Category: Employment

Hans Moser v Land Baden-Wuerttemberg: ECJ 28 Jun 1984

ECJ Free movement of workers – Concept of worker. 1. As regards the division of jurisdiction between national courts and the court of justice under article 177 of the treaty, it is for the national court, which is alone in having direct knowledge of the facts of the case and of the arguments put forward by the parties and which must assume the responsibility of giving judgment in the case, to assess, with full knowledge of the matter before it, the relevance of the questions of law raised by the dispute before it and the need for a preliminary ruling so as to enable it to give judgment.
2. Article 48 of the eec treaty does not apply to situations which are wholly internal to a member state, such as that of a national of a member state who has never resided or worked in another member state. Such a person may not rely on article 48 to prevent the application to him of legislation of his own country, denying him access to a particular kind of vocational training.

Citations:

R-180/83, [1984] EUECJ R-180/83

Links:

Bailii

European, Employment

Updated: 21 June 2022; Ref: scu.215240

Arie Botzen And Others v Rotterdamsche Droogdok Maatschappij Bv: ECJ 7 Feb 1985

ECJ Article 3(1) covered the rights and obligations of the transferor arising from a contract of employment or an employment relationship existing on the date of the transfer and entered into with employees who, in order to carry out their duties, are assigned to the part of the undertaking or business transferred
Rotterdamsche . . claims that only employees working full-time or substantially full-time in the transferred part of the undertaking are covered by the transfer of employment relationships, to the exclusion of those engaged in partial tasks in various businesses or parts of businesses and those who, although working for several businesses or parts of businesses, form part of the remaining staff.
On the other hand, the Commission considers that the only decisive criterion regarding the transfer of employees’ rights and obligations is whether or not a transfer takes place of the department to which they were assigned and which formed the organisational framework within which their employment relationship took effect.
The Commission’s view must be upheld. An employment relationship is essentially characterised by the link existing between the employee and the part of the undertaking or business to which he is assigned to carry out his duties. In order to decide whether the rights and obligations under an employment relationship are transferred under Directive 77/187 by reason of a transfer within meaning of article 1(1) thereof, it is therefore sufficient to establish to which part of the undertaking or business the employee was assigned.’

Citations:

C-186/83, R-186/83, [1985] EUECJ R-186/83, [1985] ECR 519

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – North Wales Training and Enterprise Council Ltd v Astley and others HL 21-Jun-2006
Civil servants had been transferred to a private company. At first they worked under secondment from the civil service. They asserted that they had protection under TUPE and the Acquired Rights Directive. The respondent said that there had only been . .
Applied – Duncan Webb Offset (Maidstone) Ltd v Cooper and Another EAT 15-Jun-1995
A company owned subsidiary companies in the printing industry at Maidstone, Basildon and St Albans. Three employees worked for the group. The Maidstone business was transferred in a transfer to which the 1981 Regulations applied. The three employees . .
Cited – Kimberley Group Housing Ltd v Hambley and others (UK) Ltd EAT 25-Apr-2008
EAT TRANSFER OF UNDERTAKINGS
The principles and approach which a Tribunal should take where there has been a transfer of one service provider’s activities to two or more transferees, and there is . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 21 June 2022; Ref: scu.215288

DM Levin v Staatssecretaris Van Justitie: ECJ 23 Mar 1982

ECJ The concepts of ‘worker’ and ‘activity as an employed person’ define the field of application of one of the fundamental freedoms guaranteed by the Treaty and, as such, may not be interpreted restrictively.
The provisions of community law relating to freedom of movement for workers also cover a national of a member state who pursues, within the territory of another member state, an activity as an employed person which yields an income lower than that which, in the latter state, is considered as the minimum required for subsistence, whether that person supplements the income from his activity as an employed person with other income so as to arrive at that minimum or is satisfied with means of support lower than the said minimum , provided that he pursues an activity as an employed person which is effective and genuine.
The motives which may have prompted a worker of a member state to seek employment in another member state are of no account as regards his right to enter and reside in the territory of the latter state provided that he there pursues or wishes to pursue an effective and genuine activity.

