Category: Employment

Morgan v William Dixon Ltd: HL 13 Nov 1911

It is not a matter of law but is a question of fact for the decision of the arbiter whether the demand of a workman, who is to be medically examined on the employer’s behalf, under section 4 of the First Schedule of the Workmen’s Compensation Act 1906, that his own doctor shall also be present at the examination, is reasonable ( diss. Lord Shaw).

Judges:

Lord Chancellor (Loreburn), Lord Atkinson, Lord Gorell, and Lord Shaw

Citations:

[1911] UKHL 45, 49 SLR 45

Links:

Bailii

Jurisdiction:

Scotland

Employment, Personal Injury

Updated: 23 May 2022; Ref: scu.619216

Sheibani v Elan and Co Llp: EAT 13 Jul 2012

EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
Employment Tribunal rejected claims by an accountant employee, and a cross-claim by his accountant employer, on the basis that the contact of employment was illegal as performed, and relying on authorities, when neither the allegation of illegality nor the authorities had been raised with the parties during the hearing.
Held: that this was more than a mere irregularity, and amounted to a breach of natural justice which required that the appeal be allowed.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0133 – 12 – 1307, 2012] ICR D38

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 23 May 2022; Ref: scu.465066

Fletcher v St Leonard’s School: EAT 16 Jun 1987

The appellant challenge rejection of his claim for unfair dismissal.
Held: The appeal failed. ‘it is clear that the industrial tribunal were entitled to conclude that from an early date there were doubts about the appellant’s performance, and his lack of communication with the rest of the staff.’

Judges:

Lord Mayfield

Citations:

[1987] UKEAT 25 – 87 – 1606

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 23 May 2022; Ref: scu.511072

Real Time Civil Engineering Ltd v Callaghan: EAT 9 Dec 2005

EAT Contract of Employment – Definition of employee – Requirement of personal service for contract of employment. Written contractual term allowing for substitute to be sent without restriction. Chairman accepted oral evidence to the contrary (no finding of ‘sham’ or variation). Impermissible finding. See Tanton; Stevedoring v Fuller (CA). Appeal allowed.

Judges:

His Honour Judge Peter Clark

Citations:

UK/0516/05, [2005] UKEAT 0516 – 05 – 0912

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment

Updated: 22 May 2022; Ref: scu.238184

Stansbury v Datapulse Plc and Another: CA 15 Dec 2003

In the course of a hearing in the Employment Tribunal, it appeared to one party that a member of the tribunal was drunk and fell asleep.
Held: Two questions arose. First whether that tribunal should deal with a complaint about a member of the tribunal, and second whether if impropriety of this sort was established whether a decision could nevertheless stand. The EAT had jurisdiction to hear the complaint even if it had not been so raised, though it was usually desirable that the complaint should be made to the employment tribunal. The EAT might well assume the role of deciders of issues of fact in this respect. A member failing to give his full attention might well give rise to unfairness. That the decision was reserved and then unanimous did not cure this.

Judges:

Peter Gibson LJ, Latham LJ, Sir Martin Nourse

Citations:

[2004] ICR 523, [2003] EWCA Civ 1951, [2004] UKHRR 340, [2003] EWCA Civ 1951, [2004] IRLR 466, [2003] All ER (D) 264

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Citing:

Preferred – Kudrath v Ministry of Defence EAT 26-Apr-1999
That a matter of complaint against a member of the employment tribunal was not raised before that tribunal but only at the EAT was not held against the applicant. . .
Not followed – Red Bank Manufacturing Co Ltd v Meadows EAT 1992
A party wishing to complain about a member of the employment tribunal should make his complaint to that tribunal rather than at the EAT. The Polkey principle must be considered by the Tribunal in assessing compensation for unfair dismissal even . .
Cited – Whitehart v Raymond Thomson Ltd EAT 11-Sep-1984
A member of the tribunal was said to have dozed off once if not twice during the hearing. Popplewell J said: ‘It is axiomatic that all members of a tribunal must hear all the evidence and to have a trial in which one member of the tribunal is asleep . .
Cited – Whitehart v Raymond Thomson Ltd EAT 11-Sep-1984
A member of the tribunal was said to have dozed off once if not twice during the hearing. Popplewell J said: ‘It is axiomatic that all members of a tribunal must hear all the evidence and to have a trial in which one member of the tribunal is asleep . .
Appeal from – J M Stansbury v Datapulse Plc Troy Holding International Plc EAT 8-May-2003
EAT Practice and Procedure – Bias, misconduct and procedural irregularity . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Employment

Updated: 22 May 2022; Ref: scu.193676

Fletcher and others and Preston and others v Midland Bank Plc and Wolverhampton Healthcare NHS Trust Secretary of State for Health and others: EAT 24 Jun 1996

EAT Equal Pay Act – Addendum to principal judgment. Part timers’ claims for membership of pension schemes only made out of time.
EAT Equal Pay Act – (no sub-topic).

Judges:

The Honourable Mr Justice Mummery

Citations:

Times 02-Jul-1996, EAT/6/96, EAT/5/96, [1996] UKEAT 5 – 96 – 2406

Links:

EAT, Bailii

Statutes:

Equal Pay Act 1970 1

Jurisdiction:

England and Wales

Cited by:

See Also – Preston and others v Wolverhampton Healthcare Trust Secretary of State for Health CA 13-Feb-1997
. .
See Also – Preston and Others v Wolverhampton Healthcare NHS Trust and Others, Fletcher and Others v Midland Bank Plc (No 2) HL 8-Feb-2001
Part-time workers claimed that they had been unlawfully excluded from occupational pension schemes because membership was dependent on an employee working a minimum number of hours per week and that that was discriminatory because a considerably . .
See Also – Preston and others v Wolverhampton Healthcare NHS Trust and others EAT 3-Nov-2003
EAT Judge McMullen QC adopted a limited view of the scope of the new principle of stable employment set out at the ECJ and HL. He thought it was intended ‘to rescue employees who do not have a permanent job’; and . .
See Also – Preston and others v Wolverhampton Healthcare NHS Trust and Others (No 3) CA 7-Oct-2004
The claimants had had their employments transferred to another body under TUPE. They complained that their pension rights had been discriminatory. The employer appealed a finding that their claim had not been out of time.
Held: The effect of . .
See Also – Preston and Others v Wolverhampton Healthcare NHS Trust and Others; Fletcher and Others v Midland Bank plc ECJ 16-May-2000
ECJ Social policy – Men and women – Equal pay – Membership of an occupational pension scheme – Part-time workers – Exclusion – National procedural rules – Principle of effectiveness – Principle of equivalence. . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 22 May 2022; Ref: scu.171352

Archibald v Fife Council: IHCS 9 Dec 2003

The applicant was a roadsweeper. She complained of disability discrimination, when after becoming unable to walk, her employer after considering her for other posts dismissed her for incapacity.
Held: The ability to walk was a part of the irreducible minimum capacity required of the job. The Code of Practice could not be used as an aid to interpreting the statute. It offered practical guidance only, and itself acknowledged that the primary onus of interprtation fell on courts and tribunals. The offer of entirely different work was not a requirement of the statute.

