Category: Employment

Zepbrook Ltd v Magnus: EAT 18 Oct 2006

EAT Contract of Employment – Notice and pay in lieu – The Employment Tribunal erred in failing to require the Claimant in a wrongful dismissal claim to give credit for money earned in mitigation during the notice period. Cerberus Software Ltd v Rowley [2001] ICR 376 CA applied; Abrahams v Performing Rights Society [1995] ICR 1028 CA distinguished.

Judges:

McMullen QC HHJ

Citations:

[2006] UKEAT 0382 – 06 – 1810, UKEAT/0382/06

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment

Updated: 09 August 2022; Ref: scu.247834

Commissioner of Police of the Metropolis v Virdi: EAT 18 Oct 2006

EAT SUMMARY
Was the Tribunal entitled to find that the claimant was disabled within the meaning of the Disability Discrimination Act 1996? In particular, did the Tribunal err in its approach to coping strategies?
The EAT held that the Tribunal did misunderstand the significance of coping strategies. Since that error may have affected the Tribunal’s conclusion that the claimant was disabled, the appeal was upheld and the matter remitted to the Tribunal for reconsideration.

Citations:

[2006] UKEAT 0338 – 06 – 1810

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 August 2022; Ref: scu.245398

Khan v Checkers Cars Ltd: EAT 16 Dec 2005

EAT The claimant worked as a private hire car driver for the respondent company which operated a taxi service based at Gatwick Airport. The claimant owned and was responsible for his own vehicle. He paid his own income tax and national insurance. He was required to use set routes and charge set fares. He collected fares from customers, paying a commission to the respondent. He had complete flexibility over when he worked: he was not obliged to accept work and the respondent was not obliged to offer him work. Drivers were never required to attend work. The only issue (since the claim was one of unfair dismissal) was whether he was an employee, not whether he was providing services as a limb (b) worker.
Held: On these facts the ET had been entitled to find that there was no contract of employment. The absence of any obligation to work other than when he chose was inconsistent with the conclusion that there was any contract of employment which subsisted when the claimant was not working.
EAT Langstaff J observed, obiter: ‘If it had been material to our decision, we would have been inclined to find that . . , on the findings of fact that the tribunal made, the contract went no further than to amount to a licence by Checkers to permit the claimant to offer himself as a private hire taxi driver to individual passengers on terms dictated by the administrative convenience of Checkers and BAA.’

Judges:

Langstaff J

Citations:

UKEAT/0208/05, [2005] UKEAT 0208 – 05 – 1612

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

Cited – Yuen v The Royal Hong Kong Golf Club PC 28-Jul-1997
(Hong Kong) The applicant was dismissed as a golf caddie after nine years. The Club denied that he had ever been an employee. He was issued by the club with a number, a uniform and a locker. Caddying work was allocated to available caddies in strict . .

Cited by:

Cited – Uber Bv and Others v Aslam and Others CA 19-Dec-2018
Uber drivers are workers
The claimant Uber drivers sought the status of workers, allowing them to claim the associated statutory employment benefits. The company now appealed from a finding that they were workers.
Held: The appeal failed (Underhill LJ dissenting) The . .
Cited – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors did so as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 August 2022; Ref: scu.238273

Cornwall County Council v Prater: CA 24 Feb 2006

The claimant worked for the local authority under a series of contracts. The employer denied that she had been continuously employed and there was no ‘irreducible minimum mutual obligation necessary to create a contract of service’. There were times when she had no work.
Held: Given the authorities there was ample reason to find a contract of employment. There was a sufficient mutuality of obligations.
Longmore LJ: There was a mutuality of obligation in each engagement namely that the County Council would pay Ms Prater for the work which she, in turn, agreed to do by way of giving tuition to the pupil for whom the Council wanted her to provide tuition. That to my mind is sufficient ‘mutuality of obligation’ to render the contract a contract of employment if other appropriate indications of such an employment contract are present.

Judges:

Lord Justice Longmore

Citations:

[2006] EWCA Civ 102, [2006] BLGR 479, [2006] 2 All ER 1013, [2006] IRLR 362, [2006] ICR 731

Links:

Bailii

Statutes:

Employment Rights Act 1996 230(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – Cornwall County Council v Prater EAT 8-Jun-2005
EAT Contract of Employment – In this case we have held that where a Claimant teacher has accepted a succession of short term special teaching assignments, in circumstances where the Respondent employer was not . .
Cited – Ford v Warwickshire County Council HL 1983
In deciding whether in the case of employment under a series of short contracts the intervals between the contracts amount to temporary cessation of work, one must look back from the date of termination of the employment over the whole period during . .
Cited – O’Kelly v Trusthouse Forte plc CA 1984
Workers claimed to be employees.
Held: They were not such. Their contract reserved the right to choose whether or not to work and for the employer not to give them work. The question of whether the facts which are found or admitted, fall one . .
Cited – Clark v Oxfordshire Health Authority CA 18-Dec-1997
A nurse was employed under a contract, under which there was no mutuality of obligation; she could refuse work and employer need offer none. This meant that there was no employment capable of allowing an unfair dismissal issue to arise.
Sir . .
Cited – Stevedoring and Haulage Services Limited v A M Fuller and others CA 9-May-2001
The claimants were stevedores whose contracts were intermittent. The employer denied that they were employees.
Held: There was no contract while the claimants were not at work. There was no overarching or global contract, and it was not . .
Cited – McMeechan v Secretary of State for Employment CA 11-Dec-1996
The respondent as a temporary worker was entitled to be treated as an employee of an agency within the contract governing the particular engagement where money was due when the agency went into liquidation. He was therefore able to claim against the . .

Cited by:

Applied – North Wales Probation Area v Edwards EAT 12-Dec-2007
EAT Contract of employment: Definition of employee
Whether claimant employed under a contract of employment – ‘sessional employment’ – succession of contracts
The claimant was placed on a list of . .
Cited – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors did so as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 August 2022; Ref: scu.238705

Lana v Positive Action Training In Housing (London) Ltd: EAT 15 Mar 2001

EAT Sex Discrimination – Direct

Judges:

Mr Recorder Langstaff QC

Citations:

[2001] UKEAT 245 – 00 – 1503, EAT/245/00, [2001] IRLR 501

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

See Also – Lana v Positive Action Training In Housing (London) Ltd EAT 16-Jun-2000
. .

Cited by:

Cited – Bungay and Others v Saini and Others EAT 27-Sep-2011
EAT RACE DISCRIMINATION
Vicarious liability
Post employment
The Appellants were members of the board of a Centre. As a result of decisions of the Employment Tribunal and the Employment Appeal . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 09 August 2022; Ref: scu.203689

Clark v Oxfordshire Health Authority: EAT 4 Mar 1996

Whether bank nurse was an employee

Citations:

[1996] UKEAT 1054 – 95 – 0403

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Clark v Oxfordshire Health Authority CA 18-Dec-1997
A nurse was employed under a contract, under which there was no mutuality of obligation; she could refuse work and employer need offer none. This meant that there was no employment capable of allowing an unfair dismissal issue to arise.
Sir . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 August 2022; Ref: scu.208254

Grant v Kent County Council: EAT 11 May 2001

Preliminary hearing.

Judges:

Charles J

Citations:

[2001] UKEAT 30 – 01 – 1105

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Grant v Kent County Council EAT 18-Feb-2002
EAT Contract of Employment – Breach of Contract . .
See Also – Grant v Kent County Council EAT 3-Apr-2000
Interlocutory and preliminary hearing – complaint of unfair dismissal and breach of contract. . .

Cited by:

See Also – Grant v Kent County Council EAT 18-Feb-2002
EAT Contract of Employment – Breach of Contract . .
See Also – Grant v Kent County Council EAT 1-May-2003
EAT Unfair Dismissal – Reason for dismissal . .
See Also – Grant v Kent County Council CA 9-Dec-2003
Renewed application for permission to appeal.
Held: Remitted . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 August 2022; Ref: scu.203860

Nethermere (St Neots) Ltd v Taverna and Gardiner: CA 1984

The court considered what elements must be present to create a contract of employment.
Held: Stephenson LJ said: ‘There must . . be an irreducible minimum of obligation on each side to create a contract of service.’
Kerr LJ said: ‘The inescapable requirement concerning the alleged employees however . . is that they must be subject to an obligation to accept and perform some minimum, or at least reasonable, amount of work, for the alleged employer. If not, then no question of any ‘umbrella’ contract can arise at all, let alone its possible classification as a contract of employment or of service. The issue is therefore whether the tribunal’s findings and conclusions show that they took account of this essential requirement.’
Dillon LJ said: ‘an arrangement under which there was never any obligation on the outworkers to do work or on the company to provide work could not be a contract of service’.

Judges:

Stephenson LJ, Kerr LJ, Dillon LJ

Citations:

[1984] IRLR 240, [1984] ICR 612

Jurisdiction:

England and Wales

Citing:

Cited – Chadwick v Pioneer Private Telephone Co Ltd 1941
Stable J said: ‘A contract of service implies an obligation to serve, and it comprises some degree of control by the master.’ . .
Cited – Ready Mixed Concrete Southeast Ltd v Minister of Pensions and National Insurance QBD 8-Dec-1967
Contracts of service or for services
In three cases appeals were heard against a finding as to whether a worker was entitled to have his employer pay National Insurance contributions on his behalf which would apply if he were an employee. He worked as an ‘owner-driver’
Held: The . .

Cited by:

Cited – Carmichael and Another v National Power Plc HL 24-Jun-1999
Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence . .
Cited – Clark v Oxfordshire Health Authority CA 18-Dec-1997
A nurse was employed under a contract, under which there was no mutuality of obligation; she could refuse work and employer need offer none. This meant that there was no employment capable of allowing an unfair dismissal issue to arise.
Sir . .
Applied – Hellyer Bros Limited v McLeod CA 1987
The employer appealed saying that the EAT had wrongly substituted its own opinion for that of the Tribunal.
Held: The appeal was rejected. Looking at the totality of the facts found or otherwise referred to in the decision of the Industrial . .
Cited – Montgomery v Johnson Underwood Ltd CA 9-Mar-2001
A worker who had strictly been employed by an agency but on a long term placement at a customer, claimed to have been unfairly dismissed by the customer when that placement ended.
Held: To see whether she was an employee the tribunal should . .
Cited – Dacas v Brook Street Bureau (UK) Ltd, Wandsworth London Borough Council EAT 12-Nov-2002
EAT Contract of Employment – Definition of Employee . .
Cited – Brook Street Bureau (UK) Ltd v Dacas CA 5-Mar-2004
The applicant cleaner sought compensation for unfair dismissal. The issue was whether she was an employee of the respondents, of their client where she did her work, or was not an employee at all. She worked for an agency, who sent her out to . .
Cited – Cable and Wireless Plc v Muscat CA 9-Mar-2006
The worker was employed via an employment agency. The contract the company had was with the agency, and the agency had the contract with the worker. The worker claimed an implied contract of employment with the end-user.
Held: The end-user . .
Cited – Autoclenz Ltd v Belcher and Others CA 13-Oct-2009
Car Valeters contracts misdescribed their Duties
The claimants worked cleaning cars for the appellants. They said that as workers they were entitled to holiday pay. The appellant said they were self-employed.
Held: The contract purported to give rights which were not genuine, and the . .
Cited – Autoclenz Ltd v Belcher and Others SC 27-Jul-2011
Car Cleaning nil-hours Contractors were Workers
The company contracted with the claimants to work cleaning cars. The company appealed against a finding that contrary to the explicit provisions of the contracts, they were workers within the Regulations and entitled to holiday pay and associated . .
Cited – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors did so as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 August 2022; Ref: scu.190043

Mingeley v Pennock and Another (T/A Amber Cars): CA 9 Feb 2004

The claimant taxi driver sought to assert race discrimination. The respondent argued that he had not been an employee, but an independent contractor. The Claimant owned his own vehicle and paid the respondents minicab operators pounds 75 per week for a radio and access to their company system, which allocated calls from customers to a fleet of drivers. He was required to wear a uniform and prohibited from working for any other operator, but was not required to work, nor to accept any fare allocated to him by the system. All the fare money was his to keep.
Held: The driver was not required by the contract to carry out the driving personally. He would pay a sum each week to be included on the respondent’s radio and computer system for allocating work. The test was whether the dominant purpose of the agreement would require him to do the work personally. It did not, and the tribunal did not have jurisdiction. The claimant was not ’employed’ by the operator within the meaning of section 78.

Judges:

Buxton, Maurice Kay LJJ, Sir Martin Nourse

Citations:

Times 04-Mar-2004, [2004] EWCA Civ 328, Gazette 18-Mar-2004, [2004] ICR 727, [2004] IRLR 373

Links:

Bailii

Statutes:

Race Relations Act 1976 78(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – Mingeley v Pennock and Ivory T/A Amber Cars EAT 1-May-2003
EAT Race Discrimination – Prospective employees . .
Cited – Mirror Group Newspapers v Gunning CA 1985
The claimant sought to have transferred to her, her father’s agency for the wholesale distribution of Sunday newspapers. The claimant alleging sex discrimination after being refused. The company said that she was not an employee within the 1975 Act. . .
Cited – Kelly v Northern Ireland Housing Executive; Loughran v Northern Ireland Housing Executive HL 29-Jul-1998
Provisions against discrimination on religious grounds in Northern Ireland, could apply to appointment of a firm to a panel of experts, where one person was designated to carry out that work. ‘it is essential, for there to be ’employment,’ that the . .

Cited by:

Cited – Percy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
Cited – Jivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
Cited – Uber Bv and Others v Aslam and Others CA 19-Dec-2018
Uber drivers are workers
The claimant Uber drivers sought the status of workers, allowing them to claim the associated statutory employment benefits. The company now appealed from a finding that they were workers.
Held: The appeal failed (Underhill LJ dissenting) The . .
Cited – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors did so as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 09 August 2022; Ref: scu.194278

O’Connell v Thames Water Utilities Plc: EAT 10 Jun 1999

EAT Redundancy – Other

Judges:

The Honourable Mr Justice Charles

Citations:

EAT/903/98, [1999] UKEAT 903 – 98 – 0106

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Jones v Associated Tunnelling Co Ltd EAT 16-Oct-1981
The tribunal had been asked as to the circumstances under which the acceptance of new employment terms can be inferred from an employee’s continuing to work.
Browne-Wilkinson P said: ‘The starting point must be that a contract of employment . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 August 2022; Ref: scu.171633

Carmichael and Another v National Power Plc: HL 24 Jun 1999

Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence between the parties in March 1989 constituted a contract, which was to be classified as a contract of employment. The industrial tribunal rejected this case and found that, when not working as guides, the claimants were not in any contractual relationship with the respondent. The tribunal made this finding on the basis of: (a) the language of the correspondence; (b) the way in which the relationship had operated; and (c) evidence of the parties as to their understanding of it.
Held: The approach had been correct.
Staff who worked only as and when required, and who then had the right to turn down work offered were not employees and were not therefore entitled to written particulars of employment. The absence of mutuality and the discontinuity of any contractual relationship in between occasions when work was offered showed that the parties had not understood it as a relationship of continuous employment. Unless the parties to an agreement had agreed that a document or series of documents was intended to constitute an exclusive record of their agreement, any question arising as to the nature or terms of the contract was a question of fact, to be determined upon consideration of all the evidence, including written documents, oral statements and conduct.
Lord Hoffmann said: ‘The evidence of a party as to what terms he understood to have been agreed is some evidence tending to show that those terms, in an objective sense, were agreed. Of course the tribunal may reject such evidence and conclude that the party misunderstood the effect of what was being said and done.’
Lord Irvine of Lairg LC said: ‘it would only be appropriate to determine the issue in these cases solely by reference to the documents in March 1989, if it appeared from their own terms and/or from what the parties said or did then, or subsequently, that they intended them to constitute an exclusive memorial of their relationship. The industrial tribunal must be taken to have decided that they were not so intended but constituted one, albeit important, relevant source of material from which they were entitled to infer the parties’ true intention’

Judges:

Lord Chancellor Lord Goff of Chieveley Lord Jauncey of Tullichettle Lord Browne-Wilkinson Lord Hoffmann

Citations:

Times 23-Nov-1999, Gazette 01-Dec-1999, Gazette 17-Dec-1999, [1999] 4 All ER 897, [1999] UKHL 47, [1999] 1 WLR 2042, [2000] IRLR 43, [1999] ICR 1226

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Carmichael and Lesse v National Power Plc CA 29-Jan-1997
Casual workers employed under ‘nil hours’ relationship still had a contract of employment and the appropriate and associated rights. A court was fully able to determine the terms of the contract. . .
Cited – Clark v Oxfordshire Health Authority CA 18-Dec-1997
A nurse was employed under a contract, under which there was no mutuality of obligation; she could refuse work and employer need offer none. This meant that there was no employment capable of allowing an unfair dismissal issue to arise.
Sir . .
Cited – Nethermere (St Neots) Ltd v Taverna and Gardiner CA 1984
The court considered what elements must be present to create a contract of employment.
Held: Stephenson LJ said: ‘There must . . be an irreducible minimum of obligation on each side to create a contract of service.’
Kerr LJ said: ‘The . .
Cited – Moore v Garwood CEC 1849
The plaintiff sued to recover a deposit which he had paid in 1845, at the height of the great Victorian railway boom, for shares in a proposed railway company. The scheme was afterwards abandoned and the company never incorporated. Whether he was . .
Cited – Moore v Garwood CEC 1849
The plaintiff sued to recover a deposit which he had paid in 1845, at the height of the great Victorian railway boom, for shares in a proposed railway company. The scheme was afterwards abandoned and the company never incorporated. Whether he was . .
Cited – Davies v Presbyterian Church of Wales HL 1986
A minister of the Presbyterian Church of Wales who had been inducted pastor of a united pastorate in Wales claimed unfair dismissal.
Held: If the existence or otherwise of the relationship of employer and employee is dependent solely upon the . .
At EAT – Carmichael and Another v National Power Plc EAT 25-Apr-1996
. .
Cited – Carmichael and Another v National Power Plc HL 24-Jun-1999
Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence . .

