Case round-up in brief

In Forces One Utilities v Hatfield, the EAT held that it is appropriate to strike out a response when the employer’s main witness threatens the claimant at the tribunal (in this case, by threatening and swearing at the claimant in a car park near the tribunal).

In Cortest v O’Toole, the EAT clarified that the right to take time off to look after dependants under the Employment Rights Act only applies to emergency situations and is limited to a “reasonable” time-off (which in most situations would not stretch to longer than a day or two).

In Kuzel v Roche the Court of Appeal has considered the burden of proof in whistle-blowing cases and held that it is for the employer to prove that it had a potentially fair reason for dismissing, or to prove that the alternative reason asserted by the employee was not the real reason.

In Impact v Minister for Agriculture and Food (Ireland) the ECJ holds that non-discrimination rules in the Fixed Term Workers Directive have direct effect, meaning they can be enforced directly, irrespective of the national laws the use of successive fixed term contract rules do not have direct effect, the principle of non discrimination against fixed term workers extends to pension entitlements and employees must be able to bring claims based on EC law in the Employment Tribunal.

In Focus

Acas has published a draft code of practice on discipline and grievance which anticipates changes in employment law due in April 2009 (when the Statutory Dispute Resolution Procedures are to be repealed).

Under the proposals, a failure to follow the code will not, in itself, mean employers will be liable for unfair dismissal (or whatever the complaint may be), but the tribunals will be able to adjust compensation by up to 25% if the employer unreasonably ignores any part of the code.

The new draft code is much more concise and principles-based than the current version.

The deadline for responding to Acas is 25 July 2008.

One to watch

In Thomas-James and Others v Cornwall County Council the tribunal concluded that where it was not possible to identify which incoming contractor was carrying out the activities of an outgoing contractor there could be no valid change of service provision transfer for the purposes of TUPE.

However, in a similar case, Hambley and Others v Leena Homes Limited and Others, the tribunal reached the opposite conclusion based on similar facts.

Hambley is due to be heard by the EAT very soon and further guidance is clearly needed.

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