Judges:

Lord Hamilton And Lord Macfadyen And Lord Mccluskey

Citations:

[2003] ScotCS 308, Times 23-Jan-2004

Links:

Bailii

Statutes:

Employment Tribunal Act 1996 37, Disability Discrimination Act 1996 6

Jurisdiction:

Scotland

Citing:

Appeal from – Archibald v Fife Council EAT 12-Dec-2002
EAT Disability Discrimination – Adjustments
EAT Disability Discrimination – Reasonable adjustments. . .

Cited by:

Appeal from – Archibald v Fife Council HL 1-Jul-2004
The claimant was employed as a street sweeper. She suffered injury to her health making it difficult to do her work. She was dismissed, and claimed that being disabled, the employer had not made reasonable adjustments to find alternative work for . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 22 May 2022; Ref: scu.190762

Commission of the European Communities v Grand Duchy of Luxembourg: ECJ 17 Dec 1987

ECJ Officials – pensions – pension rights acquired before entry into the service of the communities – transfer to the community scheme – detailed rules -actuarial equivalent or sums repaid – possibility of choosing – obligations of the member states – limits (staff regulations of officials, annex viii, art. 11 (2)). Although the member states are under an obligation to take practical steps to enable officials to exercise the option conferred upon them by article 11 (2) of annex viii to the staff regulations of transferring the rights acquired under a national pension scheme to the community pension scheme, that provision, whose purpose is to ensure the transition from a national insurance scheme to the community scheme by one of the two procedures to which it refers, namely transfer of the actuarial equivalent or transfer of the sums repaid, without giving precedence to either, does not require the member states to grant officials the option of choosing between those two methods of calculation. Accordingly, if the provisions applicable in a member state to the transition from one national pension scheme to another make no provision for the calculation of the actuarial equivalent, article 11 (2) of annex viii to the staff regulations does not prevent that member state from adopting only the calculation of the sums repaid for the purpose of transferring pension rights from a national scheme to a community scheme.

Citations:

C-315/85, [1987] EUECJ C-315/85

Links:

Bailii

European, Employment

Updated: 22 May 2022; Ref: scu.134236

Spijkers v Gebroeders Benedik Abattoir: ECJ 18 Mar 1986

ECJ Social policy – approximation of laws – transfers of undertakings – safeguarding of employees’ rights – Directive no 77/187 – transfer – meaning
(Council Directive no 77/187, art. 1(1).
The expression’ transfer of an undertaking, business or part of a business to another employer’ in article 1(1) of directive no 77/187 envisages the case in which the business in question retains its identity. In order to establish whether or not such a transfer has taken place, it is necessary to consider whether, having regard to all the facts characterizing the transaction, the business was disposed of as a going concern, as would be indicated inter alia by the fact that its operation was actually continued or resumed by the new employer, with the same or similar activities.

Citations:

[1986] 2 CMLR 296, C-24/85, [1986] ECR 1119, R-24/85, [1986] EUECJ R-24/85

Links:

Bailii

Cited by:

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 . .
Cited – Allen and Others v Amalgamated Construction Co Ltd ECJ 10-Dec-1999
The European rules protecting employees rights on the transfer of undertakings operated also when employees when employees were transferred between two separate companies which were subsidiaries of another. They were legally distinct employers, even . .
Cited – Astle and others v Cheshire County Council and Omnisure Property Management Ltd EAT 20-May-2004
EAT Issue whether Employment Tribunal asked itself the right question and/or was perverse in failing to find that the principal reason for the Council’s changed arrangements was to thwart TUPE and hence that the . .
Cited – Gefco UK Ltd v J S Oates Car and Delivery Co Ltd EAT 17-Jun-2005
EAT TUPE
Employment Tribunal correctly applied relevant European Court of Justice authorities in assessing the Spijkers factors and holding there was a relevant transfer of part of an undertaking. . .
Lists of cited by and citing cases may be incomplete.

European, Employment

Updated: 22 May 2022; Ref: scu.134033

Hartmut Scharf v Commission: ECJ 13 Dec 1984

ECJ Application for interim measures – suspension of the operation of a measure – interim measures – conditions for granting (rules of procedure, art. 83 (2)). Suspension of operation and other interim measures may be granted by the judge ruling on the application for interim measures if it is shown that there are factual and legal grounds establishing a prima facie case for them (fumus boni juris); if they are urgent, in the sense that it is necessary, in order to avoid serious and irreparable damage, for them to be adopted and produce their effects before the decision on the application for annulment; and finally, if they are provisional, that is, if they are without prejudice to the decision on the substance of the case and if they do not already decide the issues of law or of fact in dispute, or neutralize in advance the consequences of the decision to be given later in the main proceedings.

Citations:

C-292/84, [1984] EUECJ C-292/84R

Links:

Bailii

Jurisdiction:

European

Cited by:

See Also – Hartmut Scharf v Commission ECJ 21-Oct-1986
. .
See Also – F Bolognese and others v H Scharf and Commission of the European Communities ECJ 22-Sep-1987
1. Procedure – third-party proceedings – conditions of admissibility – prejudice to the rights of the third party.
(statute of the court of justice of the EEC Art 39; rules of procedure, art 97 (1))
2. Officials – staff regulations – . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 22 May 2022; Ref: scu.134002

Civil Nuclear Police Federation v Civil Nuclear Police Authority: Admn 31 Aug 2016

‘In these judicial review proceedings the sole issue for consideration by the Court is whether the term ‘members of a police force’ in section 10 of the Public Service Pensions Act 2013 (‘the 2013 Act’) includes members of the Civil Nuclear Constabulary (‘CNC’) so that any pension scheme made under or in accordance with that Act must have a normal retirement age of 60. Permission to apply for judicial review was granted by Langstaff J on 8 March 2016.’

Judges:

Nicola Davies J

Citations:

[2016] EWHC 2186 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Police

Updated: 22 May 2022; Ref: scu.569398

Burton v British Railways Board: ECJ 16 Feb 1982

Europa The principle of equal treatment contained in article 5 of council directive 76/207 applies to the conditions of access to voluntary redundancy benefit paid by an employer to a worker wishing to leave his employment.
The fact that access to voluntary redundancy is available only during the five years preceding the minimum pensionable age fixed by national social security legislation and that that age is not the same for men as for women cannot in itself be regarded as discrimination on grounds of sex within the meaning of article 5 of directive 76/207.
The determination of a minimum pensionable age for social security purposes which is not the same for men as for women does not amount to discrimination prohibited by community law.

