Category: Employment

High Table Limited v Horst, Jowett and and Burley: CA 1 Jul 1997

The place where an employee was employed for the purposes of the employer’s business was to be determined by a consideration of the factual circumstances which obtained until the dismissal. Where an employee had worked in only one location under his contract of employment for the purposes of the employer’s business then it defied common sense to widen the extent of the place where he was so employed mainly because of the existence of a mobility clause: ‘If the work of the employee for his employer has involved the change of location, as would be the place where the nature of the work required the employee to go from place to place, then the contract of employment may be helpful to determine the extent of the place where the employee was employed. But it cannot be right to let the contract be the sole determinate regardless of where the employee actually worked for the employer’.
In addressing the questions it has to determine, an ET is not obliged to resolve (or address in its Judgment) every issue of fact or law put before it by a party.

Judges:

Evans, Peter Gibson, Hobhouse LJJ

Citations:

Times 09-Jul-1997, Gazette 16-Jul-1997, [1997] EWCA Civ 2000, [1997] IRLR 513, [1998] ICR 409

Links:

Bailii

Statutes:

Employment Protection (Consolidation) Act 1978 81(2)

Jurisdiction:

England and Wales

Citing:

See Also – Horst and others v High Table Ltd EAT 23-May-1994
. .
Appeal from – Horst and others v High Table Ltd EAT 23-Apr-1996
. .
Cited – Meek v City of Birmingham District Council CA 18-Feb-1987
Employment Tribunals to Provide Sufficient Reasons
Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 29 May 2022; Ref: scu.142397

Sheikholeslami v The University of Edinburgh: EAT 5 Oct 2018

Reasonable Adjustments : Sex Discrimination : Victimisation Discrimination – The Employment Tribunal erred in its approach to both the reasonable adjustment and discrimination arising from disability claims. There were other errors by the Tribunal which failed to deal with a number of aspects of the Claimant’s claims of unlawful sex discrimination and victimisation.

Citations:

[2018] UKEAT 0014 – 17 – 0510

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 May 2022; Ref: scu.625455

North East London NHS Foundation Trust v Zhou: EAT 5 Jul 2018

Jurisdictional Points – Claim In Time and Effective Date of Termination
JURISDICTIONAL POINTS – Extension of time: reasonably practicable
The Claimant had instructed her solicitors to lodge her ET claims of whistleblowing detriment and unfair dismissal but, to save costs, had agreed she would complete the formal parts of the form ET1 herself. In so doing, the Claimant failed to transcribe the ACAS Early Conciliation (‘EC’) certificate number correctly (missing off the last forward slash and final two digits) and her solicitors failed to spot this error before they submitted the claim on the last day of the relevant limitation period. The Claimant’s ET claim was duly rejected and the Claimant’s solicitors re-submitted the claim – this time with the correct EC number – within a day of receiving the ET’s notification of rejection. That, however, was outside the limitation period. Upon considering whether it had jurisdiction to determine the Claimant’s claims, the ET held that the claim was initially correctly rejected because it did not contain the right EC number and the re-submitted claim was out of time. Applying Adams v BT plc [2017] ICR 382, however, that did not necessarily mean it had been reasonably practicable for the re-submitted, corrected claim to have been presented in time. The Claimant and her solicitors had both believed that a properly constituted claim had been presented in time, albeit that belief was mistaken. The Claimant’s belief arose from her confidence in her solicitors; her solicitors’ belief arose because they had failed to spot the error in the EC certificate number. Although the solicitors were at fault, that did not necessarily mean their conduct was unreasonable. Seeing this case as akin to Adams v BT, the ET concluded that, on this point, it would have ‘little difficulty in resolving the issue of reasonable practicability in favour of the Claimant’. So doing, the ET concluded that the ET1 had been re-submitted within a reasonable period once the Claimant and her solicitors became aware of the error and that it therefore had jurisdiction to hear the claim. The Respondent appealed.
Held: allowing the appeal in part
The Claimant had believed she had lodged a properly constituted claim in time because she had confidence in her professional advisers. If those advisers had unreasonably failed to lodge a properly constituted claim in time, however, then the application of the Dedman principle (see Dedman v British Building and Engineering Appliances Ltd [1973] IRLR 379 CA) would mean that the Claimant would not be entitled to simply rely on her confidence in what they had done; she would be bound by their unreasonable conduct. The question then became whether the Claimant’s solicitors had acted reasonably. The ET found that they were ‘unquestionably at fault in failing to check the ET1 thoroughly’ but did not conclude that this automatically meant that their conduct was unreasonable. That was a permissible view given the facts of the case; in particular, the Claimant having undertaken to complete the ET1 form herself to save expense. That said, it could not be assumed that the case was on all fours with Adams, given that the question of the application of the Dedman principle had not been raised in that case. The ET had therefore needed to demonstrate that it had engaged with the question whether the Claimant’s solicitors had acted reasonably. As it was not possible to see that it had answered that question, the appeal would be allowed on this basis and this issue remitted to the same ET for determination.

Citations:

[2018] UKEAT 0066 – 18 – 0507

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 May 2022; Ref: scu.625448

The Color Company Distribution Ltd v Blake: EAT 8 Aug 2018

Practice and Procedure – Amendment
The Employment Tribunal erred in failing properly to consider whether the Claimant below (the Respondent to the appeal) had included an allegation that he was subjected to unjustified direct age discrimination in relation to pay in his ET1 claim form, and, if not, whether to exercise its judicial discretion to allow an amendment.
On the Claimant accepting that the claim form and narrative attached had not referred to an age discrimination pay complaint; the issue is remitted back to the Tribunal to consider whether to grant the Claimant’s application for an amendment to enable the pay complaint to be considered.
Whilst there is no loss of confidence in the professionalism of the original Tribunal, given that the Full Merits Hearing is listed for hearing in December this year, the case is remitted to a differently constituted Tribunal for simplicity of listing, to minimise delay and avoid the risk of postponement of the substantive hearing.

Citations:

[2018] UKEAT 0161 – 18 – 0808

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 May 2022; Ref: scu.625450

Sattar v Citibank Na, Citigroup Inc: EAT 4 Oct 2018

Unfair Dismissal – Reasonableness of Dismissal – DISABILITY DISCRIMINATION – Reasonable adjustments – An Employment Tribunal was entitled to make findings as to the reasonableness of an investigation and subsequent disciplinary process, and as to the effect the Claimant’s admitted disability had upon that process, including whether PCPs applied resulted in the Claimant being placed at a substantial disadvantage in comparison with persons who were not disabled. Its conclusions that the Claimant’s claims of disability discrimination and unfair dismissal should fail and be dismissed were permissible on the evidence before it.

Citations:

[2018] UKEAT 0336 – 16 – 0410

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 May 2022; Ref: scu.625454

Nicholls (The BMA Appellants) and Another v London Borough of Croydon and Others: EAT 23 Aug 2018

Transfer of Undertakings – Acquired Rights Directive
TRANSFER OF UNDERTAKINGS – Transfer
The Employment Tribunal decided that there was no relevant transfer for the purposes of the TUPE Regulations because the case fell within regulation 3(5). The Tribunal rightly rejected arguments that: (a) the transferred public health team’s activity of purchasing or commissioning health services was in itself an economic activity for the purposes of regulation 3(2); and (b) regulation 3(5), if otherwise applicable, did not apply because the transferring entity, a Primary Care Trust, carried on some economic activities.
However, the Employment Tribunal found that all, or almost all, of the work done by the public health team could be, and in fact was, offered by non-state actors operating in the same market. That was a strong indication that the public health team was carrying on an economic activity.
Having made that finding, the Employment Tribunal either failed to give adequate reasons for its conclusion or was wrong, if and insofar it concluded that it was a sufficient reason for reaching that conclusion that the public health team did not bid for contracts and was not trying to obtain business.
The Employment Tribunal was also wrong to conclude that, if there was a relevant transfer, the Claimants’ employment was not transferred pursuant to regulation 4(1) of the TUPE Regulations and they were not entitled to rely on regulation 4(4).

