This week’s case roundup
It is vital to identify reasons for dismissal
Amor v Galliard Homes Ltd, IDS Brief 702 Court of Appeal
Amor worked as a forklift truck driver, but in April 2000 Galliard Homes no
longer needed a full-time driver – its need for a full-time driver had
diminshed. On April 17, Amor agreed to accept GH’s offer as a labourer on the
same rate of pay but, three days later, GH told Amor he was redundant after his
behaviour was considered to be disruptive.
Amor brought an unfair dismissal claim and, although the tribunal found he
had been dismissed by reason of redundancy, the dismissal had been unfair
because of lack of consultation.
GH was ordered to pay Amor £800 compensation. He appealed, arguing the award
might have been greater had the tribunal’s reasoning been different.
The EAT found that Amor was not dismissed for reason of redundancy from his
employment as a forklift truck driver, but had been dismissed because of his
disruptive behaviour while working as a labourer.
There was no diminished need for labourers and so his dismissal from that
role could not be by reason of redundancy.
The appeal was allowed and the EAT remitted the case to a new tribunal to
determine the question of compensation.
Staff have no entitlement to stigma damages
Husain and Zafar v BCCI SA, unreported January 2002 Court of Appeal
The House of Lords in Malik v BCCI, 1997, held that carrying out business in
a dishonest and illegal manner constituted a breach of the implied term of
trust and confidence.
It ruled that employees could, in principle and subject to proof, recover
stigma damages for handicap on the labour market.
A number of employees subsequently brought stigma claims, but these were
dismissed by the High Court because the employees had failed to prove actual
rather than hypothetical loss.
On appeal, the Court of Appeal held that although the High Court had adopted
an over-elaborate approach to the legal issue, its conclusions were correct.
The pertinent fact was whether stigma from previous employment with BCCI had
a real or substantial effect on obtaining future employment.
The whole history of an individual’s search for employment was relevant to
answer this and it was for employees to prove causation.
Loss and damage could not be assumed or inferred and direct financial loss
by individual employees caused by the stigma of being associated with a corrupt
employer had to be shown.
The High Court had analysed the facts comprehensively and found that as
stigma played no part in the failure to obtain employment, it was not
appropriate to apply the ‘loss of a chance’ principle.