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Yet more EAT decisions...

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

Banks v Tesco Stores Ltd. [Morison J., 15.9.99]: There is no requirement under Art 119 or the Equal Treatment Directive that statutory maternity pay should reflect earnings before the maternity period commenced. If the social security system excludes some employees from receiving SMP (or other benefits), due to failure to comply with statutory consitions, that is a matter for the state and not for the ECJ. Request for reference to Europe refused.

Bishop v Graham Group plc [HHJ Byrt QC, 16.9.99]: Two points:
• in order for a single act of misconduct to justify dismissal (i.e. to amount to 'gross' misconduct), it must be a serious, wilful, and obvious act of misconduct.
• although a person hearing an appeal against the decision to dismiss should normally hear the employer's case before the employee (so that he can establish the case against the employee and put all relevant matters to the employee), it does not necessarily render the dismissal unfair if the peson hearing the appeal hears the employee's case first.

Everitt v British Telecom plc [Morison J., 16.9.99]: Again, two points:
• an employee alleged during disciplinary proceedings that the person who investigated the disciplinary offences (which eventually led to his dismissal) held a grudge against him. The disciplinary panel did not allow him to question the investigator. This did not render the dismissal unfair, since the employee admitted he had committed the acts in question - thus the investigator's motive for investigating was irrelevant.
• the 'range of reasonable responses test' may not be good law. Morison J., no doubt in anticipation of his reserved decision the following week in Haddon v van den Bergh Foods (see bulletin 8th November 1999), stated:
"It is a misconception for employers to believe that in a misconduct case all they have to do is satisfy the range of reasonable responses test. That of itself is not sufficient, because the statute requires the tribunal to take into account concepts of equity and justice. That means that even if many employers would have decided to dismiss, the dismissal of this employee might still be unfair having regard to his own personal circumstances. The danger of tribunals simply applying the 'range of reasonable responses test' is that they may, thereby, fail to have regard to the other requirements of section 98(4), namely that the fairness of the decision must be judged by what is equitable 'and the substantial merits of the case.' A dismissal is not necessarily fair just because a reasonable employer, given the same circumstances, might have dismissed. There may be cases where the particular circumstances of the employee render the dismissal unfair."

Khanum v IBC Services [Morison J., 15.9.99]: Employee was unfairly dismissed and suffered sex and race discrimination. Following her dismissal, she decided to take herself out of the job market and undertake a 3-year University course. The Employment Tribunal found that her decision to go to University broke the chain of causation and did not award her damages from the date she went to University. The EAT reversed this decision, holding that if she had not been unfairly dismissed / discriminated against, she would have continued to earn a salary and the dismissal was the effective cause of her loss of earnings. Her decision to go to University was not a novus actus and she was entitled to recover compensation for her time at University.