Citations:

[2018] UKEAT 0003 – 18 – 2308

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 May 2022; Ref: scu.625451

Majrowski v Guy’s and St Thomas’ NHS Trust: CA 16 Mar 2005

The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The issue is whether an employer may be vicariously liable under section 3 of the the 1997 Act for harassment in breach of section 1 of the Act committed by one of its employees in the course of his or her employment. It might. Section 3 created a new right for damages including for anxiety falling short of injury to health.
Vicarious liability is legal responsibility imposed on an employer, although he is himself free from blame for a tort committed by his employee in the course of his employment. It has two forms: ‘first liability for an authorised or negligently permitted unlawful act of an employee in the course of employment; and second, liability for an employee’s unauthorised or not negligently permitted unlawful mode of doing an authorised act in the course of employment. ‘ The second mode is qualified by the requirement that the wrongful act must be so closely connected with as to be regarded as a mode however improper of doing it. The courts are freed from the tight, but not always readily applicable, traditional test of ‘in the course of employment’, and applies a ‘test of fairness and justice, turning, in the circumstances of each case, on the sufficiency of the connection between the breach of duty and the employment and/or whether the risk of such breach was one reasonably incidental to it.’ and ‘it is now clear that, in general, an employer may be vicariously liable for a breach of statutory duty imposed, on his employee, though not on him, if it meets the new broader test.’
‘an employed person may have a valid cause of action at common law for victimisation and/or harassment against his employer, as may a third party who is not a fellow employee: 1) by establishing primary liability under the contract of employment and/or under common law principles of negligence for the employer’s failure to protect him against victimisation and/or harassment causing him physical or psychiatric injury. ‘
While stalking may have been the prime mischief at which the 1997 Act was aimed, it was not the only one. The conduct was described in section 7 by reference to its consequences, not by reference to its nature.
‘The thrust of the Act is plain, namely to protect individuals from a course of conduct amounting to harassment, regardless of who causes it. It is not, as Mr Platt suggested, an apt example of ‘What is sauce for the legislative goose should be sauce for interpretative gander’. Why? What possible dictate of policy or logic should protect an employer, whether corporate or not, from primary or secondary liability for the mischief of harassment of individuals at which the 1997 Act is directed?’ An employer may be vicariously liable in civil proceedings for his employee’s unauthorised criminal conduct, even though it could not be vicariously guilty of it in criminal proceedings.
‘ the existence of vicarious liability for any common law or statutory wrong depends on whether, on the facts of the case, it is, by reference to the criteria of ‘close connection’ and/or ‘reasonably incidental risk’, ‘just and reasonable’ to hold the employer vicariously liable. And, for this purpose, the facts of the case have to be looked at in the context of the statute creating the civil offence. Therein lies the court’s control over any attempt at inappropriate extension of the Act to circumstances and fields of activity in which the imposition of vicarious liability would not be ‘just and reasonable’, not the imposition by the courts of a blanket exclusion of vicarious liability in respect of breaches of it regardless of their factual context ‘
May LJ set out the meaning of ‘harassment’: ‘The Act does not attempt to define the type of conduct that is capable of constituting harassment. ‘Harassment’ is, however, a word which has a meaning which is generally understood. It describes conduct targeted at an individual which is calculated to produce the consequences described in s.7 and which is oppressive and unreasonable . . Thus, in my view, although s.7 subsection 2 provides that harassing a person includes causing the person distress, the fact that a person suffers distress is not by itself enough to show that the cause of the distress was harassment. The conduct has also to be calculated, in an objective sense, to cause distress and has to be oppressive and unreasonable. It has to be conduct which the perpetrator knows or ought to know amounts to harassment, and conduct which a reasonable person would think amounted to harassment. What amounts to harassment is, as Lord Phillips said, generally understood.’
Lord Justice Scott Baker (dissenting) :’what is forbidden is a course of conduct rather than a single act. Also, intention is not relevant; the test whether a particular course of conduct amounts to harassment is objective. There are limited exceptions for conduct that could otherwise be described as harassment. The focus of the Act is on the effect of the harassment on the victim. The reaction of the victim is obviously important and this is something that is likely to be peculiarly within the knowledge of the harasser at whose continuing conduct the Act is aimed. ‘ and
‘The 1997 Act is concerned with the effect of harassment on the mind of the victim. Any anxiety caused by the harassment qualifies for an award of damages. This is in sharp distinction to stress at work claims where the threshold for an award is identifiable psychiatric injury, which has to be foreseeable injury following from a breach of duty on the part of the employer. Statutory claims for harassment and common law claims for stress at work will often overlap, but a statutory claim will be much easier for a claimant to establish. ‘
‘the 1997 Act creates a statutory liability that does not overlap with common law negligence as for example the Occupiers Liability Act 1957. Nor is it directed to an employment situation as for example the health and safety legislation. It is aimed at unconscionable behaviour essentially by one individual to another. I regard the statutory duty as personal in nature and not one in which, in the event that the prohibited conduct happens to occur in the workplace, the employer is to be treated as standing in the shoes of an employee perpetrator. ‘

Judges:

Auld, May, Scott-Baker LJ

Citations:

Times 21-Mar-2005, [2005] EWCA Civ 251, [2005] QB 848, [2005] ICR 977, [2005] 2 WLR 1503, [2005] IRLR 340

Links:

Bailii

Statutes:

Protection from Harassment Act 1997 1 3

Jurisdiction:

England and Wales

Citing:

