02 May 2003

New EAT Decisions

Nottinghamshire Healthcare NHS Trust v Prison Officers' Association (&716 others)

(Keith J., 4/4/03)

An important decision dealing with the common practice of issuing an originating application attaching a list of multiple applicants (in this case, 716 members of the Prison Officers' Association).

The POA, facing a time-limit problem, issued an IT1 claiming unfair dismissal and failure to consult on behalf of 716 members. It subsequently wrote to those members asking them to confirm they wanted the claims to proceed. It was common ground that those who did not reply had their claims treated as withdrawn.

336 members gave approval after the time limit had expired. The employer applied to strike out their claims on the basis that:

(a) the originating applications had been presented without their authority;

(b) when they purported to ratify the claims, time had expired; and,

(c) because time had expired, the purported ratification was of no effect.

After extensive consideration of the authorities, the EAT held that the applications were valid: the fact that the ratification was provided after expiry of the time limit did not mean that the Originating Applications lodged within the time period were of no effect.

LINK:

Ree v Redrow Homes (HHJ Prophet, 9/4/03)

A short decision which extends the Burton v De Vere principle (i.e. that an employer can be liable for sex and race discrimination by non-employees, if he has some degree of control over those non-employees) to claims under the Disability Discrimination Act 1995. Recognising that the decision was controversial (because of different wording in the DDA which, on its face, makes a Burton v De Vere argument difficult), the EAT granted permission to appeal to the Court of Appeal.

LINK:

Pacific Direct v Riaz (HHJ Peter Clark, 14/4/03)

Another short decision, being authority for the propositions that:

(a) when an unfairly dismissed employee suffers a fire in her house, at which she has set up a new business to try to mitigate her losses, that fire does not (of itself) break the chain of causation for loss of earnings; and,

(b) tribunals are not obliged to accept an employee's estimate of future earnings when determining future loss of earnings, particularly where that estimate is given off the cuff in oral evidence. They are entitled to make findings more favourable to the Applicant than her own projections.

LINK:

Daniel Barnett

2nd May 2003