide some clear guidance.
• Heyday (R v The Incorporated Trustees of the National Council on Ageing)A decision in this high-profile case is not expected until 2009, but there may be an Advocate-General opinion in 2008. Heyday believes that the inclusion of the default retirement age, which allows employers to retire individuals at 65 or over, in the Employment Equality (Age) Regulations 2006 makes them incompatible with the Framework Directive.
• Johns v Solent SD LtdThe case that led to all claims of age discrimination relating to default retirement under the Employment Equality (Age) Regulations 2006 being stayed until the outcome of Heyday’s challenge to the European Court of Justice (ECJ). The Employment Appeal Tribunal admonished the employment tribunal for attempting to second-guess the ECJ and allowed cases like those of Mrs Johns to be put on hold. However, leave was given to appeal to the Court of Appeal.
• HM Revenue and Customs v Stringer and others (previously known as Commissioners of Inland Revenue v Ainsworth and others)
  The European Court of Justice is expected to give its ruling in 2008. It is considering whether or not workers on long-term sick leave who have exhausted their occupational sick pay entitlement are entitled to take four weeks’ paid holiday under working time legislation.

Stephen Simpson, employment law editor, XpertHR