Cited – Imperial Chemical Industries Ltd v Shatwell HL 6-Jul-1964
The respondent was employed as a shot firer in a quarry, and was to test the electric wiring connecting explosive charges. Contrary to instructions that testing must be done from a shelter, the respondent and another shot firer carried out a test in . .
Cited – Thomas v News Group Newspapers Ltd and Simon Hughes CA 18-Jul-2001
A civilian police worker had reported officers for racist remarks. The newspaper repeatedly printed articles and encouraged correspondence which was racially motivated, to the acute distress of the complainant.
Held: Repeated newspaper stories . .
Cited – Sharma v Wells and Medico-Legal Investigations Ltd QBD 2003
The court struck out a claim for damages against an employer for harassment under the 1997 Act. . .
Cited – Percy v Corporation of Glasgow HL 1922
A pursuer’s averment, in what appeared to be a claim at common law arising out an alleged breach by employees of a Scottish corporation’s bye-laws and regulations, should be allowed to proceed to trial. . .
Cited – Harrison v National Coal Board HL 1951
The plaintiff sought damages from his employer after suffering injury when a co-worker fired a shot in the colliery, acting in breach of the regulations.
Held: There was no vicarious liability duty in law on the managers to ensure compliance . .
Cited – Nicol v National Coal Board SCS 1952
The court considered a claim against his employer after the plaintiff suffered injury after a breach of safety regulations by a co-worker.
Held: Referring to Harrison v NCB: ‘It appears to me that that principle disposes of the argument . .
Cited – Matuszczyk v National Coal Board 1953
The pursuer sought damages at common law after being injured by a shot-firing by a co-worker. The pursuer based his case on duties said to be owed to him by the shot-firer at common law. The defenders’ argument was that these duties had been . .
Cited – Dubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Cited – Director of Public Prosecutions v Dziurzynski QBD 28-Jun-2002
The defendant was an animal rights protester who had been accused under the Act of harassing the company and its employees.
Held: The act was intended to be used to protect individuals, and not companies. Two incidents were alleged, but no . .
Cited – Imperial Chemical Industries Ltd v Shatwell HL 6-Jul-1964
The respondent was employed as a shot firer in a quarry, and was to test the electric wiring connecting explosive charges. Contrary to instructions that testing must be done from a shelter, the respondent and another shot firer carried out a test in . .
Cited – Lister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
Cited – National Coal Board v England HL 1954
The plaintiff sought damages after being injured when a co-worker fired a shot. The employee however had himself coupled the detonator to the cable rather than leaving it to the shotfirer, and had his cimmitted a criminal offence. He had been found . .
Not Followed – Darling Island Stevedoring and Lighterage Co v Long 1957
(High Court of Australia) An employer was not responsible vicariously for a breach of a duty at common law between one emplyee and another. There could be no vicarious liability on an employer under regulations providing precautions to be observed . .
Cited – Canadian Pacific Railway Co v Lockhart PC 1941
When considering the imposition of vicarious liability, ‘the first consideration is the ascertainment of what the servant is employed to do.’ (Lord Thankerton) and ‘It is clear that the master is responsible for acts actually authorised by him: for . .
Cited – Racz v Home Office HL 17-Dec-1993
The Home Office can be liable for the actions of prison officers which amounted to an official misfeasance. The principles of vicarious liability apply as much to misfeasance in public office as to other torts involving malice, knowledge or . .
Cited – Jacobi v Griffiths 17-Jun-1999
(Canadian Supreme Court) The process for determining when a non-authorised act by an employee is so connected to the employer’s enterprise that liability should be imposed involved two steps: 1. Firstly a court should determine whether there are . .
Cited – Bazley v Curry 17-Jun-1999
(Canadian Supreme Court) The court considerd the doctrine of vicarious liability: ‘The policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be . .
Cited – Mattis v Pollock (T/A Flamingo’s Nightclub) QBD 24-Oct-2002
The claimant sought damages after being assaulted by a doorman employed by the defendant.
Held: The responsibility of the nightclub owner for the actions of his aggressive doorman was not extinguished by the separation in time and place from . .
Cited – Bernard v The Attorney General of Jamaica PC 7-Oct-2004
PC (Jamaica) The claimant had been queuing for some time to make an overseas phone call at the Post Office. Eventually his turn came, he picked up the phone and dialled. Suddenly a man intervened, announced . .
Cited – Waters v Commissioner of Police for the Metropolis HL 27-Jul-2000
A policewoman, having made a complaint of serious sexual assault against a fellow officer complained again that the Commissioner had failed to protect her against retaliatory assaults. Her claim was struck out, but restored on appeal.
Held: . .
Cited – Daiichi UK Ltd and others v Stop Huntingdon Animal Cruelty and Others; Asahi Glass UK ltd and others v Same; Eisaai Ltd v Same; Yam,anouchi Pharma UK Ltd and others v Same; Sankyo Pharma UK Ltd and others v Same QBD 13-Oct-2003
The claimants sought injunctions and orders under the act against the respondent in respect of acts of harrassment intended variously to dissuade the companies form engaging in activities disapproved by the respondents.
Held: The Act was not . .
Cited – Dyer v Munday; Morris v Martin CA 1895
The defendant, a hire purchase furniture dealer, sent his manager to recover back some furniture hired to X and upon which several instalments were unpaid. X had pledged the furniture to his landlord as security for his rent, and the landlord’s wife . .
Cited – Wong v Parkside Health NHS Trust and Another CA 16-Nov-2001
The claimant had sued her former employer for post-traumatic stress resulting from alleged harassment at her place of work. The claimant appealed against an order refusing damages. The court had held that outside the 1997 Act which was not in force . .
Cited – Meridian Global Funds Management Asia Ltd v Securities Commission PC 26-Jun-1995
(New Zealand) The New Zealand statute required a holder of specified investments to give notice of its holding to a regulator as soon as it became aware of its holding. Unbeknown to any others in the company apart from one colleague, its chief . .
Cited – Lister v Romford Ice and Cold Storage Co Ltd HL 1957
An employer may be civilly responsible for his employee’s breach even though it constitutes a crime, and a skilled employee in general owed a contractual duty of reasonable care to his employer in the performance of his employment. In determining . .
Cited – Tesco Supermarkets Ltd v Nattrass HL 31-Mar-1971
Identification of Company’s Directing Mind
In a prosecution under the 1968 Act, the court discussed how to identify the directing mind and will of a company, and whether employees remained liable when proper instructions had been given to those in charge of a local store.
Held: ‘In the . .
Cited – Veness v Dyson Bell and Co 25-May-1965
The claimant sought damages against her employer saying they had failed to meet their duty of care to prevent bullying.
Held: The court refused to strike out the claim that ‘[the plaintiff] was so bullied and belittled by her colleagues that . .
Cited – Rose v Plenty CA 7-Jul-1975
Contrary to his employers orders, a milkman allowed children to assist him in his milkround. One was injured, and sued the milkman’s employer.
Held: The milkman had not gone so far outside the activities for which he was employed for the . .
Cited – Hartman v South Essex Mental Health and Community Care NHS Trust etc CA 19-Jan-2005
The court considered the liability of employers for stress injury to several employees.
Held: Though the principles of awarding damages for stress related psychiatric injury are the same as those for physical injury, the issues have still . .
Cited – Ilkiw v Samuels CA 1963
The plaintiff was injured by the careless manouvering of a lorry by the defendant’s employee.
Held: When considering the vicarious liability of an employer, the proper approach to the nature of the servant’s employment is a broad one. . .
Cited – Tower Boot Company Limited v Jones CA 11-Dec-1996
An employer’s liability for racial abuse by its employees is wider than its liability under the rules of vicarious liability. The statute created new obligations. Sex and race discrimination legislation seeks to eradicate the ‘very great evil’ of . .
Cited – Petch v Customs and Excise Commissioners CA 29-Mar-1993
A former employer has no duty of care regarding the accuracy of information provided to the trustees of a pension fund regarding the work record of that employee. . .

Cited by:

Appeal from – Majrowski v Guy’s and St Thomas’ NHS Trust HL 12-Jul-2006
Employer can be liable for Managers Harassment
The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .
Cited – Helen Green v DB Group Services (UK) Ltd QBD 1-Aug-2006
The claimant sought damages from her former employers, asserting that workplace bullying and harassment had caused injury to her health. She had had a long term history of depression after being abused as a child, and the evidence was conflicting, . .
Cited – Rayment v Ministry of Defence QBD 18-Feb-2010
The claimant sought damages alleging harassment by officers employed by the defendant. An internal investigation had revealed considerable poor behaviour by the senior officers, and that was followed by hostile behaviour. The defendant had put up . .
Cited – Woodland v The Swimming Teachers’ Association and Others QBD 17-Oct-2011
The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .
Cited – Woodland v Essex County Council CA 9-Mar-2012
The claimant had been injured in a swimming pool during a lesson. The lesson was conducted by outside independent contractors. The claimant appealed against a finding that his argument that they had a non-delegable duty of care was bound to fail. . .
Cited – Gerrard and Another v Eurasian Natural Resources Corporation Ltd and Another QBD 27-Nov-2020
The claimants, a solicitor and his wife, sought damages in harassment and data protection, against a party to proceedings in which he was acting professionally, and against the investigative firm instructed by them. The defendants now requested the . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Vicarious Liability, Employment

Updated: 29 May 2022; Ref: scu.223580

Hennessy v Craigmyle and Co Ltd: CA 1986

Sir John Donaldson MR said: ‘It is too often forgotten that, in the context of appeals from the Employment Appeal Tribunal, the Court of Appeal is a second tier of the appellate court . . second tier appellate courts are primarily concerned with the correctness of the trial court’s decision.’

Judges:

Sir John Donaldson MR

Citations:

[1986] ICR 461

Jurisdiction:

England and Wales

Cited by:

Cited – Vento v The Chief Constable of West Yorkshire Police (No 2) CA 20-Dec-2002
The claimant had been awarded damages for sex discrimination, including a sum of andpound;25,000 for injury to feelings. The respondent appealed.
Held: The Court of Appeal looked to see whether there had been an error of law in the employment . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 29 May 2022; Ref: scu.180048

Regina v Worcester County Council Secretary of State for Department of Health ex parte S W: Admn 2 Oct 2000

The court considered the lawfulness of a non-statutory list of people who might not be employed to work with children, the Consultancy Service Index.

Citations:

[2000] EWHC Admin 392, [2000] HRLR 702

Links:

Bailii

Citing:

Cited – Entick v Carrington KBD 1765
The Property of Every Man is Sacred
The King’s Messengers entered the plaintiff’s house and seized his papers under a warrant issued by the Secretary of State, a government minister.
Held: The common law does not recognise interests of state as a justification for allowing what . .

Cited by:

Cited – Wright and Others, Regina (on the Application of) v Secretary of State for Health Secretary of State for Education and Skills Admn 16-Nov-2006
The various applicants sought judicial review of the operation of the Protection of Vulnerable Adults List insofar as they had been placed provisionally on the list, preventing them from finding work. One complaint was that the list had operated . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Employment

Updated: 29 May 2022; Ref: scu.140207

Naeem v Bank of Credit and Commerce: Admn 19 Apr 2000

Citations:

[2000] EWHC Admin 335

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appealed to – Naeem v Bank of Credit and Commerce International Sa CA 25-May-2000
An employee entered into a compromise agreement having lost his employment. He was later sued by his employer but counterclaimed for stigma damages against the employer. It was held that the release could not bind the employee in respect of matters . .

Cited by:

Appeal from – Naeem v Bank of Credit and Commerce International Sa CA 25-May-2000
An employee entered into a compromise agreement having lost his employment. He was later sued by his employer but counterclaimed for stigma damages against the employer. It was held that the release could not bind the employee in respect of matters . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 29 May 2022; Ref: scu.140150

Mark Wilkinson Furniture Limited and Construction Industry Training Board: Admn 12 Jan 2000

Citations:

[2000] EWHC Admin 280

Links:

Bailii

Citing:

See also – Mark Wilkinson Furniture Ltd v Construction Industry Training Board QBD 10-Oct-2000
The operation of installing kitchens could amount to work altering a building. Accordingly firms carrying out such installations were liable to pay a levy as a contribution to the industry’s training scheme. Although in many cases fittings might . .

