The appellant employers suggested that the finding of unfair dismissal was perverse in having rejected uncontested evidence.
Held: The standard for such a claim was high – that the decision was ‘plainly wrong’ or similar. That standard was not reached in this case. The extended reasons did not fail to reflect proper findings on the facts before the tribunal. The employee appealed a notice that the recoupment regulations applied. It was not for the EAT to interfere between the benefits agency and the parties.
EAT Unfair Dismissal – Contributory Fault
The Honourable Mr Justice Charles
EAT/171/00, EAT/1394/99, [2001] UKEAT 1394 – 99 – 0309
Cited – Stewart v Cleveland Guest (Engineering) Ltd EAT 4-May-1994
A display of nude images at a workplace may be discriminatory as sexual harassment, but some common sense was needed. The display of soft-porn photographs in a workplace need not of itself be subjecting a female worker to a detriment.
Mummery J . .
See Also – Turner Coulston (A Firm) v Janko EAT 18-Apr-2000
. .
See Also – Turner Coulston (A Firm) v Janko EAT 26-Jul-2000
. .
Lists of cited by and citing cases may be incomplete.
Updated: 05 June 2022; Ref: scu.168288
ECJ Failure by a Member State to fulfil its obligations – Directive 85/384/EEC – Mutual recognition of formal qualifications in architecture – Access to the profession of architect – Article 59 of the EC Treaty (now, after amendment, Article 49 EC)
C-298/99, [2002] EUECJ C-298/99
England and Wales
Updated: 05 June 2022; Ref: scu.168127
The appellant had been found guilty of gross misconduct, but contended that his employers had not sufficiently allowed for the work related stress he was suffering as a social worker. The misconduct was not challenged, and the tribunal held that the decision was within the range of reasonable responses open to the employer. The appeal had been put forward on the basis that the chairman may have wrongly dissuaded the applicant from calling witnesses, and had been wrong to reject as worthless, a medical report based upon the historical narrative of the applicant. In practice, the evidence omitted could not have assisted him further. The rejection of the medical report, when seen an context was not an error. Appeal refused.
EAT Unfair Dismissal – Contributory Fault
His Honour Judge Peter Clark
EAT/0264/00, [2001] UKEAT 0264 – 00 – 2707
Updated: 05 June 2022; Ref: scu.168302
The applicant had been taken on by the local authority. His letter of appointment, and of dismissal, and staff handbook contained inconsistent provisions about the period of notice applicable during his probationary period. The letter of offer was clear as to the period in the first six months, and was to be applied. The council’s appeal succeeded.
EAT Contract of Employment – Breach of Contract
Miss Recorder Slade QC
[2001] UKEAT 768 – 00 – 1309, EAT/768/00
Updated: 05 June 2022; Ref: scu.168316
The Chief Constable appealed against a refusal to strike out a claim by the respondent that he had racially discriminated against her. Force members had used code words for racially abusive terms about her. The claim was that he was vicariously liable for the acts of his Force members. Liability was asserted against the chief constable under the De Vere case, but no assertion was pleaded to bring it within that rule.
Held: Police officers are not employees in the simple sense, and the Act did not make the Chief Constable vicariously liable.
EAT Race Discrimination – Direct
The Honourable Mr Justice Lindsay (President)
EAT/773/00, [2002] ICR 1135, [2001] UKEAT 773 – 00 – 2109
Race Relations Act 1976 16 32(3)
Cited – Burton and Another v De Vere Hotels EAT 3-Oct-1996
Two black waitresses, clearing tables in the banqueting hall of a hotel, were made the butt of racist and sexist jibes by a guest speaker entertaining the assembled all-male company at a private dinner party.
Held: The employer of the . .
Cited – Sheikh v Chief Constable 1989
. .
See also – Bedfordshire Police v Liversidge EAT 10-Jul-2000
. .
Distinguished – Chief Constable of Kent County Constabulary v Baskerville CA 3-Sep-2003
The claimant sought damages for sex discrimination by fellow police officers in an action against the Chief Constable. The Chief Constable said he was liable for the unlawful acts of fellow officers.
Held: Anything done by an employee was done . .
Appeal from – Bedfordshire Police v Liversidge CA 11-Dec-2001
. .
See Also – Chief Constable of Bedfordshire Police v Liversidge EAT 13-Dec-2001
. .
See Also – Bedfordshire Police v Liversidge CA 24-May-2002
. .
Lists of cited by and citing cases may be incomplete.
Updated: 05 June 2022; Ref: scu.168310
The respondents had decided to make redundancies. They had two shifts of workers, and those eventually selected came predominantly from the one shift. The question was whether the method chosen for selection was fair or unfair. In cases of mass redundancy, it would only be in rare and exceptional cases if the assessment fought with other employees not made redundant will be relevant. The assessments had been made by qualified assessors, whose evidence had been accepted. It therefore appeared that selection had been made without reference to the shift on which they worked. No error of law or perversity in finding had been shown.
EAT Redundancy – Fairness
The Honourable Mr Justice Douglas Brown
EAT/353/00, [2001] UKEAT 353 – 00 – 0309
Cited – FDR Ltd v Holloway EAT 26-Apr-1995
Appeal against the decision of the Industrial Tribunal that FDR, Respondents to proceedings brought by Mr Holloway claiming unfair selection for redundancy, should provide discovery of specified documents and further particulars relating to Mr . .
Cited – British Aerospace plc v Green and Others CA 18-Apr-1995
The employer was to make 530 members of its staff redundant. Each staff member was assessed and scored. The claimants said that the method of selection was unfair, and sought disclosure of the scores of all employees.
Held: It was wrong to . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 June 2022; Ref: scu.168297
[2001] EWCA Civ 1936
England and Wales
Updated: 05 June 2022; Ref: scu.167874
The respondent had obtained an injunction to prevent the claimants supporting or encouraging their members to strike. The Union appealed and sought confirmation of its immunity under the Act. The members at issue were pilots on the Humber. They were self employed. The respondent argued that they were not employees under the Act.
Held: The pilots did operate under contracts, despite the statutory background. The contracts were in the form of authorisations, but included disciplinary procedures. The nature of the contracts brought them within the 1992 Act, and there was a trade dispute. The authority said the order should be made because there was evidence that a renewed ballot would produce a different result, but that evidence was inadequate. Appeal allowed.
[2001] EWCA Civ 2032
Trade Union and Labour Relations (Consolidation) Act 1992 219
England and Wales
Updated: 05 June 2022; Ref: scu.167847
The appellants challenged the refusal of their claims for stigma damages following the collapse of their former employer.
Held: If a relevant breach of contract is established, and causation, remoteness and mitigation are satisfied, recovery of financial loss in respect of damage to reputation in employment cases is not excluded. Nevertheless, it will be difficult to prove. The claim was the same whether in tort or in contract. The judge had excluded certain evidence as to the damages suffered. The onus of proving causation lies on the plaintiff. The particular claimants in this case had failed to establish their case. It was not necessary to call similar the evidence sought to be admitted. To require it would exclude many proper claims.
Lord Justice Pill, Lord Justice Robert Walker, And, Lord Justice Jonathan Parker
[2002] EWCA Civ 82, [2002] 3 All ER 750, [2002] ICR 1258, [2002] IRLR 460, [2002] Emp LR 406, A3/2001/9016/CHANF
England and Wales
Cited – 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 . .
Cited – Robinson v Harman 18-Jan-1848
Damages for breach of contract should compensate the victim of the breach for the loss of his contractual bargain. Baron Parke said: ‘The next question is: What damages is the plaintiff entitled to recover? The rule of the common law is, that where . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 June 2022; Ref: scu.167559
UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
UNFAIR DISMISSAL – Contributory fault
UNFAIR DISMISSAL – Reasonableness of dismissal
UNFAIR DISMISSAL – Procedural fairness/automatically unfair dismissal
The Appeal Tribunal allowed the employer’s appeal against the conclusion that the employee had been unfairly dismissed, and remitted the claim to the Employment Tribunal for reconsideration.
The Employment Tribunal had taken a correct approach to deciding whether or not the employee had committed acts of gross misconduct. Whether such conduct had occurred was a question of fact on which (absent any provision to the contrary in the contract of employment) the Tribunal had to reach its own conclusion. However, the Tribunal had incorrectly assumed that if the employer had not been entitled to dismiss summarily, it necessarily followed that the decision to dismiss was unfair for the purposes of section 98(4) of the Employment Rights Act 1996. That was wrong. So far as concerned the unfair dismissal claim, the Employment Tribunal had also failed properly to identify the employer’s reason for dismissal.
On that basis, the unfair dismissal claim, would be remitted for further consideration. On the remittal, it would be open to the Employment Tribunal to consider all points on the unfair dismissal claim, including any issues going to procedural fairness and (if necessary) the appropriateness of any contributory fault reduction to compensation.
[2018] UKEAT 0151 – 18 – 1112
England and Wales
Updated: 05 June 2022; Ref: scu.634380
Held that under the Truck Act 1831 an employer was not entitled to deduct from a workman’s wages the amount of a fine due by the workman to the master under an order of a court of summary jurisdiction. The only deductions he can make are those expressly sanctioned by the statute (see sections 23 and 24).
Lord Chancellor (Loreburn), Lords Macnaghten, Davey, Robertson, and Atkinson
[1906] UKHL 881, 43 SLR 881
England and Wales
Updated: 05 June 2022; Ref: scu.625457
Grounds for extending time to appeal from Employment Tribunal
[2018] EWCA Civ 2285
Employment Appeal Tribunal Rules 1993
England and Wales
Updated: 05 June 2022; Ref: scu.625949
[2018] EWHC 1435 (Ch)
England and Wales
Updated: 05 June 2022; Ref: scu.619881
[2014] EWCA Civ 734
Disability Discrimination Act 1995
England and Wales
Updated: 05 June 2022; Ref: scu.526421
On a contract in writing, within the statute, in general terms for the employment of the plaintiff. Held, that it might be shown by parol, that he was employed in a particular capacity ; and, as a question whether he had wilfully disobeyed a lawful order, held, that it was for the jury whether the order was within the scope of that employment and whether, even if so, the disobedience was ‘wilful.’
Erle CJ
[1861] EngR 72, (1861) 2 F and F 529, (1861) 175 ER 1173
England and Wales
See Also – Price v Mouat 1862
The plaintiff, who was known to be acting in the capacity of a ‘lace-buyer’ was engaged by the defendant, a lace-dealer, under the following memorandum: ‘M agrees to engage P. for the term of three years from Monday the 15th of August, 1859, at the . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 June 2022; Ref: scu.283832
(Judgment) Officials – Disciplinary measures – Reduction of step – Commission building security contract – Reasonable time – Criminal procedure – Action for damages
T-307/01, [2004] EUECJ T-307/01
European
Updated: 05 June 2022; Ref: scu.198430
The appellant was a doctor accused of lying to a patient about the details of an operation. He appealed a decision dismissing him.
