This week’s case roundup
Tupe – failure to consult
(1) James McKinnon, JR (Haulage) Limited ("Mackinnon") (2)
John Maitland & Sons ("Maitland") (3) Bibby Distribution Services
("Bibby") v TGWU, unreported, EAT (Scotland), July 2001
Mackinnon’s contract with a third party for the delivery of milk transferred
to Maitland and Bibby and the Tupe regulations applied. Contrary to regulation
10, however, McKinnon failed to inform and consult with its employees about the
transfer, a number of whom then claimed compensation.
At the tribunal, McKinnon argued that regulation 5 operated to transfer all
of its liabilities, including its liability to pay compensation for failing to
inform and consult, to Maitland and Bibby. The tribunal disagreed. Since
liability for McKinnon’s failure to inform and consult arose under the
regulations themselves rather than otherwise in connection with the contract of
employment, liability did not transfer.
The T&GWU’s appeal to the EAT was unsuccessful. The EAT agreed with the
distinction between liabilities arising under the regulations themselves and
other employment-related liabilities. If liability for failure to inform and
consult transferred, there would be no incentive for transferors to comply with
the obligation to inform and consult.
Bringing the employer into disrepute
The Post Office v Liddiard, IDS Brief 690, CA
Liddiard was a postman convicted of assaulting a French police officer during
the 1998 World Cup. He was subsequently identified by a national newspaper’s
"name and shame" campaign and dismissed for bringing the Post Office
into disrepute.
Liddiard successfully claimed unfair dismissal. The tribunal found that
Liddiard had an excellent employment record and the misconduct was unrelated to
his employment. Also, the Post Office had ignored his claims of innocence and
the decision to dismiss had been influenced by the adverse press coverage. The
EAT upheld the decision.
The Post Office successfully appealed to the Court of Appeal, which remitted
the matter back to the tribunal. The Post Office had been brought into
disrepute because of the press coverage, which was a direct consequence of
Liddiard’s conduct.
It was reasonable for the Post Office to rely on the conviction by the
French court. The correct question was whether, given the press coverage, the
Post Office had acted reasonably in treating his conduct as grounds for
dismissal.
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