Case round-up by Eversheds

first_imgThis week’s case round-upCompensation reduction: Parties right to be heard Market Force (UK) Ltd v Hunt, Employment Appeals Tribunal (EAT), 2002,IRLR 863 An employment tribunal’s decision to reduce the amount of compensationwithout allowing either party to be heard meant the parties had been denied afair hearing. Hunt was dismissed following discovery of pornographic material on hiscomputer. At a disciplinary hearing, he claimed to have stored the materialaccidentally but the company concluded his actions were deliberate. Hunt brought an unfair dismissal complaint. In the absence of an adequateinvestigation into the circumstances, the tribunal held his dismissal wasprocedurally unfair. The tribunal then made a 75 per cent Polkey reduction to his compensation –where an employee’s compensatory award is reduced to reflect the probability ofhis being fairly dismissed but for the procedural irregularity (Polkey v AEDayton Services Ltd). The tribunal concluded there was only a 25 per centchance that Hunt’s explanation would have been shown to be correct and that hewould not have been dismissed if a fair procedure had been followed. The tribunal refused to allow the company to call evidence before itassessed the Polkey percentage, so it appealed. Hunt cross-appealed. The appeals were allowed. The determination of a Polkey reduction is adistinct legal issue and the tribunal’s failure to allow either party to beheard meant they had been denied a fair hearing. The case was remitted fordetermination of the appropriate percentage reduction to be adopted. There was clear authority In relation to Hunt’s cross-appeal, that a Polkeyreduction should be made to the compensatory award only. There-fore Hunt wasentitled to receive his basic award without reduction, subject to the company’sarguments that the award should be reduced for contributory fault. Agency is the employer Dacas v Brook Street Bureau (UK) Ltd and another, EAT, All ER (D) 241 Dacas was placed by the agency to work as a temporary cleaner at a hostelrun by a local authority and worked there for six years. Following a disagreement with the local authority and a previous incident,the agency informed her it would no longer find her work. Dacas complained of unfair dismissal to an employment tribunal, claiming shehad been employed either by the agency or the local authority. However, thetribunal dismissed her claim, finding Dacas was employed by neither party. She appealed, arguing that the tribunal’s findings, including that theagency exercised considerable control over her it should have concluded she wasemployed by the agency. The appeal was successful. The only conceivable conclusion, based on thetribunal’s findings, was that Dacas had been employed by the agency. The casewas remitted to an employment tribunal to consider whether the dismissal wasfair. EAT guidance on time off for dependents Qua v John Ford Morrison Solicitors, EAT, 2003 All ER(D) 29 Jan Qua was dismissed due to high levels of absence. She claimed she wasautomatically unfairly dismissed for exercising her right to take time off tocare for a dependent under s57A Employment Rights Act 1996. She argued that themajority of her absences were due to her son’s medical problems. The tribunal decided that Qua’s absences were not “necessary”within the meaning of s57A, and that she had taken an unreasonable amount oftime off. Her complaint was dismissed. Upholding Qua’s appeal the EAT, said disruption to the employer’s businesswas an irrelevant consideration. The case essentially involved the right todeal with the unexpected and did not enable the employee to provide careherself, other than in an emergency. However, the tribunal had failed to identify whether Qua had properlycomplied with the requirements of s57A(2) each time she was absent – informingher employer of the reason for her absence as soon as reasonably practicable. If the tribunal found that the employee had not complied with s57A(2), thenthe right to take time off under s57A(1) did not apply. The tribunal had failed to make clear findings about the employee’scompliance with s57A(2) and the case is to be heard again. Related posts:No related photos. Case round-up by EvershedsOn 11 Feb 2003 in Personnel Today Comments are closed. Previous Article Next Articlelast_img