Held: Such an allegation was an allegation of professional misconduct, and should have been dealt with as such, and not by way of dismissal and the employment tribunal system. Professional misconduct was defined in the section as ‘Performance or behaviour of practitioners arising from the exercise of medical or dental skills’ In the case of doubt it would normally be preferable for a Health authority to proceed on the basis that it was profession not personal misconduct. The reply was given as part of the performance of his professional duties.
Lord Justice Aldous, Lord Justice Keene and Sir Christopher Slade
Times 18-Jan-2002, Gazette 06-Mar-2002, [2002] EWCA Civ 18, (2003) 69 BMLR 13, [2002] ICR 403, [2002] Lloyd’s Rep Med 299
Department of Health Circular 90(9)
England and Wales
Followed – Dr Mohammed Saeed v Royal Wolverhampton Hospitals NHS Trust CA 20-Dec-2000
Where disciplinary proceedings were contemplated against an employee who might be subject to alternative contractual and professional complaints procedures, the employer must look to the contract to decide which procedure was to be followed. If the . .
Appealed to – Skidmore v Dartford and Gravesham NHS Trust HL 22-May-2003
The disciplinary code for doctors employed by the NHS provides different procedures cases involving allegations of ‘professional conduct’ or ‘personal conduct.’ The first would involve a more judicial process, and the second a more informal . .
Appeal from – F D Skidmore v Dartford and Gravesham NHS Trust EAT 22-Feb-2001
EAT Unfair Dismissal – Reason for dismissal including substantial other reason. . .
Appeal from – F D Skidmore v Dartford and Gravesham NHS Trust EAT 22-Feb-2001
EAT Unfair Dismissal – Reason for dismissal including substantial other reason. . .
see Also – Skidmore v Dartford and Gravesham NHS Trust CA 7-Jun-2001
. .
Appeal from – Skidmore v Dartford and Gravesham NHS Trust HL 22-May-2003
The disciplinary code for doctors employed by the NHS provides different procedures cases involving allegations of ‘professional conduct’ or ‘personal conduct.’ The first would involve a more judicial process, and the second a more informal . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 June 2022; Ref: scu.167395
(Rec 1994,p FP-IA-149,II-481) Officials – Recruitment – Refusal to appoint on medical grounds.
T-94/92, [1994] EUECJ T-94/92
European
Updated: 05 June 2022; Ref: scu.172610
(Rec 1993,p II-1235) Officials – List of officials most deserving of promotion – Inclusion on the list – Promotion procedure.
T-89/91, [1993] EUECJ T-89/91
European
Updated: 05 June 2022; Ref: scu.172534
[2001] EWHC Admin 954
England and Wales
Updated: 05 June 2022; Ref: scu.167273
Legislation had been enacted to tax under Schedule E, people employed through one man service companies and similar. Representatives of such taxpayers sought review of the legislation as incompatible with European law being a hindrance to the freedom of movement of workers and also state aid. The law set to catch those who would be employees rather than self-employed but for the use of the limited company.
Held: To constitute state aid, their must a an advantage created to an identifiable class of undertakings. A provision which appears discriminatory may not be so if it puts two groups on a more equal basis. There was no state aid. IR35 does not provide a particularly burdensome restriction on those wishing to work within the UK, save where the true character of the relationship was one of employment. Genuine self-employed activities will not be affected and a business of providing employee-like services will be taxed as if there was a real employment situation.
Lord Justice Auld, Lord Justice Robert Walker, And, Lord Justice Dyson
Times 14-Jan-2002, [2001] EWCA Civ 1945, [2002] STC 165
Finance Act 2000 60, Welfare Reform and Pensions Act 1999 75 76, Social Security Contributions (Intermediaries) Regulations 2000 (2000 No 272)
England and Wales
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 – Hall (Inspector of Taxes) v Lorimer CA 5-Nov-1993
A freelance vision mixer remained self-employed despite having had a series of short term contracts. . .
Appeal from – Regina and Commissioners of Inland Revenue ex parte Professional Contractors Group Ltd; Ruud Van Zundert and Square Mile Projects Ltd Admn 2-Apr-2001
Legislation was introduced changing the taxation of one man companies through which many professional contractors worked. The asserted that this infringed their human rights by depriving them of property rights in the companies, and was an . .
Cited – Synaptek Ltd v Young (Inspector of Taxes) ChD 28-Mar-2003
The taxpayer was a computer consultant working through the medium of a limited liability company. The respondent sought to make him liable for social security contributions as an employee of the business which used his services.
Held: The . .
Appealed to – Regina and Commissioners of Inland Revenue ex parte Professional Contractors Group Ltd; Ruud Van Zundert and Square Mile Projects Ltd Admn 2-Apr-2001
Legislation was introduced changing the taxation of one man companies through which many professional contractors worked. The asserted that this infringed their human rights by depriving them of property rights in the companies, and was an . .
Cited – Usetech Ltd v HM Inspector of Taxes ChD 8-Oct-2004
The taxpayer operated through a one man limited company employed by a recruitment agency to provide IT services to a customer. He appealed a finding that he was liable to pay tax as an employee.
Held: The appeal was dismissed. The legislative . .
Cited – Emerging Markets Partnership (Europe) Ltd v Bachnak CA 19-Dec-2003
The claimant asserted unfair dismissal. The company denied that he was an employee. The company now appealed against the decision of the EAT to grant the claimant’s appeal. The claimant had been an employee, but the arrangement had been varied so . .
Cited – Bachnak v Emerging Markets Partnership (Europe) Ltd EAT 27-Jan-2006
EAT The claimant had worked as an adviser for the respondent identifying investment opportunities. He said he had been unfairly dismissed after disclosing that the company had overpaid for an investment. He now . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 June 2022; Ref: scu.167210
The applicant claimed that the respondent Council had discriminated against her. After complicated applications, leave to appeal was granted on limited grounds, but on appeal the applicant had been allowed to extend that appeal.
Held: An appeal tribunal might use its case management powers to allow limited departure from the permitted grounds of appeal, only provided the point had been raised before, he had explained why he did not appeal against the limitation, the respondent had full opportunity to argue against that departure, and the court explained its reasoning for allowing that departure. Those conditions had not been met in this case.
Lord Justice Peter Gibson, Lady Justice Arden, And, Mr Justice Morland
Times 22-Jan-2002, [2001] EWCA Civ 1973, [2002] ICR 505
Employment Tribunal Act 1996 30(3), Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001
England and Wales
Appeal from – M Miriki v the General Council of the Bar EAT 4-Dec-2000
EAT Unfair Dismissal – Procedural Fairness . .
Appealed to – M Miriki v the General Council of the Bar EAT 4-Dec-2000
EAT Unfair Dismissal – Procedural Fairness . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 June 2022; Ref: scu.167209
(Trinidad and Tobago) The appellant complained that he had not been treated fairly as a civil servant in having been passed over for promotion. He sought to appeal a finding on judicial review.
Held: While some proceedings for judicial review require more elaborate procedures, it is in no sense an optional procedure to be contrasted with some more formal procedure, and no leave is required from a final order in such proceedings. The appellant had been an acting Prison Officer grade II for ten years. The decision of the judge was in error, but the committee could not order his appointment. The case was remitted for the Civil Service Commission for their active consideration, and in the absence of a positive decision, full reasons were to be given.
Lord Nicholls of Birkenhead, Lord Mackay of Clashfern, Lord Hobhouse of Woodborough, Lord Millett, Sir Andrew Leggatt
Appeal No 1 of 2001, [2001] UKPC 53
Commonwealth
Cited – Jones v Solomon 1986
(Court of Appeal of Trinidad and Tobago) Judicial review proceedings do not involve the full trial process, and are therefore summary. . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 June 2022; Ref: scu.166941
Enforcement of post emplyment restrictive covenant.
Lord Matthews
[2014] ScotCS CSOH – 106
Scotland
Updated: 05 June 2022; Ref: scu.534150
The parties sought a construction of the 1992 Order as to firefighters’ pensions.
Barling J
[2014] EWHC 2177 (Ch)
Firemen’s Pension Scheme Order 1992 (1992/129)
England and Wales
Updated: 05 June 2022; Ref: scu.533775
The Lord Chancellor’s action in appointing to a special adviser’s post someone he already knew and trusted, without first advertising the post openly, was not an act of sex or race discrimination. Had they applied, they would not have been appointed because they were not personally known to the Lord Chancellor. In practice a post had been created for the person appointed. It was claimed that the requirement that the applicant be known to the Lord Chancellor, and be acceptable to him, had a disproportionate requirement against women and against non-white applicants. If the tribunal had reasoned that such a requirement would exclude greater proportions of such potential applicants, then the reasoning was wrong. Indirect discrimination requirement looked at the effect on the pool of potential candidates. It was discriminatory only if a significant proportion of the pool were able to satisfy the requirement. Where the requirement excluded almost the entirety of the pool, it could not constitute discrimination within the statutes. Since the requirement excluded everyone except the person appointed, it could have had no disproportionate effect on the different groupings within the pool.
Lord Phillips Mr, Lord Justice Schiemann, And, Lord Justice Mummery
Times 03-Dec-2001, Gazette 17-Jan-2002, [2001] EWCA Civ 1756, [2002] Emp LR 91, [2002] IRLR 80, [2002] ICR 321
Sex Discrimination Act 1975 1(1)(b), Equal Treatment Directive (76/207/EEC) (OJ 1976 L39/40), Race Relations Act 1976
England and Wales
Appeal from – Coker and Osamor v Lord Chancellor and Lord Chancellor’s Department ET 28-Jul-1999
It was capable of being indirect sex-discrimination to appoint a person to a post from a circle of friends. This would necessarily restrict appointees to a group which favoured men more than women. The requirement that the Lord Chancellor should . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 June 2022; Ref: scu.166924
The Central Office of Tribunals must record the particulars of Employment Tribunal decisions. It has in the past recorded the existence of the application but no details. The court held that the register must include details of the parties, the particulars of the allegations made, and the full text of the decision where recorded. The word ‘particulars’ has a clear meaning to lawyers which would include such details, and other provisions presumed that such details were provided.
Times 09-May-2000
Employment Tribunals (Constitution and Rules of Procedure) Regulations 1996 1757
England and Wales
Updated: 05 June 2022; Ref: scu.88664
A tribunal had erred in ordering that names of both complainant and respondent and of witnesses should be protected in a sexual harassment case. The power only exists in respect of the complainant and a ‘person affected’. This group should not be extended. The imposition of general reporting restrictions on a sex discrimination case went beyond range of what was needed to protect the interests identified in the regulations to protect a someone not a party to the proceedings.
Gazette 14-Oct-1998, Times 13-May-1998, (1998) IRLR 569
Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 (1993 No 2687) 14
England and Wales
Updated: 05 June 2022; Ref: scu.88544
ECJ Article 59 of the Treaty (now, after amendment, Article 49 EC) and Article 60 of the Treaty (now Article 50 EC) do not preclude a Member State from imposing national rules guaranteeing entitlement to paid leave for posted workers on a business in the construction industry established in another Member State which provides services in the first Member State by posting workers for that purpose, on the two-fold condition that: (i) the workers do not enjoy an essentially similar level of protection under the law of the Member State where their employer is established, so that the application of the national rules of the first Member State confers a genuine benefit on the workers concerned, which significantly adds to their social protection, and (ii) the application of those rules by the first Member State is proportionate to the public interest objective pursued.
