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Employment law case updates - September 2014

12 September 2014

Here are some recent important decisions of the Courts and Tribunals that highlight key developments in employment law.

Does an employee's breach of contract prevent a constructive dismissal claim?

An employee who is already in breach of contract at the time of the employer's subsequent breach is not prevented from claiming constructive dismissal. A Director of Resources of a housing association was subject to disciplinary proceedings which included an allegation that he been abusing the email system by sending explicit sexual messages to a female friend.

As a result of disagreements regarding the disciplinary process and before a disciplinary decision had been reached, he resigned and claimed constructive unfair dismissal. The EAT found that where an employer had a right to terminate an employment relationship because of an employee's breach, but had not done so, this did not preclude the employee from resigning and claiming constructive dismissal in respect of the employer's subsequent breach.

However, the EAT noted that the employee's conduct would be relevant to the level of compensation that may be awarded for the constructive unfair dismissal as the employer would be able to argue that it could have dismissed lawfully anyway. 

(Atkinson v Community Gateway Association, EAT)

No substantial change to the material detriment of employees where place of work is changed by 3.5 miles following TUPE transfer

The EAT found that there was no substantial change to the material detriment of employee bus drivers whose depot was moved to a different location 3.5 miles away following a TUPE transfer. The employees were not therefore entitled to resign and claim constructive dismissal in response. (A previous case had held that a move of 6 miles was a material detriment.)

The new depot was not listed as one of the work locations under the mobility clause of the original contract, but it was more convenient to the employees than the five alternative locations that were referred to. 

This decision shows that the particular facts in each case will be very relevant to the question of whether there has been a substantial change and, if so, whether it placed the employees at a material detriment.

(Cetinsoy and others v London United Busways Ltd, EAT)

Redundancy process should include consideration of reasonable adjustments to enable assessment of a disabled employee's suitability for redeployment

An employer failed to make reasonable adjustments for a disabled employee who was incapable of attending administrative meetings and interviews in a redundancy exercise.

The EAT upheld the Tribunal's decision that the employer had failed to consider alternative ways to assess the employee's suitability for alternative roles and noted the employee's suggestion that he could have been interviewed at home or information could have been provided to him in advance.

This case emphasises the need to make reasonable adjustments for disabled employees in relation to all aspects of the working relationship; including redeployment as part of a redundancy exercise.

(London Borough of Southwark v Charles, EAT)

Does a TUPE transfer take place on the date the transferee has assumed responsibility for (i) employees or (ii) the relevant business and services?

The EAT determined that the tribunal had erred when deciding that the transfer occurred when the transferee assumed responsibility for the employees, when in fact the correct approach is to ask when the entity assumes responsibility for the relevant business or service.

It is at this date when transfer occurs. Employment contracts transfer by operation of law, as a consequence of TUPE, and are not dependent on what the parties intend or believe. 

(Housing Maintenance Solutions Ltd v McAteer, EAT)

This article was written by Kirsti Laird.

For more information, please contact Kirsti on +44 (0)20 7427 6411 or kirsti.laird@crsblaw.com