Case roundup

This
week’s case roundup

Payment
under protest prevented incorporation
Warman International Ltd v Wilson, All ER (d) 94, 2002 EAT

In
1983, the union representing Warman’s workforce accepted its redundancy
selection criteria in return for enhanced redundancy payments, specifically,
half a week’s pay for each completed year of service.

Redundancies
followed and the enhanced payments were made in 1983, 1987, between 1991 and
1993 and in 1999. Wilson was made redundant in 2000 but no enhanced payment was
made.

Wilson
brought a tribunal claim arguing that because enhanced payments had been made
on all the other occasions, failure to make the enhanced payment this time
constituted a breach of contract. The tribunal agreed and found that the term
had been incorporated by custom and practice. Warman successfully appealed.

The
EAT held a term had to be notorious, certain and reasonable to be incorporated
by custom and practice. If, on each and every occasion that the payment had
been made it was expressed to be for that occasion only, the effect of that
qualification would be to deny the very existence of the ‘custom and practice’.

Accordingly,
Warman’s payment under protest did not create an obligation to make the
enhanced payment on future occasions.

No
protection for former employees
Jones v 3M Healthcare, Kirker v Ambitions Personnel & British Sugar,
Angel v New Possibilities NHS Trust, Bond v Hackney CAB, unreported February
2002, Court of Appeal

The
four applicants brought claims of discrimination and victimisation on the
grounds of their disability, but the complaints related to events that occurred
after employment had ended. For instance, Kirker alleged that British Sugar’s
failure to provide a reference to Ambitions Personnel constituted victimisation
because he had previously brought a successful unfair discrimination claim
against British Sugar.

The
tribunal held it had no jurisdiction to hear the complaints as Section 4(2) of
the Disability Discrimination Act 1995 refers to the discrimination of employees
in the course of their employment which meant the Act did not extend protection
to former employees. In joined appeals, in December 2001, the EAT upheld the
tribunal’s decision.

In
an expedited appeal, the Court of Appeal held there had been no error of law by
the EAT. The wording of Section 4 of the DDA was clear; Section 4(1) expressly
applies to job applicants and prospective employees and Section 4(2) uses the
words ‘whom he employs’.

Kirker
and the others did not come within either category and so were not able to rely
on the Act to bring a claim for disability discrimination after the termination
of employment. The appeals were dismissed but the Disability Rights Commission
was given leave to appeal to the House of Lords.

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