Article 59 of the Treaty (now, after amendment, Article 49 EC) and Article 60 of the Treaty (now Article 50 EC) do not preclude the extension of the rules of a Member State which provide for a longer period of paid leave than that provided for by Directive 93/104, concerning certain aspects of the organisation of working time, necessary for the social protection of construction workers to workers posted to that Member State by providers of services in the construction sector established in other Member States during the period of the posting.
Article 59 of the Treaty (now, after amendment, Article 49 EC) and Article 60 of the Treaty (now Article 50 EC) do not preclude national rules from allowing businesses established in the host Member State to claim reimbursement of expenditure on holiday pay and holiday allowances from the paid leave fund, whereas it does not provide for such a claim in the case of businesses established in other Member States, but instead provides for a direct claim by the by the posted workers against the fund, in so far as a difference in their treatment is justified by objective differences between businesses in the construction sector established in the host Member State and those established in other Member States as regards the effective implementation of the obligation to give holiday pay to workers.
The obligation, imposed by national rules designed to provide effective protection of workers in the construction industry, in particular as regards their entitlement to paid leave, on undertakings established in another Member State which post workers to work in the national territory, to disclose more information to the paid leave fund than employers established in the host Member State constitutes a restriction on the freedom to provide services within the meaning of Article 59 of the Treaty (now, after amendment, Article 49 EC).
Such a restriction may be justified only if it is necessary in order to safeguard, effectively and by appropriate means, the overriding public interest of the social protection of workers.
It is for the national court to determine, having regard to the principle of proportionality, the type of information that the authorities of the Member State concerned may reasonably require of providers of services established in another Member State. For this purpose, the national court should consider whether the objective differences between the position of businesses established in the national territory and that of businesses established in other Member States objectively require the additional information required of the latter.
Article 59 of the Treaty (now, after amendment, Article 49 EC) and Article 60 of the Treaty (now Article 50 EC) preclude the application of a Member State’s scheme for paid leave to all businesses established in other Member States providing services to the construction industry in the first Member State where businesses established in the first Member State, only part of whose activities are carried out in that industry, are not all subject to that scheme in respect of their workers engaged in that industry.
C-49/98, [2001] EUECJ C-49/98, C-70/98, C-71/98, C-50/98, C-52/98, C-53/98, C-54/98, C-68/98, C-69/98, [2001] ECR I-7831, [2003] 2 CMLR 11
Cited – International Transport Workers’ Federation and Another v Viking Line Abp and Another CA 3-Nov-2005
An order had been made restraining the defendant trades unions from taking industrial action. The unions said the UK court had no jurisdiction.
Held: ‘It is at first sight surprising that the English Commercial Court should be the forum in . .
Cited – O’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.166754
The provisions of the Directive, which excluded from regulation the employment of transport workers, applied to office workers as well as to actual drivers. The phrases used by the Directive in disapplying the Directive to certain employment sectors, made a distinction between those employed in certain industries, and, in other cases, those with certain jobs. This was confirmed by the travaux preparatoires, responsible for drafting the exemption. The effect was to exempt the industries concerned whether or not the employee worked directly doing the tasks which defined that industry.
M Wathelet, President of Chamber and Judges P. Jann and L. Sevon Advocate General A. Tizzano
Times 15-Oct-2001, C-133/00, [2001] EUECJ C-133/00
Council Directive 93/104/EC of November 23, 1993 concerning certain aspects of the organisation of working time (OJ 1993 L307 p18) Art 1(3), Working Time Regulations 1998 (1998 No 1833)
European
Updated: 04 June 2022; Ref: scu.166573
The court was asked whether a senior police officer, suspended under police disciplinary regulations following a complaint made against him, whose appointment to office under a fixed term contract then expires by effluxion of time, nevertheless remains subject to the disciplinary process.
[2001] EWCA Civ 1253
England and Wales
Updated: 04 June 2022; Ref: scu.166273
It was for the Trust employer to decide which kind of disciplinary proceedings to institute. Absent bad faith or Wednesbury unreasonableness, the employer’s decision on categorisation was final. There can be no reason otherwise to include in the contract this provision that categorisation is a matter for the trust.
Lightman J
Times 16-Oct-1995, [1995] ICR 1066
England and Wales
Applied – Chatterjee v City and Hackney Community Services NHS Trust ChD 1998
Unless there was some bad faith or other unreasonableness it was for the employer Health authority to categorise the conduct of which complaint was made about a doctor as either personal or professional. . .
Cited – Skidmore v Dartford and Gravesham NHS Trust HL 22-May-2003
The disciplinary code for doctors employed by the NHS provides different procedures cases involving allegations of ‘professional conduct’ or ‘personal conduct.’ The first would involve a more judicial process, and the second a more informal . .
Not followed – Bhanot v South West London and St George’s Mental Hospital NHS Trust ChD 2000
The court considered its jurisdiction to intervene in disciplinary proceedings against a doctor, where the Trust had decided the allegation was of personal misconduct.
Held: This was an action for breach of contract and what the court was . .
Preferred – Saeed v Royal Wolverhampton Hospitals NHS Trust 2000
. .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.82837
Lord Justice Clerk
[1998] ScotCS 31, 1999 SLT 1028
Scotland
Updated: 04 June 2022; Ref: scu.163347
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.
Caplan L
[1998] ScotCS 103, [1999] SCLR 263, [1999] IRLR 362
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.163419
(Judgment) Local staff – Article 79 of the Conditions of Employment of other Servants – Fixed-term contract of employment – Conversion into contract for an indefinite period – Whether or not national legislation applicable
C-126/99, [2000] EUECJ C-126/99
European
Updated: 04 June 2022; Ref: scu.162636
ECJ Maintenance of workers’ rights in the event of transfer of an undertaking – Transfer to a municipality of an activity previously carried out, in the interests of that municipality, by a legal person established under private law
C-175/99, [2000] EUECJ C-175/99
Updated: 04 June 2022; Ref: scu.162655
There is an inherent conflict between the need to promote freedom of competition, and the need to restrict competition to promote continuity of employment. The transfer of undertakings regulations must apply to the re-allocation of public service contracts. The absence of any direct contractual connection between the transferor and transferee of a contract was important but not decisive as to whether the regulations should apply.
Times 27-Feb-2001, [2001] IRLR 171, Case C-172/99, [2001] EUECJ C-172/99, C-172/99
Considered – ADI (UK) Limited v Firm Security Group Limited CA 22-Jun-2001
ADI appealed against a decision that, when they took over a services contract, there had been a transfer within the Regulations.
Held: Though no assets tangible or otherwise, had been transferred, this was a contract to provide services at a . .
Cited – Ronald McLeod, James Welsh v Charles Bingram T/Aphoenix Taxis Rainbow Cars Ltd T/A Rainbow Taxis EAT 22-Apr-2002
EAT Transfer of Undertakings – Transfer
A company purported to dissolve, but the business was then effectively resurrected by the second respondent. The claimants asserted that there had been a transfer . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.162653
A refusal to appoint a pregnant woman to a post for an indefinite period because of that pregnancy was in breach of the Directive even though national statutory rules precluded employment of the woman during the period of the pregnancy.
Times 17-Feb-2000, C-207/98, [2000] EUECJ C-207/98
Equal Treatment Directive (76/207/EEC)
Updated: 04 June 2022; Ref: scu.162409
(Judgment) Competition – National legislation allowing only ‘recognised dockers’ to perform certain dock duties – Meaning of ‘undertaking’ – Special or exclusive rights
[1999] EUECJ C-22/98
European
Updated: 04 June 2022; Ref: scu.162317
The applicant had been employed for a short period. He was dismissed, and he claimed that this was because he had made a protected disclosure in complaining about the respondent’s health and safety practices. He had applied for interim relief. The respondent company had asked that the claim be treated as vexatious, and at the hearing the application had been dismissed, and costs of andpound;500 had been awarded. He appealed that decision, saying that the claim could not be said to be entirely without merit, and accordingly, the tribunal’s decision was based on an erroneous view of the law.
Held: The employee’s appeal succeeded. The ET had effectively decided the evidentiary issues against the applicant. The EAT was being asked whether any alleged disclosure was required to relate to a legal obligation arising out of the contract of employment. ‘It is obviously not sufficient under Section 43B that there should simply be a breach of contract but what has to be shown is first a breach of the employment contract as being a breach of a legal obligation under that contract. Secondly, there must be a reasonable belief that this has, is, or is likely to happen on the part of the worker. Thirdly, there must be a disclosure of that which is alleged to be the reason for dismissal. In other words, where it is a breach of the contract of employment, the worker is bound to make his case on the basis that the reason for dismissal is that he has complained that his employer has broken the contract of employment.’
EAT Unfair Dismissal – Reason for Dismissal
His Honour Judge J Altman
EAT/1239/00, [2001] UKEAT 1239 – 00 – 2206, [2002] IRLR 109
Public Interest Disclosure Act 1998 43B(b), Employment Rights Act 1996 129
England and Wales
See Also – Parkins v Sodexho Ltd EAT 17-Jan-2001
. .
Distinguished – Cavendish Munro Professional Risks Management Ltd v Geduld (Rev 1) EAT 6-Aug-2009
EAT VICTIMISATION DISCRIMINATION: Protected disclosure
The claimant, who had less than one year’s continuous employment fell out with his fellow directors and equal shareholders. He was removed as a . .
Overruled by Statute – Chesterton Global Ltd (t/a Chestertons) and Another v Nurmohamed (Victimisation Discrimination: Whistleblowing) EAT 8-Apr-2015
chesteron_nurmohamedEAT201504
EAT VICTIMISATION DISCRIMINATION
Whistleblowing
Protected disclosure
This appeal concerns the meaning of the words ‘in the public interest’ inserted into section 43B(1) of the Employment Rights . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.168260
The Commissioner appealed a refusal of an adjournment of a hearing expected to last many weeks. He said that it was impossible to decide disciplinary proceedings against the complainant at the same time as facing a complaint from him of racial discrimination. He said they would be hampered in approaching witnesses. The EAT considered there had been sufficient opportunity to make progress on the disciplinary proceedings, and the directions were confirmed.
EAT Procedural Issues – Employment Tribunal
Mr Commissioner Howell QC
EAT/582/01
England and Wales
Updated: 04 June 2022; Ref: scu.168274
The employee sought to appeal a decision at a preliminary hearing that he had not been dismissed. He had asserted that the employment contract was illegal because income tax and NI contributions were not being deducted properly, and therefore was not justiciable, but that since he was unaware of the illegality, he could seek to enforce it.
Held: The ET erred in not identifying the correct legal test and in making findings of fact and conclusions which did not on the face of the decision satisfy the legal questions they had to answer. The appeal was allowed and the case remitted to a different tribunal.