Cited by:

Cited – Raymond Franks v Reuters Limited, First Resort Employment Limited CA 10-Apr-2003
The appellant challenged the decision that he had not been an employee of the respondent. He had worked for them first through an agency, and come to be closer to them, but was still not paid sick pay. He complained that the tribunal had decided he . .
Cited – Montgomery v Johnson Underwood Ltd CA 9-Mar-2001
A worker who had strictly been employed by an agency but on a long term placement at a customer, claimed to have been unfairly dismissed by the customer when that placement ended.
Held: To see whether she was an employee the tribunal should . .
Cited – Brook Street Bureau (UK) Ltd v Dacas CA 5-Mar-2004
The applicant cleaner sought compensation for unfair dismissal. The issue was whether she was an employee of the respondents, of their client where she did her work, or was not an employee at all. She worked for an agency, who sent her out to . .
Cited – Esso Petroleum Company v Jarvis and others Brentvine Limited EAT 14-Nov-2001
The claimants had come to the employer through an agency. The issue now was whether they were the employees of the respondent. The employer said there was no mutuality of obligation, and therefore no contract, and no possible dismissal.
Held: . .
Cited – Dacas v Brook Street Bureau (UK) Ltd, Wandsworth London Borough Council EAT 12-Nov-2002
EAT Contract of Employment – Definition of Employee . .
Cited – Cable and Wireless Plc v Muscat CA 9-Mar-2006
The worker was employed via an employment agency. The contract the company had was with the agency, and the agency had the contract with the worker. The worker claimed an implied contract of employment with the end-user.
Held: The end-user . .
Cited – Lambden v Henley Rugby Football Club and Another EAT 29-May-2009
lambden_henlryrfcEAT2009
EAT CONTRACT OF EMPLOYMENT: Whether established
The Claimant was a part time Rugby Coach. The Employment Tribunal found that he had freely elected to be paid as an independent contractor though a limited . .
Cited – Carmichael and Another v National Power Plc HL 24-Jun-1999
Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence . .
Cited – Thorner v Major and others HL 25-Mar-2009
The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .
Cited – Daventry District Council v Daventry and District Housing Ltd CA 13-Oct-2011
The appellant challenged refusal of rectification of its agreement with the defendant. They asserted either mutual or unilateral mistake. The parties had agreed for the transfer of housing stock and management staff to the respondents. The claimant . .
Cited – Dresdner Kleinwort Ltd and Another v Attrill and Others CA 26-Apr-2013
The bank appealed against judgment against it on claims by former senior employees for contractual discretionary bonuses.
Held: The appeal failed. The bank’s unilateral promise made within the context of an existing employment relationship to . .
Cited – Uber Bv and Others v Aslam and Others CA 19-Dec-2018
Uber drivers are workers
The claimant Uber drivers sought the status of workers, allowing them to claim the associated statutory employment benefits. The company now appealed from a finding that they were workers.
Held: The appeal failed (Underhill LJ dissenting) The . .
Cited – Lehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .
Cited – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors did so as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 09 August 2022; Ref: scu.135112

McMeechan v Secretary of State for Employment: CA 11 Dec 1996

The respondent as a temporary worker was entitled to be treated as an employee of an agency within the contract governing the particular engagement where money was due when the agency went into liquidation. He was therefore able to claim against the respondent as such on that insolvency. A temporary worker might be an employee for each assignment in which he actually works even though he may not be an employee of the agency under a general contract. Waite LJ: ‘There is nothing inherently repugnant, whether to good relations in the workplace or in law, about a state of affairs under which, in an employment agency case, the status of employee of the agency is allocated to a temporary worker in respect of each assignment actually worked – notwithstanding that the same worker may not be entitled to employee status under his general terms of engagement’ and ‘The force of this is not lost in cases where – following what appears to be a common (though potentially confusing) practice – the agency and the temporary worker have committed themselves to standard terms and conditions which are intended to apply both to the general engagement and to the individual stints worked under it. The only result of that fusion is that the same conditions will have to be interpreted from a different perspective, according to whether they are being considered in the context of the general engagement or in the context of a single assignment.’

Judges:

Lord Justice McCowan, Lord Justice Waite, Lord Justice Potter

Citations:

[1996] EWCA Civ 1166, [1997] IRLR 353, [1997] ICR 549

Links:

Bailii

Statutes:

Employment Protection (Consolidation) Act 1978 8122

Jurisdiction:

England and Wales

Citing:

Appeal from – McMeechan v Secretary of State for Employment and Another EAT 23-Nov-1994
The applicant was a temporary worker on the books of an employment agency, which went into insolvent liquidation. He claimed that he had a contract of service with the agency. That formed the basis of his application to the Secretary of State under . .

Cited by:

Cited – Brook Street Bureau (UK) Ltd v Dacas CA 5-Mar-2004
The applicant cleaner sought compensation for unfair dismissal. The issue was whether she was an employee of the respondents, of their client where she did her work, or was not an employee at all. She worked for an agency, who sent her out to . .
Cited – Clark v Oxfordshire Health Authority CA 18-Dec-1997
A nurse was employed under a contract, under which there was no mutuality of obligation; she could refuse work and employer need offer none. This meant that there was no employment capable of allowing an unfair dismissal issue to arise.
Sir . .
Cited – Dacas v Brook Street Bureau (UK) Ltd, Wandsworth London Borough Council EAT 12-Nov-2002
EAT Contract of Employment – Definition of Employee . .
Cited – Cornwall County Council v Prater CA 24-Feb-2006
The claimant worked for the local authority under a series of contracts. The employer denied that she had been continuously employed and there was no ‘irreducible minimum mutual obligation necessary to create a contract of service’. There were times . .
Cited – Drake v Ipsos Mori UK Ltd EAT 25-Jul-2012
drake_ipsosEAT2012
EAT JURISDICTIONAL POINTS – Worker, employee or neither
The Claimant worked for the Respondent as a market researcher under a succession of individual assignments. The Employment Judge erred in law in . .
Cited – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors did so as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
Lists of cited by and citing cases may be incomplete.

Employment, Benefits, Insolvency

Updated: 09 August 2022; Ref: scu.141034

Clark v Oxfordshire Health Authority: CA 18 Dec 1997

A nurse was employed under a contract, under which there was no mutuality of obligation; she could refuse work and employer need offer none. This meant that there was no employment capable of allowing an unfair dismissal issue to arise.
Sir Christopher Slade summarised as follows:
‘Principles governing appeals from an industrial tribunal
At first impression one might suppose that the question whether one person is ’employed’ by another under a ‘contract of employment’ within the meaning of s.153(1) of the 1978 Act would in any case be regarded by the court as a bare question of law, since it raises the question whether there exists between the two parties the legal relationship of employer and employee. And indeed exceptionally, if the existence or otherwise of the relationship is dependent solely upon the true construction of a written document or documents, the question is treated by the court as being one of law, so that an appellate tribunal or court is free to reach its own conclusion on the question without any restriction arising from the decision of the tribunal below (Davies v Presbyterian Church of Wales [1986] IRLR 194).
But in the more ordinary case, where the determination of the question depends not only on reference to written documents but also on an investigation and evaluation of the factual circumstances in which the work is performed, a quite different situation arises: see Lee Ting Sang v Chung Chi-Keung [1990] IRLR 236 at p.240; Clifford v Union of Democratic Mineworkers [1991] IRLR 518 at p.520 per Mann LJ). In such a case, as these two authorities show, the responsibility of determining and evaluating all the relevant admissible evidence (both documentary and otherwise) is that of the tribunal in the first instance; an appellate tribunal is entitled to interfere with the decision of that tribunal, that a contract of employment does or does not exist, only if it is satisfied that in its opinion no reasonable tribunal, properly directing itself on the relevant question of law, could have reached the conclusion under appeal, within the principles of Edwards v Bairstow [1956] AC 14 An illuminating summary of the legal position in this context is also to be found in the judgment of Sir John Donaldson in O’Kelly v Trusthouse plc [1983] IRLR 369 at pp. 381-393.’

Citations:

Gazette 28-May-1998, [1997] EWCA Civ 3035, [1998] IRLR 125, (1998) 41 BMLR 18

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Ready Mixed Concrete Southeast Ltd v Minister of Pensions and National Insurance QBD 8-Dec-1967
Contracts of service or for services
In three cases appeals were heard against a finding as to whether a worker was entitled to have his employer pay National Insurance contributions on his behalf which would apply if he were an employee. He worked as an ‘owner-driver’
Held: The . .
Cited – Nethermere (St Neots) Ltd v Taverna and Gardiner CA 1984
The court considered what elements must be present to create a contract of employment.
Held: Stephenson LJ said: ‘There must . . be an irreducible minimum of obligation on each side to create a contract of service.’
Kerr LJ said: ‘The . .
Cited – Hellyer Bros Limited v McLeod CA 1987
The employer appealed saying that the EAT had wrongly substituted its own opinion for that of the Tribunal.
Held: The appeal was rejected. Looking at the totality of the facts found or otherwise referred to in the decision of the Industrial . .
Cited – Wickens v Champion Employment EAT 1984
The claimant was an employee of the defendant employment agency. She was dismissed, but in order to succeed, she had to show that the agency had more than 20 employees. To do so she had bring the agency workers in as employees. The tribunal . .
Cited – McMeechan v Secretary of State for Employment CA 11-Dec-1996
The respondent as a temporary worker was entitled to be treated as an employee of an agency within the contract governing the particular engagement where money was due when the agency went into liquidation. He was therefore able to claim against the . .
Cited – Davies v Presbyterian Church of Wales HL 1986
A minister of the Presbyterian Church of Wales who had been inducted pastor of a united pastorate in Wales claimed unfair dismissal.
Held: If the existence or otherwise of the relationship of employer and employee is dependent solely upon the . .
Cited – Lee Ting Sang v Chung Chi-Keung PC 8-Mar-1990
Deciding Whether person was an employee
(Hong Kong) The Board considered the conclusion that the applicant stone mason was not an employee of the defendant: ‘even if I leaned towards the opposite conclusion, it would nevertheless be quite impossible for me to say that no tribunal . .
Cited – Clifford v Union of Democratic Mineworkers 1991
Where the only relevant material was documentary the question whether A is employed by B or C is a matter of law but otherwise is a mixed question of law and fact: ‘This description (a mixed question of law and fact) does not, however, in my . .
Cited – Edwards (Inspector of Taxes) v Bairstow HL 25-Jul-1955
The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only . .
Cited – O’Kelly v Trusthouse Forte plc CA 1984
Workers claimed to be employees.
Held: They were not such. Their contract reserved the right to choose whether or not to work and for the employer not to give them work. The question of whether the facts which are found or admitted, fall one . .
Cited – City and East London FHS Authority v Duncan EAT 24-Sep-1996
‘It is not a prerequisite of a contract of service that there must be a mutual obligation to provide and perform work. It is an important, but not conclusive factor’. . .
Cited – Chadwick v Pioneer Private Telephone Co Ltd 1941
Stable J said: ‘A contract of service implies an obligation to serve, and it comprises some degree of control by the master.’ . .
Appeal from – Clark v Oxfordshire Health Authority EAT 4-Mar-1996
Whether bank nurse was an employee . .

Cited by:

Cited – Carmichael and Another v National Power Plc HL 24-Jun-1999
Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence . .
Cited – Brook Street Bureau (UK) Ltd v Dacas CA 5-Mar-2004
The applicant cleaner sought compensation for unfair dismissal. The issue was whether she was an employee of the respondents, of their client where she did her work, or was not an employee at all. She worked for an agency, who sent her out to . .
Cited – Cornwall County Council v Prater CA 24-Feb-2006
The claimant worked for the local authority under a series of contracts. The employer denied that she had been continuously employed and there was no ‘irreducible minimum mutual obligation necessary to create a contract of service’. There were times . .
Cited – Cable and Wireless Plc v Muscat CA 9-Mar-2006
The worker was employed via an employment agency. The contract the company had was with the agency, and the agency had the contract with the worker. The worker claimed an implied contract of employment with the end-user.
Held: The end-user . .
Cited – Launahurst Ltd v Larner EAT 18-Aug-2009
EAT JURISDICTIONAL POINTS: Worker, employee or neither
For 13 years the Claimant worked installing double glazing for the Respondent. In 2004 he signed a ‘contract supply agreement’ though matters continued . .
Cited – Autoclenz Ltd v Belcher and Others CA 13-Oct-2009
Car Valeters contracts misdescribed their Duties
The claimants worked cleaning cars for the appellants. They said that as workers they were entitled to holiday pay. The appellant said they were self-employed.
Held: The contract purported to give rights which were not genuine, and the . .
Cited – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors did so as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 August 2022; Ref: scu.143434

Yuen v The Royal Hong Kong Golf Club: PC 28 Jul 1997

(Hong Kong) The applicant was dismissed as a golf caddie after nine years. The Club denied that he had ever been an employee. He was issued by the club with a number, a uniform and a locker. Caddying work was allocated to available caddies in strict rotation. They were not obliged to make themselves available for work and received no guarantee of work. The club was not obliged to give them work or to pay anything other than the amount of the fee per round owed by the individual golfer for whom they had caddied. Other caddies had signed a form stating that they worked as independent contractors.
Held: (Majority) The applicant’s appeal was dismissed: ‘the only reasonable view of the facts is that the arrangements between the Club and Mr. Cheng went no further than to amount to a licence by the Club to permit Mr. Cheng to offer himself as a caddie for individual golfers on certain terms dictated by the administrative convenience of the Club and its members.’

