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New EAT decisions

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Bennet v Essex CC (HHJ Peter Clark, 5.10.99): Consideration of Burton & Rhule v De Vere Hotels (the Bernard Manning case) - race discrimination - what steps an employer needs to take to avoid being saddled with responsibility for racial harassment by non-employees.

During v Waltham Forest Energy Services Ltd (HHJ Hicks, 6.10.99): Variation of contract - whether contractual retirement age of 65 had been varied by employer to 60 (so as to prevent 60 year old employee claiming unfair dismissal pursuant to ERA 1996, s109). No consideration of whether an upper qualifying age for unfair dismissal is contrary to Art. 119.

Kerry v Kreber (Morison J., 12.7.99, 13.7.99, 23.8.99, 24.8.99): A very thorough TUPE decision, covering a range of TUPE issues. The judgment is very readable (by TUPE standards!) and includes:
• confirmation of ECM Vehicle Delivery Services, namely that Suzen should not be followed and the fact no employees transfer does not mean there is no TUPE transfer;

• In relation to dismissals by the transferor prior to a transfer, the following principles of law apply:

(1) Every dismissal is effective to terminate the employment relationship - see Wilson v St Helen's Borough Council [1998] IRLR 706. 
(2) A dismissal by the transferor by reason of the impending transfer will be automatically unfair.
(3) The employees concerned will enforce their remedies in relation to that dismissal against the transferee, in accordance with the Litster principle.
(4) If the main reason for the dismissal by the transferor is an ETO reason, neither Regulation 8(1) nor the Litster principle will apply.
(5) If the reason for the dismissal is an ETO reason but the dismissal is nonetheless unfair, then the principle in the previous point [4.] remains true. The Litster principle is not directed at the fairness of the dismissal, but rather at the reason for it. Thus, if an ETO reason is the main reason for the dismissal by the transferor but the dismissal is unfair the employee may recover only from the transferor. It is only when Regulation 8(1) applies that the Litster principle operates.
(6) If the dismissal is effected by the transferee then the employee's remedy lies against the transferee. A transferee may dismiss by reason of the transfer or for an ETO reason.

• A receiver must consult with employees before making redundancies

• Liability for the receiver's (i.e. the transferor's) failure to consult falls to be paid by the transferee.

Knight v King Edward VI Grammar School (HHJ Peter Clark, 7.10.99): Confirming New Victoria Hospital v Ryan [1993] ICR 201 that communications between an employer and a firm of personnel consultants is not protected by legal privilege, and therefore the employer can be cross-examined on the details of advice requested and received. Note the point was not fully argued in this case, but assumed to be correct by the EAT (and permission was not given to argue the point since it had not been challenged before the Employment Tribunal). The decision also gives some guidance on the requirement for a de novo approach to sanctions on internal appeals.

Nawal v Northern Spirit Ltd (Lindsay J., 6.10.99): An employee who complains of race discrimination, but fails to raise particular allegations of discrimination, is estopped from raising them in a subsequent complaint under the rule in Henderson v Henderson.

Young v John D Wood & Co (HHJ Hicks, 29.9.99): Constructive dismissal - repudiatory breach - affirmation. No new legal principles - just existing principles applied to the facts.