EAT Jurisdiction –
His Honour Judge J Altman
EAT/0204/00, [2001] UKEAT 0204 – 00 – 1506
England and Wales
Cited – Hewcastle Catering Ltd v Ahmed and Elkamah CA 1991
The employers devised a VAT evasion scheme depending in part on the co-operation of the employees, but the employees themselves received no benefit. After giving evidence against their employers, the plaintiffs were dismissed. The employer appealed . .
Cited – Euro-Diam Ltd v Bathurst CA 1988
The court had found that securities had been registered misleadingly in the US. The court held that it could not aid illegality. The court considered the defence of ‘ex turpi cause non oritur actio’. Kerr L.J: ‘The ex turpi causa defence ultimately . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.168225
The applicant appealed an order striking out her complaint of race discrimination as hopeless. She sought recognition as a veterinary surgeon. Her claim had been dismissed because, under the section the College exercised a statutory power. She asserted that the regulations gave a wide discretion to the College to exempt individuals from all or part of the qualification procedures. It was held that the discretion only applied to those who already held one or more of the qualifications which were recognised. She claimed also that the tribunal system denied her the possibility of equality of arms, and therefore a fair hearing under art 6. The EAT held that the tribunal system was designed to be informal, and Chairmen are specifically required to give assistance to lay parties. There was no breach of that right.
EAT Human Rights –
His Honour Judge J Altman
EAT/1074/98
Veterinary Surgeon (Examination of Commonwealth and Foreign Candidates) Regulations 1967 Sch para 5, Race Relations Act 1976 41
England and Wales
Updated: 04 June 2022; Ref: scu.168224
The company had a final salary pension scheme. The respondents were variously trustees of the scheme, and representative employees. To calculate benefits, it was necessary to determine the ‘total remuneration from the Employers’. The employees asserted that this phrase included non-cash and fluctuating benefits. The company said that it related to core salary.
Held: The various definitions made a distinction between employment benefits which were taxable, and fluctuating benefits. It made no provision for calculating the value of non-cash benefits, and non-cash benefits were not included. The court outlined the difficulties in applying estoppel in such situations: ‘i) The pension scheme embodies not only the terms of a contract between individual members and the trustees but also a trust applicable to the fund comprising the contributions of members and surpluses derived from the past in which present and future members may be interested. Such trusts cannot be altered by estoppel because there can be no such estoppel binding future members.
ii) It is necessary to show that the principle is applicable to all existing members. It is not necessary for that purpose to call evidence relating to each and every member’s intention. But that will not absolve a claimant from adducing evidence to show that the principle must be applicable to the general body of members as such.
iii) What must be proved is that each and every member has by his ‘course of dealing put a particular interpretation on the terms of’ the Rules or ‘acted upon the agreed assumption that a given state of facts is to be accepted between them as true’. This involves more than merely passive acceptance. The administration of a pension scheme on a particular assumption as to the yardstick by which contributions or benefits are to be calculated may well give rise to a relevant assumption on the part of the trustees. It requires clear evidence of intention or positive conduct to bind the general body of members to such an assumption. Receipt of the benefit or payment of the contribution, without more, is unlikely to be enough.’
Morritt LJ, Vice-Chancellor
[2002] EWHC 983 (Ch), [2002] Pens LR 339
Income Tax (Employments) Regulations 1993 (1993 No 744)
England and Wales
Cited – Trustee Solutions Ltd and others v Dubery and Another ChD 21-Jun-2006
The rules of a pensions scheme were altered. It was required that any such alteration be in writing, but the trustees had not signed the document creating the amendment.
Held: The words ‘writing under hand’ clearly required a signature, and . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.167617
EAT Unfair Dismissal – Contributory Fault
The Honourable Mr Justice Lindsay (President)
EAT/1466/00
England and Wales
Updated: 04 June 2022; Ref: scu.168208
In order for an employee to claim that his employer was conducting his business in an unlawful manner so as to destroy the relationship of trust and confidence between them, the activity had to be such that the employee could not reasonably be expected to work for a moment longer after discovering the illegality. The evidence to establish a claim for stigma damages would be expected to be of a high standard, and the employers view obtained before proceedings were issued.
Gazette 22-Sep-1999, Gazette 28-Jul-1999, Times 30-Jun-1999, [1999] IRLR 508
England and Wales
See also – Bank of Credit and Commerce International Sa (In Liquidation) v Ali and Another ChD 17-Feb-1999
A compromise of a claim involved a settlement with the value given, and a release did not import requirement for any consideration. A compromised claim could not be set aside for lack of knowledge, and no duty of disclosure of any wrongdoing . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.136026
ECJ (Judgment) Social policy – Harmonisation of laws – Transfers of undertakings – Safeguarding of workers’ rights – Directive 77/187/EEC – Scope – Transfer of an undertaking in voluntary liquidation
C-399/96, [1998] EUECJ C-399/96, ECLI:EU:C:1998:532, [1999] All ER (EC) 831, [2001] 1 CMLR 25, [1998] ECR I-6965
European
Updated: 03 June 2022; Ref: scu.162006
(Judgment) State aid – Application of the statutory interest rate to agreements for the repayment of wages and the payment of debts in respect of social security contributions
C-342/96, [1999] EUECJ C-342/96
European
Updated: 03 June 2022; Ref: scu.161969
LMA The case concerned Directive 91/533 on employers’ obligations to inform employees of the conditions applicable to their contract or employment relationship. An ’emanation of state’ was understood to be ‘organisations or bodies which are subject to the authority or control of the state or have special powers beyond those which result from the normal rules applicable to relations between individuals such as local or regional authorities or other bodies, which, irrespective of their legal form have been given responsibility, by the public authorities and under their supervision for providing a public service’
[1998] IRLR 333, C-253/96, [1997] EUECJ C-253/96, [1997] ECR I-6907
Cited – Marks and Spencer Plc v Customs and Excise HL 28-Jul-2005
The claimant had sought repayment of overpaid VAT, and the respondent resisted arguing that this would be an unjust enrichment. A reference to the European Court was sought.
Held: It was not possible to say that the House’s opinion was acte . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.161919
Europa Article 1(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, businesses or parts of businesses is to be interpreted as meaning that the Directive applies to a situation in which an undertaking which used to entrust the cleaning of its premises to another undertaking decides to terminate its contract with that other undertaking and in future to carry out the cleaning work itself, provided that the operation is accompanied by the transfer of an economic entity between the two undertakings. The term `economic entity’ refers to an organised grouping of persons and assets enabling an economic activity which pursues a specific objective to be exercised. The mere fact that the maintenance work carried out first by the cleaning firm and then by the undertaking owning the premises is similar does not justify the conclusion that a transfer of such an entity has occurred.
C-127/96, [1999] IRLR 132, C-229/96, C-74/97, [1998] EUECJ C-127/96, [1998] EUECJ C-229/96, [1998] EUECJ C-74/97
European
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.
Updated: 03 June 2022; Ref: scu.161835
Freedom of movement for workers – Foreign-language assistants – Eligibility for appointment to teach supplementary courses and to fill temporary teaching vacancies in universities
C. Gulmann, P
C-90/96, [1997] EUECJ C-90/96
European
Updated: 03 June 2022; Ref: scu.161809
ECJ Article 6(1) of Decision No 1/80 of the EEC-Turkey Association Council is to be interpreted as meaning that a Turkish national who has been lawfully employed in a Member State for an uninterrupted period of more than three years in a genuine and effective economic activity for the same employer and whose employment status is not objectively different to that of other employees employed by the same employer or in the sector concerned and exercising identical or comparable duties, is duly registered as belonging to the labour force of that State and is legally employed within the meaning of that provision. A Turkish national in that situation may therefore seek the renewal of his permit to reside in the host Member State notwithstanding the fact that he was permitted to take up paid employment there only temporarily with a specific employer for the purpose of acquainting himself with and preparing for employment in one of its subsidiaries in Turkey, and obtained work and residence permits for that purpose only.
The fact that a Turkish worker wishes to extend his stay in the host Member State, although he expressly accepted its restriction, does not constitute an abuse of rights. The fact that he declared his intention of returning to Turkey after having been employed in the Member State for the purpose of perfecting his vocational skills is not such as to deprive him of the rights deriving from Article 6(1) of Decision No 1/80 unless it is established by the national court that that declaration was made with the sole intention of improperly obtaining work and residence permits for the host Member State.
C-36/96, [1997] EUECJ C-36/96
Updated: 03 June 2022; Ref: scu.161775
ECJ Freedom of movement for persons – Workers – Equal treatment – Promotion on grounds of seniority – Collective agreement applicable to public sector employees taking into account only periods of employment completed in the national public service but not periods of comparable employment completed in the public service of another Member State – Discrimination on grounds of nationality – Justification – None (EC Treaty, Art. 48; Council Regulation No 1612/68, Art. 7(1) and (4))
Freedom of movement for persons – Workers – Equal treatment – Clause in a collective agreement contrary to the principle of non-discrimination – De jure nullity – Obligations of the national court (EC Treaty, Art 48; Council Regulation No 1612/68, Art. 7(1) and (4))
Article 48 of the Treaty and Article 7(1) and (4) of Regulation No 1612/68 on freedom of movement for workers within the Community preclude a clause in a collective agreement applicable to the public service of a Member State which provides for promotion on grounds of seniority for employees of that service after eight years’ employment in a salary group determined by that agreement without taking any account of previous periods of comparable employment completed in the public service of another Member State. Such a clause is such as to infringe the principle of non-discrimination laid down by those provisions in that the conditions for promotion on grounds of seniority manifestly work to the detriment of migrant workers who have spent part of their careers in the public service of another Member State. As regards activities not falling within the scope of Article 48(4) of the Treaty, the clause cannot be justified either by arguments based on the specific characteristics of employment in the public service or, given the multiplicity of legally separate employers, by the desire to reward employee loyalty.
A clause in a collective agreement entailing discrimination contrary to Article 48 of the Treaty and to Article 7(1) of Regulation No 1612/68 is null and void by virtue of Article 7(4) of that regulation. Without requiring or waiting for that clause to be abolished by collective negotiation or by some other procedure, the national court must therefore apply the same rules to the members of the group disadvantaged by that discrimination as those applicable to the other workers.
C-15/96, [1998] ECR I-47, [1998] EUECJ C-15/96
Cited – Kobler v Republik Osterreich ECJ 30-Sep-2003
The claimant’s claim had been presented to the Supreme Administrative Court in Austria, who had referred a question to the ECJ. Following the Schoning decision, the court withdrew the referral, and dismissed the claim. He now claimed damages from . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.161763
(Judgment) Social policy – Men and women – Access to employment and working conditions – Equal treatment – Dismissal of a woman on grounds of absence due to an illness attributable to pregnancy or confinement – Permissible – Account taken, when calculating the period providing grounds for dismissal, of absence outside periods of maternity leave – Permissible (Council Directive 76/207, Arts 2(1) and (3) and 5(1))
Without prejudice to provisions of national law for the protection of women, particularly with regard to pregnancy and maternity, adopted pursuant to Article 2(3) of Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, Article 5(1), in conjunction with Article 2(1), thereof does not preclude dismissals which are the result of absences due to an illness attributable to pregnancy or confinement, even where that illness arose during pregnancy and continued during and after maternity leave.
