On appeal

Introducing a regular series
spelling out the implications of important cases which have recently been heard
in the appeal courts. Debra Gers sets out the issues

power to strike out claims
Care First Partnership Limited v Roffey 
IDS Brief 677 Court of Appeal November 2000

At the hearing of the
applicants’ constructive dismissal claims, Care First applied for an order
striking out the claims. It argued that if the applicants’ witness statements
were factually correct the claims had no reasonable prospects of success.

The tribunal rejected the
application. Pursuant to the Employment Tribunals Rules of Procedure
Regulations 1993 it did not have jurisdiction to strike out the claims unless
they were scandalous, frivolous or vexatious or if applicants failed to comply
with a tribunal order.

Care First appealed
unsuccessfully to the EAT and Court of Appeal, arguing that insufficient
consideration had been given to the provisions of Rule 9(1) which gave
tribunals a general power to conduct hearings in a  just and appropriate manner. The Court of Appeal held that only in
exceptional circumstances would it be unnecessary to hear both sides before
deciding to strike out claims. Care First’s application had been premature. It
could not seek a summary disposal of the case simply on the basis of the
witness statements because without hearing oral evidence the tribunal could not
come to a view about merits.

The DTI’s proposal ann-ounced
in November 2000 enabling tribunals  to
strike out claims which have no reasonable prospect of success without the need
for a hearing may have little practical effect. Tribunals will be sensitive to
Human Rights Act implications and may be reluctant to strike out claims because
of a potential breach of Article 6, the right to a fair trial.

National rule
did not contravene directive
Kachelmann v Bankhaus Hermann Lampe KG IRLB 655 European Court of Justice
September 2000

Kachelmann worked
part time for the bank until dismissed for redundancy. Under German law such
dismissals are rendered unlawful if during the selection process the employer
does not take sufficient account of social factors. There is, however, an
operational or economic defence to such claims.

Kachelmann argued the bank had
not compared her with full- time workers performing the same duties and
consequently had excluded her from the category of workers to whom the
"social policy" criteria applied. She claimed she had suffered
indirect sex discrimination contrary to the Equal Treatment Directive.

The matter was referred to the
European Court of Justice for a preliminary ruling as to whether the directive
precluded the interpretation of national law such that part-time workers were
not compared with full-time workers in redundancy situations.

The ECJ held that member states
had a discretion regarding social protection measures  and difference in treatment could be justified by objective
factors unrelated to discrimination on grounds of sex.

On 1 July 2000, the UK
introduced Part Time Workers, (Prevention of Less Favourable Treatment)
Regulations 2000 but these would not have assisted Kachelmann because the
regulations provide that different treatment of part-timers can be justified
for legitimate business objectives.

Employer benefits from
employee’s mitigation
Cerberus Software Limited v Rowley unreported Court of Appeal January 2001

contractual termination clause enabled the parties to terminate by giving six
months’ notice but gave Cerberus the discretion to make a payment in lieu.
Rowley was summarily dismissed for misconduct and no payment in lieu was made.

Rowley found alternative
employment at a higher salary within five weeks of his dismissal. He brought a
successful wrongful dismissal claim and the issue was whether Cerberus could
"benefit" from Rowley’s successful mitigation of loss.

The tribunal held that
Cerberus’ failure to give notice or to make the payment in lieu meant that the
duty to mitigate did not arise because Rowley’s claim was for debt arising out
of the contract. Cerberus appealed unsuccessfully to the Employment Appeal

The Court of Appeal, by a
majority, allowed Cerberus’ appeal. Both the tribunal and EAT erred when
finding that Cerberus was contractually obliged to pay Rowley six months’
salary in lieu of notice.  The termination
clause merely stated that Cerberus "may" make a payment in lieu.
Rowley’s claim was for damages for breach of contract which was subject to the
duty to mitigate. Rowley should only have been awarded damages for the period
he was unemployed because after starting his new job there was no ongoing loss.
Moreover, had Rowley been earning less in the new job Cerberus would only have
to meet the shortfall for a maximum period of six months.

Order to
restrict proceedings upheld
Attorney General v Wheen IRLR 91 Court of Appeal December 2000

Wheen commenced 15 sets of
discrimination proceedings in a year against different respondents after
unsuccessful job applications. The tribunal struck out some claims because they
were frivolous, vexatious or an abuse of process. Others were dismissed after
Wheen failed to   pay a deposit as a
condition of proceeding. The EAT, pursuant to Section 33 (1) of the Employment
Tribunals Act 1996, made the first ever "restriction of proceedings"
order on the basis that Wheen had "habitually and persistently and without
any reasonable ground instituted vexatious proceedings". Wheen was
prevented indefinitely from instituting or continuing proceedings without the
leave of the EAT.

On appeal to the Court of
Appeal Wheen argued the EAT was wrong to make the order because 18 months had
elapsed since he had last commenced proceedings. Further, his right to a fair
trial under Article 6 of the Human Rights Act 1998 had been infringed. The
appeal was dismissed. The lapse of time was not indicative of any change of
attitude by Wheen. Significantly, the Court held Section 33 (1) did not
conflict with the qualified right provided by Article 6 ñ a balance had to be
struck between an individual’s right to use the courts and the administration of
justice. Moreover, Article 6 was not breached because Wheen’s access to
employment tribunals  was not prohibited
per se but allowed subject to leave.

By Debra Gers,
assistant solicitor at Eversheds, Tel: 02920 471147

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