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New EAT Decisions

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The following decisions of the Employment Appeal Tribunal have been placed on the EAT website today.

Ogilvie v Neyrfor-Weir Ltd (Burton P., 15/5/03)

An interesting case where an oil executive was told he had to go abroad over the forthcoming bank holiday weekend, when he was expecting to attend his sister-in-law's engagement party. He objected to the short notice, and his superior told him in a heated exchange (with the door open) that he was a "fucking cunt" and would be dismissed if he did not miss the engagement party and travel abroad. Mr Ogilvie resigned and claimed constructive dismissal. The tribunal held that the employer's conduct did not amount to a constructive dismissal.

The EAT's decision (substituting a finding of unfair dismissal) is of interest for two reasons:

First, the Appellant sought to introduce a new ground of appeal at the hearing. In line with Miriki v General Council of the Bar (see bulletin of 28/12/01), the EAT refused permission to amend. Burton P. stated that it was not appropriate to introduce new grounds of appeal "even if they are one or two days late" and that "it is a matter of importance that, save in exceptional circumstances, amendments to Notices of Appeal should not be allowed out of time" (para 18). If followed, this would seem to rule out the very common practice of lodging vague grounds of appeal, so as to meet the 42-day time limit, and then substituting detailed grounds at the preliminary hearing stage.

Second, the EAT made the point that words (such as "fucking cunt") that might be acceptable in the heat of a moment on an oil rig are not necessarily acceptable in the boardroom or the office of a senior oil company executive. The tribunal was wrong to adopt a blanket approach to the use of profanity in particular industries.

Grant v BSS Group (Mr Commissioner Howell, 13/3/03)

This is authority for the proposition that the failure to undertake identical or similar levels of consultation with the entire redundancy pool, even after provisionally selecting one person from the pool for redundancy, renders the dismissal unfair.

This is an important point: it is common practice for lawyers / HR advisors to recommend that individual consultation need take place only with those who have been provisionally selected for redundancy following a matrix selection process. In this case, the EAT stated that the failure to consult with all of the pool - even the one who was not provisionally selected for redundancy - made the dismissal unfair.

The facts of the case dealt with a pool of two employees. I suspect that the case may be distinguished in situations where there is a larger selection pool. Certainly lawyers and employers may need to re-think their standard approach to redundancy consultation in the light of this decision.