In particular, the principle of equal treatment enshrined in the Directive does not preclude account being taken of a woman’s absence from work between the beginning of her pregnancy and the beginning of her maternity leave when calculating the period providing grounds for her dismissal under national law.
During the maternity leave accorded to her pursuant to national law, a woman is protected against dismissal on grounds of absence. To take absence during such a period into account as grounds for a subsequent dismissal would thus be contrary to the objective pursued by Article 2(3) of the Directive, and would deprive that provision of its effectiveness. Outside periods of maternity leave, however, and in the absence of any national or, as the case may be, Community provisions affording women specific protection, a woman is not protected under the Directive against dismissal on grounds of periods of absence due to an illness attributable to pregnancy.
[1997] EUECJ C-400/95
European
Updated: 03 June 2022; Ref: scu.161750
The first indent of Article 6(1) of Decision No 1/80 of the EEC-Turkey Association Council must be interpreted as making the extension of a Turkish worker’s residence permit in the host Member State subject to his having been legally employed continuously for one year with the same employer.
First, that provision, which requires the completion of one year’s continuous employment for there to be a right of renewal of the work permit in respect of the same employer and implies the existence of a right of residence for the person concerned to enable him actually to work as an employed person, is based on the premises that only a contractual relationship which lasts for one year is expressive of employment relations stable enough to guarantee the Turkish worker continuity of his employment with the same employer.
Second, the coherence of the system of gradual integration of Turkish workers in the host Member State’s labour force, established by the three indents of Article 6(1), would be disrupted if the worker had the right to enter the service of another employer even before satisfying the condition of one year’s legal employment specified in the first indent of Article 6(1) when, under the second indent of Article 6(1), it is only after three years of legal employment in the Member State concerned that a Turkish worker is entitled to take up work with a different employer, on condition that the employer is engaged in the same business as the previous employer and respects the priority to be given to workers of the Member States.
C-386/95, [1997] EUECJ C-386/95
European
Updated: 03 June 2022; Ref: scu.161740
EAT UNFAIR DISMISSAL
Reason for dismissal
DISABILITY DISCRIMINATION
Disability
Reasonable adjustments
Unfair dismissal and disability discrimination. Claimant employed as a service engineer and dismissed. Claimant’s case was that dismissal was both unfair and for a reason related to disability. Respondents’ case was that dismissal was fair, on grounds of misconduct. Tribunal found that dismissal was because of respondents’ perception of the claimants’ gross misconduct but also that it was because of his disability. They also determined that a key factor in the respondents’ finding of misconduct was not open to them but did so by taking into account evidence that had not been before the respondents which it was held the Tribunal were not entitled to do. Held that the Tribunal failed to apply the Burchell test, took into account irrelevant material regarding claimant’s application for ill-health retirement in a manner which also made an unfounded assumption, had reached contradictory findings on the respondents’ reason for dismissal and drawn inferences regarding the disability discrimination claim that were not justified by reference to primary fact. Remitted back to a freshly constituted Tribunal.
The Honourable Lady Smith
EATS/0088/04, [2005] UKEAT 0088 – 04 – 3006
England and Wales
Cited – J Sainsbury Ltd v Hitt; Orse Sainsburys Supermarkets Limited v Hitt CA 18-Oct-2002
Reasobaleness of Investigation Judged Objectively
The employer appealed against a decision that it had unfairly dismissed the respondent. The majority of the Employment Tribunal had decided that the employers had not carried out a reasonable investigation into the employee’s alleged misconduct . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.228616
[2001] UKEAT 83 – 01 – 0506
England and Wales
Updated: 03 June 2022; Ref: scu.203975
[2001] UKEAT 0539 – 01 – 0506
England and Wales
Updated: 03 June 2022; Ref: scu.203951
[2001] UKEAT 16 – 01 – 0506
England and Wales
Updated: 03 June 2022; Ref: scu.203950
Salesmen were transferred to a new dealership at a different workplace without any guarantee as to client base or sales figures, so that there was potential for an adverse impact on commission.
Held: All these components were ‘working conditions’. The change was substantial because it was a change in remuneration.
C-171/94, [1996] EUECJ C-171/94, [1996] IRLR 467
Council Directive 77/187/EEC of 14 February 1977
Cited – Tapere v South London and Maudsley NHS Trust EAT 19-Aug-2009
EAT CONTRACT OF EMPLOYMENT
Construction of term
The Employment Tribunal erred in construing the terms and conditions of employment as permitting the employer to transfer the employee to another . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.161377
A directive limiting the maximum work hours for all employees was validly made under art 118a as a Health and Safety measure.
LMA
What were the implications of this route to adoption?
Art.118aEC
(Council) Qualified majority voting – (European Parliament) Co-operation procedure – although the Council ultimately has the final say, it can only over-rule Parliament (and the Commission) if it acts unanimously) as opposed to
Art.100EC – (Council) unanimous voting – (European Parliament) Consultation procedure – this procedure requires that the Council consult the Parliament before it adopts an act. Parliament’s views must be considered but have no binding effect.
The UK challenged the Directive on various grounds
The ECJ concluded that the UK’s application was unfounded apart from one provision The ECJ annulled the second sentence of Art. 5 of the Council Directive concerning minimum rest periods to include Sundays – could not be justified on basis of health and safety measure. The ECJ dismissed the remainder of the UK’s application.
Times 21-Nov-1996, C-84/94, [1997] IRLR 30, [1996] EUECJ C-84/94, [1997] ICR 443
Cited – Revenue and Customs v Stringer, Ainsworth and Others HL 10-Jun-2009
In each case, the employee had retired after long term sickness. The Employment tribunal had upheld their ability to claim arrears of sickness pay arising under the 1998 Regulations, as an unlawful deduction from their wages. They now appealed . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.161312
An employee at an educational establishment told management that he intended to undergo gender reassignment. He was given notice of dismissal.
Held: The scope of the Directive was not confined to discrimination based on the fact that a person was of one or other sex but also extended to discrimination arising from the gender reassignment of a person. The Court stated: ‘Such discrimination is based, essentially if not exclusively, on the sex of the person concerned. Where a person is dismissed on the ground that he or she intends to undergo, or has undergone, gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment. To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled, and which the court has a duty to safeguard.’ The Advocate General described the applicant as female: ‘I do so regardless not only of her original sex (male) as it appears on her birth certificate but also of the moment at which, as a result of the final surgical operation, she actually changed her physical sex.’
C-13/94, [1996] ICR 795, [1996] IRLR 347, [1996] EUECJ C-13/94, [1996] All ER (EC) 397, [1997] 2 FCR 180, [1996] 2 CMLR 247, [1996] CEC 574, [1996] ECR I-2143, [1996] 2 FLR 347, [1996] Fam Law 609
European
Distinguished – Ashton v The Chief Constable of West Mercia Constabulary EAT 27-Jul-2000
Where a dismissal was properly related to poor work performance, the fact that such a deterioration in performance was associated with a gender reassignment process being undergone by the employee, did not make the dismissal sex discrimination. To . .
Cited – Croft v Royal Mail Group Plc (formerly Consignia Group plc) CA 18-Jul-2003
The employee was a transsexual, awaiting completion of surgical transformation to a woman. The employer said she could not use the female toilet facilities, but was offered use of the unisex disabled facilities.
Held: The 1975 Act provides for . .
Cited – A v West Yorkshire Police HL 6-May-2004
The claimant was a male to female trans-sexual who had been refused employment as a police officer by the respondent, who had said that the staturory requirement for males to search males and for females to search females would be impossible to . .
Cited – J v S T (Formerly J) CA 21-Nov-1996
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
Applied – Chessington World of Adventures Ltd v Reed EAT 27-Jun-1997
News Group Newspapers Ltd had been joined as a party, in order that it could argue the obvious public interest relating to the importance, which has long been accepted in the courts, of the interest, not just of the press but of the public . .
Cited – Goodwin v The United Kingdom ECHR 11-Jul-2002
The claimant was a post operative male to female trans-sexual. She claimed that her human rights were infringed when she was still treated as a man for National Insurance contributions purposes, where she continued to make payments after the age at . .
Cited – MB v Secretary of State for Work and Pensions SC 5-Jul-2016
The court was asked about the age at which entitlement to a pension began for someone of transgender.
Held: The court was divided, and the issue was referred to the European Court of Justice. . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.161269
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: The Regulation was within the scope of the Directive. Though a member state had some freedom in implementing a directive, the court must seek to interpret the Regulations to give effect to the directive. Sexual orientation might exceptionally be part of a genuine occupational requirement. The derogation from the duty of equal treament was tightly drawn: ‘the weight to be given to religious rights may depend upon how close the subject-matter is to the core of the religion’s values or organisation.’
The respondent submitted that there was no direct discrimination since the ground of the difference in treatment was marriage, not sexual orientation and the difference in treatment between married and unmarried couples did not amount to indirect discrimination since married and unmarried couples are not in a materially similar situation. Richards J answered: ‘I am inclined to agree with the submissions for the Secretary of State both as to the absence of direct discrimination and as to the absence of indirect discrimination. The consistent approach [of the ECJ] . . has been to hold that married partners are not in a comparable position to same-sex partners. It is true that until [the Directive] came into force there was no prohibition of discrimination on grounds of sexual orientation in Community law. There is also some force in [the] submission that the application of a condition with which same-sex partners are unable to comply because they are precluded from marrying is discriminatory. I am not persuaded, however, that those considerations . . justify the conclusion that [the] previous statements [of the ECJ] as to the lack of comparability between marriage and other relationships no longer hold good.’
Mr Justice Richards
[2004] EWHC 860 (Admin), [2004] IRLR 430, [2007] ICR 1176
Employment Equality (Sexual Orientation) Regulations 2003, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, European Convention on Human Rights
England and Wales
Cited – Regina (Williamson and Others) v Secretary of State for Education and Employment CA 12-Dec-2002
The claimants sought a declaration that the restriction on the infliction of corporal punishment in schools infringed their human right of freedom of religion. The schools concerned were Christian schools who believed that moderate corporal . .
Cited – Regina v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex parte Wachmann 1992
A local rabbi sought judicial review of the declaration of the Chief Rabbi, following an investigation into allegations of adultery with members of his congregation, that he was religiously and morally unfit to occupy his position.
Held: Simon . .
Cited – X v Denmark ECHR 1976
Admissibility decision – state interference in appointment of clergyman. A clergyman was held to have accepted the discipline of his church when he took employment, and his right to leave the church guaranteed his freedom of religion. . .
Cited – Hasan and Chaush v Bulgaria ECHR 26-Oct-2000
The Grand Chamber considered executive interference in the appointment of the Chief Mufti of the Bulgarian Muslims: ‘Where the organisation of the religious community is at issue, Article 9 must be interpreted in the light of Article 11 of the . .
Cited – von Colson and Kamann v Land Nordrhein-Westfalen ECJ 10-Apr-1984
LMA Art.177[Art.234] EC proceedings – Ms Van Colson had applied for a job with the prison service and Ms Harz had applied for a job with a private company Deutsche Tradex GmbH. Both had been rejected. The German . .
