Employment Appeal Tribunal cases 15.04.2013 to 21.04.2013

• Kelly v Fylde Community Link Ltd (unfair dismissal – whether the Employment Tribunal had given sufficient reasons for rejecting the Claimant’s claim for unfair dismissal)
• South Wales Police Authority v Johnson (practice and procedure – whether the Employment Tribunal had given sufficiently full reasons for their finding that it was just and equitable to extend time in relation to two complaints of direct race discrimination)
• Thomas v Samurai Incentives & Promotions Ltd (practice and procedure – whether the Selkent principles were properly applied when an Employment Judge refused an application to amend a claim)
• Camden & Islington Foundation Trust v Boafo (wrongful dismissal – whether an Employment Tribunal had erred in making a finding of wrongful dismissal but rejecting the finding of unfair dismissal)

Kelly v Fylde Community Link Ltd

The Claimant submitted an Employment Tribunal claim after she refused to accept a 4% pay cut and then was later dismissed. The Employment Tribunal dismissed her claim for unfair dismissal but the Claimant appealed on the basis that the Employment Tribunal had not given sufficient reasons for the finding of unfair dismissal. The Claimant also appealed against a decision to refuse her application to amend her Notice of Appeal once she had instructed the Free Representation Unit.

The Employment Appeal Tribunal partially allowed the Claimant’s appeal against the rejection of her application to amend the Notice of Appeal (holding that one ground of the amendment was out of time and not pleaded in the original Notice of Appeal but that the other ground of amendment was pleaded out of time but was simply a re-labelling of the original ground) and found in favour of the Claimant on the issue of Meek compliancy (giving sufficient reasons in a Judgment). The case was remitted to a fresh Employment Tribunal.

South Wales Police Authority v Johnson

The Claimant – who is black – was dismissed on the grounds of gross misconduct on 14 October 2005. He presented two claims forms claiming race discrimination and victimisation. 62 separate incidents were considered by the Employment Tribunal. All the claims in the second claim form were dismissed but three claims of direct race discrimination in the first claim (numbered 35, 38 and 43) were upheld. Numbers 35 and 38 were out of time but the Tribunal ruled that it was just and equitable to extend time for them as the Respondent would have had some knowledge of these due to an investigation previously carried out. A review hearing was held and was partially successful – the Tribunal revoked the finding of discrimination in relation to number 43. The Respondent appealed against the findings in relation to numbers 35 and 38.

The Employment Tribunal ruled in favour of the Respondent, holding that:

• The findings of discrimination were not perverse but they were out of time. The Employment Tribunal had exercised its discretion to extend time as it believed that the balance of prejudice favoured the Claimant (the ET believing the Respondent had carried out investigations into numbers 35 and 38). However, the EAT found that no such investigations had taken place and that therefore this finding could not stand. The case was therefore remitted back to the Employment Tribunal for reconsidering of the limitation point.

Thomas v Samurai Incentives & Promotions Ltd

The Claimant resigned from her employment in late December 2011 and subsequently submitted an ET1 claim form which identified her claims as a money claim. She did not tick the discrimination box. However, she did include facts in the ET1 which indicated that discrimination could have taken place. The Respondents, in their ET3, responded to the facts relating to discrimination, stating that it was denied. The Claimant subsequently sought to amend the claim to include a claim for sexual harassment. The Employment Judge (at a PHR) refused to amend the claim as such and only ordered that a claim for discrimination (limited to non-receipt of commission) could be included. The Claimant appealed against this order on the basis that the Judge had failed to follow the principles outlined in Selkent v Moore [1996] IRLR 661 in determining whether she had discretion to exercise her permission.

The Employment Tribunal found in the Claimant’s favour in relation to the appeal on the basis that the Judge had not properly followed the Selkent principles – she had failed to balance the prejudice faced by the Claimant in refusing the amendment against that faced by the Respondent in allowing the amendment.

Camden & Islington Foundation Trust v Boafo

The Employment Tribunal found that the Claimant had been wrongfully but fairly dismissed from his employment. The Claimant appealed against the finding of fair dismissal and the Respondent cross-appealed against the finding of wrongful dismissal.

The Employment Appeal Tribunal found that the Employment Tribunal had failed to consider whether the decision to dismiss was “within the range of reasonable responses”, in particular with reference to his long service and good record. Further, the Tribunal had apparently made two contradictory statement relating to whether the Respondent would have been entitled to summarily dismiss the Claimant for repudiatory breach.