This week’s case roundup
Pre-transfer dismissal was fair
Thompson v SCS Consulting and others, unreported, September 2001 EAT
In December 1998, receivers were appointed to SCS and having taken into
account its financial difficulties concluded all the employees would have to be
dismissed. Open Text wanted to purchase SCS and it was agreed the dismissals
would be deferred until 29 December to give Open Text time to identify which
employees should be retained. The remaining employees would be dismissed by the
receivers (a pre-condition of the sale). Thompson was dismissed and 11 hours
later SCS transferred to Open Text.
Thompson claimed his dismissal was connected with the transfer and was
automatically unfair. The tribunal disagreed and held he had been dismissed for
an economic technical or organisational reason. The EAT upheld this decision.
The tribunal found SCS was over-staffed and insolvent and the work-force had
to be cut to make it viable. It agreed any liability for dismissal would not
have been transferred because Thompson was not employed "immediately
before the transfer".
Detrimental treatment must have adverse consequences
Shamoon v Chief Constable of Royal Ulster Constabulary, IRLB 671, NI CA
Shamoon, a chief inspector, was deputy head of a division within the traffic
branch of the RUC and reported to a superintendent. Along with other chief
inspectors she carried out staff appraisals, even though the RUC’s scheme
provided appraisals would normally be completed by a superintendent.
Two constables were appraised by Shamoon and complained about her methods.
The substance of one of the complaints was upheld. The other constable took his
complaint to the Police Federation.
The superintendent decided he would carry out future appraisals himself but
if he were unavailable Shamoon would do the appraisal. However, the other chief
inspectors continued to carry out appraisals as before. Shamoon successfully
claim-ed sex discrimination on the basis that removing her right to carry out
appraisals was a detriment.
The RUC successfully appealed to the Northern Ireland CA. There had to be
some material and substantial physical or economic consequence arising from the
discrimination to constitute a detriment. Shamoon had no contractual right to
carry out appraisals. Shamoon had not been treated less favourably than any other
chief inspector in the same circumstances, the reason for her treatment was the
constables’ complaints, not Shamoon’s sex.