Cited by:

See Also – Mark Wilkinson Furniture Ltd v Construction Industry Training Board QBD 10-Oct-2000
The operation of installing kitchens could amount to work altering a building. Accordingly firms carrying out such installations were liable to pay a levy as a contribution to the industry’s training scheme. Although in many cases fittings might . .
Lists of cited by and citing cases may be incomplete.

Construction, Employment

Updated: 29 May 2022; Ref: scu.140093

Juric v Look Ahead Care Support and Housing: EAT 29 Oct 2018

Contract of Employment : Sick Pay and Holiday Pay
CONTRACT OF EMPLOYMENT – Damages for breach of contract
UNFAIR DISMISSAL – Reasonableness of dismissal
UNFAIR DISMISSAL – Procedural fairness/automatically unfair dismissal
WORKING TIME REGULATIONS – Holiday pay
VICTIMISATION DISCRIMINATION – Dismissal
The Appeal Tribunal dismissed an appeal against conclusions that the Appellant had not been dismissed by reason of a protected disclosure, and had not been unfairly dismissed. The Appeal Tribunal also dismissed an appeal against the Tribunal’s decision on the amount of holiday pay owing to the Appellant at the time of her dismissal.
On the protected disclosure dismissal claim, the Appeal Tribunal concluded that although the Employment Tribunal (‘ET’) had misdirected itself on the burden of proof, that misdirection had not been material. On the claim of unfair dismissal, the Employment Tribunal had taken account of all relevant matters, had provided sufficient reasons for its decision, and had reached a conclusion on the application of section 98(4) of the Employment Rights Act 1996which was reasonably open to it on a correct application of the law. The Employment Tribunal had correctly quantified the holiday pay claim.

Citations:

[2018] UKEAT 0091 – 18 – 2910

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 May 2022; Ref: scu.634374

Andruhovics v Sapient Ltd: EAT 18 May 2018

PRACTICE AND PROCEDURE – Amendment
PRACTICE AND PROCEDURE – Case management
UNFAIR DISMISSAL – Automatically unfair reasons
The Claimant, who had less than two years’ service, had sought to pursue claims of unfair dismissal and discrimination before the Employment Tribunal. In resisting an application to strike out his claim of unfair dismissal, the Claimant had asserted that he had been dismissed for an automatically unfair reason under section 104 Employment Rights Act 1996; he also applied to amend his claim to add a complaint of victimisation. The ET concluded that the facts relied on by the Claimant could not support a claim under section 104 (he was relying on allegations of breaches of the Equality Act 2010 which were not included within the provisions covered by section 104 Employment Rights Act 1996); it duly struck out his claim of unfair dismissal. The Claimant appealed against that ruling, contending that it was apparent that the matters he had raised in relation to his claim of victimisation would also have supported a protected disclosure automatic unfair dismissal complaint under section 103A ERA, something the ET should have proactively identified given that the Claimant was acting in person. Separately, the Claimant’s discrimination claims proceeded to a Full Merits Hearing before another ET but were rejected on their merits and the Claimant’s appeal in that regard was dismissed by the EAT.
On the Claimant’s appeal in respect of his unfair dismissal complaint.
Held: dismissing the appeal
The ET had determined the case before it. It had not sought to anticipate any or all other potential causes of action that might have been said to possibly arise from the facts asserted by the Claimant, but that was not its role and it did not err in law in the assisting the Claimant, as a litigant in person, in the limited way that it did. In any event, the Claimant’s case as to the reason for his dismissal was ultimately considered but rejected after a Full Merits Hearing before a different ET. The point taken on appeal had thus been rendered academic.

Citations:

[2018] UKEAT 0031 – 18 – 1805

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 May 2022; Ref: scu.625438

KL Law Ltd v Wincanton Group Ltd and Another: EAT 1 May 2018

Practice and Procedure – Costs – Following withdrawal of the Claimant’s claims part way through a substantive hearing, the Employment Tribunal dealt with a wasted costs application made against her legal representative by the Respondent. There was no adjournment to enable evidence to be prepared and the Employment Tribunal heard no evidence from the legal representative. The Employment Tribunal made a wasted costs order finding that the legal representative was negligent in relation to the Claimant’s disclosure obligations; this caused unnecessary costs; and it was just to make the order.
The appeal was allowed and the order set aside. The Employment Tribunal’s finding of negligence was in error in circumstances where privilege was not waived and it had no means of establishing what advice was given to the Claimant about disclosure. Further, the necessary element of breach of duty to the court was not considered by the Employment Tribunal. Finally, the causation finding was flawed by a failure to address the question whether the Claimant would have continued with the claim irrespective of any negative advice she received.

Citations:

[2018] UKEAT 0043 – 18 – 0105

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 May 2022; Ref: scu.625439

Agarwal v Cardiff University and Others: CA 27 Sep 2018

Issue about the jurisdiction of the Employment Tribunal to resolve disputes about the construction of a contract of employment in the context of a claim for unauthorised deduction of wages under Part II of the Employment Rights Act 1996.

Citations:

[2018] EWCA Civ 2084

Links:

Bailii

Statutes:

Employment Rights Act 1996

Jurisdiction:

England and Wales

Employment

Updated: 28 May 2022; Ref: scu.624192

Hellyer Bros Limited v McLeod: EAT 1985

Waite J said: ‘If we are satisfied that a conclusion reached as a result of a misdirection is plainly and unarguably wrong upon the facts found by the industrial tribunal and those facts do not require further amplification or reinvestigation, then we are entitled and bound to substitute our own conclusion as to what those findings require in law.’

Judges:

Waite J

Citations:

[1986] ICR 122

Jurisdiction:

England and Wales

Citing:

Qualified – Dobie v Burns International Security Services (UK) Ltd CA 14-May-1984
The employee worked as a security officer for the appellant, which was in turn employed by the respondent to provide security for an airport controlled by the Merseyside City Council. The Council had the right of approval of any employee of the . .

Cited by:

Appeal from – Hellyer Bros Limited v McLeod CA 1987
The employer appealed saying that the EAT had wrongly substituted its own opinion for that of the Tribunal.
Held: The appeal was rejected. Looking at the totality of the facts found or otherwise referred to in the decision of the Industrial . .
Appeal from – Hellyer Bros Limited v McLeod CA 1987
Slade LJ Approved the dictum of Waite J at the EAT. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 28 May 2022; Ref: scu.465547

Audit Service Of The Ministry Of Culture And Tourism v Konstantinos Antonopoulos: ECJ 20 Sep 2012

ECJ Opinion – Reference for a preliminary ruling – Concept of ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU – Court of Auditors ruling on a priori authorisation of State expenditure – Social policy – Fixed-term work contract – Working or employment conditions – Leave of absence from work on trade union business

Judges:

Sharpston AG

Citations:

C-363/11, [2012] EUECJ C-363/11

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 28 May 2022; Ref: scu.464419

Council of Civil Service Unions v The United Kingdom: ECHR 20 Jan 1987

(Commission) The applicants complained that as staff at GCHQ, they had been debarred from being members of trades unions.

Judges:

MM CA Nargaard P

Citations:

11603/85, [1987] ECHR 34, (1988) 10 EHRR CD269

Links:

Bailii

Statutes:

European Convention on Human Rights, Employment Protection Act 1975, Employment Protection (Consolidation) Act 1978 138(1)

Jurisdiction:

Human Rights

Citing:

At HL – Council of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Employment

Updated: 28 May 2022; Ref: scu.444036

Santokh Singh v Guru Nanak Gurdwara: CA 1990

A Granthi, a priest, at a Sikh temple was not employed under a contract of service.

Citations:

[1990] ICR 209

Jurisdiction:

England and Wales

Cited by:

Cited – The New Testament Church of God v Reverend Stewart CA 19-Oct-2007
The appellant appealed a finding that the respondent had been its employee, saying he was a minister of religion.
Held: The judge had been entitled to find an intention to create legal relations, and therefore that the claimant was an . .
Lists of cited by and citing cases may be incomplete.

