Employment law

TUPE

Beckmann v Dynamco Whicheloe Macfarlane Ltd, [2002] IRLR 578

The European Court of Justice ruled that the transferee of an undertaking was bound to honour a commitment by the transferor to pay early retirement benefits to an employee on her being made redundant.

Ms Beckmann worked for a health authority and contributed to the NHS superannuation scheme.

She was eligible under her original conditions of service for early retirement with immediate payment of her retirement pension and various other compensation payments in three circumstances, including dismissal for redundancy.

Some time after being transferred to a new employer under the Transfer of Undertakings (Protection of Employment) Regulations 1981(TUPE), she was made redundant and received a redundancy payment, but none of the additional early retirement benefits.

The European court had regard to the general objective of safeguarding the rights of employees in the event of a transfer of undertaking.

Accordingly, it decided that the exception in article 3(3) of the Acquired Rights Directive, relating to 'employees' rights to old-age, invalidity or survivors' benefits under supplementary...

pension schemes', should be interpreted strictly.

Therefore, that exception should apply only to benefits listed exhaustively in that provision and the list had to be construed in a narrow sense.

Only benefits paid from the time when an employee reached the end of his normal working life as laid down by the general structure of the pension scheme in question, and not benefits paid in circumstances such as those in point here (for example, dismissal for redundancy) could be classified as old-age benefits.

This was the case even if those benefits were calculated by reference to the rules for calculating normal pension benefits.

Employee status

Lincolnshire County Council and another v Hopper, The Times, 17 June 2002

The question in this case was whether a registrar of births, marriages and deaths had the right to claim unfair dismissal.

A tribunal decided that the registrar was an employee of the local authority and thus entitled to bring a claim.

However, section 6(4) of the Registration Services Act 1953 provides that a registrar holds office 'during the pleasure of the registrar-general'.

The Employment Appeals Tribunal (EAT) reluctantly accepted the argument that only the registrar-general could remove the registrar from office.

If the local authority could not dismiss the applicant, it could not be said to be her employer.

Accordingly, the EAT had no option but to rule that the tribunal had no jurisdiction to hear her claim for unfair dismissal.

The argument on behalf of Ms Hopper was that, if neither the local authority nor the registrar-general was her employer, then she might be penalised for non-performance of her obligations as a registrar, but at the same time she would be denied any remedy in respect of any breaches of the obligations towards her of which she complained.

The EAT said that these submissions 'accorded with justice and common sense.

However, the arguments all shattered against the unanswerable proposition that Parliament had provided'.

Although the local authority was the paymaster of the registrar and responsible for most of the terms of employment, it was unable to exercise the power to dismiss.

That could only be done by the registrar-general.

It must be a necessary terms of any contract of employment that the employer had the right to dismiss an employee.

The outcome, as the EAT acknowledged, was 'highly unsatisfactory', given that Ms Hopper was 'to all intents and purposes' employed by the local authority.

Plainly, there is a case for legislative change.

Discrimination

Yeboah v Crofton [2002] IRLR 634

After a 12-day hearing, the EAT allowed a respondent's appeal from a tribunal's decision that he had committed acts of direct race discrimination against an applicant.

The EAT regarded the decision as perverse and ordered a re-hearing by a differently constituted tribunal.

However, the Court of Appeal said that, on the evidence before the employment tribunal, a conclusion of race discrimination was a permissible option.

Lord Justice Mummery said that it was crucial for the parties to appreciate the proper approach of the Court of Appeal to a decision challenged on a second appeal.

Its function was to review the proceedings in, and the decision of, the employment tribunal, in order to determine whether a question of law arose from them.

If those proceedings were conducted and decided in accordance with the law, then neither the EAT nor the Court of Appeal would be entitled to interfere.

This was so, even if they concluded that they might have conducted and decided the case differently.

A ground of appeal based on perversity must always be fully particularised, so that the respondent can be fully prepared to meet it.

Such an appeal ought only to succeed where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal on a proper appreciation of the evidence and law would have reached.

Even where the EAT had grave doubts about the decision, it had to proceed with great care.

Over the years, there have been frequent attempts, consistently resisted by the EAT, to present appeals on fact as questions of law.

No appeal on a question of law should be allowed to be turned into a rehearing of parts of the evidence by the EAT.

Lord Justice Brooke said that the case revealed 'the dangers that lurked in the path' of an EAT which allowed itself to be lured into a factual investigation, founded on 'wholly unparticularised allegations of perversity, and with no assistance other than that which the embattled lay litigants were themselves able to give'.

Tribunal procedure

Consignia plc v Sealy [2002] IRLR 624

It is ironic that a case in which Consignia was the respondent caused the Court of Appeal to give guidance on the service of documents by post on employment tribunals.

The employee was summarily dismissed as a postman because of gross misconduct.

The question arose as to whether he had presented his complaint in time.

Lord Justice Brooke said that until a simple unified regime for service of documents on tribunals was introduced, the following guidance might be helpful.

If a complainant sent a complaint by post, presentation would be assumed to have been effected, unless the contrary was proved, at the time that the letter would have been delivered in the ordinary course of the post.

If the letter was sent by first-class post, it is now legitimate to adopt the approach in rule 6.7 of the Civil Procedure Rules, and conclude that in the ordinary course of the post it would be delivered on the second day after it was posted (excluding Sundays, Bank Holidays, Christmas Day and Good Friday).

If a letter did not arrive at the time when it would be expected to, in the ordinary course of post, a tribunal might conclude that it was not reasonably practicable for the complaint to be presented within the prescribed period.

If a form was date-stamped on a Monday by a tribunal office, so as to be outside the three-month period which ended on the Saturday or Sunday, the tribunal might find as a fact that it was posted by first- class post not later than the Thursday and arrived on the Saturday, or alternatively to extend time as a matter of discretion if satisfied that the letter was posted by first-class post not later than the Thursday.

The normal and expected result of positing a letter had to be objectively, not subjectively, assessed.

By Martin Edwards, Mace & Jones, Liverpool