Cited – Litster and Others v Forth Dry Dock and Engineering Co Ltd HL 16-Mar-1989
The twelve applicants had been unfairly dismissed by the transferor immediately before the transfer, and for a reason connected with the transfer under section 8(1). The question was whether the liability for unfair dismissal compensation . .
Cited – Pickstone v Freemans Plc HL 30-Jun-1988
The claimant sought equal pay with other, male, warehouse operatives who were doing work of equal value but for more money. The Court of Appeal had held that since other men were also employed on the same terms both as to pay and work, her claim . .
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Cited – Commission v Luxembourg (Judgment) ECJ 12-Jun-2003
Europa Failure of a Member State to fulfil obligations – Telecommunications – Rights of way – Failure to transpose Directive 90/388/EEC effectively. . .
Cited – Evans v The Secretary of State for the Environment, Transport and the Regions and The Motor Insurers’ Bureau ECJ 4-Dec-2003
ECJ Reference for a preliminary ruling: High Court of Justice (England and Wales), Queen’s Bench Division – United Kingdom. Approximation of laws – Directive 84/5/EEC – Compulsory insurance against civil . .
Cited – 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 Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
Cited – Smith and Grady v The United Kingdom ECHR 27-Sep-1999
The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Cited – Johnston v Chief Constable of the Royal Ulster Constabulary ECJ 15-May-1986
The principles of the European Convention for the Protection of Human Rights must be taken into consideration in community law. The principle of effective judicial control laid down in article 6 of Council Directive 76/207, a principle which . .
Cited – Hibbs and Birmingham v United Kingdom ECHR 18-Jul-1996
Quakers objected to the obligation to contribute through general taxation to funds which may then be used by the State for arms procurement.
Held: The Convention is directed primarily to the personal sphere of personal belief and worship and . .
Cited – Tinnelly and Sons Ltd and Others and McElduff and Others v United Kingdom ECHR 10-Jul-1998
Legislation which disallowed claimants who asserted that they had been discriminated against, on the grounds of their religious background, from appealing through the courts system, was a clear breach of their human rights. A limitation will not be . .
Cited – Hibbs and Birmingham v United Kingdom ECHR 18-Jul-1996
Quakers objected to the obligation to contribute through general taxation to funds which may then be used by the State for arms procurement.
Held: The Convention is directed primarily to the personal sphere of personal belief and worship and . .
Cited – Olsson v Sweden (No 1) ECHR 24-Mar-1988
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 8; Non-pecuniary damage – financial award; Costs and expenses award – domestic proceedings; Costs . .
Cited – KB v National Health Service Pensions Agency and Secretary of State for Health ECJ 7-Jan-2004
The claimant had for a number of years had a relationship with a trans-sexual. They had been unable to marry because English law would not recognise a marriage. She compained that on her death her partner would be unable to claim the pension awarded . .
Cited – D and Kingdom of Sweden v Council of the European Union ECJ 31-May-2001
Europa The intention of the Community legislature was to grant entitlement to the household allowance under Article 1(2)(a) of Annex VII to the Staff Regulations only to married couples. Only the legislature can, . .
Cited – Lindsay v United Kingdom ECHR 1986
The position of married couples is not comparable with the position of unmarried couples, so that differences in treatment between them do not amount to discrimination within the meaning of article 14 of the convention. . .
Cited – Inge Nolte v Landesversicherungsanstalt Hannover ECJ 14-Dec-1995
Europa Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as meaning that persons in employment which is . .
Cited – Grant v South West Trains Ltd ECJ 17-Feb-1998
A company’s ban on the provision of travel perks to same sex partners of employees did not constitute breach of European sex discrimination law. An employer’s policy was not necessarily to be incorporated into the contract of employment. The court . .
Cited – Ghaidan v Godin-Mendoza CA 5-Nov-2002
The applicant sought to succeed to the tenancy of his deceased homosexual partner as his partner rather than as a member of his family.
Held: A court is bound by any decision within the normal hierachy of domestic authority as to the meaning . .
Cited – D and Kingdom of Sweden v Council of the European Union ECJ 31-May-2001
Europa The intention of the Community legislature was to grant entitlement to the household allowance under Article 1(2)(a) of Annex VII to the Staff Regulations only to married couples. Only the legislature can, . .
Cited – Seymour-Smith and Perez; Regina v Secretary of State for Employment, Ex Parte Seymour-Smith and Another ECJ 9-Feb-1999
Awards made by an industrial tribunal for unfair dismissal are equivalent to pay for equal pay purposes. A system which produced a differential effect between sexes was not indirect discrimination unless the difference in treatment between men and . .
Cited – The Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .
Cited – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions CA 18-Jun-2003
The appellants were widowers whose wives had died at a time when the benefits a widow would have received were denied to widowers. The legislation had since changed but they variously sought compensation for the unpaid sums.
Held: The appeal . .
Cited – Anufrijeva v Secretary of State for the Home Department CA 22-Mar-2002
Three asylum-seekers brought claims of breach of their Article 8 rights. One complained of a local authority’s failure to provide accommodation to meet special needs, the other two of maladministration and delay in the handling of their asylum . .
Cited – Michalak v London Borough of Wandsworth CA 6-Mar-2002
The appellant had occupied for a long time a room in a house let by the authority. After the death of the tenant, the appellant sought, but was refused, a statutory tenancy. He claimed to be a member of the tenant’s family, and that the list of . .
Mentioned – Salgueiro Da Silva Mouta v Portugal ECHR 21-Dec-1999
There was a difference in treatment between the applicant and a comparator based on the applicant’s sexual orientation, a concept which is undoubtedly covered by Article 14. The list set out in this provision is of an indicative nature and is not . .
Cited – Otto-Preminger-Institut v Austria ECHR 20-Sep-1994
Balance of Religious Tolerance and Freedom
The Institut operated a cinema. It announced a showing of a film ‘Das Liebenconzil’. Proceedings were brought against it, on complaint by the Roman Catholic Church, in which it was accused of ‘disparaging religious doctrine’. The film was seized . .
Cited – Bowman v The United Kingdom ECHR 19-Feb-1998
UK Electoral law went too far to restrict freedom of speech when limiting the amounts spent by third parties discussing candidates. The legislative provision in question was held to operate, for all practical purposes, as a total barrier to Mrs . .
Cited – Regina v Lord Chancellor ex parte John Witham Admn 7-Mar-1997
If subordinate legislation cannot be construed in a way that makes it compatible with fundamental rights, it will be declared ultra vires. Rules which disallowed exemptions from court fees to a litigant in person on income support were invalid. They . .
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 – Age UK, Regina (On the Application of) v Attorney General Admn 25-Sep-2009
Age UK challenged the implementation by the UK of the Directive insofar as it established a default retirement age (DRA) at 65.
Held: The claim failed. The decision to adopt a DRA was not a disproportionate way of giving effect to the social . .
Cited – Bull and Bull v Hall and Preddy CA 10-Feb-2012
The appellants owned a guesthouse. They appealed from being found in breach of the Regulations. They had declined to honour a booking by the respondents of a room upon learning that they were a homosexual couple. The appellants had said that they . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.195971
Official – Application for appointment to the higher grade in career bracket A 7/A 6.
C-298/93, [1994] EUECJ C-298/93P
European
Updated: 03 June 2022; Ref: scu.161140
(Judgment) 1. The right to respect for private life, which is embodied in Article 8 of the European Convention on Human Rights and which derives from the common constitutional traditions of the Member States, is one of the fundamental rights protected by the Community legal order. It includes in particular a person’ s right to keep his state of health secret.
2. Restrictions may be imposed on fundamental rights protected by the Community legal order, provided that they in fact correspond to objectives of general public interest and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference which infringes upon the very substance of the right protected.
3. The pre-recruitment medical examination, provided for by Article 13 of the Conditions of Employment of other Servants, is designed to enable the institution concerned to determine whether a member of the temporary staff fulfils the requirements of Article 12(2)(d) as to physical fitness. However, although the pre-recruitment examination serves a legitimate interest of the institution, that interest does not justify the carrying out of a medical test against the will of the person concerned. Nevertheless, if the person concerned, after being properly informed, withholds his consent to a test which the medical officer of the institution considers necessary in order to evaluate his suitability for the post for which he has applied, the institution cannot be obliged to take the risk of recruiting him.
4. To interpret the provisions relating to the pre-recruitment medical examination of a member of the temporary staff as imposing an obligation to respect a refusal by the person concerned only in relation to a specific Aids screening test but as allowing any other tests to be carried out which might merely point to the possible presence of the Aids virus would impair the scope of the right to respect for private life. Observance of that right requires the refusal of the person concerned to be respected in its entirety. Where that person has expressly refused to undergo an Aids screening test, that right precludes the institution concerned from carrying out any test liable to point to, or establish, the existence of that illness.
The Court opined that the right to respect for private life, embodied in article 8, ‘includes in particular a person’s right to keep his state of health secret’.
C-404/92, [1994] EUECJ C-404/92P, [1995] IRLR 320, [1994] ECR I-4737
European
Cited – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.161019
ECJ Despite the limited character of the harmonization of rules in respect of collective redundancies which Directive 75/129 was intended to bring about, national rules which, by not providing for a system for the designation of workers’ representatives in an undertaking where an employer refuses to recognize such representatives, allow an employer to frustrate the protection provided by Articles 2 and 3 of Directive 75/129 must be regarded as contrary to the provisions of that directive.
According to Article 1(1)(a) of Directive 75/129, the directive applies to collective redundancies in the sense of dismissals for one or more reasons not related to the individual workers concerned, including dismissals resulting from new working arrangements within an undertaking unconnected with its volume of business.
Its scope cannot for that reason be limited to cases of redundancy defined as resulting from a cessation or reduction of the business of an undertaking or a decline in demand for work of a particular type.
National rules which merely require an employer to consult trade union representatives about proposed dismissals, to ‘consider’ representations made by such representatives and, if he rejects them, to ‘state his reasons’, whereas Article 2(1) of the directive requires the workers’ representatives to be consulted ‘with a view to reaching an agreement’ and Article 2(2) lays down that such consultation must ‘at least, cover ways and means of avoiding collective redundancies or reducing the number of workers affected, and mitigating the consequences’, fail correctly to transpose Directive 75/129.
Where a Community directive does not specifically provide any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 5 of the Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law. For that purpose, while the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive.
In the case where an employee may be entitled to payment of various amounts under his contract of employment and by reason of its breach, an award which may be set off against such amounts cannot be regarded as sufficiently deterrent for an employer who, in the event of collective redundancies, fails to comply with his obligations under Directive 75/129 to consult and inform his workers’ representatives.
The UK was in breach of the EC directive with regard to workers’ rights to consultation on redundancy, in that it had not complied with its obligations under the Directive when it allowed offset of monies, paid in lieu of notice, by an employer against the protective award. The United Kingdom had, because of s. 190(3), failed to provide for effective sanctions for a failure to consult as required by the 1975 Directive and so breached the obligations under that Directive and Article 5 of the Treaty.