Employment, Ecclesiastical

Updated: 28 May 2022; Ref: scu.259925

Regina v Director of GCHQ ex parte Hodges: QBD 20 Jul 1988

The Court accepted evidence that the positive vetting procedure operated at GCHQ was required in the interests of national security.
Held: The withdrawal of the applicant’s positive vetting clearance was not justiciable. As to the Civil Service Union Case: ‘I apprehend for myself that the majority of their lordships were of the view that once it had been established by evidence that a decision had been made on behalf of Government in the interests of national security the whole ambit of that decision was one which the courts can neither enquire nor intervene.’

Citations:

Unreported, 20 July 1988

Jurisdiction:

England and Wales

Citing:

Cited – Council of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .

Cited by:

Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Manelfi Admn 25-Oct-1996
The applicant sought judicial review of the defendant’s refusal to employ him to work at GCHQ, which had a policy not to employ anyone with non-British parents save exceptionally. The claimant said this was racially discriminatory.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Employment, Administrative

Updated: 28 May 2022; Ref: scu.238152

Home Counties Dairies v Skilton: CA 1970

In construing an employee’s restrictive covenant, a court should disregard fanciful hypotheses or arguments leading to a reductio ad absurdum.

Citations:

[1970] 1 WLR 526, [1970] All ER 1227

Jurisdiction:

England and Wales

Cited by:

Cited – Allan Janes Llp v Johal ChD 23-Feb-2006
The claimant sought to enforce a restrictive covenant against the defendant a former assistant solicitor as to non-competition within a certain distance of the practice for a period of three years. After leaving she had sought to set up partnership . .
Cited – Associated Foreign Exchange Ltd v International Foreign Exchange (UK) Ltd and Another ChD 26-May-2010
The claimant sought interim injunctions to enforce a restrictive covenant against solicitation of customers in a former employee’s contract. The employee, a FOREX dealer, had been placed on garden leave for three months and then his contract . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 28 May 2022; Ref: scu.240027

Elvee Ltd v Taylor and others: CA 6 Dec 2001

Where a party seeking injunctive relief departed from normal practice, in this case by applying to the Queen’s Bench rather than the Chancery Division for an injunction in an intellectual property case, they must file an explanation of why they had departed from that practice. Where a court did not give its reasons for a decision immediately, it should nevertheless be delivered promptly, and in the case of any delay, the reason for the delay should be explained to the parties.

Judges:

Sir Andrew Morritt VC, Chadwick LJ

Citations:

Times 18-Dec-2001, Gazette 14-Feb-2002, [2001] EWCA Civ 1943, [2002] FSR 48, (2002) 25(3) IPD 25017

Links:

Bailii

Statutes:

Civil Procedure Rules Part 25 paragraph 8.5

Jurisdiction:

England and Wales

Litigation Practice, Intellectual Property, Civil Procedure Rules, Employment

Updated: 28 May 2022; Ref: scu.201553

Saeed v Greater London Council (Inner London Education Authority): 1985

The plaintiff had been acquitted of assaulting a child at the school. His employers nevertheless brought disciplinary proceedings alleging misconduct identical to those which had formed the basis of the previous criminal proceedings. The plaintiff sought a declaration that the disciplinary proceedings were unlawful in contravening the rule against double jeopardy.
Held: Double jeopardy in such a case means the peril of being convicted twice in a court of competent jurisdiction. The disciplinary body is not a court of competent jurisdiction; and it applies a different standard of proof.

Judges:

Popplewell J

Citations:

[1985] ICR 637

Jurisdiction:

England and Wales

Cited by:

Cited – Regina (on the Application of Redgrave) v The Commissioner of Police for the Metropolis CA 22-Jan-2003
The police officer had been accused of an offence. The case was discharged under the section at committal. The Commissioner sought to commence disciplinary proceedings on the same evidence.
Held: The tests of the two sets of hearings were . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Employment

Updated: 28 May 2022; Ref: scu.181631

Purcell v Ireland: ECHR 16 Apr 1991

The applicants were several individuals and two trades unions who complained that a ministerial order made under legislation relating to broadcasting infringed their rights under Article 10 of the Convention.
Held: The Commission rejected the application as inadmissible in so far as brought by the two trade unions, saying that the measure complained of did not affect the rights of the applicant unions themselves: the ministerial order did not refer to the exercise of any of their rights. The fact alone that the trade unions considered themselves as guardians of the collective interests of their members did not suffice to make them victims within the meaning of Article 25. It followed that in so far as the application was brought by the two trade unions, it was incompatible ratione personae with the provisions of the Convention and must be rejected.

Judges:

CA Norgaard P

Citations:

(1991) 70 DR 262, [1991] ECHR 77, 15404/89

Links:

Bailii

Statutes:

European Convention on Human Rights 10

Jurisdiction:

Human Rights

Cited by:

Cited – Adams and Others v Lord Advocate IHCS 31-Jul-2002
(Opinion) The applicants challenged the introduction of restrictions of hunting by foxes, arguing that the law would infringe their human rights.
Held: The Act was not infringing. Fox hunting as such was not a private activity protected by the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Media, Employment

Updated: 28 May 2022; Ref: scu.179877

Caballero v Fondo de Garantia Salarial (Fogasa): ECJ 12 Dec 2002

ECJ Social policy – Protection of employees in the event of the insolvency of their employer – Directive 80/987/EEC – Scope – ‘Claims’ – ‘Pay’ – ‘Salarios de tramitacion’ – Payment guaranteed by the guarantee institution – Payment subject to the adoption of a judicial decision.

Citations:

C-442/00, [2002] EUECJ C-442/00

Links:

Bailii

Statutes:

Directive 80/987/EEC

Jurisdiction:

European

Employment

Updated: 28 May 2022; Ref: scu.178725

Bolton Metropolitan Borough Council v Malrod Insulations Ltd: QBD 6 Jan 1993

The company had contracted to remove asbestos. Before work was to start, the inspector found defective equipment. The prosecutor appealed the acquittal on appeal to the Crown Court.
Held: An employer’s duty of care extends to all employees, and not just those working on a particular plant and even when the plant was not in use. The duty under s2 applied to all employees ‘at work’ and was not restricted to those intended to use the plant in question. The duty to provide safe equipment applied even though it had not been used.

Citations:

Times 04-Aug-1994, Gazette 06-Jan-1993, [1993] ICR 358, (1993) 137 SJLB 13, [1993] IRLR 274, [1993] COD 391

Statutes:

Health and Safety at Work Act 1974 2(1) 2(a)

Jurisdiction:

England and Wales

Employment, Health and Safety

Updated: 27 May 2022; Ref: scu.78474

The Governing Body of Tywyn Primary School v Aplin: EAT 10 Oct 2018

PRACTICE AND PROCEDURE – Appearance/response

In circumstances in which an Appellant is to be understood as consenting to an extension of time for lodging a response to the appeal and the Registrar of the EAT making an Order by consent, the Order is to be construed as granting an extension of time only for the response to the appeal. The extension was rightly held by the Registrar not to apply to a cross-appeal. – The Registrar erred in dismissing a subsequent application for extension of time to lodge a cross-appeal by applying the strict approach to time for appealing to cross-appeals. There are material differences in the Rules and Practice Directions applicable to appeals and cross-appeals. Whilst they may be juridically comparable they differ in practice. The reactive nature of a cross-appeal explained by Langstaff P in Basildon and Thurrock NHS Foundation Trust v Weerasinghe UKEAT/0397/14 and policy considerations illustrate why the strict approach to extensions of time for appeals does not apply to cross-appeals. Slingsby v Griffith Smith Solicitors UKEAT/0619/07 not followed. United Arab Emirates v Abdelghafar [1995] IRLR 243 considered. Decision of Registrar not to extend time for cross-appeal set aside. Using powers under Employment Tribunals Act 1996 section 35 application for extension of time in which to deliver a cross-appeal made on 19 January 2018 allowed.