Judges:

Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Steyn, Lord Hoffmann

Citations:

[1997] UKPC 40, [1998] ICR 131

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Edwards (Inspector of Taxes) v Bairstow HL 25-Jul-1955
The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only . .
Cited – Lee Ting Sang v Chung Chi-Keung PC 8-Mar-1990
Deciding Whether person was an employee
(Hong Kong) The Board considered the conclusion that the applicant stone mason was not an employee of the defendant: ‘even if I leaned towards the opposite conclusion, it would nevertheless be quite impossible for me to say that no tribunal . .
Cited – Ready Mixed Concrete Southeast Ltd v Minister of Pensions and National Insurance QBD 8-Dec-1967
Contracts of service or for services
In three cases appeals were heard against a finding as to whether a worker was entitled to have his employer pay National Insurance contributions on his behalf which would apply if he were an employee. He worked as an ‘owner-driver’
Held: The . .
Cited – O’Kelly v Trusthouse Forte plc CA 1984
Workers claimed to be employees.
Held: They were not such. Their contract reserved the right to choose whether or not to work and for the employer not to give them work. The question of whether the facts which are found or admitted, fall one . .
Cited – Market Investigations v Minister of Social Security 1969
One way of deciding whether a person is self employed is to ask whether he can be said to be running a business of his own. Different tests may have to be combined to produce an overall answer.
Cooke J said: ‘The fundamental test to be applied . .

Cited by:

Cited – Quashie v Stringfellows Restaurants Ltd EAT 26-Apr-2012
EAT JURISDICTIONAL POINTS
Worker, Employee
Illegality
The Employment Judge erred in her conclusion that the Claimant was not an employee on each night she performed work and in the intervening . .
Cited – Uber Bv and Others v Aslam and Others CA 19-Dec-2018
Uber drivers are workers
The claimant Uber drivers sought the status of workers, allowing them to claim the associated statutory employment benefits. The company now appealed from a finding that they were workers.
Held: The appeal failed (Underhill LJ dissenting) The . .
Cited – Khan v Checkers Cars Ltd EAT 16-Dec-2005
EAT The claimant worked as a private hire car driver for the respondent company which operated a taxi service based at Gatwick Airport. The claimant owned and was responsible for his own vehicle. He paid his own . .
Cited – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors did so as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
Cited – Stringfellow Restaurants Ltd v Quashie CA 21-Dec-2012
The company appealed against a decision that the claimant, a lap dancer at their premises, had been an employee. She performed for the entertainment of guests at the respondents’ clubs. She paid the respondent a fee for each night worked. Doing so . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 August 2022; Ref: scu.159253

Uber Bv and Others v Aslam and Others: CA 19 Dec 2018

Uber drivers are workers

The claimant Uber drivers sought the status of workers, allowing them to claim the associated statutory employment benefits. The company now appealed from a finding that they were workers.
Held: The appeal failed (Underhill LJ dissenting) The drivers accepted the control of tee Uber app: ‘Even if drivers are not obliged to accept all or even 80% of trip requests, the high level of acceptances required and the penalty of being logged off if three consecutive requests are not accepted within the ten second time frame justify the ET’s conclusion that the drivers waiting for a booking were available to ULL and at its disposal. If a particular driver had entered into an obligation of the same nature for another entity and also had the rival app switched on then, as a matter of evidence, Uber would be able to argue that that driver was not at Uber’s disposal.’
and: ‘Even if drivers are not obliged to accept all or even 80% of trip requests, the high level of acceptances required and the penalty of being logged off if three consecutive requests are not accepted within the ten second time frame justify the ET’s conclusion that the drivers waiting for a booking were available to ULL and at its disposal. If a particular driver had entered into an obligation of the same nature for another entity and also had the rival app switched on then, as a matter of evidence, Uber would be able to argue that that driver was not at Uber’s disposal. ‘

Judges:

Sir Terence Etherton MR, Underhill, Bean LJJ

Citations:

[2018] EWCA Civ 2748, [2019] WLR(D) 6

Links:

Bailii, WLRD

Statutes:

Employment Rights Act 1996 43K 230(3)(b), National Minimum Wage Act 1998 54(3)(b), Working Time Regulations 1998 2(1), National Minimum Wage Regulations 2015 44, Private Hire Vehicles (London) Act 1998

Jurisdiction:

England and Wales

Citing:

Appeal from – Uber Bv v Aslam and Others (Jurisdictional Points – Worker, Employee or Neither : Working Time Regulations) EAT 10-Nov-2017
Uber drivers are workers
JURISDICTIONAL POINTS – Worker, employee or neither
WORKING TIME REGULATIONS – Worker
‘Worker status’ – section 230(3)(b) Employment Rights Act 1996 (‘ERA’), regulation 36(1) Working Time Regulations 1998 (‘WTR’) and section 54(3) . .
Cited – Autoclenz Ltd v Belcher and Others SC 27-Jul-2011
Car Cleaning nil-hours Contractors were Workers
The company contracted with the claimants to work cleaning cars. The company appealed against a finding that contrary to the explicit provisions of the contracts, they were workers within the Regulations and entitled to holiday pay and associated . .
Cited – Revenue and Customs v Secret Hotels2 Ltd SC 5-Mar-2014
The Court was asked as to: ‘the liability for Value Added Tax of a company which markets and arranges holiday accommodation through an on-line website. The outcome turns on the appropriate characterisation of the relationship between the company, . .
Cited – Cotswold Developments Construction Ltd v Williams EAT 21-Dec-2005
EAT What is meant by ‘mutuality of obligations’ where the claim relies on the Working Time Regulations; whether finding that there was no mutuality of obligations was inconsistent with holding that the Claimant . .
Cited – James v Redcats (Brands) Ltd EAT 21-Feb-2007
EAT National Minimum Wage
Who is a ‘worker’?
Was the Appellant who worked as a courier for the Appellant company, providing her own vehicle, a worker or home worker within the meaning of ss.54(3) and . .
Cited – Snook v London and West Riding Investments Ltd CA 1967
Sham requires common intent to create other result
The court considered a claim by a hire-purchase company for the return of a vehicle. The bailee said the agreement was a sham.
Held: The word ‘sham’ should only be used to describe an act or document where the parties have a common intention . .
Cited – F L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
Cited – Antoniades v Villiers and Another CA 17-Mar-1988
The court considered whether a license agreement was a sham and that a tenancy had been created. Bingham LJ said: ‘Where a written agreement is not held to be a sham, the task of the court, as with any other agreement, is to construe it and give . .
Cited – A G Securities v Vaughan; Antoniades v Villiers and Bridger HL 10-Nov-1988
In Antoniades, the two tenants occupied an attic, living together. Each had at the same time signed identical agreements purporting to create licences. The landlord had reserved to himself the right to occupy the property and to allow others to . .
Cited – Bankway Properties Ltd v Penfold-Dunsford and Another CA 24-Apr-2001
A grant of an assured tenancy included a clause under which the rent would be increased from pounds 4,680, to pounds 25,000 per year. It was expected that the tenant would be reliant upon Housing Benefit to pay the rent, and that Housing Benefit . .
Cited – Consistent Group Ltd v Kalwak and others EAT 18-May-2007
EAT CONTRACT OF EMPLOYMENT – Definition of employee
Employment tribunal concluded in the particular circumstances of the case that an agency supplying workers to a third party had entered into contracts of . .
Cited – A1 Lofts Ltd v Revenue and Customs ChD 30-Oct-2009
Lewison J said: ‘The court is often called upon to decide whether a written contract falls within a particular legal description. In so doing the court will identify the rights and obligations of the parties as a matter of construction of the . .
Cited – Clyde and Co LLP and Another v van Winkelhof SC 21-May-2014
Solicitor Firm Member was a Protected Worker
The solicitor appellant had been a member of the firm, a limited liability partnership. She disclosed criminal misbehaviour by a partner in a branch in Africa. On dismissal she sought protection as a whistleblower. This was rejected, it being found . .
Cited – Mingeley v Pennock and Another (T/A Amber Cars) CA 9-Feb-2004
The claimant taxi driver sought to assert race discrimination. The respondent argued that he had not been an employee, but an independent contractor. The Claimant owned his own vehicle and paid the respondents minicab operators pounds 75 per week . .
Cited – Yuen v The Royal Hong Kong Golf Club PC 28-Jul-1997
(Hong Kong) The applicant was dismissed as a golf caddie after nine years. The Club denied that he had ever been an employee. He was issued by the club with a number, a uniform and a locker. Caddying work was allocated to available caddies in strict . .
Cited – Khan v Checkers Cars Ltd EAT 16-Dec-2005
EAT The claimant worked as a private hire car driver for the respondent company which operated a taxi service based at Gatwick Airport. The claimant owned and was responsible for his own vehicle. He paid his own . .
Cited – Addison Lee Ltd v Lange and Others EAT 14-Nov-2018
Jurisdictional Points – Worker, employee or neither – WORKING TIME REGULATIONS
The Employment Tribunal did not err in law in finding that the Claimants were limb (b) workers and that the time spent logged on other than break times was . .
Cited – Carmichael and Another v National Power Plc HL 24-Jun-1999
Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence . .
Cited – Stringfellow Restaurants Ltd v Quashie CA 21-Dec-2012
The company appealed against a decision that the claimant, a lap dancer at their premises, had been an employee. She performed for the entertainment of guests at the respondents’ clubs. She paid the respondent a fee for each night worked. Doing so . .

Cited by:

Appeal from (CA) – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors did so as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 08 August 2022; Ref: scu.632685

Item Software (UK) Ltd v Fassihi and Others: ChD 5 Dec 2002

Enforcement of confidentiality clause in contract of employment on termination.

Judges:

N Strauss J

Citations:

[2002] EWHC 3116 (Ch), [2003] BCC 858, [2003] 2 BCLC 1, [2003] IRLR 769

Links:

Bailii

Statutes:

Apportionment Act 1870

Jurisdiction:

England and Wales

Citing:

Cited – Bell v Lever Brothers Ltd HL 15-Dec-1931
Contract – Mutual Mistake Test
Bell was director and chairman of Niger, a subsidiary of Lever Brothers Ltd who dismissed him, offering and paying pounds 30,000 compensation. Lever then discovered that Mr Bell had made secret profits at the expense of Niger for which he could have . .
Cited – Horcal Ltd v Gatland ChD 1983
Directors have a positive duty to disclose breaches of fiduciary duty. A failure by a director of a company, as opposed to an employee, to disclose an earlier breach of fiduciary duty would render an agreement terminating his contract of service (on . .

Cited by:

Appeal from – Fassihim, Liddiardrams, International Ltd, Isograph Ltd v Item Software (UK) Ltd CA 30-Sep-2004
The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
Held: A company . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 08 August 2022; Ref: scu.566718

Hartley and Others v King Edward VI College: SC 24 May 2017

The teacher appellants challenged the quantification of deductions from their salaries after engaging in lawful strike days.
Held: The appeal as allowed. The correct approach under section 2 to a case like this, where the contract is an annual contract, is to hold that the salary must be apportioned on a calendar day basis over 365 days, which yields a daily figure of 1/365.
Lord Clarke said: ‘I do not think that the contracts of employment provide expressly or by necessary implication for their salaries to be paid to staff pro rata in respect of divisible obligations to perform work on each day of directed time.’
Section 2 of the Act applied in this case and was not excluded by section 7. As to the questions posed in para 8 above, I would hold that (a) section 2 of the Act applied to this case, (b) that ‘accruing from day to day’ means accruing calendar day by calendar day and (c) that section 7 of the Act has the meaning discussed in paras 38 to 41 above and does not apply on the facts of this case.

Judges:

Lady Hale, Deputy President, Lord Clarke, Lord Wilson, Lord Hughes, Lord Gill

Citations:

[2017] UKSC 39, [2017] 4 All ER 637, [2017] ICR 774, [2017] IRLR 763, [2017] 1 WLR 2110, [2017] ELR 395

Links:

Bailii, Bailii Summary

Statutes:

Apportionment Act 1870

Jurisdiction:

Scotland

Citing:

Cited – Sim v Rotherham Metropolitan Borough Council 1981
The 1870 Act applied where an employee’s contract was terminated in the course of a period at the end of which payment would be made. Scott J said: ‘Mr Goudie submitted that the real question was whether a teacher was entitled to be paid for the . .
Cited – Fassihim, Liddiardrams, International Ltd, Isograph Ltd v Item Software (UK) Ltd CA 30-Sep-2004
The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
Held: A company . .
Appeal from – Hartley and Others v King Edward VI College CA 14-May-2015
The claimant teachers had been involved in a day’s strike action They objected that the employer had deducted 1/260 and not 1/365 of their annual salary.
Held: Section 2 of the 1870 Act did apply to a teacher’s contract, and the employee’s . .
Cited – Miles v Wakefield Metropolitan District Council HL 1987
The claimant was a superintendent registrar of Births Deaths and Marriages. His union instructed him not to conduct weddings on Saturdays. He had been told that if he failed to perform his full range of duties on a Saturday (including marriages), he . .
Cited – Amey v Peter Symonds College QBD 2013
The claimant was a full time teacher at a sixth form college who went on strike. He participated in two days of industrial action. He argued that the College acted unlawfully in deducting 1/260 of his salary rather than 1/365 for each day on strike. . .
Cited – Thames Water Utilities v Reynolds EAT 22-Nov-1995
HH Judge Clark: said this by reference to the expression ‘from day to day’ in section 2: ‘Accordingly the real question is what is meant by the expression ‘from day to day’ in section 2 of the Act. In our view it can only be calendar days and not . .
Cited – Leisure Leagues UK Ltd v Maconnachie EAT 14-Mar-2002
When calculating the entitlement to holiday pay the apportionment had to be made on the number of working days in a year, not on the number of days in a year. The regulations required this interpretation rather than that under the Act. A consequence . .
Cited – Yarrow v Edwards Chartered Accountants EAT 8-Jun-2007
EAT WORKING TIME REGULATIONS
Holiday Pay
Appeal allowed against Chairman’s order dismissing complaint without considering all information supplied by parties (ET Rule 27(6)). Application of working . .
Cited – Cooper and others v The Isle of Wight College QBD 30-Nov-2007
. .
Cited – Tyrrell v Clark 17-Jan-1854
The stat. 4 and 5 Will. 4, c. 22, requires, in order to exclude apportionment, either an express direction that there shall be none, or language so express in the terms of gift that apportionment is clearly impossible consistently with it. Inference . .
Cited – In re Lysaght CA 1898
The testator bequeathed certain shares and declared that they ‘shall carry the interest accruing thereon at my death.’
Held: But for this clause the Apportionment Act would have allowed the residuary legatees to take the benefit of the . .
Lists of cited by and citing cases may be incomplete.

Employment, Education

Updated: 08 August 2022; Ref: scu.584230

Amey v Peter Symonds College: QBD 2013

The claimant was a full time teacher at a sixth form college who went on strike. He participated in two days of industrial action. He argued that the College acted unlawfully in deducting 1/260 of his salary rather than 1/365 for each day on strike. The employer looking at the teacher’s working year, deducted 1/260.
Held: The employer had been correct to apply section 2 of the 1870 Act. The claim failed. 2 of the Apportionment Act required pay to be treated as accruing by equal amounts each day. While ‘accruing from day to day’ in section 2 must be construed as referring to calendar days, section 7 applied to disapply section 2 because the claimant’s contract necessarily implied that his pay was tied to his directed time work.