Europa Despite the limited character of the harmonization of rules in respect of collective redundancies which Directive 75/129 was intended to bring about, national rules which, by not providing for a system for the designation of workers’ representatives in an undertaking where an employer refuses to recognize such representatives, allow an employer to frustrate the protection provided by Articles 2 and 3 of Directive 75/129 must be regarded as contrary to the provisions of that directive. 2. According to Article 1(1)(a) of Directive 75/129, the directive applies to collective redundancies in the sense of dismissals for one or more reasons not related to the individual workers concerned, including dismissals resulting from new working arrangements within an undertaking unconnected with its volume of business. Its scope cannot for that reason be limited to cases of redundancy defined as resulting from a cessation or reduction of the business of an undertaking or a decline in demand for work of a particular type. 3. National rules which merely require an employer to consult trade union representatives about proposed dismissals, to ‘consider’ representations made by such representatives and, if he rejects them, to ‘state his reasons’, whereas Article 2(1) of the directive requires the workers’ representatives to be consulted ‘with a view to reaching an agreement’ and Article 2(2) lays down that such consultation must ‘at least, cover ways and means of avoiding collective redundancies or reducing the number of workers affected, and mitigating the consequences’, fail correctly to transpose Directive 75/129. 4. Where a Community directive does not specifically provide any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 5 of the Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law. For that purpose, while the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive. In the case where an employee may be entitled to payment of various amounts under his contract of employment and by reason of its breach, an award which may be set off against such amounts cannot be regarded as sufficiently deterrent for an employer who, in the event of collective redundancies, fails to comply with his obligations under Directive 75/129 to consult and inform his workers’ representatives.
A-G Van Gerven
Ind Summary 27-Jun-1994, Times 27-Jun-1994, [1995] 1 CMLR 345, [1994] ICR 664, [1994] EUECJ C-382/92, [1994] ECR I-2435, [1994] IRLR 392
Council Directive 77/187/EEC (OJ 1977 L61/26), Trade Unions and Labour Relations Consolidation Act 1992 190(3)
European
Cited – Alderson and others v Secretary of State for Trade and Industry CA 8-Dec-2003
The claimant had been employed in a government department, the work of which was transferred to a private company. He sought to claim compensation for the adverse changes in his contract.
Held: At the time, the Regulations gave protection only . .
Cited – Susie Radin Ltd v GMB and others CA 20-Feb-2004
The company made redundancies but failed to carry out any effective or honest consultation. The tribunal awarded the maximum 90 days protective order. The company appealed saying that it had given the employees greater notice than was strictly due. . .
Cited – Regina v Secretary of State for Trade and Industry ex parte Unison 1996
The 1978 Directive required consultation in the case of collective redundancies. Acts had incorrectly incorporated this requirement into English law. The error was corrected in the 1995 Regulations.
Held: Anything is ‘related to’ a Community . .
Cited – Oakley Inc v Animal Ltd and others PatC 17-Feb-2005
A design for sunglasses was challenged for prior publication. However the law in England differed from that apparently imposed from Europe as to the existence of a 12 month period of grace before applying for registration.
Held: Instruments . .
Cited – Securicor Omega Express Ltd v GMB (A Trade Union) EAT 7-Apr-2003
EAT The company decided to close two branches and make redundancies. They presented the closure itself as a fait accompli to the union representatives. The Tribunal found that this involved a failure to consult . .
Cited – University and College Union v The University of Stirling SC 29-Apr-2015
The University needed to reduce its staff. They and the Union disputed whether research assistants on limited term contracts would simply cease to be employd as their terms concluded, or were entitled to be made redudant.
Held: The appeal was . .
Cited – The United States of America v Nolan CA 4-Feb-2014
The employee was made redundant from working at a US watercraft repair base. She complained that on the base closing the appellant had failed to consult with her as employee representative. The appellant denied that obligation. After a reference to . .
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.161001
Safeguarding of employees’ rights in the event of the transfer of an undertaking.
C-392/92, [1994] EUECJ C-392/92, [1994] IRLR 302
European
Cited – Birch v Nuneaton and Bedworth Borough Council EAT 1995
‘The decision in the Commission’s case was on the basis of a concession made by the United Kingdom that non-profit-making organisations are excluded by the Regulations. That concession is not binding on the parties, or on the industrial tribunal or . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.161009
RACE DISCRIMINATION – Continuing Act
The Employment Tribunal erred in law in striking out, at a Preliminary Hearing where no evidence was adduced, four of the six allegations of unlawful race discrimination made by the Claimant in circumstances where he contended that they all formed part of a continuing act.
First, while it is not necessary for an Employment Tribunal to set out precisely the approach it proposes to adopt, it is important that the correct approach is adopted. If that is apparent from the language used by an Employment Tribunal then no complaint can be justifiably be made. Here, however, on each occasion on which the Employment Judge dealt with whether a continuing act or a one-off act was involved in this case, the language used was the language of making primary findings of fact. That was an error. The Claimant’s case should have been taken at its highest unless directly contradicted by undisputed contemporaneous or other material.
Secondly the reasons given did not meet the Meek test. None of the points made on appeal by the Respondent appear as part of the Employment Tribunal’s Reasons. Furthermore, the finding that the conduct of Ian Hateley came to an end on 3 June 2015 did not answer the question whether there was any arguable link between the matters ending on 3 June 2015, and the grievance raised on 30 November 2015, followed by the meeting on 11 March 2016. The Claimant’s case depends on there being a continuing discriminatory state of affairs involving conduct on the shop floor followed by a total failure to recognise or address that conduct. The Employment Tribunal failed to consider or address this point altogether. The Reasons do not provide any explanation for why the Claimant’s case on this point failed.
Thirdly, to the extent that the Employment Judge can be said to have addressed this issue, the conclusion that there was no possible link between the shop floor conduct ending on 3 June 2015, and the grievance complaint about those matters in November and the March 2016 meeting, is perverse because it is unsupported by any evidence. It is true that the Claimant did not expressly assert ongoing conduct by Mr Hateley after 3 June 2015. His claim however was against the Respondent as a whole. Given the involvement of Ms Morris at the meeting on 3 June 2015, and again on 11 March 2016, and given that the grievance of 13 November 2015 raised complaints about alleged abuse on racial grounds in the meeting on 3 June 2015, albeit directed at Mr Hateley, it is difficult to see what evidential basis there was for reaching that conclusion in circumstances where factual disputes could not be and were not to be resolved by the Employment Tribunal at the Preliminary Hearing.
[2018] UKEAT 0198 – 18 – 2211
England and Wales
Updated: 03 June 2022; Ref: scu.634378
The Claimant’s claim of automatic unfair dismissal was based on an allegation that he was dismissed because he had made protected disclosures within the meaning of s.43 A of the Employment Rights Act 1996
[2019] UKEAT 0196 – 17 – 2802
England and Wales
Updated: 03 June 2022; Ref: scu.634367
Simler DBE J
[2018] EWHC 2746 (Admin)
England and Wales
Updated: 03 June 2022; Ref: scu.628049
A firm of contractors who were engaged in substituting electric for horse tramway lines in the streets of a town stored the new rails when unloaded from the railway trucks in the railway company’s yard by arrangement with the railway company. An employee of the contractors was injured while stacking the rails. The yard abutted upon a street through which the electric tramway would ultimately run, but at the time of the accident operations had not extended beyond a point distant over a quarter of a mile from the yard.
Held ( aff. the judgment of the Court of Appeal, diss. Lord Loreburn, L.C., and Lord James of Hereford) that the injured man was not at the time of the accident employed on or in or about an engineering work within the meaning of section 7 of the Workmen’s Compensation Act 1897.
the Lord Chancellor (Loreburn), Lords Davey, James of Hereford, Robertson, and Atkinson
[1906] UKHL 884
Workmen’s Compensation Act 1897 7
England and Wales
Updated: 02 June 2022; Ref: scu.625458
EAT Contract of Employment – Wrongful dismissal
Unfair Dismissal – Reasonableness of dismissal
Appellant appealing against finding that she was neither wrongfully nor unfairly dismissed. She had a full time job but worked one day a week with another body in paid employment. The Tribunal held that the employer was entitled to treat this as a repudiatory breach, particularly since they had given her the opportunity to resign from that employment. They also held that whilst there were certain procedural errors, they did not render the dismissal unfair. The appellant alleged that the Tribunal ought to have found that it was the employers and not her who was in breach, and ought to have found that the dismissal was unjustified both for procedural defects and because the person who dismissed had given no real consideration of alternative sanctions. EAT held that the Tribunal was entitled to reach the conclusion that it did.
Elias P, J
[2006] UKEAT 0479 – 06 – 2112, UKEAT/0479/06
England and Wales
Updated: 02 June 2022; Ref: scu.248313
Brief Order.
Mummey LJ, Smith LJ, Leveson LJ
[2006] EWCA Civ 1858
England and Wales
See Also – Burlo v Langley and Carter CA 21-Dec-2006
The claimant had been employed by the defendants as a nanny. She threatened to leave, but then was injured in a car acident and given a sick note. The employer immediately engaged someone else. She was found to have been unfairly dismissed. The . .
Cited – Hilti (Great Britain) Ltd v Windridge EAT 1974
EAT The employer appealed against the tribunal’s decision to make an award to compensate the respondent for the loss of entitlement to an extended statutory notice period.
Held: The award was upheld. Lord . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 June 2022; Ref: scu.249097
EAT Sex Discrimination
Equal Pay – Like work
Female train drivers made a claim under S1 of the Equal Pay Act 1970. The Claimants were in a group known as ‘Metro Operators’ and claimed parity of pay for like work with another group of train drivers. The majority of both groups were overwhelmingly male. The claims were based on indirect discrimination. It was said that because the proportion of those women in both groups together who were in the disadvantaged group was higher than the corresponding proportion of men, the pay differential had a disparate adverse effect on women and was thus ‘tainted by sex’. Accordingly the Respondent was bound to provide objective justification for the disparity under S1(3). The Employment Tribunal accepted this case, although it could find no provision criterion or practice that led to the disparity. It went on to reject the Respondent’s defence of objective justification.
The EAT allowed the appeal on several grounds. The principal ground was that the ET had misdirected itself as a matter of law in finding that there was a prima facie case that the pay disparity was tainted by sex regardless of the fact that the overwhelming majority of those in the disadvantaged group were male. The EAT held that in an equal pay claim by women based upon indirect discrimination, in the absence of some provision criterion or practice that might lead to a disparate impact on women, it was necessary for there to be at least a bare majority of women in the disadvantaged group. Even if a bare majority was not required the proportion of women in the disadvantaged group had to be substantial and approaching a majority; a percentage as in the present case of 15% or 8%, depending on how one constructed the pool, was quite insufficient.
Secondly the EAT held that the ET fell into error in constructing a pool of the disadvantaged that included women who were not found to be doing equal work with the comparators in the advantaged pool. The disadvantaged pool should only comprise those employees who were found to be doing like work with the better paid comparators.
