Employment law

Victimisation and unfair dismissalTNT Express Worldwide (UK) Ltd v.

Brown, The Times, 18 April 2000A driver complained to a tribunal that his employers had discriminated against him on the ground of race.

He arranged to see an adviser who was unable to keep the appointment.

He therefore requested leave of absence for another consultation.

In general, employees giving at least 24 hours' notice as a matter of custom and practice were given short leave of absence for domestic reasons without close inquiry as to the quality of the reasons for that absence.

However, the driver was refused permission to take leave of absence.

Nevertheless, he kept the appointment and, as a result, his employers dismissed him.He failed in an internal appeal, but a tribunal decided that the employers had discriminated against him by refusing time off and that the dismissal was unfair.

The EAT upheld this decision and so did the Court of Appeal.

As Peter Gibson LJ pointed out, the key issue was to identify the characteristics of the comparators, or 'control group', against whom those of the person victimised had to be measured, to ascertain whether he had been less favourably treated.

The employers argued that the comparison should be with people who sought time off to take advice in connection with a claim against the company.The tribunal had defined the comparator as someone seeking advice in connection with a dispute wholly unrelated to the employment.

The Court of Appeal considered that it was not necessary to give the comparator the characteristic that he had a particular reason connected with litigation for seeking time off.But that was not a fatal error, given that the tribunal rightly considered the comparator to be a person seeking leave of absence and given its finding of fact that ordinarily employees giving at least a day's notice were permitted time off.

Accordingly, the decision that the driver had been victimised was upheld.With regard to unfair dismissal, the employers argued that the internal appeal had cured any earlier defects in the dismissal process.

The Court of Appeal accepted that, in determining unfairness, one must look at the whole of the dismissal procedure, including any appeal.

But it did not follow that it had to be shown that the appeal decision, which was not the subject of complaint in this case, must amount to victimisation.

There is no precedent for a failed appeal rectifying an unlawful decision as distinct from rectifying a procedural error at an earlier hearing.

Pay in lieu of noticeSkilton v T & K Home Improvements Ltd, The Times, 18 April 2000The question here was whether a provision in an employment contract that the employee 'may be dismissed with immediate effect' was sufficient, in the context of the contract as a whole, to exclude the employee's rights, under other contractual provisions, to payment of salary for three months in lieu of notice.

The employee had been dismissed for failure to achieve performance targets.Pill LJ accepted that the contract had to be construed in a commercial context which involved what the employers called a 'high risk/high reward enterprise' and that the meeting of sales targets was an important part of the employee's duties.

The employers needed a way of ending the contract if the set targets were not met.

But, on a proper reading of the contract, simply because the dismissal had immediate effect, that did not mean that other rights in other clauses of the contract were necessarily eliminated.

by Martin Edwards, Mace & Jones, Liverpool