Case Roundup

This week’s case roundup

Failure to promote part-timer discriminatory
Neary v Ladbrokes Casino, EOR Digest No 47, Employment Tribunal

Neary worked at Bristol’s Regency Casino as a grade I1 inspector. She worked
part time because of her child care commitments.

In 1998 a number of full-time inspectors were promoted to grade I2 but Neary
was not promoted notwithstanding her good appraisal. The assistant manager told
Neary that she was not considered for promotion because she worked part time
and this was the same reason given to another female part-timer. In November
1999 two full-timers were promoted to grade I2 but once again Neary was not
promoted.

She brought a successful claim of indirect sex discrimination. The tribunal
found that there was "an unwritten policy and practice" whereby an
employee had to work full-time before being considered for promotion. This
amounted to a requirement or condition which the casino made no attempt to
justify and which indirectly discriminated on the grounds of gender.

The Part Time Workers (Prevention of Less Favourable Treatment) Regulations
2000 which came into force on 1 July 2000 were not in place when Neary brought
her claim.

Imposition of new terms may constitute a dismissal
London Borough of Southwark v Mungul, IRLB 662, EAT

Following the instigation of the council’s capability procedure Mungul, a
care manager, was demoted and transferred to another unit and his salary
reduced.

He brought claims of sex and race discrimination, unlawful deductions from
wages and unfair dismissal, all of which, save for the sex discrimination
claim, were upheld. Regarding his unfair dismissal claim, Mungul successfully
argued that, even though he remained in employment, the demotion and salary
reduction were such a fundamental breach of contract that his original contract
had been withdrawn resulting in his dismissal and re employment on new terms.
The tribunal agreed, stating that by demoting Mungul and reducing his salary
"there was a fundamental breach of the contract of employment".
Therefore, that was a dismissal.

The council appealed the finding of unfair dismissal. The EAT held the
tribunal had erred in law when deciding that the fundamental breach of contract
constituted a withdrawal of the whole contract which inevitably resulted in
dismissal. It was necessary to assess all the surrounding circumstances
including the motive for the changes and the manner of their imposition. The
demotion and salary reduction could have amounted to a variation to the
contract which, depending on the circumstances, might have constituted a
repudiatory breach of contract capable of being waived by Mungul. The matter
was remitted to the same tribunal for a re-hearing.

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