Citations:

[2018] UKEAT 0298 – 17 – 1010

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 May 2022; Ref: scu.625453

Johnson v Marshall Sons and Co: HL 17 May 1906

On the morning of the 20th August 1901 Johnson was working as a joiner in the gallery of the erecting shop in the respondents’ works. The gallery ran round all four sides of the erecting shop, and a large number of men were employed there. Access to the gallery from the floor below was gained by two wide and convenient staircases in the south and east sides thereof. At or about the centre of the east side of the gallery there was a lift and two steep and narrow spiral staircases communicating with the floor above. On the lift was a notice as follows:-‘No one is allowed to use this hoist except in charge of a load.’ The breakfast hour was eight o’clock, and shortly before eight o’clock Johnson was seen at work with his coat off. At a minute or two before eight o’clock Johnson was found in the lift with his coat on and without a load. The lift had descended below the floor of the gallery, and Johnson was crushed between the floor of the lift and the top of the doorway by which the lift was reached from the floor below. He died from his injuries on the 23rd August 1904. His widow claimed compensation under the Workmen’s Compensation Act 1897. This was refused by the County Court Judge of Lincolnshire and by the Court of Appeal, who ordered a new trial.
Johnson’s widow appealed to the House of Lords.
The rules of a workshop provided that workmen were only to use a certain hoist when they were in charge of a load. There was nothing particularly mysterious or dangerous about the working of the hoist, and, unknown to their employers, the workmen often used it when not in charge of any load. A workman was injured while thus using it. Held that he had not been guilty of ‘serious and wilful misconduct’ in the sense of the Act.
Opinions that ‘wilful’ imports that the misconduct was deliberate and not merely thoughtless, and that ‘serious’ applies to the misconduct itself and not to its consequences.

Judges:

Lord Chancellor (Loreburn), Lords James of Hereford, Robertson, and Atkinson

Citations:

[1906] UKHL 888, 43 SLR 888

Links:

Bailii

Statutes:

Workmen’s Compensation Act 1897

Jurisdiction:

England and Wales

Employment, Personal Injury

Updated: 26 May 2022; Ref: scu.625461

Denaby and Cadeby Main Collieries, Ltd v Yorkshire Miners’ Association and Others: HL 14 May 1906

Where, in breach of existing contracts between employers and employees, the officials of a branch of a trade union brought about a strike contrary to the rules and regulations of the trade union as a whole, held that the latter was not liable in damages to the employers for the wrongful actings of the officials of the branch.
The central council of a trade union, in contravention of the rules and regulations of the union, granted strike pay to miners out on strike.
Held that the employers of the miners had no title to sue the trade union for damages, the wrong committed by the central council being one committed against its own members in dissipating their funds, and not against the employer, who had no interest in the funds

Judges:

Lord Chancellor (Loreburn), Lords Macnaghten, James of Hereford, Davey, Robertson, and Atkinson

Citations:

[1906] UKHL 596

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Employment

Updated: 26 May 2022; Ref: scu.625460

Thompson v Ark Schools: EAT 31 Jul 2018

JURISDICTIONAL POINTS – Extension of time: just and equitable
The Claimant was seeking to pursue complaints of unlawful pregnancy and maternity discrimination in respect of the withdrawal of a job offer in February 2016, after she had informed the Respondent that she was pregnant. She had, however, only lodged her ET claim on 8 November 2016, several months out of time. The Claimant had given evidence to the ET of the physical and mental health issues she had suffered during the relevant period (her pregnancy had been high-risk and she had suffered depression and anxiety) and as to how she had only learned of her potential cause of action under English law (she had been living in Australia) sometime after the primary time limit had expired, initially thinking this meant she could no longer bring a claim. After emigrating to the UK with her husband and three young children, the Claimant suffered further ill-health but subsequently sought advice as to her rights from a CAB. Finding this unhelpful, she immediately undertook further research and spoke with a legal advisor, learning of the possibility of time being extended for a claim. This led the Claimant to enter the ACAS early conciliation procedure and to subsequently lodge her ET claim.
Although not rejecting the Claimant’s evidence, the ET found she had not remained incapacitated throughout the period from February to November 2016. It further found that she had obtained advice as to the potential cause of action arising from the Respondent’s withdrawal of the job offer and had been able to undertake her own researches at some stage during or after August 2016. It concluded that the Claimant could, and should, then have done more to progress the lodgement of her ET claim but had delayed until November 2016. In those circumstances, the ET did not consider it was just and equitable to extend time. The Claimant appealed.
Held: allowing the appeal.
The ET’s reasoning demonstrated a confusion and misunderstanding of the relevant chronology. It had either made material errors of fact – such as to mean it had failed to take into account all relevant matters and had had regard to that which was irrelevant – or it had failed to explain how it had reached its conclusions. Specifically, the ET had failed to make clear findings as to when the Claimant was incapacitated by ill-health (both when in Australia and after she had emigrated to the UK). Allowing that it could be inferred that the ET had found that she was not suffering a relevant impediment, at least from some period during or after a point in August 2016, it had apparently confused the order in which the Claimant undertook her own researches and then obtained some preliminary advice while she was still in Australia. The ET had further failed to have regard to the very short period of time between obtaining that advice (which was the product of her researches at the time and which had suggested that she was simply out of time to pursue a claim) and the Claimant’s emigration to the UK. Once in the UK, the ET had then made further material errors in its recitation of the history, failing to appreciate the Claimant’s immediate actions after her contact with the CAB, and suggesting she had then delayed when in fact she had immediately embarked upon further researches and had contacted a legal advisor and notified ACAS all within a day. These errors in reasoning and explanation rendered the decision unsafe and the appeal would accordingly be allowed.

Citations:

[2018] UKEAT 0244 – 17 – 3107

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 May 2022; Ref: scu.625449

University of Technology, Jamaica v Industrial Disputes Tribunaland Others: PC 17 Jul 2017

(Jamaica) The court was asked as to the Jamaican Industrial Disputes Tribunal, ‘can the IDT take into account matters of which the employer was unaware at the time of the dismissal and can it form its own judgment about whether, in the light of all the information available, the dismissal was justifiable? Or is it limited to deciding whether the employer’s decision was one which a reasonable employer might have taken in the light of the information available to him at the time?’

Judges:

Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson, Lord Reed

Citations:

[2017] UKPC 22

Links:

Bailii

Jurisdiction:

Commonwealth

Employment

Updated: 26 May 2022; Ref: scu.591301

Esders v Commission (Staff Regulations): ECJ 15 Sep 2011

ECJ Civil service – Officials – Assignment – Exercise turning 2010 – Article 1d, paragraphs 1 and 4, the status-Decision C (2008) 3983 – Application for relief from the rotation for health reasons – Duty of care – Decision C (2004) 1318 – Reasonable Accommodation – Directive 2000/78/EC – Equal treatment – Handicap

Citations:

62/10, [2011] EUECJ 62/10

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 26 May 2022; Ref: scu.444377

Munch v OHIM (Staff Regulations): ECJ 15 Sep 2011

ECJ Civil Service – Temporary staff – Clause terminating the contract if the agent is not included in the reserve list of competition – competition and general OHIM/AD/02/07 OHIM/AST/02/07 – Admissibility – Respective powers of EPSO and the Selection Board – Article 8 of the CEOS – Renewal of contracts of temporary staff to term

Citations:

6/10, [2011] EUECJ 6/10

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 26 May 2022; Ref: scu.444385

A v Commission: ECJ 14 Sep 2011

ECJ (Staff Regulations) Public service – Officials – Occupational disease – Relations between the procedures under Articles 73 and 78 of the Staff – Provisional indemnity – Reimbursement of medical costs – Access to personal files

Citations:

12/09, [2011] EUECJ 12/09

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 26 May 2022; Ref: scu.444247

Nastvogel v Council: ECJ 13 Sep 2011

ECJ (Staff Regulations) Public service – Notation – Staff report – Review of the Report Committee – Degradation of analytical assessments – Dialogue between the observed and the assessor – Consultation with various supervisors – Knowledge of work noted by the SRO – Motivation – Accounting Sick

Citations:

4/10, [2011] EUECJ 4/10

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 26 May 2022; Ref: scu.444254

Hiero v Changework Now Ltd: EAT 2 Mar 2009

EAT DISABILITY DISCRIMINATION: Disability
When evidence was adduced in a disability case as to the effect of medication on the Claimant, an Employment Tribunal erred in failing to make a finding under DDA Sch 1 para 6(1) as to the impairment which would be present but for the medication ie deduced disability. Case remitted to fresh Employment Tribunal.

Citations:

[2009] UKEAT 0474 – 08 – 0203

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 May 2022; Ref: scu.331196

Post Office v Union of Communication Workers: CA 1990

De minimis principle inindustrial relations ballots.