Citations:

C-19/81, R-19/81, [1982] EUECJ R-19/81, [1982] Q B 1080

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1513) CA 9-Dec-2005
The department complained that the defendants had entered into a transaction with their farm at an undervalue so as to defeat its claim for recovery of sums due. The transaction used the grant of a tenancy by the first chargee.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 21 May 2022; Ref: scu.133178

Susan Jane Worringham and Margaret Humphreys v Lloyds Bank Limited: ECJ 11 Mar 1981

Europa A contribution to a retirement benefits scheme which is paid by an employer on behalf of employees by means of an addition to the gross salary and which therefore helps to determine the amount of that salary constitutes ‘pay’ within the meaning of the second paragraph of article 119 of the EEC treaty. Directive 75/117/EEC is based on the concept of ‘pay’ as defined in the second paragraph of article 119 of the EEC Treaty. Although article 1 of the directive explains that the concept of ‘same work’ contained in the first paragraph of article 119 of the treaty includes cases of ‘work to which equal value is attributed’, it in no way affects the concept of ‘pay’ contained in the second paragraph of article 119 but refers by implication to that concept. Article 119 of the EEC treaty applies directly to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by the article in question, without national or community measures being required to define them with greater precision in order to permit of their application. The forms of discrimination which may be thus judicially identified include cases where men and women receive unequal pay for equal work carried out in the same establishment or service, public or private. This is the case where the requirement to pay contributions to a retirement benefits scheme applies only to men and not to women and the contributions payable by men are paid by the employer on their behalf by means of an addition to the gross salary the effect of which is to give men higher pay within the meaning of the second paragraph of article 119 than that received by women engaged in the same work or work of equal value.

Citations:

C-69/80, [1981] 1 WLR 950, [1981] ICR 558, [1981] 2 All ER 434, R-69/80, [1981] EUECJ R-69/80

Links:

Bailii

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

European, Discrimination, Employment

Updated: 21 May 2022; Ref: scu.133026

Anne-Marie Tiberghien, Nee Peuteman, v Commission of The European Communities: ECJ 18 Dec 1980

ECJ 1. Officials – recruitment – competition – selection board – refusal to admit to a competition – inaccurate assessment of a doubtful administrative situation – duty of the selection board to investigate of its own motion – absence – unlawfulness of the decision (staff regulations, annex iii, art. 5)
2. Procedure – costs – each party to pay its own costs – exceptional circumstance (rules of procedure, art. 69 (3), first subparagraph)
1. Whilst a selection board responsible for the management of a competition for which there is a large number of candidates cannot be criticized for not taking the initiative of clarifying of its own motion the administrative situation, not yet determined when it made its decision, of a candidate whom it refused to admit, where it is established that there has been an error in its assessment the decision in question must be annulled in order to enable the administration to take a fresh decision which accords with the candidate ‘ s situation as subsequently acknowledged by it.
2. It would be inequitable to allow an official who has obtained the annulment of a decision of a selection board refusing to admit him to a competition to burden the institution in question with the costs of legal proceedings which he could have avoided by care to inform the selection board, which gave its decision on the basis of an administrative situation not then determined, of concurrent proceedings commenced by him through official channels in order to obtain rectification of that situation. The power given to the court under the first subparagraph of article 69 (3) of the rules of procedure should be exercised and the parties should be ordered to pay their own costs.

Citations:

C-797/79, C-797/79, [1980] EUECJ C-797/79

Links:

Bailii

European, Employment

Updated: 21 May 2022; Ref: scu.132959

Gordon Craigie Bowden and others v Commission of the European Communities: ECJ 16 Jul 1981

Europa Officials – applications to the court – application directed against a regulation – absence of act adversely affecting the official -inadmissibility (EEC treaty, art. 173; staff regulations of officials, arts 90 and 91; council regulations nos 3085 and 3086/78 amending the staff regulations of officials) regulations nos 3085 and 3086/78 are of general application and hence officials may not claim that they constitute decisions which are of direct and individual concern to them in order to call their validity in question in proceedings under article 173 of the treaty. The mere submission of a complaint pursuant to article 90 of the staff regulations is not sufficient to create a judicial remedy against a measure which is in the nature of a regulation. The procedure provided for in article 90 (2) applies only where the appointing authority has taken a decision or has refrained from adopting a measure prescribed by the staff regulations and where such conduct constitutes an act adversely affecting the official.

Citations:

C-153/79, [1981] EUECJ C-153/79

Links:

Bailii

European, Employment

Updated: 21 May 2022; Ref: scu.132921

Macarthys Ltd v Smith: ECJ 27 Mar 1980

The first paragraph of article 119 of the EEC Treaty applies directly, and without the need for more detailed implementing measures on the part of the community or the member states, to all forms of direct and overt discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by the article in question. Cases where men and women receive unequal pay for equal work carried out in the same establishment or service are among the forms of discrimination which may be thus judicially identified. In such a situation the decisive test lies in establishing whether there is a difference in treatment between a man and a woman performing ‘equal work’ within the meaning of article 119. That concept is entirely qualitative in character in that it is exclusively concerned with the nature of the services in question. Its scope may not therefore be restricted by its being confined to situations in which men and women are contemporaneously doing equal work for the same employer. It cannot, however, be ruled out that a difference in pay between two workers occupying the same post but at different periods in time may be explained by the operation of factors which are unconnected with any discrimination on grounds of sex. That is a question of fact which it is for the court or tribunal to decide. In cases of actual discrimination falling within the scope of the direct application of article 119 comparisons are confined to parallels which may be drawn on the basis of concrete appraisals of the work actually performed by employees of different sex within the same establishment or service. The principle of equal pay enshrined in article 119 therefore applies to the case where it is established that, having regard to the nature of her services, a woman has received less pay than a man who was employed prior to the woman ‘ s period of employment and who did equal work for the employer.

Citations:

C-129/79, [1981] QB 180, [1980] 3 WLR 929, [1980] ICR 672, [1981] 1 All ER 111, R-129/79, [1980] EUECJ R-129/79

Links:

Bailii

Statutes:

Council Directive 75/117/EEC

Citing:

Reference From – Macarthys Ltd v Smith CA 1980
The employee had taken on a job substantially similar to that of a previous male employee, but had been paid less. She succeeded in a claim under the 1971 Act before the industrial tribunal and Employment Appeal Tribunal. The employer appealed . .
At EAT – Smith v Macarthys Ltd EAT 14-Dec-1977
Mrs Smith was employed by the respondents, wholesale dealers in pharmaceutical products, as a warehouse manageress at a weekly salary of andpound;50. She complained of discrimination in pay because her male predecessor whose post she took up after . .

Cited by:

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 – Sharp v Caledonia Group Services Ltd EAT 1-Nov-2005
EAT Equal Pay Act – Material factor defence – In an equal pay claim involving a presumption of direct discrimination the genuine material factor defence requires justification by objective criteria.
The . .
Cited – Sodexo Ltd v Gutridge and others EAT 31-Jul-2008
EAT EQUAL PAY ACT
JURISDICTIONAL POINTS: Claim in time and effective date of termination
The claimants alleged that their employer had been in breach of their rights under the Equal Pay Act 1970. They . .
At ECJ – Macarthys Ltd v Smith (No.2) CA 17-Apr-1980
The parties had disputed a difference in payment between the woman applicant and men doing similar work. After a lengthy dispute the parties now disputed the costs.
Held: The company had correctly been ordered to pay the costs. . .
Lists of cited by and citing cases may be incomplete.

European, Discrimination, Employment

Updated: 21 May 2022; Ref: scu.132902

Schuerer v Commission: ECJ 24 Nov 1983

(Judgment) Invalidity pension – Revision of a judgment.

