Cases in point

Lister & ors v Hesley Hall, HL, LTL 3/5/2001`The House of Lords held the employer of a teacher, who had sexually abused children in his charge, vicariously liable for the abuse. In reaching this conclusion their Lordships overruled ST v North Yorkshire County Council (1998). In ST the central issue for the Court of Appeal was whether the sexual assault in that case was within the scope of employment. The court found it difficult to reach the conclusion that the sexual misconduct of a teacher towards a pupil could be described as a mode of carrying out an authorised act and, as such, the employer was not vicariously liable. In Lister, however, the House of Lords rejected ST as wrongly decided, arguing that a broad approach was to be adopted. Under this the House was able to consider vicarious liability on the basis that the employer had failed to perform its duty to care for the children through the services of the abusing teacher. The determining factor was whether it was fair and just to hold the employer vicariously liable. The House thought that it was.`The decision highlights a desire in the House of Lords to decide the issue of liability on the basis of what is fair, just and reasonable. Deserving claimants can be increasingly confident that they will not be denied compensation because they are excluded by “control mechanisms”. The traditional requirement that a tort be committed in the course of employment for vicarious liability to exist has been significantly qualified.`Richard Maxwell QC and Rosalind Coe of Ropewalk Chambers in Nottingham (Maxwell is also a tenant of Doughty Street Chambers in London) instructed by Last Cawthra Feather for the appellant (Lister). Andrew Collender QC and Andrew Miller of 2 Temple Gardens instructed by Beachcroft Wansbroughs for Hesley Hall.“Fenton Barry Johnson v Unisys, HL, LTL 22/3/2001`Johnson brought a claim against his former employer on the grounds that he had suffered a mental breakdown resulting from the manner in which he had been dismissed. Johnson claimed that Unisys had breached an implied term of trust and confidence by destroying, or at least seriously damaging, the relationship of trust between Johnson and Unisys. Johnson's claim had been struck out for want of prosecution at first instance and the decision to strike the claim out was upheld by the Court of Appeal.`The House of Lords dismissed Johnson's appeal, deciding that the introduction of unfair dismissal legislation was an insuperable obstacle to making awards based on the manner in which an employee was dismissed; it would be unworkable to have such a common law right in co-existence with statutory protection from unfair dismissal. Dissenting on the reasons for the decision (but agreeing on the result on different grounds) Lord Steyn argued that such a common law right was not necessarily incompatible with the statutory scheme if Addis v Gramophone Co (1909) AC 488 was departed from.`Lord Meston QC (now a High Court judge) and Oliver Wise of Queen Elizabeth Building (Paul Coleridge QC) instructed by Foinette Quinn (Milton Keynes) for the appellant (Johnson). Patrick Elias QC (now a circuit judge) and Sam Neaman of Littleton Chambers instructed by Davies Lavery for the respondent.“Mark Douglas Souster v BBC Scotland, Court of Session, Inner House, Extra Division, LTL 6/3/2001`This was an interesting claim for racial discrimination brought by the former rugby correspondent for BBC Scotland. Mark Souster, an Englishman, had been employed as presenter of the Rugby Special programme in Scotland on successive contracts for more than two years until he was replaced by a Scottish woman. Souster believed that the BBC preferred to have a Scot presenting the programme and complained of unlawful discrimination on the grounds of his English national origins. The BBC appealed to the Court of Session against a decision of the Employment Appeal Tribunal that Souster was entitled to bring the claim. The BBC argued that for the purposes of the Race Relations Act the English and the Scottish were not distinct racial groups and as such the act did not apply.`The Scottish court unanimously dismissed the appeal, holding that the nationality was not limited to citizenship in the strict legal sense (in which case both Souster and his replacement would be British, precluding a race discrimination claim). The court further held that Parliament's intention, when framing the race relations legislation, had been to include Scots, English, Welsh and Irish within its provisions and that there was no reason in principle why a claim of this sort should not be allowed to be brought. Lord Marnoch approved the dictum of a New Zealand judge, Mr Justice Woodhouse, that because of the difficulty of defining racial discrimination in any definitive set of words, “the language must not be interpreted in any confined or restricted way”.`This is a case of which employers and human resources departments should be aware if they are to avoid unwittingly falling foul of the race discrimination legislation.`Aidan O'Neill QC and Rachel Carmichael instructed by Maclay Murray & Spens for the BBC. Mungo Bovey QC and Simon Collins instructed by Drummond Miller for Souster.“Cerberus Software v John Anthony Rowley, CA, LTL 18/1/2001`The employer in this case, Cerberus, appealed a decision that Rowley, who had been wrongfully dismissed, was entitled to six months' pay in lieu of notice. The central issue for the Court of Appeal was whether the dismissed employee had a claim for damages for wrongful dismissal subject to the employee's duty to mitigate his loss or whether he was entitled to assert a contractual right to payment in lieu of notice without credit for earnings received in new employment obtained within the notice period. The relevant clause in the contract of employment stated that “the employer may make a payment in lieu of notice to the employee”. Five weeks into the notice period Rowley had secured employment at a higher rate of remuneration than he had while at Cerberus.`A majority led by Lord Justice Ward allowed Cerberus's appeal. As the crucial clause included the word “may” there was no obligation on the company's part to make the payment. In a dissenting judgment Lord Justice Sedley agreed with the Employment Appeal Tribunal's decision that, under the terms of the contract, Cerberus had to either give notice or make the payments in lieu. The dissenting judgment is particularly interesting for its analysis of elective and automatic theories of repudiation of contract.`Michael Dineen of Pump Court Chambers instructed by Blatch & Co (Hampshire) for the appellant, Cerberus. The respondent appeared in person.“Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001`After an amending statutory instrument (SI 2001/1549) the date for the coming into force of these regulations has been put back to 16 July this year. The regulations had been scheduled to come into force in April. The regulations include an overriding objective (Reg 10) similar to that contained in the Civil Procedure Rules 1998 (CPR). Case management powers, again similar to those in the CPR, appear in the schedules to the regulations.`Perhaps the most important aspect of the new regulations is the increase in the maximum amount of the deposit that can be imposed after a pre-hearing review. This is raised from £150 to £500 and, along with the increase in the maximum award of costs against an applicant (from £500 to £10,000), seeks to deter frivolous, vexatious or unreasonable claims.“The Acas Arbitration Scheme (England and Wales) Order 2001`This scheme, which came into force on 21 May, deals with the arbitration of claims of unfair dismissal. The scheme was introduced with the aim of encouraging arbitration as an alternative to dispute resolution in the employment tribunals. Under the scheme hearings will be held in private and heard by a single arbitrator with experience of industrial disputes. Hearings are usually expected to be completed within half a day and arbitrators' awards will be based on the same criteria as those in the tribunals. n`LAWTEL's Employment Bulletin, edited by Mark O'Callaghan, delivers a detailed weekly round-up, covering the latest developments in all aspects of domestic and EU employment law. 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