Employment case law update: May 2011

Garratt v Mirror Group Newspapers [2011] EWCA Civ 425, Judgment 14th April 2011

Mr Garratt, a photographer, sought on his retirement to obtain the enhanced retirement package offered by his employer but without having to sign a compromise agreement which they insisted on as a condition of the payment. He brought a claim for breach of contract after only receiving statutory redundancy payment. The Court of Appeal held that HHJ Birtles had correctly concluded that Mr Garratt was not entitled to an enhanced redundancy payment unless he signed a compromise agreement. A term to that effect had been implied into his contract of employment by custom and practice and had not been affected by a subsequent collective agreement.
 
The Court of Appeal held that there was an implied term requiring Mr Garratt to sign a compromise agreement before receiving an enhanced redundancy payment because: since 1993, no employee had been paid an enhanced redundancy payment without signing a compromise agreement.
 
The requirement to sign a compromise agreement was expressly notified to all employees identified as redundant and the signing of such an agreement was an automatic consequence of being dismissed as redundant.
 
Before the redundancy process started, Mr Garratt knew that he would have to sign a compromise agreement in order to get the enhanced redundancy payment provided by his contract.

No employee, other than Mr Garratt, has sought to insist on a contractual right to an enhanced redundancy payment in the absence of a signed compromise agreement.

Breakell v Strophshire Amy Cadet Force [2011] UKEAT/0372/10, Judgment 11th April 2011

Chris Camp appeared for the respondent in an appeal by a paid army cadet force adult instructor against the judgment of an employment judge sitting alone that he was a volunteer and not in "employment" as defined by s68(1) Disability Discrimination Act 1995 as amended. The appeal was dismissed and HHJ Birtles held that the employment judge was correct as his factual findings were (a) there was no obligation on the respondent to provide work (b) there was no obligation on the claimant to accept work offered (c) he was paid only for the days he worked (d) s212 Employment Rights Act 1996 was not argued. The absence of mutuality of obligations meant that Mr Breakell was not an employee. 

Eversheds v De Berlin [2011] UKEAT/0352/10/JOJ, Judgment 6th April 2011

Eversheds appealed the tribunal’s finding that it discriminated against Mr De Berlin in a redundancy selection pool, by awarding the female comparator absent on maternity leave, a (notional) maximum score whilst giving Mr De Berlin a low (actual) score in the lock-up criterion. The EAT accepted that the protection of pregnant women and those on maternity leave may require them to be treated more favourably than their male or other female colleagues. However, it was held that obligation cannot go beyond what is “reasonably necessary” to compensate them for the disadvantage occasioned by their condition. By reasonably necessary, the EAT explained they meant requiring the application of the proportionality principle. Accordingly, a colleague was entitled to bring a sex discrimination claim to the extent that the benefit extended to the pregnant woman/ those on maternity leave was disproportionate. The EAT considered that Eversheds should have applied the lock up performance of both Mr De Berlin and his comparator during the last period she was at work before maternity leave. The EAT dismissed Eversheds appeal on liability but remitted to a different tribunal the question whether the claimant’s claim for loss of earnings should be capped or discounted by reference to the chance that he would, if retained, have been dismissed in the September 2009 redundancy exercise.

Allen v Hounga [2011] UKEAT/0326/10/LA, Judgment date 31st March 2011

The EAT reviewed the case law on illegality in this domestic servant case. Miss Hounga had been brought from Nigeria to the UK, under the pretence of a family holiday on a six months visitor visa, by the respondents, a married couple. On her account she was around fourteen years old at the time. She stayed in the UK after her visa had expired, doing housework in exchange for £50 per month, board and lodgings. The Employment Tribunal had accepted that during her eighteen months stay with the respondents, she suffered serious physical abuse from the wife of the family. The EAT held that because Miss Hounga knew that she did not have a right to work in the UK and had willingly participated in the dishonesty which caused her to be brought to the UK, the contract under which she was employed was an illegal one and the claims for unfair dismissal, breach of contract, unpaid wages and holiday pay could not be enforced. However, the EAT held that there was no error in the ET’s finding of discriminatory dismissal and the award of £6,000 for injury to feelings.