Case roundup

This week’s case roundup

What is the meaning of detriment?
Garry v London Borough of Ealing, unreported, July 2001, CA

In 1996 the borough discovered that its housing benefits manager, Garry, a
Nigerian, had previously been investigated for housing benefit fraud in her
previous job. In March 1997 it launched its own investigation, appointing a
special senior investigator, although Garry was unaware of this until May 1997.

By August the investigator’s superiors concluded there was insufficient
evidence to justify disciplinary action but failed to tell anyone and the
investigation continued. A year later Garry inquired about the investigation’s
progress and was told no further action would be taken.

Garry’s claim for race discrimination was successful. The tribunal found she
had been treated less favourably on the grounds of her race and there had been
a stereotypical assumption that Nigerians were likely to be involved in benefit
fraud. Garry’s lack of awareness of the continuation of the investigation after
August 1997 was a detriment. The borough successfully appealed to the EAT which
held that as Garry had not been disadvantaged in her employment there was no
detriment.

Garry successfully appealed to the Court of Appeal. She had clearly suffered
a detriment, regardless of whether she was aware of the investigation; the
investigation continued longer than necessary because of her race and her
colleagues were likely to be aware of it.

Payment in lieu of holiday pay on termination
Witley and District Men’s Club v Mackay, IDS Brief 690, EAT

Mackay, a club steward since 1989 was summarily dismissed in April 1999 for
theft. At that time he had 26 days’ accrued but untaken holiday. A collective
agreement incorporated into Mackay’s contract stated that employees dismissed
for gross misconduct were not entitled to pay in lieu of accrued but untaken
holiday and consequently the club withheld payment.

Mackay successfully claimed breach of the Working Time Regulations 1998,
which provide that a payment in lieu of accrued but untaken holiday must be
made on termination. The club was ordered to pay £1,100 holiday pay.

On appeal the club argued that the collective agreement was a
"relevant" agreement within the meaning of the regulations which
could limit the operation of the regulations by providing that where
termination is for gross misconduct no payment in lieu of accrued, but untaken,
holiday will be made.

The EAT disagreed. It was not intended that the regulations would enable
employers to make "no payment" in these circumstances.

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