Citations:

C-107/79, [1983] EUECJ C-107/79

Links:

Bailii

Jurisdiction:

European

Citing:

See Also – Schuerer v Commission ECJ 12-Jun-1980
Judgment – Invalidity pension. . .

Cited by:

See Also – Schuerer v Council ECFI 28-Jun-2000
Retirement pension – Weighting – Action for annulment – Inadmissibility. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 21 May 2022; Ref: scu.132890

Defrenne v Sabena Airlines: ECJ 15 Jun 1978

LMA Ms Defrenne was an air hostess employed by SABENA, a Belgian airline company. She brought an action against the airline based on Art.119 [now141] EC. Ms Defrenne claimed that in paying their male stewards more than their air hostesses, when they performed identical tasks, Sabena were in breach of Art.119EC. The question to the ECJ was whether, and in what context, Art.199EC was directly effective. The ECJ held ‘the prohibition on discrimination between men and women applies not only to the action of public authorities but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals’
Europa Article 119 of the EEC Treaty, which is limited to the question of pay discrimination between men and women workers, constitutes a special rule, whose application is linked to precise factors. It cannot be interpreted as prescribing, in addition to equal pay, equality in respect of the other working conditions applicable to men and women. The fact that the fixing of certain conditions of employment – such as a special age-limit – may have pecuniary consequences is not sufficient to bring such conditions within the field of application of article 119, which is based on the close connection which exists between the nature of the services provided and the amount of remuneration.
Fundamental personal human rights form part of the general principles of community law, the observance of which the court has a duty to ensure. The elimination of discrimination based on sex forms part of those fundamental rights. However, it is not for the court to enforce the observance of that rule of non-discrimination in respect of relationships between employer and employee which are a matter exclusively for national law.

Citations:

[1979] ECR 1365, C-149/77, R-149/77, [1978] EUECJ R-149/77

Links:

Bailii

Citing:

see also – Gabrielle Defrenne v Belgian State ECJ 25-May-1971
ECJ The concept of pay as defined in article 119 of the EEC Treaty does not include social security schemes or benefits directly governed by legislation without any element of agreement within the undertaking or . .
See also – Defrenne v Sabena (No 2) ECJ 8-Apr-1976
ECJ The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It may be relied on before the national courts. These courts have a . .
Lists of cited by and citing cases may be incomplete.

European, Employment, Discrimination

Updated: 21 May 2022; Ref: scu.132571

Mulcahy v Commission: ECJ 1 Jun 1978

Europa Officials – recruitment – consideration of applications – professional experience – equivalence to university degree – appraisal (staff regulations, article 5) in the matter of promotion it is for the appointing authority to appraise whether professional experience is equivalent to university education evidenced by a degree.

Citations:

C-110/77, [1978] EUECJ C-110/77

Links:

Bailii

European, Employment

Updated: 21 May 2022; Ref: scu.132536

Van Duyn v Home Office: ECJ 4 Dec 1974

LMA Miss Van Duyn, a Dutch national, wished to enter the UK to take up work with the Church of Scientology. Art 48EC (new Art.39EC) confers rights on the individuals of each Member State to go to another MS (host state) to take up work without being discriminated against as regards employment, remuneration and other conditions of work and employment. The right to free movement of workers is subject to limitations justified on the grounds of public policy, public security or public health. Despite any evidence of ‘personal conduct’ being held against her, the HO refused to admit Miss Van Duyn into the UK.
Held: Miss van Duyn was allowed to invoke the Directive against the HO directly before the Dutch court (i.e. vertical direct effect). Article 3 of Directive 64/221 conferred on individuals rights which were enforceable by them in the courts of Member States and which the national courts must protect.
In relation to its approach to the free movement of workers and public policy within the Treaty of Rome, the court remarked that ‘it is a principle of international law, which the EEC Treaty cannot be assumed to disregard in the relations between member states, that a state is precluded from refusing its own nationals the right of entry or residence’.

Citations:

(1975) 1 CMLR 1, C-41/74, [1974] ECR I 1337, R-41/74, [1974] EUECJ R-41/74, [1975] Ch 358, [1974] ECR 1337

Links:

Bailii

Cited by:

Cited – Chagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
Cited – HB v Secretary of State for the Home Department CA 11-Jul-2008
The claimant appealed against the decision to deport him made on the basis of hs propensity to criminality. The court was asked whether a propensity to commit robberies was a sufficiently serious threat to society to allow expulsion. However it . .
Cited – Regina v Kluxen CACD 14-May-2010
The court considered the occasions on which a court should recommend deportation after completion of a prison sentence and how this might differ between EU and non-EU nationals.
Held: Since the 2007 it is not appropriate to recommend . .
Cited – Lukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
Lists of cited by and citing cases may be incomplete.

European, Employment

Updated: 21 May 2022; Ref: scu.132382

Mills v EIB (Judgment): ECJ 15 Jun 1976

Europa By its use of the words ‘any dispute between the community and its servants’ article 179 is not restricted exclusively to the institutions of the community and their staff but also includes the bank as a community institution established and with legal personality conferred by the treaty. Under this article the court thus has jurisdiction in any dispute between the bank and its servants.
The system adopted for the relations between the bank and its employees is contractual. The contract may be repudiated and terminated by either of the parties on the conditions laid down both in the regulations and in the contract itself.
If the contract is terminated contrary to the provisions of the individual contract or of the staff regulations of the european investment bank which are deemed to be an integral part thereof the party having illegally terminated the contract must be ordered to compensate the other party for the material and non-material damage occasioned to the latter by such illegality.
Both the provisions of the contract and the general principles of the law of master and servant impose limits on the intention of the parties. Termination of a contract which exceeds those limits may be void and it will be for the court having jurisdiction, in this case the court of justice, to make a declaration to that effect.

Citations:

C-110/75, [1976] EUECJ C-110/75, [1976] EUECJ C-110/75

Links:

Bailii, Bailii

European, Employment

Updated: 21 May 2022; Ref: scu.132393

Kulkarni v Milton Keynes Hospital NHS Trust: QBD 1 Aug 2008

The claimant sought an extension to his injunction that the defendant should not depart from its disciplinary procedures.

Judges:

Penry-Davey J

Citations:

[2008] EWHC 1861 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Kulkarni v Milton Keynes Hospital NHS Foundation Trust and Others CA 23-Jul-2009
The doctor claimant sought to assert a right to have legal representation in disciplinary proceedings by his employer.
Held: The doctor’s contract entitled him to representation. Also, the claimant’s Article 6 rights to a fair trial and to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 21 May 2022; Ref: scu.271333

Archer v Williams: QBD 3 Jul 2003

The claimant brought an action for breach of confidence against a former employee.

Judges:

Jackson J

Citations:

[2003] EWHC 1670 (QB), [2003] EMLR 38

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Mosley v News Group Newspapers Ltd QBD 24-Jul-2008
The defendant published a film showing the claimant involved in sex acts with prostitutes. It characterised them as ‘Nazi’ style. He was the son of a fascist leader, and a chairman of an international sporting body. He denied any nazi element, and . .
Lists of cited by and citing cases may be incomplete.

