This week’s case roundup
Business transfers and constructive dismissal
Rossiter v Pendragon, IDS Brief 683, EAT
Rossiter’s employment transferred to Pendragon in October 1997 following a
business transfer to which the Tupe regulations applied. In 1999 he resigned
and claimed constructive dismissal after Pendragon unilaterally withdrew a
scheme relating to holiday pay and made other changes which he considered to be
a breach of the implied term of trust and confidence.
Rossiter argued that these changes were a substantial and detrimental change
to his working conditions which entitled him to resign pursuant to regulation
5(5).
The tribunal dismissed the claim, ruling the changes did not constitute a
fundamental breach of contract.
Rossiter appealed, arguing that the correct way of establishing constructive
dismissal in the context of a business transfer was whether there had been a
substantial and detrimental change in working conditions (see the wording of
Article 4(2) of the Acquired Rights directive and regulation 5(5). It was not
necessary to show a fundamental breach of contract pursuant to section 95(1) of
the Employment Rights Act 1996 and in any event that Act had to be construed
purposively to give effect to the directive.
The appeal was allowed and the case remitted back to the tribunal.
Recruitment procedure discriminatory
Ayub and others v Derby City Council, EOR Discrimination Digest 47,
Employment Tribunal
Ayub, Rashid and Sharief applied for the post of race equalities adviser
with the council. All were of Pakistani origin as was the head of the unit,
Syed. The interview panel, which included Syed, unanimously decided to appoint
Sharief but before informing him of this they told the deputy council leader,
Young, of their decision.
He objected to the appointment because of flaws in the recruitment procedure
and the lack of an observer at the interview. He insist-ed the recruitment
drive be re-run and the position advertised in two Indian newspapers and one
Pakistani newspaper.
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Young joined the interview panel and appointed an observer who was of Indian
origin. Although the previous applicants were reconsidered, the successful
candidate was an Indian woman.
The claims of race discrimination were successful. The tribunal found the
procedural flaws during the recruitment process did not justify starting the
process all over again, especially as there were flaws the second time around
too. It found that the real reason for re-interviewing was Young’s intention to
ensure "an appropriate" community mix by appointing an Indian
candidate rather than a Pakistani
