This week’s case roundup
It’s never too late
Southwark London Borough Council v Afolabi, EAT, 27 May 2002,All ER (D)
Afolabi, who was black, had been employed by Southwark Council in an
auditing function since the 1970s. In 1990, he applied for the position of
auditor (grade SO2). Following an interview, he was instead appointed to a
lower grade position. In 1999 Afolabi saw a document relating to his 1990
interview in his employment file. It contained the interview panel’s comments
and scores. He had been awarded 15 out of a maximum 16 points. Afolabi brought
a tribunal claim, arguing his failure to be appointed to the higher grade role
was due to racial discrimination. His claim was upheld, regardless of the fact
the document and circumstances dated back some 10 years. Southwark Council
The appeal tribunal held that Afolabi had a legitimate case to bring. It
found reliance upon such old material was entirely legitimate provided any
possible prejudice to Southwark Council by passage of time was taken into
account. The tribunal had considered whether there was any explanation, other
than discrimination, for Afolabi not being appointed to the senior position. It
found none and accordingly ruled the tribunal had relied upon sufficient
material when upholding his claim. Afolabi received £37,490 compensation.
Enhanced redundancy terms formed part of employees’ contract
Albion Automotive Ltd v Graham Walker and Others, Court of Appeal, 2002,
All ER (D) 170 (Jun)
Walker and colleagues were made redundant by Albion. Albion’s parent company
had conducted six previous redundancy exercises prior to making him redundant.
Previous redundancies had included enhanced benefits and Walker and his
colleagues claimed they were also entitled to these.
The tribunal concluded that Walker and colleagues were contractually
entitled to the enhanced redundancy terms, based on the six previous redundancy
exercises, on the basis that it was established practice at Albion.
Accordingly, Albion was held to be in breach of contract.
Following an appeal by Albion, the EAT agreed that the enhanced redundancy
terms were incorporated into the employees’ contracts. Albion appealed
unsuccessfully to the Court of Appeal.
The enhanced terms had applied in previous redundancy exercises. Albion had
circulated these terms in writing and they were well known by everybody
concerned. They had been applied over a period of time to approximately 750
employees. All of the employees had a reasonable expectation that they would
receive the enhanced redundancy terms, so these terms were therefore
incorp-orated into the employees’ contracts.
– A case involving similar facts but with a different outcome was covered by
Debra Gers in Personnel Today 2 April 2002 (Warman International Ltd v Wilson
(EAT, All ER(D) 94)