Judges:

Lord Donaldson of Lymington MR

Citations:

[1990] ICR 258

Jurisdiction:

England and Wales

Cited by:

Dictum disapproved – London Underground Ltd and Others v National Union of Rail, Maritime and Transport Worker CA 16-Feb-2001
When a union gave notice to the employer that it intended to hold a ballot as to industrial action, the union was obliged to give details of the members to be balloted, so as to permit the employer to exercise its own rights. ‘Information as to the . .
Cited – In re P (a minor by his mother and litigation friend); P v National Association of Schoolmasters/Union of Women Teachers HL 27-Feb-2003
The pupil had been excluded from school but then ordered to be re-instated. The teachers, through their union, refused to teach him claiming that he was disruptive. The claimant appealed a refusal of an injunction. The injunction had been refused on . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 26 May 2022; Ref: scu.223722

British Telecommunications Plc v Reid: EAT 7 Mar 2003

Citations:

[2003] UKEAT 0913 – 02 – 0703

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – British Telecommunications plc v Reid CA 6-Oct-2003
The respondent appealed an award of pounds 10.000 for damages for an act of direct race discrimination. The claimant, of Afro-Caribbean origin, had been subjected to a racist comment.
Held: Translating hurt feelings into hard currency will . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 26 May 2022; Ref: scu.191405

Sparks v Department for Transport: QBD 3 Jan 2015

The claimants applied under CPR Part 8 for a declaration in relation to their terms of employment after the introduction of a policy of attendance management by the defendant. The proceedings were representative proceedings backed by recognised unions The case raised three questions:
First, prior to July 2012, were the relevant attendance management provisions of each ‘Departmental Staff Handbook’ terms of each claimant’s contract of employment?
Secondly, if so, was the defendant entitled to vary those terms unilaterally in July 2012?
Thirdly, if not, should the court grant a declaration in the circumstances of the case?
Held: The handbook was incorporated into the contracts and the employer was not allowed to act in breach of it.

Judges:

Globe J

Citations:

[2015] EWHC 181 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Department for Transport v Sparks and Others CA 14-Apr-2016
Appeal by the Department for Transport from a judgment making declarations that certain terms, identified in a schedule to the order, were terms of the contracts of employment between the Department and the respondents.
Held: The employer’s . .
Lists of cited by and citing cases may be incomplete.

Employment

Leading Case

Updated: 26 May 2022; Ref: scu.542254

EMI Group Electronics Ltd v Coldicutt (Inspector of Taxes): ChD 12 Nov 1997

Payments which were made in lieu of a termination notice were taxable, because the right to make such payments had been explicitly reserved in the contract of employment, and the payment was therefore under that contract.

Citations:

Times 14-Nov-1997, Gazette 12-Nov-1997

Statutes:

Income and Corporation Taxes Act 1988 19(1)

Jurisdiction:

England and Wales

Income Tax, Employment

Updated: 25 May 2022; Ref: scu.80313

Miller and Others v Ministry of Justice: SC 16 Dec 2019

The issue in this appeal is when time starts to run for a claim by a part-time judge to a pension under the Part-time Workers’ Directive (Directive 97/81) (‘PTWD’), as applied by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551). The Appeals were allowed.
As judicial officers are not employed under a contract of employment, the PTWR must be construed artificially and references to the ‘terms of a contract’ must be applied by analogy. It must be borne in mind that the judicial pension scheme is not based upon individual appointments, but the composite term ‘qualifying judicial office’, may include a number of appointments.
That must be acknowledged when comparing part and full-time judges called for by the PTWR, as it may be misleading or unfair to direct
attention to the nature and timing of individual part-time appointments. Entitlement to pension should not be governed by the varied combinations of fee-paid or salaried offices undertaken by different individual judges. This would not sit with the aggregation provided for by the 1993 Act.
Unfavourable treatment may relate to the terms of a contract or ‘any other detriment’ resulting from an act or failure to act by the employer (Reg 5). By analogy,
in the context of judicial pensions,
A part-time judge may complain both: (1) during their period of service that their terms of office do not include proper provision for a future pension; and, (2) on retirement, that there no proper pension was available. The first does not exclude the latter. Case law, indicates that the point of unequal treatment occurs at the time the pension is paid, and accords with common sense.

Judges:

Lady Hale, President, Lord Reed, Deputy President, Lord Wilson, Lord Carnwath, Lady Arden

Citations:

[2019] UKSC 60

Links:

Bailii, Bailii Summary

Statutes:

Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000

Jurisdiction:

England and Wales

Citing:

At EAT – The Ministry of Justice v O’Brien EAT 4-Mar-2014
EAT PART TIME WORKERS
The calculation of the amount of pension to which a retired part-time judge is entitled under the Part-time Workers Directive and the consequential domestic regulations should, as a . .
Appeal from – Ministry Of Justice v O’Brien and Others CA 9-Nov-2015
. .
Reference to ECJ – O’Brien v Ministry of Justice SC 12-Jul-2017
The claimant challenged e pension arrangements made for part time judges.
Held: ‘The majority of the court are inclined to think that the effect of Directive 97/81 is that it is unlawful to discriminate against part-time workers when a . .
Cited – Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf (Judgment) ECJ 6-Oct-1993
Equal pay for men and women – Survivor’s pension – Limitation of the effect in time of the judgment in Case C-262/88 Barber.
As to Barber: ‘The Court’s ruling took account of the fact that it is a characteristic of this form of pay [scil, . .
At ECJ – O’Brien v Ministry of Justice ECJ 7-Nov-2018
Reference for a preliminary ruling – Social policy – Directive 97/81/EC – Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC – Clause 4 – Principle of non-discrimination – Part-time workers – Retirement pension – Calculation . .
Cited – Walker v Innospec Ltd and Others SC 12-Jul-2017
The claimant appealed against refusal of his employer’s pension scheme trustees to include as a recipient of any death benefit his male civil partner.
Held: The appeal succeeded. The salary paid to Mr Walker throughout his working life was . .
Cited – Barclays Bank Plc v Kapur and others EAT 3-Dec-1992
. .
Cited – O’Brien v Ministry of Justice and Others CA 6-Oct-2015
The claimants each sought additional pensions, saying that discrimination laws which had come into effect (for part time workers and for sexual orientation) should be applied retrospectively.
Held: The decision was upheld. The ‘no . .
Cited – Barclays Bank Plc v Kapur HL 1991
The bank had decided not to credit re-located employees, for pension purposes, with their previous service in East Africa. The employees had been re-located to the United Kingdom some time in the early 1970s all upon terms that their prior service . .
Cited – Gilham v Ministry of Justice SC 16-Oct-2019
The Court was asked whether a district judge qualifies as a ‘worker’ for the purpose of the protection given to whistle-blowers under Part IVA of the 1996 Act, and if not then was the absence of protection an infringement of her human rights.
Cited – Sougrin v Haringey Health Authority EAT 31-Jul-1991
The applicant alleged discrimination arising out of a disputed grading. She claimed the grading she had received in 1988 amounted to direct discrimination on grounds of race, and that because this affected her pay there was a ‘continuing act’ of . .
Lists of cited by and citing cases may be incomplete.

Employment, Legal Professions

Updated: 25 May 2022; Ref: scu.645793

Chief Constable of West Yorkshire Police and Others v Khan: CA 24 Feb 2000

A police sergeant had made a complaint of race discrimination against his force. He applied for a post elsewhere, but his chief constable refused a reference claiming that he wished not to prejudice the force’s defence of the action. This was held not to be discrimination itself, but it was victimisation arising from the pursuit of the action. He was treated differently because of the action asserting his rights under the Act. The comparator was chosen by reference to what was requested, not the reason why it was not done.

Citations:

Times 15-Mar-2000, [2000] EWCA Civ 53, [2000] ICR 1169

Links:

Bailii

Statutes:

Race Relations Act 1976

Jurisdiction:

England and Wales

Citing:

Appeal from – West Yorkshire Police and others v Khan EAT 28-Jul-1998
. .

Cited by:

Appealed to – West Yorkshire Police and others v Khan EAT 28-Jul-1998
. .
Appeal from – Chief Constable of West Yorkshire Police v Khan HL 11-Oct-2001
The claimant was a police sergeant. After many years he had not been promoted. He began proceedings for race discrimination. Whilst those were in course, he applied for a post elsewhere. That force wrote to his own requesting a reference. In the . .
Cited – Coutts and Co Plc Royal Bank of Scotland v Paul Cure Peter Fraser EAT 6-Aug-2004
The applicants complained of less favourable treatment as fixed term workers in that they had not been paid a non-contractual bonus. The employer said the claim was out of time, and appealed a finding against it.
Held: Time ran from the date . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment, Police

Updated: 23 May 2022; Ref: scu.135786

Poeton Industries Ltd and Another v Michael Ikem Horton: CA 26 May 2000

The claimant sought damages and an injunction after their former employee set up in business, using, they said, information about their manufacturing procedures and customers obtained whilst employed by them. The defendant appealed the injunction granted in respect of the use of production techniques (electro-plating).
Held: The employer had not done enough to establish that the imformation he sought to protect was confidential and the injunction was discharged.