Information, Employment

Updated: 21 May 2022; Ref: scu.271068

Kircher v Hillingdon Primary Care Trust: QBD 13 Jan 2006

Judges:

David Foskett QC

Citations:

[2006] EWHC 21 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Followed – Gryf-Lowczowski v Hinchingbrooke Healthcare NHS Trust QBD 2-Nov-2005
In the course of an application for an interim injunction to prevent the Defendant dismissing the Claimant until disciplinary proceedings had been completed, the Judge considered the adequacy of damages as an alternative remedy: ‘On the other hand, . .

Cited by:

Cited – Edwards v Chesterfield Royal Hospital NHS Foundation Trust QBD 31-Jul-2009
The claimant, a consultant surgeon had been subject to disciplinary proceedings by his employer. They were however conducted in a manner which breached his contract. The GMC had summarily dismissed the same allegations. The claimant now appealed . .
Lists of cited by and citing cases may be incomplete.

Employment, Health Professions

Updated: 21 May 2022; Ref: scu.238315

Van Eick v Commission: ECJ 24 Jun 1971

ECJ (Judgment) Application for the annulment of the decision of 14 July 1970 by which the commission refused a request by the applicant for ‘ the restoration to him of his right to be heard in accordance with the provisions of the third paragraph of article 7 of annex ix to the staff regulations, for compensation for the decision of 18 december 1968 to remove him from his post and for redress for the material consequences of the said decision.

Citations:

C-57/70, [1971] EUECJ C-57/70

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 20 May 2022; Ref: scu.131946

Landesversicherungsanstalt Rheinland-Pfalz v Joseph Welchner: ECJ 5 Dec 1967

ECJ 1. Free movement of persons – workers – social security – periods assimilated to insurance periods – reference to national law (regulation no 3, article 1(r)) 2. Free movement of persons – workers – old-age and death (pensions) insurance – application of German legislation – taking into account of ‘ substitute periods ‘ within the meaning of that legislation – German institutions not obliged to take into account a period completed under the legislation of another member state (regulation no 3, article 28, annex g) 1. In so far as it takes ‘ assimilated periods ‘ into account, regulation no 3 intends neither to modify nor supplement national law, provided that the latter observes the provisions of article 48 to 51 of the EEC treaty. In particular, regulation no 3 refers to the conditions under which national law will regard a given period as being equivalent to insurance periods properly so-called. 2. Article 28 of regulation no 3 of the council of the EEC concerning social security for migrant workers, together with annex g thereto, does not require the institutions of the federal republic of Germany to take into account a period completed under the legislation of another member state in determining whether ‘ substitute periods ‘ within the meaning of German legislation must be taken into account.

Citations:

C-14/67, R-14/67, [1967] EUECJ R-14/67

Links:

Bailii

European, Benefits, Employment

Updated: 20 May 2022; Ref: scu.131844

Cesare Alfieri v Parliament: ECJ 14 Dec 1966

ECJ (Judgment) 1. Officials – retirement by institution – procedure – plurality of connected steps – application against the measure retiring an official – possibility of contesting the legality of earlier steps (staff regulations of officials of the ECSC, article 91; staff regulations of officials of the EEC and EAEC, article 53) 2. Officials – retirement by institution – written form obligatory (staff regulations of officials of the EEC and EAEC, article 53) 3. Officials – retirement by institution – obligation of the person concerned to co-operate – powers of the administration if the person concerned fails to act (staff regulations of officials of the ECSC, article 91; staff regulations of officials of the EEC and EAEC, article 53, annex ii, article 7) 1. Since the various steps comprising the procedure for retiring an official form a single entity, it must be accepted that in an action contesting the retirement decision, the applicant may contest the legality of earlier steps which are closely linked to it. A submission of inadmissibility on the ground that an appeal against these steps was out of time is therefore inadmissible. Cf. Para. 1, summary, joined cases 12 and 29/64, (1965) ECR 144. 2. A decision to retire an official must be made in writing. 3. The guarantees conferred by the staff regulations with regard to retiring an official must not be interpreted as meaning that it is possible for the person concerned to object to the formation of an invalidity committee, particularly by refusing to appoint a doctor of his own choice. It follows from the fundamental duty of loyalty and co-operation which all officials owe to the authority to which they belong that the power to appoint a doctor at the same time constitutes a duty. The administration has the power, if necessary, to remedy the failure of the person concerned to appoint a doctor in order to ensure the setting up and functioning of an invalidity committee, provided that any element of an arbitrary nature is avoided and that the official’s interests are not unnecessarily harmed.

Citations:

[1966] EUECJ C-3/66

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 20 May 2022; Ref: scu.131821

Yorkshire Blood Transfusion Service v Plaskitt: EAT 17 Aug 1993

An employer paying the wrong salary by mistake, led to worse treatment but not by any difference of sex which might justify or base a claim of sex discrimination. There was no reason why an employer’s own mistake could not be a sufficient factor without there being any discrimination.

Citations:

Ind Summary 30-Aug-1993, Times 17-Aug-1993, [1993] UKEAT 108 – 93 – 3006

Links:

Bailii

Statutes:

Equal Pay Act 1970 1(3)

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 20 May 2022; Ref: scu.90668

Abbey Life Assurance Company Limited v Tansell: CA 6 Apr 2000

Appeal about the scope of protection conferred by the 1995 Act on ‘contract workers’, workers who do work for the alleged discriminator, but not employed by him. They are employed by someone else and their services are contracted out.
The case turns on the interpretation of section 12 of the 1995 Act which makes it unlawful to discriminate against disabled contract workers. The point arises as a preliminary issue in an application to the Employment Tribunal in the field of employment for a reason relating to his disability.

Judges:

Stuart-Smith, Ward, Mummery LJJ

Citations:

[2000] IRLR 387, [2000] EWCA Civ 107, [2000] ICR 789

Links:

Bailii

Statutes:

Disability Discrimination Act 1995

Jurisdiction:

England and Wales

Discrimination, Employment

Updated: 20 May 2022; Ref: scu.115986

Carver (Nee Mascarenhas) v Saudi Arabian Airlines: CA 17 Mar 1999

The applicant was recruited in Saudi Arabia in 1986 as a flight attendant under a contract expressed to be subject to Saudi Arabian law. After being trained in Jeddah, and then employed in India for four years, she was transferred to be based in London, from which all her tours of duty as a flight attendant thereafter commenced, and at which they ended. She complained of unfair dismissal and of sex discrimination.
Held: By reference to the relevant test at the time for the jurisdiction of UK tribunals in relation to unfair dismissal, she did not ordinarily work in Great Britain. So far as concerned the sex discrimination claim, the applicant’s appeal was allowed to the extent that the issue was remitted to a differently constituted tribunal to determine where the applicant wholly or mainly did her work at the relevant time. When a tribunal has to decide where an employee ‘ordinarily works’, the tribunal must look to the entire period of the contract, and not to some smaller, artificial, part. A contract begun and substantially worked in Jeddah was not subject to UK law. As to the term ‘ordinarily’: ‘Here the position was quite different. The Tribunal had to consider where at the time of the alleged discrimination the appellant was ‘wholly or mainly’ working [our underlining]. See Haughton v Olau Line (UK) Ltd [1986] ICR 357 in the Court of Appeal. However, the tribunal decided jurisdiction on where the applicant was ordinarily working. That was impermissible. Insofar as the tribunal purported to make a finding of fact as to where the applicant was wholly or mainly working, it seems to me that it did so without any evidential basis. The tribunal appears to have taken the monthly, minimum, flying time, namely 72 hours, required of the applicant and set it against a notional working week of 40 hours. By such a comparison it would seem that the applicant worked most of her time within Great Britain. But neither the 72 hours minimum flying time nor the notional 40-hour week had any relevance to the question which had to be determined. Consequently I would hold the finding to be without any foundation and as such to amount to an error of law. I would be minded therefore, to remit the question of jurisdiction under the Sex Discrimination Act 1975 to the tribunal, differently constituted, with a direction to determine the question of jurisdiction on the basis of where the applicant wholly or mainly did her work at the relevant time.’

