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More EAT Decisions

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For information purposes: the Employment Law (UK) mail list reached its 1000th subscriber earlier this week!

The following decisions have been placed on the EAT website today. The transcripts can be downloaded from

Constantine v McGregor Cory Ltd. [Lindsay J., 3.2.2000]: When assessing compensation following a procedurally unfair redundancy dismissal, the correct approach is for a tribunal to assess the loss of the chance of the employee being offered suitable alternative employment, NOT to decide the question on the balance of probability. Thus if there is a 40% chance that, had a fair procedure been followed, the employee would have obtained alternative employment, the tribunal should award 40% of the financial losses flowing, and NOT dismiss the claim for compensation on the grounds that there was less than a 50:50 chance of re-engagement.

Lawes v London Electricity Board [HHJ Pugsley, 25.2.2000]: Another decision on the undesirability of appealing on grounds that the employment tribunal failed to give adequate reasons. The judgment includes the telling phrase: "The members in this case wish to make clear their concern at the increasing propensity for advocates to seek to re-argue on appeal a case which they lost on the facts before the original Tribunal."

Tesco Stores v Wilson [HHJ Peter Clark, 12.1.2000]: An important decision under the RRA 1976. Mr Wilson, a black rastafarian contract cleaner for Tesco, was stopped in his car by a security guard, who said to him "the thing with you lot is that you think you can get away with anything." Two points:

• the EAT confirmed the above wording, i.e. 'you lot', was capable of being construed as a comment based on Mr Wilson's race (note: neither the EAT nor the employment tribunal considered whether 'you lot' could have been construed as referring to rastafarians rather than black people - it having been held that the RRA does not apply to rastafarians in Crown Suppliers v Dawkins [1993] ICR 517); and,

• on a cross-appeal against an award for injury to feelings of £5,500, the EAT said it was high-time that formal guidelines were produced for injury to feeling awards, as one has with PI injuries. It lacked the information to produce such guidelines in the instant case, but was not willing to say that £5,500 was too high.