Citations:

[2000] EWCA Civ 180

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Coco v A N Clark (Engineers) Ltd ChD 1968
Requirememts to prove breach of confidence
A claim was made for breach of confidence in respect of technical information whose value was commercial.
Held: Megarry J set out three elements which will normally be required if, apart from contract, a case of breach of confidence is to . .
Cited – Printers and Finishers Limited v Holloway 1965
The court considered the questions arising from the use of information acquired by an employee during his employment after that employment had ended, and noted that information the future use of which will not be restrained is information not . .
Cited – Faccenda Chicken Ltd v Fowler CA 1986
Nature of Confidentiality in Information
The appellant plaintiff company had employed the defendant as sales manager. The contract of employment made no provision restricting use of confidential information. He left to set up in competition. The company now sought to prevent him using . .
Cited – Faccenda Chicken v Fowler ChD 1984
The court was asked to restrain the plaintiff’s a former sales manager making use of information acquired during his employment which information the employer claimed to be confidential. F had set up a business in a similar field, the marketing of . .
Cited – Lancashire Fires Ltd v S A Lyons and Co Ltd CA 1996
It was claimed that a loan to the employee from a customer of the employer coupled with an exclusive supply agreement by the employee as and when the competing business becomes operative was in breach of an non-compete clause.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Information, Employment

Updated: 23 May 2022; Ref: scu.135746

O’Donoghue v Redcar and Cleveland Borough Council: CA 17 May 2001

The Tribunal had been entitled to find on the evidence that an employee unfairly dismissed by reason of sex would have been fairly dismissed for misconduct six months later in any event because of her antagonistic and intransigent attitude. The court considered whether damages for unfair dismissal could include an element of compensation for injured feelings: ‘Compensation for unfair dismissal is provided for in Chapter II of the Employment Rights Act 1996. Section 112 provides that compensation should be calculated according to ss118-127A. There is no compensation for injury to feelings or the manner or dismissal, unless that gives rise to financial loss.’
Potter LJ said: ‘An Industrial Tribunal must award such compensation as is ‘just and equitable’. If the facts are such that an Industrial Tribunal, while finding that an employee/applicant has been dismissed unfairly (whether substantively or procedurally), concludes that, but for the dismissal, the applicant would have been bound soon thereafter to be dismissed (fairly) by reason of some course of conduct or characteristic attitude which the employer reasonably regards as unacceptable but which the employee cannot or will not moderate, then it is just and equitable that compensation for the unfair dismissal should be awarded on that basis.’

Judges:

Potter LJ

Citations:

[2001] EWCA Civ 701, [2001] IRLR 615, [2001] Emp LR 711

Links:

Bailii

Statutes:

Employment Rights Act 1996 112

Jurisdiction:

England and Wales

Citing:

Cited – Norton Tool Co Ltd v Tewson NIRC 30-Oct-1972
(National Industrial Relations Court) The court was asked to calculate damages on a dismissal, and particularly as to whether the manner of the dismissal should affect the damages.
Held: The common law rules and authorities on wrongful . .
Appeal from – Redcar and Cleveland Borough Council v O’Donoghue EAT 20-Apr-1999
. .
Mentioned – British Labour Pump Co Ltd v Byrne EAT 1979
The respondent had been dismissed for misconduct on the morning of the day on which he was dismissed. There had been previous misbehaviour but the industrial tribunal held that the case had to be determined on the basis of what had happened on that . .
See Also – Redcar and Cleveland Borough Council v O’Donoghue EAT 21-Jan-2000
. .
See Also – O’Donoghue v Redcar and Cleveland Borough Council EAT 17-May-2000
. .

Cited by:

Cited – Scott v London Borough of Hillingdon CA 18-Dec-2001
The claimant’s claim for race discrimination had been dismissed on appeal by the EAT. He now appealed to restore the judgement of the employment tribunal. He had begun an action against his employer, and then unsuccessfully applied for employment . .
Cited – Software 2000 Ltd v Andrews etc EAT 17-Jan-2007
EAT Four employees successfully established before the Employment Tribunal that they had been unfairly dismissed for redundancy. The Tribunal found that there had been procedural defects. In particular the . .
Cited – Ward v Ashkenazi CA 2-Feb-2011
The claimant had been awarded damages after being found to have been unfairly dismissed for an automatically unfair reason in requesting written particulars of her employment. The EAT had awarded a 50% uplift for non-compliance with statutory . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 23 May 2022; Ref: scu.135456

Bossi v Commission: ECJ 14 Feb 1989

(Judgment) 1 . Under Articles 90 and 91 of the Staff Regulations an action must be brought against an act having adverse effects, consisting either in a decision adopted by the appointing authority or in a failure by the appointing authority to adopt a measure prescribed by the Staff Regulations, and is admissible only if the official has previously submitted a complaint to the appointing authority and the complaint has been rejected by express decision or by implied decision.
The complaint through official channels and the express or implied rejection thereof form an integral part of a complex procedure and only represent one condition precedent for bringing the matter before the Court . In those circumstances, even if the application to the Court is formally directed against the rejection of the official’ s complaint, its effect is to bring before the Court the act adversely affecting the official in respect of which the complaint was submitted.
2. Acts preparatory to a decision do not adversely affect an official within the meaning of Article 90(2 ) of the Staff Regulations and can only be contested incidentally in an action against measures capable of being annulled.
The omission of an official from a list drawn up in the course of a promotion procedure is such an act . Although such an omission may have some influence on the promotion decision, it is not an independent decision but a preparatory act which is a necessary preliminary to the final decision on the promotions; the regularity of such preparatory acts may only be called into question in an application brought against the decision concluding the promotion procedure.
3. The conclusions submitted by an official to the Court must have the same subject-matter as those raised in the complaint and they may not contain heads of claim based on matters other than those relied on in the complaint . The submissions and arguments made to the Court in support of those heads of claim need not necessarily appear in the complaint but must be closely linked to it.
A claim for damages made for the first time before the Court following a complaint which merely sought an annulment of the decision allegedly having adverse effects is admissible . Such a complaint calls on the appointing authority to remedy the alleged illegality and take all necessary measures to place the applicant in the situation in which he would have been had the illegality not been committed . Those measures necessarily include redress for the harm which the applicant may have suffered by reason of the alleged illegality and which the adoption of a new act not vitiated by such illegality would not guarantee.
4. An official may not, by means of an action for damages, seek to obtain the same result as he would have obtained had he been successful in an action for annulment which he failed to commence in due time .

Citations:

C-346/87, [1989] EUECJ C-346/87

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 23 May 2022; Ref: scu.134750

P Bork International A/S, in liquidation v Foreningen af Arbejdsledere I Danmark: ECJ 15 Jun 1988

ECJ Although it is true that, unless otherwise expressly provided, Directive 77/187 relating to the safeguarding of employees’ rights in the event of transfers of undertakings may be relied upon solely by workers whose contract of employment or employment relationship is in existence at the time of the transfer, and that the existence or otherwise of such a contract or relationship must be assessed on the basis of national law, it is still necessary to comply with the mandatory provisions of the directive concerning the protection of employees from dismissal as a result of the transfer.
Accordingly, the employees whose contract of employment or employment relationship was terminated with effect from a date prior to that of the transfer, contrary to Article 4 (1) of the directive, must be regarded as still in the employ of the undertaking on the date of the transfer, with the result, in particular, that the employer’ s obligations towards them are automatically transferred from the transferor to the transferee. In order to ascertain whether the employees were dismissed solely as a result of the transfer, it is necessary to take into consideration the objective circumstances in which the dismissal took place such as, in particular, the fact that it took effect on a date close to that of the transfer and that the employees in question were taken on again by the transferee.

Article 1(1) of Directive 77/187 is to be interpreted as meaning that the directive applies where, after giving notice bringing the lease to an end or upon termination thereof, the owner of an undertaking retakes possession of it and thereafter sells it to a third party who shortly afterwards brings it back into operation, which had ceased upon termination of the lease, with just over half of the staff that was employed in the undertaking by the former lessee, provided that the undertaking in question retains its identity.

Citations:

C-101/87, R-101/87, [1988] EUECJ R-101/87, [1989] IRLR 41

Links:

Bailii

Statutes:

Directive 77/187

Cited by:

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.

European, Employment

Updated: 23 May 2022; Ref: scu.134593