Mark Green appears in EAT and Court of Appeal on issues of dishonesty and limitation
4th November 2019
In the EAT case of Humankind Charity (formerly Blenheim CDP) v Gittens (judgment not yet available), Mark GreenMark GreenCall: 2006 (instructed by Ellis Whittam) successfully represented the Appellant. Ms Gittens was dismissed for misconduct, following an allegation of dishonesty. The Employment Tribunal found that the Respondent had fairly dismissed her but went on to find that she had been wrongfully dismissed, as she had no duty to disclose her own misconduct and therefore had not fundamentally breached her own contract. The Tribunal relied on the case of Ranson –v- Customer Systems Plc  EWCA 841 for this principle.
Noting that dishonesty would not automatically lead to a fundamental breach, the EAT found that in the circumstances of this case, only one answer was possible and that was that Ms Gittens had fundamentally breached her contract of employment. The claim of wrongful dismissal therefore must fail.
Mark also appeared in the Court of Appeal in the case of Bath Hill Court (Bournemouth) Management Company Ltd v Coletta  EWCA Civ 1707, led by Tim Brennan QC and instructed by Ashfords LLP. Deciding a point of law that has remained unclear for many years, the Court of Appeal confirmed that there is no backstop on claims for unlawful deductions from wages in the Employment Tribunal. The six year limitation period under the Limitation Act 1980 does not apply to such claims. This meant that because Mr Coletta had entered his claim before July 2015, when the statutory backstop of two years was introduced under the 2014 Deductions from Wages (Limitation) Regulations, he could claim 15 years of arrears for a failure to pay the full national minimum wage.