long-standing conflict between two theories on wrongful termination, and the same principles would apply to a wrongful termination by employer or employee.
THE IMPORTANCE OF ADHERING TO DEADLINES
15 January 2013
Payroll is not a sector that is unfamiliar with the importance of adhering to deadlines and it is not alone, as recently found by the Employment Appeal Tribunal (EAT) in the case
Did a tribunal commit an error of law by deciding it was not just and equitable to extend time for a race discrimination claim presented one day beyond the limitation period?
Daniel Barnett’s Employment Law reports that no, not when the Claimant was entirely at fault for the late presentation of her claim, says the EAT in DeSouza V Manpower UK Ltd .
The Claimant's employment was terminated with effect from 21 May 2009, according to both her dismissal letter and her P45. She saw a solicitor both before and after her dismissal. Her ET1 was presented to the tribunal on 21 August 2009, mistakenly citing her effective date of termination as 23 May 2009. Whilst no letter before action, nor written confirmation of instructions were evident, the Claimant conceded that in her earlier meetings she had been legally advised of relevant deadlines but had initially declined to authorise the service of the draft ET1 prepared in June 2009 due to personal financial concerns. The EAT accepted that the guidance cited in London Borough of Southwark v Afolabi was a relevant factor, but in directing itself to British Coal v Keeble, the EAT held that the tribunal had incorporated this guidance within its decision. Given the initial findings that the Claimant was entirely at fault, unlike her lawyer who was held to be free from error, no exceptional reasons for the delay arose on the facts and the EAT declined to substitute its view for that of the employment tribunal and dismissed the appeal. The EAT also noted that the first instance decision not to extend time may be construed as having been principally determined on the grounds of the Claimant's fault, rather than the balance of prejudice between the parties.
INCORPORATION OF COLLECTIVELY AGREED TERMS
11 January 2013
Does an employee have a contractual right to job evaluation based on a collective agreement?
The EAT says not as reported in Daniel Barnett’s Employment Law report and based on the facts found in Simpson v Hackney & Others .
The Claimant was employed as a teaching assistant by the London Borough of Hackney on the national pay scale. She made a verbal request for a job evaluation in February 2005 and a written request in May 2006. She was eventually upgraded following a local job evaluation process agreed between the unions and management in December 2008. Throughout this time, her work was unchanged. The Claimant's argument that she had a contractual right to job evaluation based on two collective agreements (the 'Green Book' and the 'Gold Book') was rejected. Following NCB v NUM and Marley v Forward Trust Group Ltd , HHJ McMullen QC held that the relevant terms were not apt for incorporation. Upholding the employment tribunal's decision on this point, he stated that whilst both the Green Book and the Gold Book had sections on pay, for example, that could be enforced, the provisions on the job evaluation process came under the joint advice sections, and so were not legally binding.
CIPP Policy News Journal
12/04/2013, Page 75 of 362
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