Judges:

Mantell LJ, Beldam LJ and Ward LJ

Citations:

Times 24-Mar-1999, Gazette 27-Jun-1999, [1999] EWCA Civ 1002, [1999] ICR 991

Links:

Bailii

Statutes:

Employment Rights Act 1996 196

Jurisdiction:

England and Wales

Citing:

Distinguished – Todd v British Midland Airways CA 2-Jan-1978
The court discussed the test to be applied to an employment to see whether a British court had jurisdiction over it: ‘But in other cases there is more difficulty. I refer particularly to the type of case we have here of the airline pilot. He is . .

Cited by:

Cited – Serco Ltd v Lawson and Foreign and Commonwealth Office CA 23-Jan-2004
The applicant had been employed to provide services to RAF in the Ascension Islands. He alleged constructive dismissal. There was an issue as to whether somebody working in the Ascension Islands was protected by the 1996 Act. The restriction on . .
Cited – Saggar v Ministry of Defence EAT 25-May-2004
Three Defence employees sought to bring claims of variously race and sex discrimination against the Ministry. In each case their services were provided almost entirely abroad, and the defendant argued that there was no jurisdiction to hear the case, . .
Cited – Saggar v Ministry of Defence CA 27-Apr-2005
The claimant sought to bring an action for race discrimination. The defendant argued that the alleged acts of discrimination took place whilst he was on a posting abroad in Cyprus after serving 16 years in England, and that therefore the tribunal . .
Cited – Crofts and others v Cathay Pacific Airways Ltd and others CA 19-May-2005
The claimants were airline pilots employed by the respondent company with headquarters in Hong Kong. The court was asked whether an English Tribunal had jurisdiction to hear their complaints of unfair dismissal.
Held: The pilots were employed . .
Cited – Serco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL 26-Jan-2006
Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
Lists of cited by and citing cases may be incomplete.

Employment, Jurisdiction, Discrimination

Updated: 20 May 2022; Ref: scu.118485

Wren and Others v Eastbourne Borough Council and Another: EAT 18 Aug 1993

The transfer of a department of the council providing utility services to the council to a private company, may be subject to ‘transfer of undertaking’ rules. 27/05/1993

Citations:

Times 18-Aug-1993, [1993] UKEAT 386 – 92 – 2705

Links:

Bailii

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794)

Local Government, Employment

Updated: 20 May 2022; Ref: scu.90619

William Hill Organisation Ltd v Tucker: CA 8 Apr 1998

In the absence of a sufficient clause providing otherwise, an employee required not to attend work during his notice period may work for another employer during that period. The court should ask whether the bargain between the employer and the employee is such that there is a right to work, in other words, whether the obligation of the employer is not confined to payment of the agreed remuneration, but also includes the obligation to provide work.

Judges:

Moritt LJ

Citations:

Times 08-Apr-1998, Gazette 20-May-1998, [1998] EWCA Civ 615, [1998] IRLR 313, [1999] ICR 291

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Collier v Sunday Referee Publishing Co 1940
The plaintiff was a chief sub-editor with the defendant. He sought the right to work and be paid for working.
Held: The employee had the right to work. Asquith J discussed a former employee’s right to earn a living: ‘It is true that a contract . .

Cited by:

Cited – Cerinus v Bell College of Technology EAT 28-Sep-2001
The employee appealed against the dismissal of her claim for unfair dismissal. Following a re-organisation, she found that there was less and less work of the sort she was employed to undertake. She requested voluntary redundancy and was refused . .
Cited – SG and R Valuation Service Co v Boudrais and others QBD 12-May-2008
The claimant sought to require the defendants not to work during their notice period to achieve the equivalent of garden leave despite there being no provision for garden leave in the contracts. It was said that the defendants had conspired together . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 May 2022; Ref: scu.90513

Wilson and Others v St Helens Borough Council: EAT 10 Apr 1996

Variation of employment terms which arose on a transfer of an undertaking were ineffective. Mummery P J said: ‘It is also an error on the part of the tribunal to conclude that the affirmation of the contract by the subsequent conduct of the parties avoids the mandatory effect of reg. 5(1), interpreted in accordance with the Daddy’s Dance Hall [1988] IRLR 315 decision. The variations in the contract terms, said to have been affirmed by the subsequent conduct of the applicants, relate back to the time of the transfer when the variations were made and accepted by reason of the transfer and were therefore prohibited. What happened subsequently was confirmation by conduct of what had already happened on, and by reason, of the transfer. It is true that there may be cases where an effective variation of the terms of employment does take place subsequently either by express agreement or by agreement inferred from conduct. Whether there is such a variation depends on the facts of each case. The reason for the variation depends on the facts of the case. The law, surprising though it may be to English legal tradition, is clear. If the operative reason for the variation is the transfer of the undertaking, then the variation will be ineffective. In this case there was no evidence before the tribunal that the reason for the variation, which took place at the time of the transfer, was anything other than the transfer itself. The ‘economic, technical or organisational reason entailing changes in the workforce’ did not alter the fact that the variations took place by reason of the transfer at the time of the transfer. There was no subsequent separate agreement varying the terms of employment after the transfer. The subsequent conduct relied on as affirmation was conduct consistent with variations made at the time of and by reason of the transfer. If, as Daddy’s Dance Hall [1988] IRLR 315 holds, there can be no agreement to vary terms and conditions by reason of the transfer, there cannot be any subsequent effective affirmation of that variation. It remains prohibited by the regulations.’

Judges:

Mummery P J

Citations:

Times 10-Apr-1996, [1996] UKEAT 641 – 95 – 1602, [1996] IRLR 320

Links:

Bailii

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 1981 No 1794 5

Jurisdiction:

England and Wales

Citing:

Cited – Foreningen Af Arbejdsledere I Danmark v Daddy’s Dance Hall A/S ECJ 10-Feb-1988
The claimant, Mr Tellerup, was employed as a restaurant manager by the transferor, Irma Catering A/S. When its lease was terminated it dismissed all staff. Mr Tellerup’s statutory period of notice expired on 30 April 1983. But it continued to run . .

