The EAT upheld the Tribunal's decision largely on the factual findings of a lack of mutuality of obligation, which was open to it on the facts. However, the EAT refused to consider employee status under S212 Employment Rights Act 1996 (a series of connected contracts) since the Claimant had not raised it at the Employment Tribunal, so the effect of the decision may be limited.
IMPLIED TERMS
20 April 2011 An appeal tribunal held that a term requiring an employee to sign a compromise agreement before receiving an enhanced redundancy payment could be ‘implied’. Daniel Barnett’s Employment Law Bulletin reports: The Court of Appeal has handed down its decision in Garratt v Mirror Group Newspapers , which is an interesting case about the implication of terms into an employment contract. It was held that a term requiring Mr Garratt to sign a compromise agreement before receiving an enhanced redundancy payment could be implied because: · no employee had been paid an enhanced redundancy payment without signing a compromise agreement since 1993. · the requirement to sign a compromise agreement was expressly notified to all employees identified as redundant and the signing of such an agreement was an automatic consequence of being dismissed as redundant. · no employee, other than Mr Garratt, has sought to insist on a contractual right to an enhanced redundancy payment in the absence of a signed compromise agreement. · before the redundancy process started, Mr Garratt knew that he would have to sign a compromise agreement in order to get the enhanced redundancy payment provided by his contract. 4 May 2011 It is with thanks to Daniel Barnett that we can highlight a case to the CIPP members in respect of negligent (non) references. This case involves communication that although was not a direct reference from a previous employer, was nevertheless a communication that was deemed inappropriate without duty of care being applied, resulting in a dismissal. Daniel Barnett reports that the QBD has handed down its decision in McKie v Swindon College , which is authority for the proposition that an employer may be liable to a former employee in tort for damages for negligent misstatement when communicating with a future employer about him. It is well established, since Spring v Guardian Assurance [1995] 2 AC 296, that an employee may make such a claim following a reference negligently prepared by an employer. HH Judge Denyer QC extended this principle to a statement made by a former employer which was not a reference. McKie was an exemplary employee of the College. He received a fine reference when he left. He later joined Bath University. His new job involved contact with his old employer, Swindon College. The new HR Director of Swindon, on behalf of the College, caused an email about Mr McKie to be sent to Bath in damaging terms. On the facts this was "fallacious and untrue" and its preparation "sloppy and slapdash". It cost Mr McKie his job at Bath. NEGLIGENT (NON-) REFERENCES
CIPP Policy News Journal
09/10/2012, Page 31 of 234
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