Thirdly the EAT found that the ET had failed to have regard to material evidence which pointed conclusively in favour of objective justification for the pay disparity.
Serota QC J
[2006] UKEAT 0627 – 05 – 2112
England and Wales
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 . .
See Also – Tyne and Wear Passenger Transport Executive (Trading As Nexus) v Ms M Best and others, Ms A Fulton EAT 11-Jul-2006
EAT Sex Discrimination – (no sub-topic). . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 June 2022; Ref: scu.247877
EAT Unfair dismissal – Dismissal/ambiguous resignation
The Claimant was told she was to be dismissed at a disciplinary hearing. The letter confirming that decision stated that ‘you are due to be summarily dismissed.’ The EAT held that the letter was a summary dismissal. Pragmatically the ET could have allowed the matter to proceed by allowing an ET1 to be filed out of time. It would have been helpful if the ET had indicated its view as to the merits of the case if the dismissal was found to be unfair.
His Honour Judge Pugsley
[2006] UKEAT 0374 – 06 – 2112, UKEAT/0374/06
England and Wales
Updated: 02 June 2022; Ref: scu.247872
EAT Sex Discrimination – Equal Treatment Directive
Discrimination – burden of proof – whether ET’s reasoning adequate – decision upheld on one issue, case remitted to ET on the other.
The Honourable Mr Justice Bean
[2006] UKEAT 0082 – 06 – 2807, UKEAT/0082/06
England and Wales
Updated: 02 June 2022; Ref: scu.247785
EAT Unfair Dismissal – Constructive dismissal
Constructive dismissal case – Appeal based on alleged non-compliance by employee with s.32 (2) of 2002 Act by reason of failure to lodge a grievance in relation to the matters relied on as entitling him to resign – Appeal dismissed because (1) grievance held, on its true construction, to be adequate to cover the matters in question; and (2) employer had not raised the issue of non-compliance in accordance with s. 32 (6) (b).
[2006] UKEAT 0381 – 06 – 2112
England and Wales
See Also – Dmc Business Machines Plc v T Plummer EAT 13-Oct-2006
EAT Unfair Dismissal – Constructive dismissal. . .
Cited – Shergold v Fieldway Medical Centre EAT 5-Dec-2005
The claimant had submitted a grievance complaining in general terms of the way in which she had been treated by a manager. She did not, however, refer to a particular incident relied on in her pleading as one of the two ‘last straw’ incidents that . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 June 2022; Ref: scu.247867
[1997] UKEAT 241 – 97 – 1211
England and Wales
Updated: 02 June 2022; Ref: scu.207887
[1997] UKEAT 196 – 97 – 1211
England and Wales
Updated: 02 June 2022; Ref: scu.207962
Appeal from refusal of claim for constructive dismissal
[1997] UKEAT 633 – 97 – 1211
England and Wales
Updated: 02 June 2022; Ref: scu.207888
The claimant’s case had come before the Employment Appeal Tribunal. Before the hearing he was asked to sign a consent to the tribunal sitting as chairman and one assessor. She was not told that the assessor would be an employer. When she discovered this she withdrew her consent but the appeal went ahead.
Held: The consent to the appeal had not been an informed consent. Accordingly there had been no determination. The importance of maintaining the balance of a tribunal was recognised in the statute.
Peter Gibson, Waller, Carnwath LJJ
Times 11-Nov-2003
Employment Appaels Tribunals Act 1996 28(2) 28(3)
England and Wales
Updated: 02 June 2022; Ref: scu.187940
[1996] UKEAT 1247 – 95 – 2404
England and Wales
Updated: 02 June 2022; Ref: scu.208318
[1998] UKEAT 971 – 98 – 0111
England and Wales
Updated: 02 June 2022; Ref: scu.206867
[1999] UKEAT 804 – 99 – 1607
England and Wales
Updated: 02 June 2022; Ref: scu.205468
Lord Hamilton
[2001] ScotCS 145
Scotland
Updated: 02 June 2022; Ref: scu.170367
Definition of sickness insurance by virtue of legal or statutory provisions.
T-92/91, [1993] EUECJ T-92/91
European
Updated: 02 June 2022; Ref: scu.172536
1. The third indent of Article 6(1) of Decision No 1/80 of the EEC-Turkey Council of Association must be interpreted as meaning that a Turkish worker does not fulfil the requirement, laid down in that provision, of having been engaged in legal employment for at least four years, where he was employed on the basis of a right of residence conferred on him only by the operation of national legislation permitting residence in the host country pending completion of the procedure for the grant of a residence permit, even though his right of residence has been upheld by a judgment of a court at first instance against which an appeal is pending. 2. The first indent of Article 6(1) of Decision No 1/80 of the EEC-Turkey Council of Association must be interpreted as meaning that a Turkish national who obtained a permit to reside on the territory of a Member State in order to marry there a national of that Member State and has worked there for more than one year for the same employer under a valid work permit is entitled under that provision to renewal of his work permit even if at the time of determination of his application his marriage has been dissolved. 3. A Turkish worker who fulfils the requirements of the first or third indent of Article 6(1) of Decision No 1/80 of the EEC-Turkey Council of Association may rely directly on those provisions in order to obtain the renewal not only of his work permit but also of his residence permit, since the right of residence is indispensable to access to and engagement in paid employment. That conclusion cannot be invalidated by the consideration that, pursuant to Article 6(3) of Decision No 1/80, the procedures for applying paragraph (1) are to be established under national rules. Article 6(3) merely clarifies the obligation incumbent on Member States to take such administrative measures as may be necessary for the implementation of that provision, without empowering them to make conditional or restrict the application of the precise and unconditional right which it grants to Turkish workers.
C-237/91, [1992] EUECJ C-237/91
Updated: 01 June 2022; Ref: scu.160781
Europa Article 1(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, businesses or parts of businesses is to be interpreted as meaning that the directive may apply in a situation in which one businessman, by a contract, assigns to another businessman responsibility for running a facility for staff, which was formerly managed directly, in return for a fee and various advantages, details of which are laid down by the agreement between them.
Article 3 of Directive 77/187 is to be interpreted as meaning that that upon a transfer the terms and conditions of the contract of employment or employment relationship relating to wages, in particular those relating to the date of payment and the composition of wages, cannot be altered even if the total amount of the wages remains the same. The directive does not, however, preclude an alteration of the employment relationship with the new employer in so far as the applicable national law allows such an alteration to be made in situations other than the transfer of an undertaking. Furthermore, the transferee is also bound to continue to observe the terms and conditions of employment agreed in any collective agreement on the same terms applicable to the transferor under that agreement, until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.
C-209/91, [1992] EUECJ C-209/91, [1992] ECR I-5755
Cited – Wilson and Others v St Helens Borough Council; Meade and Another v British Fuels Ltd HL 29-Oct-1998
The House faced two questions regarding the protection given by the Regulations: ‘whether the dismissed employee can compel the transferee to employ him or whether he is given the right to enforce as against the transferee such remedies under . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 June 2022; Ref: scu.160760
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 precluding an employee of the transferor on the date of the transfer of the undertaking, within the meaning of Article 1(1) of the directive, from objecting to the transfer of his contract of employment or employment relationship to the transferee. The directive does not, however, require Member States to provide that, in the event of the employee deciding of his own accord not to continue with the contract of employment or employment relationship with the transferee, the contract or relationship should be maintained with the transferor. Neither does the directive preclude this. In such a case, it is for the Member States to determine what the fate of the contract of employment or employment relationship with the transferor should be.
The expression ‘laws, regulations or administrative provisions’ within the meaning of Article 7 of Council 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 must be understood as meaning the laws, regulations or administrative provisions of a Member State as they are interpreted by the courts of that State.
The claimant employees objected to becoming employees of the transferee, an attitude which the transferor (who then dismissed them) argued was not open to them in the light of the Directive.
Held: The Directive did not have the purpose or effect of compulsorily transferring an employee’s employment contract or relationship against his or her will, but that, in such a case, it was for the law of the relevant Member State to determine whether the contract or relationship was to be regarded as terminated by the transferor or transferee or to be maintained with the transferor.
C-132/91, [1992] EUECJ C-132/91, [1992] ECR I – 6577, [1993] IRLR 179, C-138/91, C-139/91
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 . .
Cited – Senior Heat Treatment Ltd v Bell and others EAT 20-Jun-1997
The employer appealed a finding as to the period of continuous employment of the claimants. Before a transfer of the undertaking to the employer, the former emloyer had paid redundancy payments to several employees, some whom in practice left to . .
Cited – Wilson and Others v St Helens Borough Council; Meade and Another v British Fuels Ltd HL 29-Oct-1998
The House faced two questions regarding the protection given by the Regulations: ‘whether the dismissed employee can compel the transferee to employ him or whether he is given the right to enforce as against the transferee such remedies under . .
Cited – 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 . .
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.
Updated: 01 June 2022; Ref: scu.160708
Europa Article 1(1) of Council 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, businesses or parts of businesses is to be interpreted as meaning that the expression ‘legal transfer’ covers a situation in which a public authority decides to terminate the subsidy paid to one legal person, as a result of which the activities of that legal person are fully and definitively terminated, and to transfer it to another legal person with a similar aim.
The expression ‘transfer of an undertaking, business or part of a business’ contained in Article 1(1) of Directive 77/187 refers to the case in which the entity in question has retained its identity. In order to ascertain whether or not there has been such a transfer, it is necessary to determine, having regard to all the factual circumstances characterizing the operation in question, whether the functions performed are in fact carried out or resumed by the new legal person with the same or similar activities, it being understood that activities of a special nature which constitute independent functions may, where appropriate, be equated with a business or part of a business within the meaning of the directive.
C-29/91, [1992] ECR I-3189, [1992] EUECJ C-29/91
Cited – Alderson and others v Secretary of State for Trade and Industry CA 8-Dec-2003
The claimant had been employed in a government department, the work of which was transferred to a private company. He sought to claim compensation for the adverse changes in his contract.
Held: At the time, the Regulations gave protection only . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 June 2022; Ref: scu.160643
(Judgment) (Rec 1991,p I-5799) 1. Article 13(2)(a) of Regulation No 1408/71, which is designed to resolve conflicts of legislation which may arise where, over the same period, the place of residence and the place of employment are not situated in the same Member State, does not apply in the case of an employed person who, after definitively ceasing all occupational activity, receives an early-retirement pension and resides in a Member State other than the one in which he was last employed. For that reason Article 73 of Regulation No 1408/71 is also not applicable to such a person, with the result that the residence conditions governing the grant of family benefits contained in the legislation of the Member State in which he was last employed may be relied on as against him, and the fact that he continues to be compulsorily insured under one of the branches of the national social security scheme has no effect on this situation.
2. The scope of an action brought under Article 169 of the Treaty is delimited both by the preliminary administrative procedure provided for by that article and by the form of order sought in the application. The scope of the action cannot be extended after the issue of the reasoned opinion, since the application and the reasoned opinion must be founded on the same grounds and submissions.
[1991] EUECJ C-198/90, [1991] ECR I-5799
European
Updated: 01 June 2022; Ref: scu.160515