Sidhu v Aerospace Composite Technology, unreported, May 2000, Court of Appeal
At an Aerospace “family day” outing Sidhu became involved in a violent argument with Smith after he had subjected the Sidhu family to racial insults. Both were dismissed for gross misconduct and the decision was upheld after an internal appeal.
Sidhu’s race discrimination claim against Aerospace failed because the tribunal held that the incident had not taken place during the course of employment. Further, Aerospace had not acted in a discriminatory manner during the disciplinary and appeal processes by consciously disregarding the fact that the attack on Sidhu had been a racial one.
Sidhu successfully appealed to the Employment Appeal Tribunal, which held that Aerospace’s deliberate decision to disregard the racial motive of the attack was itself “race-specific” and constituted racial discrimination. But the Court of Appeal allowed Aerospace’s appeal and held that its decision to disregard provocation of any type, not only racial provocation, when applying its disciplinary policy did not amount to less favourable treatment on racial grounds.
How to determine if there is a relevant transfer
Lightways (Contractors) v Associated Holdings, IDS Brief 660, Court of Session
AH’s contract with the local council to provide street lighting maintenance had expired and tenderers for the new contract had to indicate whether their bid was submitted on the basis that the Tupe regulations applied. Lightways won the contract and its tender included a statement that Tupe applied to the transaction. Lightways took on several AH staff but subsequently argued that Tupe did not apply.
The tribunal held that there was a “relevant transfer”. It took into account factors such as Lightways’ statement and the fact that it required AH staff to carry out the new contract (and had made enquiries about their availability), indicating that the undertaking retained its identity after the transfer.
The EAT upheld this decision. On appeal, the Court of Session (the Scottish Court of Appeal) held that in establishing whether there was a relevant transfer the events directly constituting the transaction as well as the surrounding circumstances had to be considered, and this included the attitude and intention of the parties.