Case round-up news in brief

Case round-up news in brief

Dismissal for failure to have a medical examination was unfair

The employee was absent through ill-health. After she failed to co-operate
with requests by the employer over a three-month period for her to undergo a
medical examination with a view to assisting her to return to work, she was
dismissed. The EAT overturned an employment tribunal ruling that the dismissal
was by reason of capability and was fair. The EAT regarded the issue of
non-co-operation as one of misconduct rather than capability. The EAT ruled
that the dismissal was unfair as there had been no disciplinary hearing and the
dismissal was outside the band of reasonable responses in all circumstances of
the case. The decision emphasises the importance of properly classifying the
reason for the proposed dismissal and following the appropriate procedure.
O’Donoghue v Elmbridge Housing Trust, EAT

Compromise agreements not void under TUPE

After a TUPE transfer, some employees were made redundant. They accepted
redundancy payments and signed compromise agreements. They argued that their
pre-transfer terms and conditions entitled them to greater redundancy payments,
that these rights had transferred under TUPE and the compromise agreements were
void as they were precluded under TUPE from contracting-out of the transfer of
rights under TUPE. This latter argument was rejected by the EAT. The compromise
agreements were not an attempt to vary terms and conditions of employment but
to compromise a dispute. Nor did the agreements arise solely or mainly by
reason of the transfer. The prohibition of variations to terms and conditions
in a TUPE context under the ECJ’s decision in Daddy’s Dance Hall could not
Solectron Scotland Ltd v Roper and Others, EAT

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