Case round-up

Case round-up by Eversheds 020 7919 4500

A tangled web?
Ilangaratne v British Medical Assn, EAT/1025/01/ZT EAT website

– Dr Ilangaratne was a doctor of Sri Lankan origin and a member of the
medical union, the British Medical Association (BMA). The BMA produces a
medical journal, the British Medical Journal (BMJ) and has a website to which
contributions can be made via e-mail, to be published within 24 hours.
Ilangaratne was a keen contributor by e-mail.

Concerned about system abuse, however, the BMJ published an article entitled
‘Bores on the web’. The BMJ published this on the same day as posting a message
from the doctor who complained of racial victimisation under section 11 of the
Race Relations Act 1976 (prohibiting racial discrimination by a trade union).

He believed the article reflected badly on him, suggesting he was a ‘bore’
and publication of his contributions had also been deliberately delayed. The
tribunal dismissed his complaints of racial victimisation on both counts, accepting
the incident was unfortunate but not deliberate. However, Ilangaratne
successfully appealed.

The Employment Appeal Tribunal (EAT) found the tribunal had failed to
properly consider the juxtaposition of the contribution to the website and the
‘Bores on the web’ article and similarly appeared to accept the BMJ’s reason of
practical difficulties for delays without question. It had failed to make the
essential judgment about how the matter would be seen in the eyes of
Ilangaratne and what the delay and juxtaposition of his publication would mean
to him.

So near but yet so far from unfair dismissal
Harper v Virgin Net Ltd ,2003, All ER (D) 146

– Ms Harper was dismissed by the Virgin Net a few months short of one year’s
service. Had she been dismissed on three months’ notice according to her
contract she would have accrued a full year’s service and acquired unfair
dismissal protection.

She alleged that by summarily dismissing her without proper cause, and
without adherence to her contract, the company had lost her the chance of
unfair dismissal compensation. The tribunal agreed, finding that Harper had
been wrongfully dismissed and that, by way of compensation, she should be
returned to the position she should have been, had she been able to raise an
unfair dismissal complaint. The company successfully appealed.

The EAT said that section 94(1) of the Employment Rights Act 1996 is subject
to restrictions including a qualifying period of one year. There is already
built-in protection within that statute extending the effective date of
termination by statutory minimum notice. This does not, however, extend to
contractual notice and, therefore, Harper did not qualify for protection.
Following the Johnson v Unisys case she was also unable to seek loss for the
fact and manner of her dismissal.

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