Overseas employees

Jackson v Ghost Ltd and Ghost Inc (2003) IRLR 824

The EAT upheld a tribunal's ruling that it had no jurisdiction to entertain an applicant's complaints of unfair dismissal and unauthorised deduction from wages.

She had worked exclusively in the US for a US corporation, notwithstanding that she is a British national and the company for which she worked 'resided' in England.

The repeal of section 196 of the Employment Rights Act 1996 did not grant unlimited extra-territorial jurisdiction to employment tribunals to consider complaints by employees throughout the world.

The general presumption that the application of a domestic statute is limited to its geographical extent is subject to an exception in the case of the Employment Rights Act 1996.

Employees whose employment has a substantial connection with Great Britain will be protected.

The purpose and effect of the repeal of section 196 of the 1996 Act was to reduce the class of employees excluded from the tribunal's jurisdiction because, under their contracts, they did not ordinarily work in Great Britain.

Occupational stress

Marshall Specialist Vehicles Ltd v Osborne (2003) IRLR 672

The EAT overturned a tribunal's decision that an employer's failure to deal with an employee's complaint that she was overworked, allegedly causing her stress and a nervous breakdown, amounted to a breach of contract entitling her to claim constructive dismissal.

The tribunal had implied a term into the contract providing that: 'The company will take such action as (having regard to the availability of its human and financial resources) may be reasonably practicable in the particular circumstances prevailing at the material time to avoid either imposing workload upon you or acquiescing in your assumption of workload which it is reasonably foreseeable may cause you physical or mental injury'.

The EAT ruled that it was wrong to say that there is an obligation on an employer incorporated in every contract to avoid acquiescing in an assumption of workload by an employee.

The term that is implied in all contracts is that the employer should take reasonable care for the safety of employees.

As the Court of Appeal made clear in Sutherland v Hatton (2002) IRLR 263, it is essential in a case of this kind to know, and to set out precisely, what work it was that the employee was doing which was said to amount to overwork, and then to address the question of what the employer should have done but did not do and, furthermore, whether it would have done some good had it done so.

The tribunal was also wrong to hold that the employer was in breach of the implied contractual term of mutual trust and confidence.

To establish such a breach, what has to be identified is conduct by the employer which is so serious as to go to the root of the trust and confidence between the employer and the employee and destroy it or be calculated to be likely to destroy it.

As the editor of the IRLR points out, it follows from this decision that 'it is more difficult to establish a claim of constructive dismissal arising out of workplace stress than it would be to establish liability in a claim for personal injuries'.

Pratley v Surrey County Council (2003) IRLR 794

The Court of Appeal upheld a High Court decision that an employer did not breach its duty to an employee in respect of a depressive illness which she suffered when, on returning to work from holiday, she found that no steps had been taken by the employer to fulfil its promise to introduce a system which would lighten her workload.

The judge was entitled to conclude that, although the failure to introduce the system was a material cause of the illness, the employers could not reasonably have foreseen that she would suffer an immediate collapse if the system which she had seen as a solution to her overwork was not introduced.

What was foreseen was a future risk if work overload continued.

It was the immediacy of the employee's collapse that was unforeseeable.

Constructive dismissal

Tolson v Governing Body of Mixenden Community School (2003) IRLR 842

This case is a reminder that, when determining an issue as to constructive dismissal, the conduct to be considered is that of the employer.

An employment tribunal took the applicant's failure to invoke the grievance procedure into account in deciding that the employer's conduct did not amount to a fundamental breach of contract entitling her to resign.

That approach, the EAT said, was wrong in law.

Disciplinary hearings

Heathmill Multimedia ASP Ltd v Jones and Jones (2003) IRL 856

The EAT overturned a tribunal chairman's decision that a meeting at which the applicants were dismissed on grounds of redundancy was a 'disciplinary hearing' within the meaning of sections 10 and 13(4) Employment Relations Act 1996.

Accordingly, the employees did not have the right to be accompanied at the hearing.

The EAT took the view that a 'disciplinary hearing' as defined in section 13(4)(b) is a hearing which can result in the taking of disciplinary action and that where the purpose of the meeting is simply to inform the employee of a dismissal by redundancy, that is not a disciplinary hearing.

As the editor of the IRLR points out, the EAT's approach contrasts with that under the regime expected to be introduced next October under the Employment Act 2002.

Wrongful dismissal

Virgin Net Ltd v Harper (2003) IRLR 832

The EAT held that a tribunal erred in awarding damages for wrongful dismissal to an applicant for the loss of a chance of recovering compensation for unfair dismissal.

The right not to be unfairly dismissed in ordinary cases is limited to complainants who have completed on year's continuous service.

The applicant's attempt to circumvent the limits which Parliament has imposed on compensation for unfair dismissal by advancing a 'loss of a chance' claim was impermissible.

By Martin Edwards, Mace & Jones, Liverpool