Judges:

Jay J

Citations:

[2014] IRLR 206, [2013] EWHC 2788

Links:

Bailii

Statutes:

Apportionment Act 1870 2

Jurisdiction:

England and Wales

Cited by:

Applied – Hartley and Others v King Edward VI College CA 14-May-2015
The claimant teachers had been involved in a day’s strike action They objected that the employer had deducted 1/260 and not 1/365 of their annual salary.
Held: Section 2 of the 1870 Act did apply to a teacher’s contract, and the employee’s . .
Cited – Hartley and Others v King Edward VI College SC 24-May-2017
The teacher appellants challenged the quantification of deductions from their salaries after engaging in lawful strike days.
Held: The appeal as allowed. The correct approach under section 2 to a case like this, where the contract is an annual . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 08 August 2022; Ref: scu.546830

Various Claimants v WM Morrisons Supermarket Plc: QBD 1 Dec 2017

The defendant employer had had confidential information of many of its staff taken and disclosed by a rogue employee. The employees now sought compensation. The main issue was whether the company was directly or vicariously liable for the tort.
Held: The company were not directly liable, but were liable vicariously: ‘Adopting the broad and evaluative approach encouraged by Lord Toulson JSC in Mohamud’s case [2016] AC 677 I have therefore come to the conclusion that there is a sufficient connection between the position in which Skelton was employed and his wrongful conduct, put into the position of handling and disclosing the data as he was by Morrisons (albeit it was meant to be to KPMG alone), to make it right for Morrisons to be held liable ‘under the principle of social justice which goes back to Holt CJ’.’
The statutes and regulations did not impose direct liability on an employer.

Judges:

Langstaff J

Citations:

[2017] EWHC 3113 (QB), [2017] WLR(D) 806, [2018] IRLR 200, [2018] EMLR 12, [2018] 3 WLR 691

Links:

Bailii, WLRD

Statutes:

Data Protection Act 1998 55, Computer Misuse Act 1990, Parliament and Council Directive 95/46/EC

Jurisdiction:

England and Wales

Citing:

Applied – The Catholic Child Welfare Society and Others v Various Claimants and The Institute of The Brothers of The Christian Schools and Others SC 21-Nov-2012
Law of vicarious liability is on the move
Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .

Cited by:

See Also – Various Claimants v Wm Morrison Supermarkets Plc QBD 16-May-2018
. .
At QBD – Wm Morrison Supermarkets Plc v Various Claimants CA 22-Oct-2018
Co vicariously liable for employee’s data breach
A member of the company’s staff had unlawfully disclosed personal details of many company employees. The data consisted of personal information of the defendant’s employees including their names, addresses, gender, dates of birth, phone numbers, . .
At QBD – WM Morrison Supermarkets Plc v Various Claimants SC 1-Apr-2020
A disgruntled senior employee had divulged on the internet personal details of several thousand employees. The claimants alleged that that had been a breach of the 1998 Act, and that the appellants were vicariously liable for that wrong. . .
Lists of cited by and citing cases may be incomplete.

Employment, Information, Vicarious Liability, European

Updated: 08 August 2022; Ref: scu.601126

Strathclyde Regional Council v Neil: SCSf 1984

The claimant was taken on as a trainee social worker, on condition that she obtain a place on a social work course. She was to receive paid leave to attend. Her contract provided that she was to work for the Council for two years after completing the course and to repay a proportionate part of the sums outlaid if she left within that period. So leaving, she argued that the recoupment clause was a penalty and not an attempt to estimate damages, since it disregarded sums which the Council would receive by way of contribution from central government.
Held: The clause was not a penalty. It did not cease to be a genuine attempt to estimate losses because of the other receipts.

Judges:

(The Sherriff Principal)

Citations:

[1984] IRLR 14

Jurisdiction:

Scotland

Citing:

Distinguished – National Coal Board v Galley CA 1958
A colliery deputy was in breach of contract by refusing over several months to work on Saturdays. His refusal was part of wider industrial action involving several other deputies. Although the combined effect of the refusal to work by the defendant . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 August 2022; Ref: scu.464275

In re Nortel Companies and Others: SC 24 Jul 2013

The court was asked as to the interrelationship of the statutory schemes relating to the protection of employees’ pensions and to corporate insolvency.
Held: Liabilities which arose from financial support directions or contribution notices issued by the Pensions Regulator under the 2004 Act after the company had gone into administration, which required the company to put in place financial support for an occupational pension scheme, did not rank as an expense of the administration under rule 2.67(1)(f) of the 1986 Rules, but if by the time it went into administration it had for the preceding two years been vulnerable to a liability under a pension scheme, that liability remained an obligation which ranked in the administration and was provable as debt of the company.
By participating in litigation, a party submitted himself to a liability to pay costs in accordance with rules of court, contingently upon an order for costs being made against him. It followed that where proceedings were begun by or against a company before it went into liquidation, a liability for costs under an order made after it went into liquidation was provable as a contingent debt.
‘In a liquidation of a company and in an administration (where there is no question of trying to save the company or its business), the effect of insolvency legislation . . , as interpreted and extended by the courts, is that the order of priority for payment out of the company’s assets is, in summary terms, as follows:
(1) Fixed charge creditors;
(2) Expenses of the insolvency proceedings;
(3) Preferential creditors;
(4) Floating charge creditors;
(5) Unsecured provable debts;
(6) Statutory interest;
(7) Non-provable liabilities; and
(8) Shareholders.’

Judges:

Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Toulson

Citations:

[2013] UKSC 52, [2013] 4 All ER 887, [2013] Bus LR 1056, [2013] 2 BCLC 135, [2013] Pens LR 299, [2013] BCC 624, [2013] BPIR 866, [2013] WLR(D) 300, [2014] 1 AC 209, UKSC 2011/0259, [2013] 3 WLR 504

Links:

Bailii, WLRD, Bailii Summary, SC Summary, SC

Statutes:

Insolvency Rules 1986 2.67(1)(f), Insolvency (Amendment) Rules 2006, Insolvency (Amendment) Rules 2003, Pensions Act 2004 43

Jurisdiction:

England and Wales

Citing:

At first instance (disapproved) – Bloom and Others v The Pensions Regulator (Nortel, Re) ChD 10-Dec-2010
Applications for directions by the administrators of twenty companies in two groups, all raising the same common questions as to the effect of the Financial Support Direction regime created by the Pensions Act 2004 upon companies in administration . .
Appeal from – Bloom and Others v The Pensions Regulator and Others; In re Nortel GMBH (in administration CA 14-Oct-2011
‘These appeals raise important and difficult questions posed by the impact of legislation for the protection of pension funds upon companies which are undergoing an insolvency process.’ . .
Cited – In re Sutherland, dec’d; Winter v Inland Revenue Commissioners HL 1963
The concept of a contingent liability was considered.
Held: In Scots law, a contingent liability is a liability which, by reason of something done by the person bound, may or may not arise depending on the happening of a future event.
Cited – In re SBA Properties Ltd ChD 1967
A court action had been raised in the name of a company without authority, giving rise to a possible liability in expenses to the defendants. One of the defendants claimed that, in the event that the company’s liquidator ratified the action, that . .
Cited – In re ABC Coupler and Engineering Co Ltd (No 3) ChD 1970
The liquidator when appointed closed down the business which had been conducted on the premises, had the company’s plant and machinery valued and thought about what he should do.
Held: The rent did not become a liquidation expense until some . .
Cited – Kahn and Another v Commissioners of Inland Revenue; In re Toshoku Finance plc HL 20-Feb-2002
A company went into liquidation, being owed substantial sums by another company in the same group, but itself insolvent. A settlement did not include accrued interest, but was claimed to be taxed as if it had, and on an accruals basis. If so, was . .
Cited – Secretary of State for Trade and Industry v Frid HL 13-May-2004
The company went into insolvent liquidation. The secretary of state was to make payments to employees and there were other state preferential creditors. At the same time a refund of VAT was due from the Commissioners of customs and Excise.
Cited – Steele, Regina (on the Application of) v Birmingham City Council and The Secretary of State for Work and Pensions CA 16-Dec-2005
The claimant had received an overpayment of benefits (Job seeker’s allowance), but then was made bankrupt. He now said that this was a debt in the bankruptcy.
Held: It was not. At the date of the bankruptcy order, the possible reclaim was not . .
Cited – In re T and N Ltd and Others (No 3) ChD 16-Jun-2006
The court considered the application of ‘the bankruptcy template of section 382 to the rules governing the winding up of companies’.
Held: The phrase ‘obligation incurred’ in Rule 13.2(1)(b) was inapt to describe a common law duty of care in . .
Cited – In re Bluck, Ex parte Bluck 1887
The discretionary character of a costs order meant that it was not even a contingent liability until the order had actually been made . .
Cited – In re A Debtor (No 68 of 1911) 1911
. .
Cited – In re Pitchford 11-Jan-1924
. .
Cited – In re Smith ex parte Edwards 1886
The parties to an arbitration agreement had agreed to pay whatever costs the arbitrator decided in his discretion to award. The losing party then went bankrupt.
Held: His bankruptcy did not relieve him of his liability for the costs. The . .
Cited – In re British Gold Fields of West Africa 1899
An order for costs could be proved where the action was in respect of a provable debt or liability. In such a case they were regarded as an addition to the sum recovered. . .
Approved – Haine v Secretary of State for Business Enterprise and Regulatory Reform and Another; Day v Haine CA 11-Jun-2008
Former employees had obtained a protective award against the company for failing to consult on the impending redundancies and submitted proofs of debt to the liquidator who sought guidance from the court. The judge had held that since the Act . .
Disapproved – Glenister v Rowe CA 21-Apr-1999
The claimant sued for breach of trust. The action was re-instated after being struck out for want of prosecution, but in the meantime the defendant had been made bankrupt and then discharged from bankruptcy. An order for costs was then made which . .
Disapproved – Steele v Mooney and others CA 8-Feb-2005
The claimant had sought an extension of time for service of her claim form in her action for personal injury. The solicitors in error did not include the words ‘claim form’ in their request. The judge had initially held the error was one of drafting . .
Cited – The Carron Iron Company Proprietors v Maclaren, Dawson, Stainton PC 23-Jul-1855
If the circumstances of a case are such as would make it the duty of one court in this country to restrain a party from instituting proceedings in another court here, they will also warrant it in imposing on him a similar restraint with regard to . .
Cited – Ex parte Llynvi Coal and Iron Co; In re Hide 1871
The trustee in bankruptcy disclaimed an agreement for a lease under Section 23. The landlord claimed to prove as creditor under the section.
Held: Where one party has repudiated a contract and the other party has accepted that repudiation as . .
Cited – In re Trent and Humber Shipbuilding Co; Bailey and Leetham’s Case 1869
The court was asked whether costs awarded against a company were costs in the winding up.
Held: Where a creditor has obtained leave of the court to bring proceedings against a company in liquidation, any costs to which the creditor would . .
Cited – In re International Marine Hydropathic Co CA 1884
Where rates become due in respect of land occupied by a liquidator for the purpose of the winding up, the liquidator is liable to meet those rates. . .
Cited – In re National Arms and Ammunition Co CA 1885
‘If the company retains the possession of property which would be rateable in the hands of anyone else, it is only reasonable that it should be rateable in the hands of the company . . the true test is whether there has been a beneficial occupation . .
Cited – In re Blazer Fire Lighter Ltd 1895
The liquidator had closed the business and done nothing on the premises except to instal a caretaker to protect them from vandalism. That was sufficient to continue the company in rateable occupation. So the rates were an expense of the liquidation. . .
Cited – In re Wenborn and Co 1905
Buckley J held: ‘When the voluntary liquidator, or the liquidator in a compulsory winding up, comes to the Court for leave to bring or defend an action by or against the company, and obtains this leave, the judge in effect pledges the assets of the . .
Cited – In re Beni-Felkai Mining Co Ltd 1933
A liquidator’s remuneration is not encompassed by the word ‘expenses’. The term ‘expenses’ is not a term of art. It may include any expenses which the liquidator may be compelled to pay in respect of his acts in the course of a proper liquidation of . .
Cited – In re Mesco Properties Ltd CA 1980
Tax legislation provided that the company was chargeable to corporation tax on a capital gain arising in the winding up.
Held: The appeal failed. It was a tax which the liquidator was bound to discharge by payment, and the payment was a . .
Cited – Exeter City Council v Bairstow and others; Re Trident Fashions plc CA 10-Mar-2006
. .
Cited – Burton, Re Direction of Assets; In re Thomas v Burton, liquidator of Ben Line Steamers Ltd SCS 24-Dec-2010
Outer House, Court of Session . .
Cited – In re Condon, Ex parte James 1874
The Trustee in bankruptcy has relevant duties as the Trustee as an officer of the Court. Such a Trustee would not engage in conduct which could be seen to involve an unfair use of that position, and ‘where it would be unfair’ for a trustee in . .
Cited – In Re Kentish Homes Ltd ChD 31-Mar-1993
The question was whether a post-liquidation liability to community charge on empty flats was an expense of the liquidation.
Held: The company was the chargeable person in respect of the flats for the relevant periods, but the liability was . .
Cited – Re T H Knitwear (Wholesale) Ltd CA 1988
Subrogation is a remedy, not a cause of action. Subrogation of Customs and Excise to a creditor’s right of proof in the winding up of a supplier was refused as it would have been contrary to the statutory scheme for the administration of VAT. . .
Cited – In Re Oriental Inland Steam Company ex parte Scinde Railway Company CA 1874
The liquidator obtained an order requiring a creditor who had attached assets in India to return them to the company in liquidation.
Sir W M James LJ said: ‘The winding-up is necessarily confined to this country. It is not immaterial to . .
Cited – In re Clark (a bankrupt); ex parte the Trustee v Texaco Ltd ChD 1975
Walton J restated the rule in In re James: ‘the rule provides that where it would be unfair for a trustee to take full advantage of his legal rights as such, the court will order him not to do so, and, indeed, will order him to return money which he . .
Cited – In re UCT (UK) Ltd ChD 2001
Arden J was asked to approve aproposal that the company should go into voluntary liquidation, on the basis that, prior to that happening, the administrators would pay into a trust account in their own name a sum equal to the total amount owing to . .
Cited – Getliffe and Another, Re Lune Metal Products Ltd CA 14-Dec-2006
. .

Cited by:

Cited – BPE Solicitors and Another v Gabriel SC 17-Jun-2015
Application for directions in a pending appeal. The claimant alleged negligence against his former solicitors. After his successful claim was substantially overturned on appeal, he was made bankrupt.
Held: If the trustee adopted and pursued . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Employment, Company

Updated: 07 August 2022; Ref: scu.513677

Shoesmith, Regina (on The Application of) v OFSTED and Others: Admn 10 Nov 2009

Judges:

Foskett J

Citations:

[2009] EWHC B35 (Admin)

Links:

Bailii

Statutes:

Children Act 2004 20(1)(b)

Cited by:

See Also – Shoesmith, Regina (on The Application of) v Ofsted and Others Admn 23-Apr-2010
The claimant challenged her dismissal as Director of children’s services at the respondent council following an adverse report into the Baby P death identified her department as being responsible. She said that the first defendant had allowed its . .
See Also – Shoesmith, Regina (on The Application of) v OFSTED and Others CA 27-May-2011
The claimant appealed against dismissal of her claim. She had been head of Child Services at Haringey. After the notorious violent death of Baby P, the Secretary of State called for an inquiry under the Act. He then removed her as director. She . .
Lists of cited by and citing cases may be incomplete.

Employment, Administrative

Updated: 07 August 2022; Ref: scu.381762

NCH Scotland v P Mchugh: EAT 15 Dec 2006

EAT Disability Discrimination – Reasonable adjustments
The EAT would follow the judgment of the EAT most recently upholding the British Gas line of authorities set out in Tarbuck. A Tribunal is under a duty to decide whether reasonable adjustments have been made irrespective of whether they were actually considered by an employer. The trigger point for a duty to arise is when the employee who is absent indicates that she will be returning to work. The Home Office v Collins applied. If adjustments will have no practical effect in mitigating the substantial effect on a disabled person of the atmosphere in which she works, there is unlikely to be any breach of the duty to make reasonable adjustments.

Citations:

[2006] UKEAT 0010 – 06 – 1512

Links:

Bailii

Employment

Updated: 07 August 2022; Ref: scu.381710

Johnson v Coopers Lane Primary School: EAT 1 Dec 2009

EAT RACE DISCRIMINATION
Inferring discrimination
The majority of the Tribunal were correct in rejection of submission that the majority of white employers held stereo-typical view that black people are more likely to have mental health issues.