Cited by:

Cited – Smith and Others v Trustees of Brooklands College EAT 5-Sep-2011
EAT TRANSFER OF UNDERTAKINGS – Varying terms of employment
The Employment Judge was entitled to hold that the agreed variation of the Claimants’ salary was not for a reason connected with a relevant TUPE . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 May 2022; Ref: scu.90546

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 national law as he could have enforced against the transferor.’ and ‘whether, if despite dismissal they were entitled to retain the benefit of their previous terms, the employees either by initially agreeing terms with their new employers, or by continuing to work for the new employers or by accepting the statement of terms and conditions subsequently varied any entitlement to the previous terms and conditions.’
Held: A dismissal on a transfer of undertaking was actually a dismissal and not a nullity. The TUPE regulations added rights to take action for a dismissal, they did not change the underlying law against specific performance in employment law.
Lord Slynn said: ‘the existing rights of employees are to be safeguarded if there is a transfer. That means no more and no less than that the employee can look to the transferee to perform those obligations which the employee could have enforced against the transferor. The employer, be he transferor or transferee, cannot use the transfer as a justification for dismissal, but if he does dismiss it is a question for national law as to what those rights are. As I have already said, in English law there would as a general rule be no order for specific performance. The claim would be for damages for wrongful dismissal or for statutory rights including, it is true, reinstatement or re-engagement where applicable . . The Directive is to ‘approximate’ the laws of the Member States. Its purpose is to ‘safeguard’ rights on a transfer. The ‘rights’ of an employee must depend on national rules of the law of contract or of legislation. There is no Community law of contract common to Member States, nor is there a common system or remedies. The object and purpose of the Directive is to ensure in all member states that on a transfer an employee has against the transferee the rights and remedies which he would have had against the original employer.’ and

‘where there is a transfer of an undertaking and the transferee actually takes on the employee the contract of employment is automatically transferred so that, in the absence of a permissible variation, the terms of the initial contract go with the employee, who though he may refuse to go, cannot as a matter of public policy waive the rights which the Directive and the Regulations confer on him. Where the transferee does not take on the employees who are dismissed on transfer the dismissal is not a nullity though the contractual rights formerly available against the transferor remain intact against the transferee. For the latter purpose, an employee dismissed prior to the transfer contrary to Article 4(1), i.e. on the basis of the transfer, is to be treated as still in the employment of the transferor at the date of transfer’

Judges:

Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Steyn, Lord Clyde, Lord Hutton

Citations:

Times 30-Oct-1998, Gazette 25-Nov-1998, [1998] UKHL 37, [1999] 2 AC 52, [1998] 4 All ER 609, [1998] 3 WLR 1070

Links:

House of Lords, Bailii

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794), Acquired Rights Directive (77/187/EEC)

Jurisdiction:

England and Wales

Citing:

Cited – Defrenne v Sabena (No 2) ECJ 8-Apr-1976
ECJ The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It may be relied on before the national courts. These courts have a . .
Cited – Garland v British Rail Engineering Ltd (No 2) HL 22-Apr-1982
Under English law and under Community law, the national court should construe a regulation adopted to give effect to a Directive as intended to carry out the obligations of the Directive and as not being inconsistent with it if it is reasonably . .
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 – Knud Wendelboe and Others v LJ Music Aps, In Liquidation ECJ 7-Feb-1985
Europa Council directive no 77/187 does not require the member states to enact provisions under which the transferee of an undertaking becomes liable in respect of obligations concerning holiday pay and . .
Cited – Foreningen Af Arbejdsledere I Danmark v A/S Danmols Inventar, In Liquidation ECJ 11-Jul-1985
Europa Article 1(1) of Council Directive no 77/187 does not apply to the transfer of an undertaking, business or part of a business where the transferor has been adjudged insolvent and the undertaking or business . .
Cited – 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 . .
Appeal from – Meade and Another v British Fuels Ltd EAT 11-Mar-1996
. .
Cited – Katsikas and others v Konstantinidis and others ECJ 16-Dec-1992
ECJ Article 3(1) of Directive 77/187 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings is to be interpreted as not . .
Cited – Ann Watson Rask and Christensen v ISS Kantineservice A/S ECJ 12-Nov-1992
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 . .
Cited – Giuseppe d’Urso, Adriana Ventadori and others v Ercole Marelli Elettromeccanica Generale SpA ECJ 25-Jul-1991
Europa 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, businesses or parts of . .

Cited by:

Cited – Smith and Others v Trustees of Brooklands College EAT 5-Sep-2011
EAT TRANSFER OF UNDERTAKINGS – Varying terms of employment
The Employment Judge was entitled to hold that the agreed variation of the Claimants’ salary was not for a reason connected with a relevant TUPE . .
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 20 May 2022; Ref: scu.90550

Unison v Westminster City Council: CA 21 Mar 2001

The union served a notice of a pre-strike ballot on the council regarding a proposed privatisation and contracting out of services. The council alleged that this was not a trade dispute but one regarding public policy. The judge’s support for this was not justified by the evidence before him, and his decision was so defective as to allow the Court of Appeal itself to re-assess the evidence. The dispute clearly related to the terms and conditions of employment, since the proposals would have significant implications for staff. The notice identified those to be balloted by reference to the employer making deductions from their pay for their union membership.
Buxton LJ said of a suggestion by the employer that the Act required the union to provide details of the categories within which the employees fell: ‘ It is wholly artificial in those circumstances to say that the union should have given details of job descriptions and status of employees of the sort to which my Lord referred. It is much more reliable from an employer’s point of view if, having been given the names, he himself, with his superior knowledge of the way in which his operation works, decides into what categories and into what sections those persons fall. When that point was put to Mr Bear in argument he was constrained to agree that that was indeed as a matter of common sense, but that approach, he said, was prevented by the wording of the statute. We should look with great caution at such an argument about a statute such as this, which is a statute directed to industrial relations, designed to enable workers and employers to conduct their affairs in a sensible and efficient way. . But if I am wrong about that, the fact that the notice in this case provided, by a reference easily available to the employer, an actual nominal roll more than amply fulfilled any obligation placed upon the union by this statute. I would not want to be thought to be laying down any rule that goes outside the facts of this case, save to say that the obligations of the union must be assessed in the circumstances of the particular strike and in a commonsense way in the light of the policy of the legislation. In this case that objective was achieved and I would therefore allow the appeal on that ground also.’

Judges:

Pill LJ, Buxton LJ

Citations:

Times 03-Apr-2001, Gazette 17-May-2001, [2001] EWCA Civ 443, [2001] IRLR 524

Links:

Bailii

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992 219 244

Jurisdiction:

England and Wales

Cited by:

Cited – Metrobus Ltd v Unite the Union CA 31-Jul-2009
The union sought leave to appeal against an interim injunction restraining it from calling a strike. It now called in aid also its members’ Article 11 Human Rights. The company had questioned whether the ballot met the requirements of the 1992 Act. . .
Lists of cited by and citing cases may be incomplete.

Employment, Local Government

Updated: 20 May 2022; Ref: scu.90064

Vogt v Germany: ECHR 1 Nov 1995

The German courts construed a teacher’s duty of loyalty as absolute and owed equally by every civil servant, regardless of his or her function and rank under national law. Every civil servant, whatever his or her own opinion on the matter, must unambiguously renounce all groups and movements which the competent authorities hold to be inimical to the Constitution. It does not allow for distinctions between service and private life; the duty is always owed, in every context.
Held: The ban on civil servants’ involvement in politics was a breach of his basic freedoms.
The Grand Chamber said: ‘The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 (art. 10) the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’ (see the Sunday Times v. the United Kingdom (no. 2) judgment of 26 November 1991, Series A no. 217, p. 29, para. 50). In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 (art. 10) and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see the above-mentioned Jersild judgment, p. 26, para. 31).’