Citations:

C-53/81, R-53/81, [1982] EUECJ R-53/81, [1982] ECR 1035

Links:

Bailii

Cited by:

Cited – Ali v Secretary of State for the Home Department CA 3-May-2006
The applicants sought asylum. Their child had a right of residence as a European citizen.
Held: The applicants could not rely upon their child’s right of residence to establish one for themselves. . .
Cited – Barry v London Borough of Southwark CA 19-Dec-2008
The claimant a citizen of the Netherlands, appealed against the refusal to grant him housing assistance. He had been unemployed save for taking casual work during the Wimbledon championships, but the Authority had denied that he was a worker. He had . .
Cited – Prix v Secretary of State for Work and Pensions SC 31-Oct-2012
The claimant had come from France to England, and worked as a teaching assistant. She set out on a course to train as a teacher but became pregnant, gave up the course, and eventually gave up work temporarily. Her claim to Income Support was refused . .
Lists of cited by and citing cases may be incomplete.

European, Employment

Updated: 21 June 2022; Ref: scu.215053

Istituto nazionale della previdenza sociale v Barsotti and Others C-84/01: ECJ 4 Mar 2004

ECJ (Social Policy) Social policy – Protection of employees in the event of their employer’s insolvency – Directive 80/987/EEC – Limitation of liability of the guarantee institutions – Ceiling to the liability – Part payments by the employer – Social objective of the directive

Citations:

[2004, ECR I-2005, C-84/01, [2004] EUECJ C-84/01

Links:

Bailii

European, Employment

Updated: 21 June 2022; Ref: scu.213789

Whitehead v The Robertson Partnership: EAT 21 Jun 2004

EAT Unfair Dismissal – Constructive dismissal – Reasonableness of dismissal.
EAT Unfair Dismissal – Reasonableness of dismissal

Judges:

His Honour Judge Reid

Citations:

UKEAT/0378/03, [2004] UKEAT 0378 – 03 – 1708, UKEAT/378/03

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

See Also – Whitehead v Robertson Partnership EAT 23-Jun-2003
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 21 June 2022; Ref: scu.213638

Hassard v Mc Grath and Others: CANI 1996

Before the alleged transfer, the undertaking of general building work operations, was carried on by the Northern Ireland Housing Executive through its Direct Labour Organisation then divided into four districts. The employee worked in two units then contracted out to two separate building contractors. In unfair dismissal proceedings it was asked whether there had been a transfer of an identifiable part of an undertaking by the executive to one of the contractors. It was common ground that there were two elements to consider: whether there has been an identifiable undertaking and whether on the facts a transfer had taken place. The court emphasised the need to consider the ‘undertaking’ issue separately from the ‘transfer’ issue. There must have been an economic entity capable of being transferred as a going concern, but that the part of the undertaking transferred did not have to have been regarded by either the transferor or the transferee as a separate or distinct part of it, or to have been separately operated by them. ‘It would not be correct to look at the issue exclusively from the standpoint of either the transferor or the transferee. It is relevant to consider in the first instance whether the transferor regarded the activity in question as a distinct part of his undertaking, for an affirmative answer to that may well settle the matter. It is not, however, conclusive that he did not so regard it or treat it as a separate part of his organisation, if it was in effect an economic entity capable of being transferred as a going concern’

Citations:

[1996] NILR 586

Statutes:

Council Directive 77/187/EEC

Jurisdiction:

Northern Ireland

Cited by:

Cited – Fairhurst Ward Abbotts Limited v Botes Building Limited and others CA 13-Feb-2004
A claim was made under the TUPE regulations. The company replied that the part of the business transferred was not a discrete economic entity.
Held: The regulations did not require that in order to be governed by the regulations, a business . .
Lists of cited by and citing cases may be incomplete.

Northern Ireland, Employment

Updated: 21 June 2022; Ref: scu.194786

Johnson and Johnson Medical Ltd v Filmer: EAT 12 Mar 2001

Citations:

[2001] UKEAT 1087 – 00 – 1203

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Johnson and Johnson Medical Ltd v Filmer EAT 20-Sep-2001
Against a background of disciplinary proceedings alleging threats by the employee, and allegations of harassment, she was dismissed for ill health. She requested an adjustment to the procedures to allow her to give written evidence after advice from . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 21 June 2022; Ref: scu.203683

Aspinall v MI Mech Forge Ltd: EAT 5 Jul 2002

To be protected, a disclosure had to be causative in the sense of being the real reason or core reason, the motive for the treatment complained of.

Judges:

His Hon Judge J R Reid QC

Citations:

EAT/891/01, [2002] UKEAT 891 – 01 – 2507

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

See Also – Aspinall v MSI Mech Forge Ltd EAT 15-Nov-2001
. .