Citations:

[2009] UKEAT 0248 – 09 – 0112

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 07 August 2022; Ref: scu.381701

Dainty v Ellerton Knight: EAT 3 Nov 2009

EAT CONTRACT OF EMPLOYMENT: Whether established
Decision by Employment Tribunal that the Appellant was (by reference to a letter of appointment) and remained (there being no subsequent variation) self-employed upheld. Appeal on perversity grounds dismissed.

Citations:

[2009] UKEAT 0281 – 09 – 0311

Links:

Bailii

Employment

Updated: 07 August 2022; Ref: scu.381633

ABN AMRO Management Services Ltd and Another v Hogben: EAT 1 Nov 2009

EAT AGE DISCRIMINATION
PRACTICE AND PROCEDURE – Striking-out
Appeal against refusal of Employment Judge to strike out three heads of an age discrimination claim; cross-appeal against striking-out of fourth.
(1) Judge wrong not to strike out claim of discriminatory selection of redundancy when claim was prima facie implausible and there were no facts indicative of such discrimination.
(2) Judge wrong not to strike out claim based on a difference of age profile between those made redundant before and after the date of introduction of less generous terms as to payment of bonus to dismissed employees – A change of this character did not constitute a ‘provision criterion or practice’.
(3) Judge right not to strike out a claim that the length of service element in the Appellants’ redundancy payment scheme was discriminatory.
(4) Judge right to strike out claim that requirement that Respondent sign a compromise agreement as a condition of entitlement to enhanced redundancy pay was age-discriminatory.
Underhill J concluded that the practice of requiring a compromise agreement in return for an enhanced redundancy payment involved a legitimate interest in achieving finality: ‘Further, it seems to me . . that even if a case of discriminatory impact could be made out the requirement could plainly be justified. Employers have a legitimate interest in achieving finality as regards all issues arising out of the dismissal of an employee. Offering a further payment to achieve a binding compromise of all such issues is plainly a proportionate means of achieving that aim. Its proportionality is unassailable because the choice always remains with the employee: if he thinks it is a bad deal he need not take the offer. He will of course, by definition, have access to legal advice. The fallacy in the Claimant’s case is that it overlooks the fact that he otherwise has no right to this payment: although it may be described as an enhanced redundancy payment, it is in fact a payment offered to redundant employees in return for a full and final settlement of all claims. It is of course for that reason that the contention that the payment could be made while [accepting] the right to advance outstanding claims makes no sense.’

Judges:

Underhill P J

Citations:

[2009] UKEAT 0266 – 09 – 0111

Links:

Bailii

Citing:

Cited – Enderby v Frenchay Health Authority and Another ECJ 27-Oct-1993
Discrimination – Shifting Burden of Proof
(Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female . .

Cited by:

Cited – Garratt v Mirror Group Newspapers Ltd CA 13-Apr-2011
The claimant had been employed by the defendant. They made him redundant. He claimed and enhanced payment saying that his emloyment was covered by a collective agreement, but when he refused to sign a compromise agreement, the company paid him only . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 07 August 2022; Ref: scu.381632

Girvan v Humberside Probation Trust: EAT 6 Aug 2009

EAT PRACTICE AND PROCEDURE
Striking out
An Employment Judge failed to consider relevant explanations offered by a Claimant in response to a strikeout application, and wrongly rejected her application for a review. The judge did not consider less drastic coercive measures, as were suggested by the Respondent itself. Appeal allowed, Employment Tribunal judgments set aside and remitted to a different judge for hearing of Respondent’s strikeout application. Parties to report to Employment Tribunal on ADR steps taken within 28 days.

Citations:

[2009] UKEAT 0197 – 09 – 0608

Links:

Bailii

Employment

Updated: 07 August 2022; Ref: scu.381625

Nowicka-Price v Gwent Constabulary: EAT 3 Aug 2009

EAT PRACTICE AND PROCEDURE
Amendment
The Employment Judge erred in failing to construe the Respondent’s response as a blanket admission of the Claimant’s claims. His secondary judgment that, if wrong, he would allow the response to be amended to withdraw most of the admissions was nevertheless correct. CPR PD14 applied since Employment Tribunal Rules are silent on withdrawal of admissions. It would be exceptional to remove a dispute about discrimination or, effectively, to strike out a response, by forming a view as to its merits at an interim stage.

Judges:

McMullen QC J

Citations:

[2009] UKEAT 0268 – 09 – 0308

Links:

Bailii

Employment

Updated: 07 August 2022; Ref: scu.381626

France v Lancaster Training Services Ltd: EAT 1 Oct 2009

EAT JURISDICTIONAL POINTS
Worker, employee or neither
Employment Tribunal imported into the test of whether the Claimant was an employee; the test in tripartite agency cases. Further it failed to make clear findings of fact on which it accepted there was a conflict of evidence. There was a paucity of findings of fact on the working practices of the Claimant with ’employee’.

Judges:

Pugsley J

Citations:

[2009] UKEAT 0235 – 09 – 0110

Links:

Bailii

Employment

Updated: 07 August 2022; Ref: scu.381630

Musa v Royal Mail Group Ltd: EAT 17 Jul 2009

EAT PRACTICE AND PROCEDURE
Striking-out/dismissal
RACE DISCRIMINATION
Continuing act
A claim disclosing a clearly arguable case of an act of discrimination extending over a period ending with the Claimant’s dismissal should not have been rejected at a pre-hearing review as being out of time.

Citations:

[2009] UKEAT 0215 – 09 – 1707

Links:

Bailii

Employment

Updated: 07 August 2022; Ref: scu.381624

Yorkshire Maintenance Company Ltd v Farr: EAT 13 Aug 2009

EAT PRACTICE AND PROCEDURE
Unlawful deduction from wages
This is an issue as to whether the judgment properly calculated the wages due. The more substantial issue is whether a clause in the contract requiring employees to obtain the signature of the client for the worksheets and stipulating that the failure to do so meant the employee would not be paid if enforceable as is a penalty. We remitted the case because we believed there were issues of fact to be resolved.

Citations:

[2009] UKEAT 0084 – 09 – 1308

Links:

Bailii

Employment

Updated: 07 August 2022; Ref: scu.381627

McFarlane v Relate Avon Ltd: EAT 30 Nov 2009

EAT RELIGION OR BELIEF DISCRIMINATION
UNFAIR DISMISSAL – Reason for dismissal
Christian counsellor dismissed by Relate for failing to give an unequivocal commitment to counsel same-sex couples.
Held: Tribunal right to dismiss claims of discrimination (direct and indirect) contrary to the Employment Equality (Religion or Belief) Regulations 2003 and of unfair dismissal – London Borough of Islington v Ladele [2009] ICR 387 followed

Judges:

Underhill J P

Citations:

[2009] UKEAT 0106 – 09 – 3011, [2010] IRLR 196, [2010] ICR 507

Links:

Bailii

Statutes:

Employment Equality (Religion or Belief) Regulations 2003

Citing:

Cited – Ahmad v United Kingdom ECHR 1981
(Commision) The applicant was a devout Muslim. His religious duty was to offer prayers on Fridays and to attend a mosque if possible. He was employed as a full time primary school teacher. He complained that he was forced to resign because he was . .
Cited – Chondol v Liverpool City Council EAT 11-Feb-2009
EAT RELIGION OR BELIEF DISCRIMINATION
Social worker dismissed on charges which included inappropriate promotion of his religious beliefs and arranging a visit to his home by a service user in a manner which . .
Cited – London Borough of Islington v Ladele EAT 19-Dec-2008
EAT RELIGION OR BELIEF DISCRIMINATION
The claimant was a Registrar who, amongst other things, registered marriages. When the Civil Partnerships Act came into force, she refused to participate in registering . .
Cited – Webb v EMO Air Cargo (UK) Ltd (No 1) HL 3-Mar-1993
Questions on pregnancy dismissals included unavailability at required time. The correct comparison under the Act of 1975 was between the pregnant woman and: ‘a hypothetical man who would also be unavailable at the critical time. The relevant . .
Cited – Eweida v British Airways Plc EAT 20-Nov-2008
EAT RELIGION OR BELIEF DISCRIMINATION
The claimant was a Christian who objected to BA’s policy of requiring jewellery to be worn concealed by the uniform. There were exceptions for those whose religions . .
Cited – McClintock v Department of Constitutional Affairs EAT 31-Oct-2007
The claimant had resigned as a magistrate after a refusal of his requirement that he not be asked to sit on adoption applications involving same sex couples.
Held: The request was an abdication of the duties of a magistrate, and his claim . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – Kokkinakis v Greece ECHR 25-May-1993
The defendant was convicted for proselytism contrary to Greek law. He claimed a breach of Article 9.
Held: To say that Jehovah’s Witness were proselytising criminally was excessive. Punishment for proselytising was unlawful in the . .
Cited – Regina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
Cited – Webb v EMO Air Cargo ECJ 14-Jul-1994
Community Law protects women from dismissal during pregnancy save in exceptional circumstances. It was discriminatory to dismiss a female not on a fixed term contract for pregnancy. The Court rejected an interpretation of the Directive that would . .
Cited – Thlimmenos v Greece ECHR 6-Apr-2000
(Grand Chamber) The applicant was a Jehovah’s Witness who had been convicted of insubordination under the Military Criminal Code for refusing to wear a military uniform at a time of general mobilisation. He was subsequently refused appointment as a . .
Cited – Kalac v Turkey ECHR 1-Jul-1997
In exercising his freedom to manifest his beliefs an individual ‘may need to take his specific situation into account.’ ‘The Commission recalls that the expression ‘in accordance with the law’, within the meaning of Article 9(2), requires first that . .

Cited by:

Appeal from – McFarlane v Relate Avon Ltd CA 29-Apr-2010
The employee renewed his application for leave to appeal against refusal of his discrimination claim on the grounds of religious belief. He worked as a relationship sex therapist, and had signed up to the employer’s equal opportunities policy, but . .
Cited – Hall and Another v Bull and Another Misc 4-Jan-2011
(Bristol County Court) The claimants, homosexual partners in a civil partnership, sought damages after being refused a stay at the bed and breakfast hotel operated by the defendants, who said that this was their home, and that they were committed . .
Appeal from – Ladele and McFarlane v The United Kingdom ECHR 12-Apr-2011
Statement of Facts and Questions to parties . .
At EAT – Eweida And Others v The United Kingdom ECHR 15-Jan-2013
Eweida_ukECHR2013
The named claimant had been employed by British Airways. She was a committed Christian and wished to wear a small crucifix on a chain around her neck. This breached the then dress code and she was dismissed. Her appeals had failed. Other claimants . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 07 August 2022; Ref: scu.381635

PA Haulage Ltd v Gaffney: EAT 4 Nov 2009

EAT PRACTICE and PROCEDURE
Appearance/Response
Employment Judge refused, on a preliminary consideration under Rule 35, an application under Rule 34 for a review of the rejection of a late-submitted response, in circumstances where there were credible grounds for believing that R had previously submitted a response in time but it had gone astray – Claim upheld at a hearing at which R was in consequence debarred from participating under Rule 9.
Held that the application should not have been refused summarily – EAT conducted a review itself and directed that the response be accepted and the claim be reheard.

Citations:

[2009] UKEAT 0297 – 09 – 0411

Links:

Bailii

Employment

Updated: 07 August 2022; Ref: scu.381636

Ministry of Defence v Guellard: EAT 1 Sep 2009

EAT UNFAIR DISMISSAL
Constructive dismissal / Contributory fault / Polkey deduction
JURISDICTIONAL POINTS
2002 Act and pre-action requirements
The Employment Tribunal did not err in assessing the last straw in a series of events leading to a constructive unfair dismissal. It did not err when it refused as a matter of case management on a remedy hearing to allow the admission of evidence which could have been brought when the tribunal decided contribution and Polkey issues. But it wrongly used prediction in assessing (past) contribution and the matter was remitted to the same Employment Tribunal.
It did not err in fixing the uplift at the entry point of 10 per cent, rejecting the Respondent’s argument that it should be ‘modest’.

Judges:

McMullen QC J

Citations:

[2009] UKEAT 0210 – 09 – 0109

Links:

Bailii

Employment

Updated: 07 August 2022; Ref: scu.381629

National Coal Board v Galley: CA 1958

A colliery deputy was in breach of contract by refusing over several months to work on Saturdays. His refusal was part of wider industrial action involving several other deputies. Although the combined effect of the refusal to work by the defendant and the other deputies was that no productive work was possible at the colliery on a Saturday for some two months until the plaintiffs succeeded in obtaining substitute deputies at a cost of andpound;3 18s 2d for each substitute per Saturday shift and the plaintiffs suffered a loss of production of nearly andpound;4,000 until the substitute deputies were obtained.
Held: It could not be shown that the plaintiffs’ loss of production had been caused or contributed to by the defendant’s breach of contract. As a deputy, he would not have worked at a coal face even if he had presented himself for work on the Saturdays. The proper measure of damages where a person agrees to take up emplyment, but then does not, is the cost of finding a replacement.
Pearce LJ said: ‘How then can it be said that loss of output is any measure of his liability?’
the failure of the plaintiffs to prove that they had suffered any consequent financial loss in the form of loss of profits as a result of the defendant’s breach of contract was not held by the Court of Appeal to dis-entitle them from recovering damages for the loss they suffered as a result of the defendant’s breach of contract. The measure of the pkaintiff’s loss was the value to the plaintiffs of the work which the defendant was contracted to but failed to provide: ‘The last point which arises concerns the measure of damages. The learned judge found that the plaintiffs had proved a loss of profit of andpound;535 due to the impossibility of working the Saturday voluntary shift on June 16 1956. He then went on to hold that the defendant and others – namely all the deputies and shotfirers concerned with the loss – should be treated as being responsible for that loss and that the defendant was liable to the plaintiffs for his share . . What then is the measure of damages in this particular case? If the defendant alone and on his own initative had failed to work the Saturday voluntary shift on June 16 the measure of damages would have been the net value to the plaintiffs of the work which he would have performed if he had worked that shift as he ought to have done . . The question still is: What loss of output did the absence of the particular deputy charged with breach of his contract entail? The question in each case must be: What would his services have contributed to the net value of the output of the shift if the deputy concered had duly worked it? That is in each case a question of fact. In the present case, though the defendant was undoubtedly acting in concert with others, it is not shown that his breach contributed to the loss. He would not, as we understand it, have worked at a coal face, but would have been doing safety work. How then can it be said that loss of output is in any measure of his liability? In these circumstances we do not think it can be said that any damages has been proved against him beyond the cost of a substitute, say andpound;318s 2d.’

Judges:

Pearce LJ

Citations:

[1958] 1 WLR 16, [1958] 1 All ER 91

Jurisdiction:

England and Wales

Cited by:

Distinguished – Strathclyde Regional Council v Neil SCSf 1984
The claimant was taken on as a trainee social worker, on condition that she obtain a place on a social work course. She was to receive paid leave to attend. Her contract provided that she was to work for the Council for two years after completing . .
Cited – George v The Ministry of Justice CA 17-Apr-2013
The claimant appealed against rejection of his claim that the respondent had broken his contract of employment as a prison officer by changing the collective agreement for prisons officers. The judge had found that the respective terms were not . .
Lists of cited by and citing cases may be incomplete.

Damages, Employment

Updated: 07 August 2022; Ref: scu.282599

Bost Logistics Ltd and others v Eleode: EAT 20 May 2008

EAT PRACTICE AND PROCEDURE: Time for appealing
The law and practice on out of time appeals described in Muschett EAT were accepted to be correct. The application in Consignia v Sealy CA of the two-day postal rule in CPR6.7 to the Employment Tribunal’s ‘not reasonably practicable’ jurisdiction does not be extend to the 42-day time limit for a Notice of Appeal in the EAT. CPR6.7 is an irrebuttable deeming provision. Different considerations apply to first instance and appellate jurisdictions where EAT R35(3) applies. After hearing live evidence, a Notice of Appeal posted on day 40, arriving on day 43, and a Notice of Appeal arriving at the Employment Tribunal on day 39 and the EAT on day 54, were out of time and discretion would not be exercised.

