The fact that the school governors (who are not the employer) set the claimants’ terms and conditions (albeit on council recommendations) did not mean that the claimants were not under a single source of terms and conditions with other council staff, meaning that the council staff were potential comparators. The EAT said that 'the same employment' should be construed naturally, but observed that with sufficient evidence of departures by governors from Council recommendations, the outcome might differ. The EAT suggested that a material factor defence might arise for an employer in such situations. In mass Equal Pay litigation, with mistakes in job titles being "inevitable", Tribunals should be very ready to accept amendments to correct misdescriptions of job titles, subject to considerations of jurisdiction and prejudice to the employer. A failure to properly state the basis of a grievance under the (now-repealed) Modified Grievance Procedure will not mean a claim is barred under S32 EA 2002 if a Collective Grievance under Regulation 9 of the 2004 Dispute Resolution Regulations covers that grievance. The EAT set a low threshold for complying with the Collective Grievance provisions by a Union or appropriate representative, allowing for compliance by 'happy accident'. The EAT also held that agreeing to follow the Modified Procedure is binding, and a Claimant cannot retract agreement and revert to the Standard Procedure to get round a S32 bar if a grievance under the Modified Procedure fails to do so. 8 June 2011 A recent surprising Employment Appeal Tribunal decision means that some employers who issued retirement notices on or before 5 April 2011 may now find that they were invalid, leaving them potentially exposed to claims of unfair dismissal and age discrimination. Daniel Barnett’s Employment Law Bulletin reports: The EAT has handed down its decision in the case of Bailey v R & R Plant (Peterborough) Ltd which is authority for the proposition that when an employer provides written notice of its intention to retire an employee under the statutory retirement procedures, the employer must inform the employee that any written request to continue working must be in writing and must state that it is made under paragraph 5 of Schedule 6 to the Employment Equality Age Regulations 2006 (now repealed). The EAT found that the Respondent's letter to the Claimant informing him that he would be retired and that he is entitled to make a request to continue working beyond his 65th birthday was invalid because the written notice did not state that the request must be made under paragraph 5. HHJ Richardson concluded by saying that "An employee is not informed of the statutory procedural right merely by being told that he may make a request not to retire. He is informed of the statutory procedural right only if he is told the essential conditions by which it may be exercised". The EAT held that the reason for dismissal was retirement and the dismissal was unfair. EMPLOYER’S RETIREMENT NOTICES MAY BE INVALID
TAX TREATMENT OF EMPLOYEE’S LEGAL FEES ON TERMINATION
8 June 2011
CIPP Policy News Journal
09/10/2012, Page 33 of 234
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