Cited by:

Cited – Fecitt and Others v NHS Manchester EAT 23-Nov-2010
EAT VICTIMISATION DISCRIMINATION – Protected disclosure
S.47B of the Employment Rights Act 1996 provides that ‘A worker has the right not to be subjected to any detriment by any act, or any deliberate . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 21 June 2022; Ref: scu.177877

O’Grady v M Saper Ltd: CA 1940

Wages are payable only as consideration for work done and if no work is done no wages are payable, though this depends entirely upon the terms of the contract. MacKinnon LJ said: ‘It was rightly said . . by Atkinson J. (Petrie v. Mac Fisheries Ltd. (1940) 1 K.B. 258, at p.269), ‘The question must depend, as is indicated in the notes to Cutter v. Powell (1795) 6 T.R. 320 [101 E.R. 573] (Smith’s Leading Cases, 13th ed. (1929), vol. 11, p.49), on the terms of the contract. ‘The right to wages depends upon whether the consideration therefor has been performed.’ It is submitted in the notes to that case, as I think rightly, that it must be ascertained from the contract whether the consideration for the payment of wages is the actual performance of the work, or whether the mere readiness and willingness, if of ability to do so, is the consideration.”

Judges:

MacKinnon LJ

Citations:

[1940] 2 KB 469

Jurisdiction:

England and Wales

Cited by:

Cited – Lindsey Beveridge v KLM UK Ltd EAT 16-Feb-2000
EAT The claimant appealed refusal of her claim for unlawful deduction. She had been off sick long term. Her doctor certified her fit to return, and she asked to return, but her employer waited a further six weeks . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 21 June 2022; Ref: scu.374254

O’Donoghue v Redcar and Cleveland Borough Council: EAT 17 May 2000

Citations:

[2000] UKEAT 647 – 97 – 1705

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Redcar and Cleveland Borough Council v O’Donoghue EAT 20-Apr-1999
. .
See Also – Redcar and Cleveland Borough Council v O’Donoghue EAT 21-Jan-2000
. .

Cited by:

See Also – O’Donoghue v Redcar and Cleveland Borough Council CA 17-May-2001
The Tribunal had been entitled to find on the evidence that an employee unfairly dismissed by reason of sex would have been fairly dismissed for misconduct six months later in any event because of her antagonistic and intransigent attitude. The . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 21 June 2022; Ref: scu.265137

UBS Wealth Management (UK) Ltd v Vestra Wealth Llp: QBD 4 Aug 2008

The court considered the grant of ‘springboard relief’ and said: ‘In my judgment, springboard relief is not confined to cases where former employees threaten to abuse confidential information acquired during the currency of their employment. It is available to prevent any future or further serious economic loss to a previous employer caused by former staff members taking an unfair advantage, an ‘unfair start’, of any serious breaches of their contract of employment . . That unfair advantage must still exist at the time that the injunction is sought, and it must be shown that it would continue unless restrained. I accept that injunctions are to protect against and to prevent future and further losses and must not be used merely to punish past breaches of contract.’ and
‘There is some discussion in the authorities as to whether springboard relief is limited to cases where there is a misuse of confidential information. Such a limitation was expressly rejected in Midas IT Services v Opus Portfolio Limited, an unreported decision of Blackburne J . . in 1999, although it seems to have been accepted by Scott J in Balston Limited v Headline Filters Limited [1987] FSR 330 at 340.’ and ‘In my judgment, springboard relief is not confined to cases where former employees threaten to abuse confidential information . . It is available to prevent any future or further serious economic loss . . caused by former staff members taking an unfair advantage, an ‘unfair start’, of any serious breaches of their contract of employment.’

Judges:

Openshaw J

Citations:

[2008] EWHC 1974 (QB), [2008] IRLR 965

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – G D Searle and Co Ltd v Celltech Ltd CA 1982
The court was asked as to an employee’s covenant now said to be in restraint of trade.
Held: In disputes between employers and ex-employees courts will usually seek to protect the rights of employees to advance their chosen trade and . .
Cited – Balston Ltd v Headline Filters Ltd and Another 1987
The second defendant, whilst still during his notice period to leave employment by the plaintiff, began to make arrangements to start his own competing business, and solicited future business from a customer of the plaintiff. The plaintiff sought an . .