Citations:

[2008] UKEAT 0013 – 08 – 2005

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 07 August 2022; Ref: scu.271316

Grant v Kent County Council: EAT 3 Apr 2000

Interlocutory and preliminary hearing – complaint of unfair dismissal and breach of contract.

Judges:

Lindsay J P

Citations:

[2000] UKEAT 1449 – 99 – 0304

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Grant v Kent County Council EAT 1-May-2003
EAT Unfair Dismissal – Reason for dismissal . .
See Also – Grant v Kent County Council EAT 11-May-2001
Preliminary hearing. . .
See Also – Grant v Kent County Council EAT 18-Feb-2002
EAT Contract of Employment – Breach of Contract . .
See Also – Grant v Kent County Council CA 9-Dec-2003
Renewed application for permission to appeal.
Held: Remitted . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 August 2022; Ref: scu.265031

Pimlico Plumbers Ltd and Another v Smith: SC 13 Jun 2018

The parties disputed whether Mr Smith had been an employee of or worker with the company so as to bring associated rights into play. The contract required the worker to provide an alternate worker to cover if necessary.
Held: The company’s appeal failed. Mr Smith was a worker: ‘there were features of the contract which strongly militated against recognition of Pimlico as a client or customer of Mr Smith. Its tight control over him was reflected in its requirements that he should wear the branded Pimlico uniform; drive its branded van, to which Pimlico applied a tracker; carry its identity card; and closely follow the administrative instructions of its control room. The severe terms as to when and how much it was obliged to pay him, on which it relied, betrayed a grip on his economy inconsistent with his being a truly independent contractor. The contract made references to ‘wages’, ‘gross misconduct’ and ‘dismissal’. Were these terms ill-considered lapses which shed light on its true nature? And then there was a suite of covenants restrictive of his working activities following termination.’
Lord Wilson observed that: ‘The sole test is, of course, the obligation of personal performance: any other so-called test would be an inappropriate usurpation of the sole test. But there are cases, of which the present case is one, in which it is helpful to assess the significance of [the claimant] Mr Smith’s right to substitute another Pimlico operative by reference to whether the dominant feature of the contract remained personal performance on his part.’

Judges:

Lady Hale, President, Lord Wilson, Lord Hughes, Lady Black, Lord Lloyd-Jones

Citations:

[2018] UKSC 29, [2018] ICR 1511, [2018] WLR(D) 357, [2018] IRLR 872, [2018] 4 All ER 641, UKSC 2017/0053

Links:

Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Summary Video

Statutes:

Employment Rights Act 1996, Working Time Regulations 1998

Jurisdiction:

England and Wales

Citing:

At EAT – Pimlico Plumbers Ltd and Another v Smith EAT 21-Nov-2014
EAT Contract of Employment : Whether Established – WORKING TIME REGULATIONS – Worker . .
Appeal frrom (At CA) – Pimlico Plumbers Ltd and Another v Smith CA 10-Feb-2017
The plumbers appealed against a finding that the plumbers it employed were workers and entitled toassociated benefits.
Sir Terence Etherton MR summarised the case law and said: ‘ I would summarise as follows the applicable principles as to the . .
Cited – Express and Echo Publications Limited v Tanton CA 11-Mar-1999
A contract for services, which required the contractor to provide an alternate worker in case of sickness, could not be a contract of employment. Such a clause could not be said to require the services to be provided personally.
Mr Tanton . .
Cited – Clyde and Co LLP and Another v van Winkelhof SC 21-May-2014
Solicitor Firm Member was a Protected Worker
The solicitor appellant had been a member of the firm, a limited liability partnership. She disclosed criminal misbehaviour by a partner in a branch in Africa. On dismissal she sought protection as a whistleblower. This was rejected, it being found . .
Cited – Jivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
Cited – Ready Mixed Concrete Southeast Ltd v Minister of Pensions and National Insurance QBD 8-Dec-1967
Contracts of service or for services
In three cases appeals were heard against a finding as to whether a worker was entitled to have his employer pay National Insurance contributions on his behalf which would apply if he were an employee. He worked as an ‘owner-driver’
Held: The . .
Cited – Allonby v Accrington and Rossendale College for Education and Employment ECJ 13-Jan-2004
ECJ Principle of equal pay for men and women – Direct effect – Meaning of worker – Self-employed female lecturer undertaking work presumed to be of equal value to that which is undertaken in the same college by . .
Cited – Mirror Group Newspapers v Gunning CA 1985
The claimant sought to have transferred to her, her father’s agency for the wholesale distribution of Sunday newspapers. The claimant alleging sex discrimination after being refused. The company said that she was not an employee within the 1975 Act. . .
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .
Cited – Byrne Brothers (Formwork) Limited v Baird EAT 18-Sep-2001
EAT The Tribunal was asked whether the claimant was a worker within the meaning of the Regulations and so entitled to their protection in receiving holiday pay.
Held: The appropriate classification of a . .
Cited – Percy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
Cited – Secretary of State for Justice v Windle and Arada CA 12-May-2016
. .
Cited – Halawi v WDFG UK Ltd (T/A World Duty Free) CA 28-Oct-2014
The claimant said that she had been discriminated against on the grounds of her religion. She worked as a beauty consultant at the airport, but through a limited company. Her airside pass had been withdrawn. She now appealed against rejection of her . .
Cited – Cotswold Developments Construction Ltd v Williams EAT 21-Dec-2005
EAT What is meant by ‘mutuality of obligations’ where the claim relies on the Working Time Regulations; whether finding that there was no mutuality of obligations was inconsistent with holding that the Claimant . .
Cited – FNV Kunsten Informatie En Media v Staat der Nederlanden ECJ 11-Sep-2014
ECJ Advocate General’s Opinion – Collective labour agreement – Contracts for professional services – Minimum fees – Competition – Article 101 TFEU – Prevention of social dumping – ‘Albany exception’
A Dutch . .
Cited – James v Redcats (Brands) Ltd EAT 21-Feb-2007
EAT National Minimum Wage
Who is a ‘worker’?
Was the Appellant who worked as a courier for the Appellant company, providing her own vehicle, a worker or home worker within the meaning of ss.54(3) and . .
Cited – The Hospital Medical Group Ltd v Westwood CA 24-Jul-2012
The Hospital Medical Group argued that Dr Westwood was in business on his own account as a doctor, in which he had three customers, the NHS for his services as a general practitioner, the Albany Clinic for whom he did transgender work, and the . .

Cited by:

Cited – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors did so as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
Cited – Stuart Delivery Ltd v Augustine CA 19-Oct-2021
Obligation to Perfom Work Personally was Critical
This appeal concerns the status of a courier delivering goods by moped. The question on the appeal is whether an employment tribunal was entitled to find that the claimant, Mr Augustine, was a worker within the meaning of section 230(3)(b) of the . .
Cited – Barclays Bank Plc v Various Claimants SC 1-Apr-2020
The Bank had employed a doctor to provide medical assessments as necessary. The doctor had used the opportunities presented to assault sexually many patients. The court was now asked whether the Bank was vicariously liable for the acts of this . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 August 2022; Ref: scu.617857

Clyde and Co LLP and Another v van Winkelhof: SC 21 May 2014

Solicitor Firm Member was a Protected Worker

The solicitor appellant had been a member of the firm, a limited liability partnership. She disclosed criminal misbehaviour by a partner in a branch in Africa. On dismissal she sought protection as a whistleblower. This was rejected, it being found that a member of such a firm was not a worker or an employee.
Held: The court was struck by how hard the company had had to work to establish that the claimant was not a worker. The simple statutory tests were satisfied: ‘she is employed under a contract personally to perform work or services for the LLP; she was an integral part of their business and the LLP was not her client or customer.’ and ‘ the appellant clearly is a ‘worker’ within the meaning of section 230(3)(b) of the Employment Rights Act 1996 and entitled to claim the protection of its whistle-blowing provisions. That conclusion is to my mind entirely consistent with the underlying policy of those provisions, which some might think is particularly applicable to businesses and professions operating within the tightly regulated fields of financial and legal services.’ The case was remitted to the employment tribunal.
Baroness Hale of Richmond observed that employment law distinguishes between three types of people: those employed under a contract of employment; those self-employed people who are in business on their own account and undertake work for their clients or customers; and an intermediate class of workers who are self-employed but who provide their services as part of a profession or business undertaking carried on by someone else. Some statutory rights, such as the right not to be unfairly dismissed, are limited to those employed under a contract of employment; but other rights, including those claimed in these proceedings, apply to all ‘workers’.

Judges:

Lord Neuberger, President, Lady Hale Deputy President, Lord Clarke, Lord Wilson, Lord Carnwath

Citations:

[2014] WLR(D) 222, [2014] UKSC 32, UKSC 2012/0229, [2014] ICR 730, [2014] 1 WLR 2047, [2014] 3 All ER 225, [2014] IRLR 641

Links:

WLRD, Bailii, Bailii Summary, SC Summary, SC

Jurisdiction:

England and Wales

Citing:

Appeal from – Clyde and Co Llp and Another v Bates van Winkelhof CA 26-Sep-2012
The claimant was a solicitor partner with the appellant limited liability partnership at their offices in Tanzania. She disclosed what she believed to be money laundering by a local partner. She was dismissed. She had just disclosed her pregnancy . .
See Also – Van Winkelhof v Clyde and Co Llp and Another EAT 26-Apr-2012
EAT JURISDICTIONAL POINTS
Worker, employee or neither
Working outside the jurisdiction
Whether LLP equity member was a limb (b) worker under section 230(3). Allowing Claimant’s appeal, she was. . .
At EAT – Clyde and Co Llp v Van Winkelhof EAT 26-Apr-2012
EAT JURISDICTIONAL POINTS
Worker, employee or neither
Working outside the jurisdiction
Whether LLP equity member was a limb (b) worker under section 230(3). Allowing Claimant’s appeal, she was. . .
Cited – Ellis v Joseph Ellis and Co CA 1905
A member of a partnership formed to work a mine worked in it as foreman. He took weekly wages from the profits. He suffered a fatal accident in the mine and his widow sought compensation under the 1897 Act from the surviving partners. To qualify he . .
Cited – Cowell v Quilter Goodison Co Ltd and QG Management Services Ltd 1989
It is not possible for an individual to be an employee of himself and his of co-partners. . .
Cited – Allison v Alison’s Trustees 1904
A person cannot be an employee of a body of partners of which he is also a member. . .
Cited – Heinisch v Germany ECHR 21-Jul-2011
The applicant alleged, in particular, that her dismissal without notice from her employment as a geriatric nurse on the ground that she had brought a criminal complaint against her employer alleging deficiencies in the institutional care provided, . .
Cited – Deborah Lawrie-Blum v Land Baden-Wuerttemberg ECJ 3-Jul-1986
The Equal Treatment Directive is concerned with ‘workers’ which is a term of art in Community law: ‘That concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and . .
Cited – Allonby v Accrington and Rossendale College for Education and Employment ECJ 13-Jan-2004
ECJ Principle of equal pay for men and women – Direct effect – Meaning of worker – Self-employed female lecturer undertaking work presumed to be of equal value to that which is undertaken in the same college by . .
Cited – Mirror Group Newspapers v Gunning CA 1985
The claimant sought to have transferred to her, her father’s agency for the wholesale distribution of Sunday newspapers. The claimant alleging sex discrimination after being refused. The company said that she was not an employee within the 1975 Act. . .
Cited – Byrne Brothers (Formwork) Limited v Baird EAT 18-Sep-2001
EAT The Tribunal was asked whether the claimant was a worker within the meaning of the Regulations and so entitled to their protection in receiving holiday pay.
Held: The appropriate classification of a . .
Cited – Cotswold Developments Construction Ltd v Williams EAT 21-Dec-2005
EAT What is meant by ‘mutuality of obligations’ where the claim relies on the Working Time Regulations; whether finding that there was no mutuality of obligations was inconsistent with holding that the Claimant . .
Cited – James v Redcats (Brands) Ltd EAT 21-Feb-2007
EAT National Minimum Wage
Who is a ‘worker’?
Was the Appellant who worked as a courier for the Appellant company, providing her own vehicle, a worker or home worker within the meaning of ss.54(3) and . .
Cited – Jivraj v Hashwani ComC 26-Jun-2009
The claimant said that the requirement in an arbitration clause for all the arbitrators to be members of the Ismaili community was unlawful under the 2003 Regulations.
Held: The appointment was not discriminatory. An arbitrator’s employment . .
Cited – Kudeshkina v Russia ECHR 24-Feb-2009
Article 10 applies to the workplace in general, and a professional person such as a judge is entitled to the freedom to criticise the judicial system. . .
Cited – The Hospital Medical Group Ltd v Westwood CA 24-Jul-2012
The Hospital Medical Group argued that Dr Westwood was in business on his own account as a doctor, in which he had three customers, the NHS for his services as a general practitioner, the Albany Clinic for whom he did transgender work, and the . .
See Also – Clyde and Co Llp and Another v Winkelhof CA 5-Jul-2011
. .

Cited by:

Cited – Uber Bv and Others v Aslam and Others CA 19-Dec-2018
Uber drivers are workers
The claimant Uber drivers sought the status of workers, allowing them to claim the associated statutory employment benefits. The company now appealed from a finding that they were workers.
Held: The appeal failed (Underhill LJ dissenting) The . .
Cited – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors did so as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
Cited – Pimlico Plumbers Ltd and Another v Smith SC 13-Jun-2018
The parties disputed whether Mr Smith had been an employee of or worker with the company so as to bring associated rights into play. The contract required the worker to provide an alternate worker to cover if necessary.
Held: The company’s . .
Cited – Stuart Delivery Ltd v Augustine CA 19-Oct-2021
Obligation to Perfom Work Personally was Critical
This appeal concerns the status of a courier delivering goods by moped. The question on the appeal is whether an employment tribunal was entitled to find that the claimant, Mr Augustine, was a worker within the meaning of section 230(3)(b) of the . .
Cited – Barclays Bank Plc v Various Claimants SC 1-Apr-2020
The Bank had employed a doctor to provide medical assessments as necessary. The doctor had used the opportunities presented to assault sexually many patients. The court was now asked whether the Bank was vicariously liable for the acts of this . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 07 August 2022; Ref: scu.525969

Cooper and others v The Isle of Wight College: QBD 30 Nov 2007

Judges:

Blake J

Citations:

[2007] EWHC 2831 (QB), [2008] IRLR 124

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Hartley and Others v King Edward VI College SC 24-May-2017
The teacher appellants challenged the quantification of deductions from their salaries after engaging in lawful strike days.
Held: The appeal as allowed. The correct approach under section 2 to a case like this, where the contract is an annual . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 August 2022; Ref: scu.261917

Yarrow v Edwards Chartered Accountants: EAT 8 Jun 2007

EAT WORKING TIME REGULATIONS
Holiday Pay
Appeal allowed against Chairman’s order dismissing complaint without considering all information supplied by parties (ET Rule 27(6)). Application of working year, rather than calendar year computation of a day’s pay for purpose of arrears of pay/holiday pay. Interest on awards made by EAT.

Citations:

[2007] UKEAT 0116 – 07 – 0806

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Approved – Leisure Leagues UK Ltd v Maconnachie EAT 14-Mar-2002
When calculating the entitlement to holiday pay the apportionment had to be made on the number of working days in a year, not on the number of days in a year. The regulations required this interpretation rather than that under the Act. A consequence . .

