The Claimant (who was disabled) worked 8.5 hours a week for Shropshire Doctors on a service which was due to transfer to NHS Direct, who informed her that she would have to work at least 15 hours. She could not manage this, so asked for 10 hours. This was rejected. She objected to the transfer and was redeployed by Shropshire Doctors.
NHS Direct applied to have her disability discrimination claim struck out as she was not entitled to bring a claim - she was neither their employee nor an applicant.
The ET dismissed the application. Leaving aside TUPE, NHS Direct had made an offer of new terms to the Claimant. Hence, she was an applicant. NHS Direct appealed.
The EAT rejected the appeal but for an entirely different reason. The EAT held that the transfer of the Claimant's contract under TUPE was not an offer of employment so she was not an applicant.
However, after the hearing the EAT noted that NHS Direct had also made an "offer of suitable alternative employment" to the Claimant in light of a potential redundancy situation post-transfer. This made her an applicant. The parties were invited to make submissions on this new point. The EAT exercised its discretion to consider it, and decided that the claim should not be struck out but on different grounds.
No Implied Term Duty to Disclose Allegations of Misconduct 15 June 2015
Is there an implied term in an employment contract that an employee should disclose his own misconduct?
No, held the EAT in The Basildon Academies v Amadi, dismissing the Academies' appeal.
With thanks to Daniel Barnett’s employment law bulletin which provides the details of the case.
Mr Amadi was a Cover Supervisor at the Academies. He breached his contract by not getting his employer's permission to work at Richmond upon Thames College, where he was accused of sexually assaulting a pupil and suspended. After police involvement, no criminal action was taken against him. The Academies heard about the police investigation and ultimately dismissed the Claimant for not reporting to it the allegation made at Richmond, and for working elsewhere without permission.
The unfair dismissal claim succeeded. The Academies appealed, arguing that there was an implied duty on an employee to report allegations of misconduct, as well as an express duty in his contract to do the same.
The EAT analysed the Claimant's contract and the Academies' policies, finding no express duty on the Claimant to report allegations against him, except for ones he knew or had reason to believe to be true. He could not therefore have been fairly dismissed for conduct on account of breaching his contract or the Academies' policies.
The EAT held that there was no implied term that 'an employee must disclose to his employer, in the absence of an express contractual term requiring him to do so, an allegation however ill-founded of impropriety against him'.
Practitioners should note that the EAT and employment tribunal did not have in the evidence before them the National Standards that applied to the Claimant's employment. The EAT noted that its findings on the express duty point were not likely to be of wider application. An appeal on remedy failed, the EAT noting that arbitrary decisions may be justified by the facts on quantum.
TUPE: Assignment of Employees 17 June 2015
In a TUPE scenario, can the 'client' dictate who is assigned to an organised grouping of employees for the purpose of the transfer?
No, held the EAT in Jakowlew v Saga Care .
With thanks to Daniel Barnett’s employment law bulletin which provides the details of the case.
The Claimant worked for Saga as a care manager, principally on a contract with London Borough of Enfield. Shortly before the contract finished with Saga and started with Westminster Homecare Ltd, the Claimant fell out with her line manager and was suspended. Enfield asked Saga to remove her from the contract, as was their right under their agreement. Saga sought to challenge this, only agreeing that the Claimant could be removed from the
CIPP Policy News Journal
25/04/2016, Page 71 of 453
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