alternative measures that could be adopted, such as measuring performance at a time when both candidates were still at work. There was some success for the employers, however: the EAT upheld their appeal against the Tribunal's decision not to make any Polkey reduction on the basis that they had disregarded cogent evidence that the claimant would have been made redundant in any event some 9 months later. The claim was therefore remitted to a different Tribunal to consider whether the claim for loss of earnings should be capped or discounted on this basis. NOTICE OF DISMISSAL 20 April 2011 A recent appeal tribunal has ruled that unless a contract of employment provides otherwise, contractual notice whether oral or written, runs from the day after the notice is given. Daniel Barnett’s Employment Law Bulletin reports: The EAT (HHJ Hand QC) has handed down judgment in the case of Wang v University of Keele which is authority for the proposition that, unless a contract provides otherwise, contractual notice, whether oral or written, runs from the day after notice is given. The Claimant was dismissed with three months notice by a letter emailed and read on the afternoon of 3rd November. He presented a claim for Unfair Dismissal the following May 2nd. The ET dismissed the claim as a day out of time, counting notice as running from 3rd November to 2nd February. On appeal, the EAT held, in a comprehensive review of authorities, that the principle in West v Kneels - that when verbal notice is given, notice starts on the following day - applies equally to written notice. Therefore, in this case, notice ran from 4th November, with dismissal taking effect on 3rd February, so the Claim was in time. It was irrelevant that the Claimant had only been paid to and stopped work on 2nd February; notice once given cannot be shortened without agreement. The EAT indicated that if the giver of notice makes the dismissal date ambiguous, the notice should be construed in favour of the recipient, and observed (without recommending) that notice could be given by text, email or even instant messaging. 20 April 2011 An appeal tribunal has ruled that a paid volunteer is not an employee under the Disability Discrimination Act 1995 if there is no mutuality of obligation between the parties. Daniel Barnett’s Employment Law Bulletin reports: The Employment Appeal Tribunal (EAT) has handed down judgment in the case Breakell v Shropshire Army Cadet Force which is authority for the proposition that a paid volunteer is not an 'employee' under the Disability Discrimination Act 1995 (DDA) if there is no mutuality of obligation between the parties. The EAT also held that mutuality of obligation is not necessarily established where a volunteer is required to provide services when at work or can expect to be paid for them. The Claimant was a paid volunteer Adult Instructor for the Cadet Force, although not entitled to the National Minimum Wage. An Employment Tribunal found the parties' arrangements created no mutuality of obligation; the Claimant neither had to take work, nor had the Cadet Force to provide him with it, although he had to follow instructions when at work. As he was not an 'employee' under S68(1) DDA, his claim was struck out. EMPLOYMENT STATUS UNDER DISABILITY DISCRIMINATION ACT 1995
CIPP Policy News Journal
09/10/2012, Page 30 of 234
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