Cited by:

Cited – Hartley and Others v King Edward VI College SC 24-May-2017
The teacher appellants challenged the quantification of deductions from their salaries after engaging in lawful strike days.
Held: The appeal as allowed. The correct approach under section 2 to a case like this, where the contract is an annual . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 August 2022; Ref: scu.258771

New ISG Ltd v Vernon and others: ChD 14 Nov 2007

The claimant sought to continue an interim injunction obtained without notice. The claimant sought to restrain former employees misusing information it claimed they had taken with them. The claimants said that having objected to a transfer of their employments they had not become employees of the claimant.
Held: Where an employee did not know the identity of a transferee company until after the transfer, it would go against the employees right to choose an employer to bind him to the contract with the new employer. The defendants had resigned within two days of being notified of the transfer. The court considered the balance of convenience arguments. Neither side would be adequately compensated by damages or an undertaking for them. However there had been delay in commencing the proceedings and that led to the injunctions being discharged.

Judges:

Behrens QC J

Citations:

[2007] EWHC 2665 (Ch)

Links:

Bailii

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 2006 4(6)

Jurisdiction:

England and Wales

Citing:

Cited – Katsikas and others v Konstantinidis and others ECJ 16-Dec-1992
ECJ Article 3(1) of Directive 77/187 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings is to be interpreted as not . .
Cited – Secretary of State for Trade and Industry v Cook and others EAT 13-Dec-1996
Employees who are otherwise qualified employees will transfer with their undertaking even though they are unaware of the identity of their new employer. Morison J considered the situation where there was a transfer of the undertaking, but the . .
Cited – Humphreys v Oxford University CA 18-Jan-2000
In a transfer of undertakings, where the employee could show that the transfer of his employment to a new employer would lead to a real detriment, the transfer operated to entitle the employee to terminate his contract vis a vis the first employer . .
Cited – Arbuthnot Fund Managers Ltd v Rawlings CA 13-Mar-2003
Post-termination restraints in a service agreement. . .
Cited – Hay v George Hanson 1996
Lord Johnston said: ‘We would pause to reflect that if the withholding of consent is, as we think it is, the proper consideration, it should not be difficult in most cases to distinguish between such withholding of consent and mere expressions of . .
Cited – Townsend v Jarman 1900
A partner gave a covenant not to carry on the business of a corn, seed or manure merchant or nurseryman within a distance of 40 miles from Chard. The partners sold the business to a company, of which they remained directors. It was wound up, and the . .
Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
Lists of cited by and citing cases may be incomplete.

Information, Employment

Updated: 06 August 2022; Ref: scu.261463

Mark Warner Ltd v Aspland: EAT 8 Dec 2005

EAT Practice and Procedure
Statutory Grievance Procedure. Whether express intention to lodge grievance required. Covering all claims. Without prejudice letters. Whether solicitor may act as party’s agent. Provision of required information in ETI.
EAT Practice and Procedure – Striking-out/dismissal.

Judges:

His Honour Judge Peter Clark

Citations:

UKEAT/0531/05, [2005] UKEAT 0531 – 05 – 0812

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Cited by:

Cited – The Highland Council v TGWU and Unison EAT 3-Jun-2008
EAT EQUAL PAY ACT: Equal value

Equal Pay claims. Whether letters sent to local authority employers by unions prior to coming into force of the statutory grievance procedures met the requirements of regulation . .
Cited – BUPA Care Homes v Cann; Spillett v Tesco Stores EAT 31-Jan-2006
EAT Practice and Procedure – 2002 Act and Pre-Action Requirements; and Amendment
Whether section 32(4) EA 2002 – original time limit – restricts time for bringing a DDA claim to the primary 3 months period, . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 August 2022; Ref: scu.236727

Sivanandan v Hackney Action for Racial Equality (Hare): EAT 20 Oct 1999

EAT Procedural Issues – Employment Tribunal

Judges:

His Honour Judge J Hicks QC

Citations:

[1999] UKEAT 616 – 99 – 2010, EAT/616/99

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Cited by:

See Also – Sivanandan v Hackney Action for Race Equality (Hare) EAT 1-Feb-2001
. .
See Also – Sivanandan v Hackney Action for Racial Equality Executive Committee CA 25-Jan-2002
. .
See Also – Sivanandan v Hackney Action for Racial Equality and others EAT 18-Nov-2003
EAT Race Discrimination – Aiding and abetting . .
See Also – Sivanandan v Hackney Action for Racial Equality etc EAT 6-Jul-2004
EAT Disability Discrimination – Reasonable adjustments – Practice and Procedure – Disclosure.
EAT Practice and Procedure – Disclosure. . .
See Also – London Borough of Hackney v Sivanandan and Others EAT 27-May-2011
EAT RACE DISCRIMINATION – Compensation
SEX DISCRIMINATION – Compensation
APPEAL
Council and a charity both supplied members to a recruitment panel which victimised the Claimant – Tribunal makes . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 August 2022; Ref: scu.205788

Tchoula v Netto Foodstores Ltd: EAT 14 Jul 1997

The appicant sought leave to appeal against refusal of his claim of race discrimination.
Held: Leave was granted on one point. The Industrial Tribunal under the heading ‘Dismissal’, referred to the fact that: ‘The applicant lacked the ability to be a ‘team player’ and lack interpersonal and management skills.’
‘It seems to us to be arguable that an Industrial Tribunal when faced with a contention that an employee who is of an ethnic minority was not a team player or did not fit in, should recognise it as one of the warning signals which they should be astute to detect as being a potential sign of discrimination. It seems to us, therefore, that it is arguable that the Industrial Tribunal have not carried out the function which Parliament has imposed on them in a case such as this. We express no view one way or the other on this question, but it seems to us to call for debate before a full panel of the Employment Appeal Tribunal.’

Judges:

Morison J P

Citations:

[1997] UKEAT 1378 – 96 – 1407

Links:

Bailii

Statutes:

Race Relations Act 1976

Jurisdiction:

England and Wales

Cited by:

See Also – Tchoula v Netto Foodstores Ltd EAT 6-Mar-1998
A bald statement saying that X’s evidence was preferred to Y’s is implausible and unreasoned and unacceptable; included simply to try and prevent any appeal. It is likely that there will be a great deal of background material which is . .
See Also – Tchoula v Netto Foodstores (UK) Limited CA 15-Oct-1998
The complainant alleged bias on the part of the tribunal, saying that a tribunal member had fallen asleep. He now sought leave to appeal against the decision of the EAT. The Employment Appeal Tribunal had indicated certain areas of dissatisfaction . .
Cited – Dr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 August 2022; Ref: scu.207691

Sivanandan v Hackney Action for Racial Equality etc: EAT 6 Jul 2004

EAT Disability Discrimination – Reasonable adjustments – Practice and Procedure – Disclosure.
EAT Practice and Procedure – Disclosure.

Judges:

The Honourable Mr Justice Burton

Citations:

UKEAT/0812/03, [2004] UKEAT 0812 – 03 – 0607, [2004] UKEAT 0472 – 04 – 0607, UKEAT/0472/04

Links:

Bailii, Bailii, EAT, EAT

Jurisdiction:

England and Wales

Citing:

See Also – Sivanandan v Hackney Action for Racial Equality (Hare) EAT 20-Oct-1999
EAT Procedural Issues – Employment Tribunal . .
See Also – Sivanandan v Hackney Action for Race Equality (Hare) EAT 1-Feb-2001
. .
See Also – Sivanandan v Hackney Action for Racial Equality Executive Committee CA 25-Jan-2002
. .
See Also – Sivanandan v Hackney Action for Racial Equality and others EAT 18-Nov-2003
EAT Race Discrimination – Aiding and abetting . .

Cited by:

See Also – London Borough of Hackney v Sivanandan and Others EAT 27-May-2011
EAT RACE DISCRIMINATION – Compensation
SEX DISCRIMINATION – Compensation
APPEAL
Council and a charity both supplied members to a recruitment panel which victimised the Claimant – Tribunal makes . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 06 August 2022; Ref: scu.214692

Ayobiojo v Unison: EAT 10 Mar 1999

Citations:

[1999] UKEAT 1330 – 98 – 1003

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Ayobiojo v Nalgo/Unison Trade Union CA 20-May-1998
. .

Cited by:

Appeal from – Ayobiojo v NALGO/Unison Trade Union CA 19-Aug-1999
. .
See Also – Ayobiojo v Nalgo/Unison Trade Union CA 20-May-1998
. .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 August 2022; Ref: scu.204906

Grant v Kent County Council: EAT 1 May 2003

EAT Unfair Dismissal – Reason for dismissal

Judges:

His Hon Judge J Burke QC

Citations:

EAT/1019/02, [2003] EAT 1019 – 02 – 2509, [2003] UKEAT 1019 – 02 – 2509, EAT/1019/02

Links:

Bailii, Bailii, EAT

Jurisdiction:

England and Wales

Citing:

See Also – Grant v Kent County Council EAT 18-Feb-2002
EAT Contract of Employment – Breach of Contract . .
See Also – Grant v Kent County Council EAT 3-Apr-2000
Interlocutory and preliminary hearing – complaint of unfair dismissal and breach of contract. . .
See Also – Grant v Kent County Council EAT 11-May-2001
Preliminary hearing. . .

Cited by:

See Also – Grant v Kent County Council EAT 18-Feb-2002
EAT Contract of Employment – Breach of Contract . .
Appeal from – Grant v Kent County Council CA 9-Dec-2003
Renewed application for permission to appeal.
Held: Remitted . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 August 2022; Ref: scu.188094

Hadmor Productions Ltd v Hamilton: HL 1982

The Court of Appeal was not in general entitled to reverse the decision of the Administrative Court in the grant of discretionary interlocutory relief: ‘it is I think appropriate to remind your Lordships of the limited function of an appellate court in an appeal of this kind. An interlocutory injunction is a discretionary relief and the discretion whether or not to grant it is vested in the High Court judge by whom the application for it is heard. Upon an appeal from the judge’s grant or refusal of an interlocutory injunction the function of an appellate court, whether it be the Court of Appeal or your Lordship’s House, is not to exercise an independent discretion of its own. It must defer to the judge’s exercise of his discretion and must not interfere with it merely upon the ground that the members of the appellate court would have exercised the discretion differently. The function of the appellate court is initially one of review only. It may set aside the judge’s exercise of his discretion on the ground that it was based upon a misunderstanding of the law or of the evidence before him or upon an inference that particular facts existed or did not exist, which, although it was one that might legitimately have been drawn upon the evidence that was before the judge, can be demonstrated to be wrong by further evidence that has become available by the time of the appeal; or upon the ground that there has been a change of circumstances after the judge made his order that would have justified his acceding to an application to vary it.’ and ‘The right approach by an appellate court is to examine the fresh evidence in order to see to what extent, if any, the facts disclosed by it invalidate the reasons given by the judge for his decision.’

and ‘Under our adversary system of procedure, for a judge to disregard the rule by which counsel are bound has the effect of depriving the parties to the action of the benefit of one of the most fundamental rules of natural justice: the right of each to be informed of any point adverse to him that is going to be relied upon by the judge and to be given the opportunity of stating what his answer to it is.’

Judges:

Lord Diplock

Citations:

[1983] 1 AC 191, [1982] ICR 114

Jurisdiction:

England and Wales

Citing:

Approved – British Broadcasting Corporation v Hearn CA 1977
Union members working for the BBC threatened to refuse to transmit its television signal to a satellite over the Indian Ocean during the Cup Final because the satellite broadcast would be receivable in South Africa. The refusal followed a union . .

Cited by:

Considered – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Regina v Her Majesty’s Attorney General ex parte Rusbridger and Another HL 26-Jun-2003
Limit to Declaratory Refilef as to Future Acts
The applicant newspaper editor wanted to campaign for a republican government. Articles were published, and he sought confirmation that he would not be prosecuted under the Act, in the light of the 1998 Act.
Held: Declaratory relief as to the . .
Cited – In re P (a minor by his mother and litigation friend); P v National Association of Schoolmasters/Union of Women Teachers HL 27-Feb-2003
The pupil had been excluded from school but then ordered to be re-instated. The teachers, through their union, refused to teach him claiming that he was disruptive. The claimant appealed a refusal of an injunction. The injunction had been refused on . .
Cited – In re P (a minor by his mother and litigation friend); P v National Association of Schoolmasters/Union of Women Teachers HL 27-Feb-2003
The pupil had been excluded from school but then ordered to be re-instated. The teachers, through their union, refused to teach him claiming that he was disruptive. The claimant appealed a refusal of an injunction. The injunction had been refused on . .
Cited – Douglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
Cited – Araci v Fallon CA 4-Jun-2011
The claimant said that the defendant jockey had agreed to ride the claimant’s horse in the Epsom Derby (to be run on the date of the hearing), and that he should not be allowed to ride another horse. The parties had entered into a Rider Retainer . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Employment

Updated: 06 August 2022; Ref: scu.182421

Kyamanywa v London Borough of Hackney: CA 5 Jun 2003

An issue was whether a notice had been sent to solicitors as the authorised representative of the Appellant. The Appellant had occasionally used one firm of solicitors but at other times she had acted in person at the hearing and also when communicating with the Tribunal.
Held: The tribunal’s decision that notice had been sent to the solicitors as authorised representatives was approved (Mummery LJ): ‘In my judgment there was no error of law in the decision of the review tribunal regarding non-receipt of notice. On that point I agree with the submissions made by Miss Maclaren on behalf of the council. It is clear, reading the extended reasons of the review tribunal, that they made findings of fact on that point without any error of law. The applicant accepted in her evidence to them that she had instructed Balogun Kirvan to act on her behalf throughout. They had instructed counsel to appear in the tribunal on her behalf at an earlier hearing; they had corresponded with the tribunal as her solicitors; and the tribunal had corresponded with them and sent notices and documents to them. The evidence adduced on behalf of the applicant did not establish that either the applicant or Balogun Kirvan had even given any notice to the tribunal under regulation 20(4), indicating that the tribunal should now send notices and documents to her personally rather than to the firm of solicitors who had started to act for her.’

Judges:

Mummery LJ

Citations:

[2003] EWCA Civ 902

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Shah v Haden Building Management Ltd EAT 28-Sep-2005
The tribunal had served a pre-hearing notice on employment dispute consultants who had acted for the claimant, but who had reserved their position in correspondence with the employers, and had asked that any documents be served on the claimant . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 06 August 2022; Ref: scu.184607

Jacques v AUEW: 1987

Warner J said: ‘The effect of the authorities may I think be summarised by saying that the rules of a trade union are not to be construed literally or like a statute, but so as to give them a reasonable interpretation which accords with what in the court’s view they must have been intended to mean, bearing in mind their authorship, their purpose and the readership to which they are addressed.’

Judges:

Warner J

Citations:

[1987] 1 All ER 621

Jurisdiction:

England and Wales

Cited by:

Cited – Godrich and Serwotka v Public and Commercial Services Union and Reamsbottom ChD 31-Jul-2002
The second defendant had become General Secretary of the first defendant after the amalgamation of two unions. The defendants agreed a compromise as to his term of office. The applicants sought declarations that they were now joint secretary.
Lists of cited by and citing cases may be incomplete.

Contract, Employment

Updated: 06 August 2022; Ref: scu.183318

Thames Water Utilities v Reynolds: EAT 22 Nov 1995

HH Judge Clark: said this by reference to the expression ‘from day to day’ in section 2: ‘Accordingly the real question is what is meant by the expression ‘from day to day’ in section 2 of the Act. In our view it can only be calendar days and not working days.’

Judges:

HH Judge Clark

Citations:

[1996] IRLR 186, [1995] UKEAT 1090 – 94 – 2211

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Overruled – Leisure Leagues UK Ltd v Maconnachie EAT 14-Mar-2002
When calculating the entitlement to holiday pay the apportionment had to be made on the number of working days in a year, not on the number of days in a year. The regulations required this interpretation rather than that under the Act. A consequence . .
Cited – Hartley and Others v King Edward VI College SC 24-May-2017
The teacher appellants challenged the quantification of deductions from their salaries after engaging in lawful strike days.
Held: The appeal as allowed. The correct approach under section 2 to a case like this, where the contract is an annual . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 August 2022; Ref: scu.183027

Castle View Services Limited v Howes and Everett and Fitzpatrick and Dalglish: SCS 29 Feb 2000

Though the Council Directive did not apply to sea-going vessels, the Court held that the crews of such vessels were not excluded from the benefit of the regulations.