Cited by:

Adopted – Dass Solicitors v Southcott ChD 2-Apr-2009
The claimant solicitors said that the defendant employed solicitor had sought to leave without giving the required three months’ notice and had sought to persuade clients of the firm to go to his new practice. Application was made on a without . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Employment

Updated: 21 June 2022; Ref: scu.277900

Hibernia Foods Ltd v Wilson: EAT 17 May 2000

Hibernia appealed from a decision that it had treated the respondent less favorably because of his trades union activities.
Held: The appeal raised no arguable point of law and accordingly was dismissed at this preliminary hearing stage.

Citations:

[2000] UKEAT 187 – 00 – 1705

Links:

Bailii

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992 146

Jurisdiction:

England and Wales

Employment

Updated: 21 June 2022; Ref: scu.265109

Smith v Churchills Stairlifts Plc: CA 27 Oct 2005

Citations:

[2005] EWCA Civ 1220, [2006] ICR 524, [2006] IRLR 41

Links:

Bailii

Statutes:

Disability Discrimination Act 1995

Jurisdiction:

England and Wales

Cited by:

Cited – High Quality Lifestyles Ltd v Watts EAT 10-Apr-2006
EAT The Employment Tribunal had erred in its construction of direct discrimination under s3A(5) of the Disability Discrimination Act 1995 as amended when it failed to construct a correct hypothetical comparator . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 21 June 2022; Ref: scu.231515

London International College v Sen: EAT 6 Dec 1991

In judging whether time should be extended to allow a claim to be accepted, the tribunal should: ‘concentrate on the state of mind of the prospective complainant and the extent to which he or she understood his position.’ It is the reasonableness of the claimant’s ignorance or mistake that is in the end determinative of whether it is reasonably practicable to make a complaint in time.

Judges:

Knox J

Citations:

[1991] UKEAT 344 – 91 – 0612, [1993] IRLR 333

Links:

Bailii

Cited by:

Cited – The Royal Bank of Scotland Plc v Theobald EAT 10-Jan-2007
EAT Claim for unfair dismissal not presented timeously, within three months, but was presented thirteen days thereafter. During most of the three month period, the Claimant had an outstanding appeal process . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 June 2022; Ref: scu.211353

Hudspith v Post Office Counters Ltd: EAT 24 Jun 1991

The employee appealed against rejection of his claim for unfair constructive dismissal and alleging bias.
Held: The appeal failed. No error of law had been shown. The tribunal faced diametrically opposite factual assertions, and had reached conclusions properly. Similarly rather than being biased, the papers and notes of evidence showed a tribunal going out of its way to try to allow the claimant to present his case.

Judges:

Wood P J

Citations:

[1991] UKEAT 567 – 89 – 2406

Links:

Bailii

Employment

Updated: 19 June 2022; Ref: scu.211228

Port of London Authority v Payne and others: EAT 17 Dec 1992

Citations:

[1992] UKEAT 277 – 92 – 1712

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Port of London Authority v Payne and Others EAT 7-May-1992
A decision as to the practicality of an order for re-engagement is to be made at time of the order. . .

Cited by:

Appeal from – Payne and others v Port of London Authority EAT 9-Jun-1993
. .
Appeal from – Port of London Authority v Payne and Others CA 3-Nov-1993
The practicality of re-instatement of an employee is to be decided on the evidence immediately before the tribunal. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 June 2022; Ref: scu.211198

Darr and Another v LRC Products Ltd: EAT 16 Dec 1992

Citations:

[1992] UKEAT 442 – 90 – 1612

Links:

Bailii

Citing:

Cited – Meek v City of Birmingham District Council CA 18-Feb-1987
Employment Tribunals to Provide Sufficient Reasons
Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 June 2022; Ref: scu.211188

Clarke v Trimoco Motor Group Ltd and Another: EAT 30 Oct 1992

The claimant had been dismissed for dishonesty.
Held: A grievance procedure is not equivalent to or a substitute for a disciplinary hearing, at which the employee is provided with an opportunity to explain. The two procedures are significantly different in kind. The requirements of natural justice, encompassed the need for the person accused to know the nature of the accusation made, and to be given an opportunity to state his case; and the need for the tribunal to act in good faith.

Judges:

Knox J

Citations:

[1992] UKEAT 584 – 90 – 3010, [1993] IRLR 148

Links:

Bailii

Cited by:

Cited – Bashir and Another v Sheffield Teaching Hospital NHS Foundation Trust EAT 27-May-2010
EAT UNFAIR DISMISSAL
Reason for dismissal including substantial other reason
Procedural fairness/automatically unfair dismissal
The Appellants appealed against the Tribunal’s decision that their . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 June 2022; Ref: scu.211092