Case round up

Case round-up by Eversheds 020 7919 4500

When is a dismissal hearing a disciplinary hearing?
Heathmill Multimedia ASP Limited v D Jones & M Jones, EAT 10 June

The two Jones brothers were employed by Heathmill from spring 2001. Due to
Heathmill’s financial difficulties, the brothers were called to a meeting in
December 2001. They were given one month’s notice, but were not told the reason
for their dismissal.

The tribunal found that the reason for their dismissal was redundancy, and
therefore "it was not appropriate to follow the disciplinary route in dealing
with this matter". Nevertheless, Heathmill had breached the Employment
Relations Act 1999 by failing to allow the workers to be accompanied at their
dismissal meeting.

The meeting fell within the statutory definition of a disciplinary hearing
(S13(4) ERA 1996), as a hearing that could result in the "taking of some
other action in respect of a worker by his employer", and so they should
have been advised of their right to be accompanied by the dismissal officer.
Heathmill was ordered to pay the brothers £480 each (the statutory maximum of
two weeks’ pay).

Heathmill appealed, arguing that the meeting was not a disciplinary hearing.
The tribunal had already found that as the dismissal was by reason of
redundancy, there was no question of there being any disciplinary hearing. If
the purpose of the meeting was simply to inform the employees that they were to
be dismissed, then it was not a ‘hearing’ of any kind, and certainly not a
disciplinary hearing within the statutory definition.

The appeal was allowed, and the awards were discharged.

Equal pay defence
Kings College London v Clark, EAT 4 June [2003]

Clark was employed by Kings College as a scientific officer, grade 1. In
1993, on merging with another college, Tate – a grade 3 post holder – transferred
and joined Clark.

TUPE applied to Tate’s transfer, and he continued to receive a higher salary
than Clark, as well as increased holiday entitlement. Clark consistently
complained they were engaged in ‘like work’, and should both be paid the same
amount. She brought a successful equal pay claim.

The college accepted that she was employed in the same type of work as Tate.
However, on appeal, it sought to challenge the tribunal’s rejection of its
defence that the variation in pay was due to a material factor unconnected to
the difference in sex; ie, the need to preserve Tate’s terms and conditions on
the transfer of his employment in 1993.

The appeal was allowed. The material factor defence had not been adequately
considered by the tribunal. Although the college had undertaken a grading
review in 1999, the employment tribunal accepted this did not break the chain
of causation that stretched back to the earlier transfer, and the college’s
obligations under TUPE.

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