Judges:

Lord Sutherland

Citations:

[2000] ScotCS 49, 2000 SLT 696

Links:

Bailii, ScotC

Statutes:

Employment Tribunals Act 1996

Jurisdiction:

Scotland

Cited by:

Cited – Parkwood Leisure Ltd v Alemo-Herron and Others SC 15-Jun-2011
The claimants had been employed by a local authority and then transferred to the respondents. They had had the benefit that their terms of employment were subject to collective agreement. The respondent was not part of the negotiation of later . .
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 06 August 2022; Ref: scu.169403

Leisure Leagues UK Ltd v Maconnachie: EAT 14 Mar 2002

When calculating the entitlement to holiday pay the apportionment had to be made on the number of working days in a year, not on the number of days in a year. The regulations required this interpretation rather than that under the Act. A consequence of using the full year might well be to apply an effective rate lower than the minimum wage rate.

Judges:

Judge Wilkie, QC, Ms J. Drake and Mr R. N. Straker

Citations:

Times 02-May-2002, [2002] UKEAT 940 – 01 – 1403

Links:

Bailii

Statutes:

Working Time Regulations 1998 (1998 No 1833), Apportionment Act 1870 2

Jurisdiction:

England and Wales

Citing:

Overruled – Thames Water Utilities v Reynolds EAT 22-Nov-1995
HH Judge Clark: said this by reference to the expression ‘from day to day’ in section 2: ‘Accordingly the real question is what is meant by the expression ‘from day to day’ in section 2 of the Act. In our view it can only be calendar days and not . .

Cited by:

Cited – Hartley and Others v King Edward VI College SC 24-May-2017
The teacher appellants challenged the quantification of deductions from their salaries after engaging in lawful strike days.
Held: The appeal as allowed. The correct approach under section 2 to a case like this, where the contract is an annual . .
Approved – Yarrow v Edwards Chartered Accountants EAT 8-Jun-2007
EAT WORKING TIME REGULATIONS
Holiday Pay
Appeal allowed against Chairman’s order dismissing complaint without considering all information supplied by parties (ET Rule 27(6)). Application of working . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 August 2022; Ref: scu.170212

Wandsworth London Borough Council v D’Silva and Another: CA 9 Dec 1997

The council wanted to change its Code of Practice on Staff Sickness. Employees objected. The Council argued that the Code was not part of the employment contract, and that in any event the contract reserved to the council the right to alter the terms and conditions.
Held: A Code of Practice was to be interpreted so as to indicate general practice within company and not as giving contractual rights to employees. Clauses allowing unilateral variation of contract were possible in law but must be clear.
Lord Woolf MR said: ‘The general position is that contracts of employment can only be varied by agreement. However in the employment field an employer or for that matter an employee can reserve the ability to change a particular aspect of the contract unilaterally by notifying the other party as part of the contract that this is the situation. However, clear language is required to reserve to one party an unusual power of this sort. In addition the Court is unlikely to favour an interpretation which does more than enable a party to vary contractual provisions with which that party is required to comply. If therefore the provisions of the code which the Council were seeking to amend in this case were of a contractual nature, then they could well be capable of unilateral variation as the counsel contends. In relation to the provisions as to appeals the position would be likely to be different. To apply a power of unilateral variation to the rights which an employee is given under this part of the code could produce an unreasonable result and the courts in construing a contract of employment will seek to avoid such a result.’

Judges:

Lord Woolf MR, Millett LJ, Robert Walker LJ

Citations:

Gazette 24-Jun-1998, [1997] EWCA Civ 2941, [1998] IRLR 193

Jurisdiction:

England and Wales

Citing:

Appeal from – London Borough of Wandsworth v D’Silva and Another EAT 17-Mar-1997
. .
Cited – National Coal Board v National Union of Mineworkers 1986
A collective agreement between employer and the recognised trades union was ‘inapt to become enforceable terms of an individual’s contract of employment.’ Such collective agreements may deal with the appropriate mechanisms for dealing with . .
Endorsed – Alexander v Standard Telephones and Cables Ltd (No. 2) 1991
alexander_standard1991
The court considered under what circumstances a collective agreement between an employer and trades unions would be incorporated into an individual employee’s contract: ‘The so-called ‘normative effect’ by which it can be inferred that provisions of . .

Cited by:

Cited – Taylor v Against an Order and Judgment of the Employment Appeal Tribunal SCS 18-Dec-1998
The claimant prison officer had continued beyond the normal retirement age, but subject to a discretion and review. The service changed its retirement policy. He now challenged the requirement that he retire. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 August 2022; Ref: scu.90281

Malik and Another v Bank of Credit and Commerce International Sa: CA 17 Mar 1995

No compensation was payable for a stigma of innocent workers having worked for a fraudulent bank.

Citations:

Times 12-Apr-1995, Independent 17-Mar-1995

Jurisdiction:

England and Wales

Citing:

Appeal from – Malik and Another v Bank of Credit and Commerce International Sa Chd 23-Feb-1994
A stigma arising from an association with a notorious employer gave rise to no cause of action. . .

Cited by:

Appeal from – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 06 August 2022; Ref: scu.83349

Allders Department Stores Limited (In Administration) -In the Matter of the Insolvency Act 1986: ChD 16 Feb 2005

The Administrators sought directions in relation to the treatment of redundancy payments which will be due if the Administrators terminate the contracts of certain employees of the Companies.
Held: The liability of administrators to pay out for redundancy of unfair dismissal claims by employees during the period of administration was not a proper expense of the administration, and were not to be treated as preferential. Liabilities having priority to the claims of the administrators were wages of salary liabilities adopted after 14 days of appointment. Redundancy and unfair dismissal payments were not wages or salary within the schedule.

Judges:

Mr Justice Collins

Citations:

[2005] EWHC 172 (Ch), Times 02-Mar-2005

Links:

Bailii

Statutes:

Insolvency Act 1986 Sch 6

Jurisdiction:

England and Wales

Insolvency, Employment

Updated: 06 August 2022; Ref: scu.223107

Da’Bell v National Society for Prevention of Cruelty To Children: EAT 28 Sep 2009

EAT UNFAIR DISMISSAL
Constructive dismissal
DISABILITY DISCRIMINATION
Compensation
In a claim for constructive unfair dismissal where the last straw doctrine was not relied on, the Employment Tribunal was entitled to hold that the Claimant’s reason for resignation 12 weeks after the relevant breach was not that breach.
The Employment Tribunal did not err when it placed the injury to feelings award in a successful claim for reasonable adjustments under the Disability Discrimination Act 1995 in the middle of the middle Vento range. The EAT decided that it is appropriate to update the Vento range in line with inflation to replace andpound;5,000, andpound;15,000 and andpound;25,000 with andpound;6,000, andpound;18,000 and andpound;30,000 respectively.

Citations:

[2009] UKEAT 0227 – 09 – 2809, [2010] IRLR 19

Links:

Bailii

Statutes:

Disability Discrimination Act 1995

Cited by:

Cited – Wardle v Credit Agricole Corporate and Investment Bank CA 11-May-2011
The claimant had been found to have been unlawfully dismissed and to have suffered nationality discrimination. Each party appealed against aspects of the compensatory award including the application of the statutory uplift, and the calculation of . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages, Discrimination

Updated: 05 August 2022; Ref: scu.380265

Ross v Micro Focus Ltd: EAT 18 Nov 2009

EAT PRACTICE AND PROCEDURE
Bias, misconduct and procedural irregularity
Appellant complained of the conduct of a lay member at the Tribunal by way of her body language supportive of the Respondent, particularly during the cross-examination of the Respondent’s Chairman. On consideration of the authorities and the evidence no case of pre-judgment or closed mind made out and consequently no real possibility of the Tribunal being biased.

Citations:

[2009] UKEAT 0304 – 09 – 1811

Links:

Bailii

Employment

Updated: 05 August 2022; Ref: scu.380267

Secretary of State for the Department for Work and Pensions v Alam: EAT 9 Nov 2009

EAT DISABILITY DISCRIMINATION
Reasonable adjustments
Section 4A(1) and (3) of the Disability Discrimination Act 1995.
The Tribunal found that employer had failed to make a reasonable adjustment when it gave the Claimant a 12 month written warning for leaving work early without asking for or obtaining permission. On appeal, the Employment Appeal Tribunal held: no basis in fact for the Tribunal’s conclusion that difficulty in asking for such permission was an effect of the Claimant’s disability, no basis for holding that the Respondent should have known that it was and, further, the Tribunal ought to have found that the Respondent came within the provisions of section 4A(3) of the DDA so no duty to make reasonable adjustments was imposed. Eastern and Coastal Kent PCT v Grey [2009] IRLR 429, discussed.

Citations:

[2009] UKEAT 0242 – 09 – 0911, [2010] IRLR 283, [2010] ICR 665

Links:

Bailii

Statutes:

Disability Discrimination Act 1995 4A(a)

Citing:

Cited – Eastern and Coastal Kent Pct v Grey EAT 23-Jan-2009
eastern_greyEAT2009
EAT DISABILITY DISCRIMINATION:
Reasonable adjustments
Disability related discrimination
The claimant suffers from dyslexia and was therefore ‘disabled’ as defined in the Disability Discrimination . .

Cited by:

Cited – Croft Vets Ltd and Others v Butcher EAT 2-Oct-2013
EAT Disability Discrimination : Disability Related Discrimination – Reasonable adjustments – The Respondent was employed by the Appellants as a reception and finance manager. She suffered from work-related stress . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 05 August 2022; Ref: scu.377790

Aramark Ltd v Yahiaoui: EAT 30 Oct 2009

EAT STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES
Whether infringed
UNFAIR DISMISSAL
Reasonableness of dismissal
SEX DISCRIMINATION
Burden of proof
The Employment Tribunal erred in relation to the Disputes Procedure: finding that the Appellant employer failed to provide a statement in compliance with Step 1 (Alexander considered) when it plainly did, and that the Respondent employee complied with the grievance procedure when he did not put his grievances into writing (a note taken at the meeting by the Appellant’s note-taker being insufficient: Kennedy Scott distinguished). No error of law in relation to the dismissal being unfair or discriminatory.

Citations:

[2009] UKEAT 0115 – 09 – 3010

Links:

Bailii

Employment

Updated: 05 August 2022; Ref: scu.377541

Kennedy v Ormonde Terrace Ltd: EAT 24 Sep 2009

EAT JURISDICTIONAL POINTS: Worker, employee or neither
An Employment Tribunal was entitled to decide that an owner-resident in a block of flats, who was a shareholder and director of its management company and acted as its secretary, was not its employee.

Citations:

[2009] UKEAT 0477 – 09 – 2409

Links:

Bailii

Employment

Updated: 05 August 2022; Ref: scu.377788

Orr v Milton Keynes Council: EAT 5 Nov 2009

EAT UNFAIR DISMISSAL:
Reasonableness of dismissal
RACE DISCRIMINATION:
Direct
Where discrimination and unfair dismissal allegations overlap and the Employment Tribunal hears and disbelieves evidence about a discriminatory remark from a manager, which the employer heard and believed during the investigation, the Employment Tribunal was correct to conclude that such evidence did not make the employer’s dismissal of the Appellant unfair: Small v London Ambulance Service applied.
Nor did the fact that discrimination had been proved in relation to the remark make it inevitable that direct discrimination had been proved in relation to the dismissal. The Employment Tribunal had correctly asked itself what was the reason why the Appellant had been dismissed and a ‘but for’ test of causation is not the correct approach; Shamoon v Chief Constable of the Royal Ulster Constabulary, Martin v Lancehawk Ltd (t/a European Telecom Solutions), A v B, Olasehinde v Panther Securities PLC and Amnesty International v Ahmed considered and applied.

Citations:

[2009] UKEAT 0506 – 08 – 0511

Links:

Bailii

Citing:

Cited – Shamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
Cited – Amnesty International v Ahmed EAT 13-Aug-2009
amnesty_ahmedEAT2009
EAT RACE DISCRIMINATION – Direct discrimination
RACE DISCRIMINATION – Indirect discrimination
RACE DISCRIMINATION – Protected by s. 41
UNFAIR DISMISSAL – Constructive dismissal
Claimant, of . .
Cited – Olasehinde v Panther Securities Plc EAT 10-Jun-2008
EAT RACE DISCRIMINATION

Detriment

CONTRACT OF EMPLOYMENT

Wrongful dismissal

Appellant wrongly and unreasonably accused by employers of sexual harassment. Employers accept his denial but instruct him not . .
Cited – London Ambulance Service NHS Trust v Small EAT 21-Jan-2008
EAT Unfair dismissal: Reasonableness of dismissal / Contributory fault
The Claimant, an ambulance paramedic, was summarily dismissed for gross misconduct as a result of an incident when he attended an . .
Cited – Martin v Lancehawk Limited T/A European Telecom Solutions EAT 15-Jan-2004
EAT Sex Discrimination – Indirect
The (male) managing director of the respondent company had dismissed a (female) fellow employee when an affair which they had been having came to an end. She claimed that . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 05 August 2022; Ref: scu.377569

Kennaugh v Jones: EAT 1 Oct 2009

EAT UNFAIR DISMISSAL
Constructive dismissal
PRACTICE AND PROCEDURE
Appellate jurisdiction/reasons/Burns-Barke
Whether the Claimant was constructively dismissed by the Respondent. Questions to be considered by the Employment Tribunal. Adequacy of the Employment Tribunal’s reasons.
Appeal allowed. Case remitted for rehearing by fresh Employment Tribunal.

Judges:

Peter Clark J

Citations:

[2009] UKEAT 0236 – 09 – 0110

Links:

Bailii

Citing:

See Also – Kennaugh v Lloyd-Jones (T/A Cheshire Tree Surgeons) EAT 14-Jul-2006
EAT Unlawful Deduction from Wages – Exclusions,br />Informal hearing leading to concession by unrepresented Respondent which may have resulted from erroneous representation by Chairman. Failure to appreciate . .
See Also – Kennaugh v Lloyd-Jones (T/A Cheshire Tree Surgeons) EAT 18-Jul-2008
EAT UNFAIR DISMISSAL: Exclusions including worker/jurisdiction
Continuity of employment – correct question to be asked under s212(3)(a) Employment Rights Act. Capability to do the job for which he was . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 August 2022; Ref: scu.377543

British Industrial Plastics Ltd v Ferguson: CA 1938

The defendant received information about a patentable invention from the plaintiff’s former employee. He said that his (mistaken) view was that since the employee had himself made the invention, it was patentable by him, and not covered by the employee’s contractual obligation of confifence to his employer.
Held: McKinnon LJ said that in accepting this evidence the judge had ‘vindicated [his] honesty . . at the expense of his intelligence’ but that in the circumstances, he could not be liable for inducing the employee’s breach of contract.

Judges:

McKinnon LJ

Citations:

[1938] 4 All ER 504

Jurisdiction:

England and Wales

Cited by:

Appeal from – British Industrial Plastics Ltd v Ferguson HL 1939
The plaintiff’s former employee offered the defendant information about one of the plaintiff’s secret processes which he, as an employee, had invented. The defendant knew that the employee was obliged by his contract not to reveal trade secrets but . .
Cited – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 August 2022; Ref: scu.251744

Webber v Department for Education: ChD 19 Dec 2014

Appeal by Mr Webber against a determination by the Deputy Pensions Ombudsman dismissing a complaint by Mr Webber against the Department for Education in relation to the recovery of an overpayment of his pension under the Teachers’ Pension Scheme.

Judges:

Nugee J

Citations:

[2014] EWHC 4240 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 August 2022; Ref: scu.540357