Case roundup

This week’s case roundup

Complying with time limits is crucial
Commissioner of Police for the Metropolis v Hendricks, [2001] AU ER (D)
57, EAT

Hendricks, a black female police officer, commenced employment in 1987 and
in March 1999 went on stress-related long-term sick leave.

In March 2000 she brought race and sex discrimination claims specifying 99
allegations of discrimination. Her originating application made no specific
allegation of any discriminatory conduct within the preceding three months and
on the face of it, the claims were out of time.

At a preliminary hearing Hendricks argued there was a prevailing regime of
‘institutional racism’ in the Metropolitan Police which effectively constituted
a policy or practice which resulted in her suffering from continuing discrimination
throughout her employment.

The tribunal held Hendricks had suffered from an act "extending over a
period of time" and the claims had been brought in time. It went on to say
that if this decision was incorrect and the claims were in fact out of time it
would not be just and equitable to extend the time limits. The Commissioner
appealed and Hendricks cross appealed.

The Commissioner argued that Hendricks’ reference to numerous isolated
incidents could not amount to a "policy" and the tribunal should not
have inferred an "act extending over a period" where there was no
link between the various discriminatory acts. The EAT agreed, allowing the
Commissioner’s appeal and dismissing the cross appeal.

No pay for overtime
Rich v Forbouys Limited, [2002] AU ER (D) 156, EAT

Rich routinely worked in excess of her contractual hours even though
Forbouys notified her that there was no operational need to do so. In January
2000 she resigned and subsequently brought a successful tribunal claim for
unpaid overtime and breach of the Working Time Regulations 1998. Forbouys
appealed.

The EAT found Forbouys had not authorised the overtime, quite the contrary.
Regulation 4(1) required staff to consent to working overtime but there was no
such consent here. Further, Rich’s over-time claim (whether argued as a claim
for unlawful deduction of wages or breach of contract) was not assisted by
Regulation 4(1) because a worker’s entitlement to overtime payments is
unspecified.

Although Forbouys had breached the regulations by requiring Rich to work
more than 48 hours a week, this breach could not form the basis for an unlawful
deduction claim under the Employment Rights Act 1996 and breach of Regulation 4
only gave rise to civil relief by way of a declaration. The tribunal had erred
therefore in finding that Rich had been legally entitled to overtime payments
and that Forbouys’ failure to make such payments amounted to an unlawful
deduction of wages.

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