WHEN DOES EMPLOYMENT ACTUALLY BEGIN?
In the recent EAT matter of Koenig v The Mind Gym Judge Langstaff P (sitting alone) held that for the purposes of calculating continuity of employment, work outside a contract of employment cannot count towards service under a contact of employment. In that case, the Claimant was dismissed by the Respondent on 29 September 2010. Her written contract of employment provided that she had started work on 1 October 2009, which meant that she lacked sufficient continuity of service to bring an unfair dismissal claim. She appealed to the EAT on the basis that she had sufficient continuity of service by virtue of the fact that she had attended a meeting with a client of the Respondent on 29 September 2009 which should have been regarded as work under her contract of employment
The EAT dismissed the appeal, holding that the employment tribunal was entitled to conclude that there was no contract of employment operating on the 29 September 2009 because the Claimant was not obliged to attend the client meeting, she was not there in a capacity as an employee of the Respondent, she was not paid for her attendance, and she went to the meeting entirely of her own choice.
TRANSFER OF UNDERTAKINGS ? Transfer
Bangura v Southern Cross Healthcare Group PLC & Anor UKEAT/0432/12/RN
The Claimant was summarily dismissed on grounds of misconduct about 6 weeks before the care home at which she worked was transferred to the Second Respondent. At that time she had an appeal pending against her dismissal but it had not by then (or at any time since then) been determined by the First Respondent. The Employment Tribunal held that the TUPE Regulations did not transfer liability to the Second Respondent since the Claimant was not employed by the First Respondent immediately before the transfer. The Claimant appealed on the ground that this was inconsistent with the decision of the EAT in G4S v Anstey (2006).
Held there was no inconsistency between the decision of the ET and the decision of the EAT in G4S, since in that case, the appeal to the transferor had eventually been successful. In the absence of such a successful appeal, the normal principle applies, namely that a summary dismissal takes effect immediately and terminates the employment at that time.
Berg v Blackburn Rovers Football Club & Athletic PLC  EWHC 1070 (Ch)
The claimant had been dismissed as manager of a football club after a short period and sued for the total amount of the remaining contract (nearly three years). Initially the club admitted liability for the total amount and merely sought to negotiate payment by instalment. They later changed their position and sought to argue that the managing director had agreed the contract without the authority of the club’s owners and that there had been explicit instructions that any termination payment should be limited to a maximum of 12 months pay. They therefore applied to withdraw the admission.
In this judgment His Honour Judge Pelling reviews the circumstances surrounding the appointment, the statements of the club’s owners and representatives and submissions on lack of authority and that payment in full would be a penalty. He then reviews the legal principles relating to withdrawal of admissions, noting the change to ‘overriding objective’ of the CPR brought into effect on 1 April 2013 and that the starting point for such an application is to ask whether the applicant
“has demonstrated that if permitted to withdraw its admission it would have a realistically arguable defence. If it has it will be necessary to consider the other factors. If it has not then clearly it will not be necessary to consider the other factors because a summary judgment application would be bound to succeed if permission to withdraw the Admission was granted and thus no useful purpose would be served by giving the permission sought.”
He concludes that:
a) payment would not be a penalty as, following Campbell Discount Company Limited v Bridge, “a sum of money payable under a contract on the occurrence of an event other than a breach of a contractual duty owed by the paying to the receiving party is not a penalty”.
b) he accepted that while the applicant may have had an arguable case that the MD may not have had authority that issue is only material to a claim between the club and their MD. However, given that that there was no evidence to suggest that the MD’s authority was restricted it was inarguable that he did not have the authority to do so.
UNFAIR DISMISSAL ? CCTV
Miller v William Hill Organisation Ltd UKEAT/0336/12/SM
This Employment Appeal Tribunal case highlights the possible dangers of CCTV and the part it can play in dismissals.
The claimant was a deputy manager of a betting shop and she was suspended after suspicions that she claimant was retaining money that should have been returned to customers for void bets placed too late.
An investigation followed and the claimant was asked to explain discrepancies between CCTV footage and the computerised records of transactions.
Ms Miller claimed that she had returned the stakes although no customers could be seen at the counter. The respondent felt that her answers were unblievable and not backed by the facts and she was dismissed. The Claimant claimed unfair dismissal.
The Tribunal found that the respondent had a reasonable belief that the claimant was keeping the money even though the CCTV footage was effectively disowned by counsel for the respondent at the hearing.
In this judgment at the EAT appeal , Mr Justice Keith reviewed the forensic detail of the 4 instances where the discrepancies had arisen and highlighted the lack of synchronisation between the CCTV and the computerised records.
He noted that the ET was not told why the CCTV footage was disavowed and would therefore not have factored in to the conclusions that the explanations given were from a claimant who had been told there was CCTV footage to contradict her. He then considers the quality of the investigation and the submission that it was flawed partly because management had not viewed the whole of the footage available.
The case was referred back the Employment Tribunals.
Employers ? beware of relying on CCTV footage if it is inconclusive and you are not prepared to sit through hours of footage!