Citations:

Times 01-Nov-1995, 17851/91, [1995] 21 EHRR 205, [1995] ECHR 29, [1996] ECHR 34, [1996] ECHR 34, [1995] ECHR 29, [1996] ECHR 106, [1997] ECHR 206, [1993] ECHR 65

Links:

Worldlii, Worldlii, Bailii, Bailii, Bailii, Bailii, Bailii

Jurisdiction:

Human Rights

Cited by:

Cited – De Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others PC 30-Jun-1998
(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to . .
Cited – Pay v Lancashire Probation Service EAT 29-Oct-2003
The appellant challenged refusal of his claim for unfair dismissal. A probation officer, he had business interests in fire breathing and bondage merchandising which the service said were incompatible with his duties, and dismissed him. He complained . .
Approved – Ahmed And Others v The United Kingdom ECHR 2-Sep-1998
The restriction on local government officers and other against some political activities were not an infringement of their human rights and fell within the requirements for free expression and for free elections
‘The Court recalls that in its . .
Cited – Lord Carlile and Others v Secretary of State for The Home Department Admn 16-Mar-2012
The claimant had invited an Iranian dissident to speak in Parliament, and now challenged the decision of the Home Secretary to refuse her a visa on the basis that her exclusion was not conducive to the public good. She was a member of an . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Employment

Updated: 20 May 2022; Ref: scu.90190

Sibson v United Kingdom (Case 4/1992/349/422): ECHR 17 May 1993

Employer insisting that an employee join a particular union on a site is not breaching the employees convention rights.
Hudoc Preliminary objection joined to merits (non-exhaustion); No violation of Art. 11

Citations:

Ind Summary 24-May-1993, Times 17-May-1993, [1993] ECHR 18, 14327/88, [1993] ECHR 18

Links:

Worldlii, Bailii

Human Rights, Employment

Updated: 20 May 2022; Ref: scu.89252

Sirdar v Army Board and Another: ECFI 27 Oct 1999

It was possible for the Royal Marine unit to exclude the employment of a woman as a chef. The requirement not to discriminate was overriding save where the nature of the work makes the sex of the worker a determining factor. The nature and rules of a marine unit, required interoperability, in that any member could be called upon to fulfil any role. The marines occupied a particular status and role which made such discrimination necessary and proper.

Citations:

Times 27-Oct-1999, C-273/97, [1999] EUECJ C-273/97, ECLI:EU:C:1999:523, [1999] ECR I-7403

Links:

Bailii

Statutes:

EC Treaty art 234, Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment etc

Jurisdiction:

European

Citing:

See Also – Sirdar v Ministry of Defence EAT 15-Sep-1995
The claimant had brought a sex discrimination claim, saying that she had bee refused opportunity to work as a chef with the Royal Marines. She and the defendants had had sought an adjournment of the claim, but this had been refused.
Held: . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 20 May 2022; Ref: scu.89281

Smith v Safeway Plc: EAT 9 Dec 1994

A male employee had been unlawfully discriminated against when he had been dismissed for having long hair, where the same requirements would not have been made of female employees.

Citations:

Ind Summary 16-Jan-1995, Times 16-Dec-1994, [1994] UKEAT 185 – 93 – 0912

Links:

Bailii

Statutes:

Sex Discrimination Act 1975

Jurisdiction:

England and Wales

Discrimination, Employment

Updated: 20 May 2022; Ref: scu.89342

Sarker v South Tees Acute Hospitals NHS Trust: EAT 25 Mar 1997

CS The appellant applied for a job with the respondent. Her offer was confirmed in writing. When the offer was withdrawn before she began to work, she claimed damages under s131.
Held: The employment contract started with the acceptance of the letter of offer of employment, and even before work commenced: ‘the contract in the present case was terminated by the employer, but Mr Fletcher argues that the employee would not have been employed under that contract, and therefore could not claim for unfair dismissal. We disagree. We have already pointed out that someone is an ’employee’ merely because he or she has entered into a contract of employment. If that is so, to construe the word ’employed’ in a different and more demanding way seems to us to be unjustified. Moreover, we cannot see why someone engaged under a contract of employment to start work at a future date but whose contract is then terminated because it is discovered that she is pregnant or that he or she is a member of a trade union should not, as a matter of principle, be able to claim for unfair dismissal. He or she may already have given notice to his or her previous employer, as happened in the present case. That ability so to claim would make available the remedy of reinstatement which would not be available merely by proceedings taken in a court of law.’

Judges:

Keene J

Citations:

Times 23-Apr-1997, [1997] UKEAT 493 – 96 – 2503, [1997]IRLR 328

Links:

Bailii

Statutes:

Employment Protection (Consolidation) Act 1978 131

Citing:

Cited – Hochster v De La Tour QBD 25-Jun-1853
The plaintiff said that the defendant had given him a contract to travel with him and to act as the defendant’s courier, but then changed his mind. The plaintiff obtained another engagement to start before the proposed term. The defendant said there . .
Cited – General of Salvation Army v Dewsbury EAT 1984
An employment contract made on or about 1st April 1982, under which a teaching post was offered to and accepted by the respondent to commence on 1st May 1982. The 1st May was a Saturday and 3rd May was a Bank Holiday, so that the respondent only . .
Distinguished – Mobbs v Nuclear Electric Ltd EAT 8-Aug-1996
An IT Chair should not sit alone at preliminary hearing if evidence is to be given. . .
Cited – Tsangacos v Amalgamated Chemicals Ltd and Another EAT 6-Nov-1996
The Chairman of a tribunal may always hear questions as to matters of jurisdiction alone. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 May 2022; Ref: scu.89013

Southwark London Borough Council v D Whillier: CA 29 Jun 2001

The employee served also as full time union representative. She was offered promotion, but only if she could find the time to do the work, and she was not to have her salary increase until she ceased her union activities. It was held that the offer of promotion with a withholding of a salary increase was capable of being a detriment suffered because of her union activities, and was accordingly unlawful as an ‘action short of dismissal’.

Judges:

Lord Justice Waller, Lady Justice Hale And Sir Philip Otton

Citations:

Times 29-Jun-2001, [2001] EWCA Civ 808

Links:

Bailii

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992 146

Jurisdiction:

England and Wales

Citing:

Appeal from – London Borough of Southwark v Whillier EAT 28-Jul-1999
. .

Cited by:

Appealed to – London Borough of Southwark v Whillier EAT 28-Jul-1999
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 May 2022; Ref: scu.89436

Shawkat v Nottingham City Hospital NHS Trust: EAT 14 Jul 1999

A doctor claimed that he had been dismissed unfairly for redundancy and his employers claimed that since he had not accepted new conditions he had been dismissed fairly for some other reason. The Tribunal held that he had been dismissed for redundancy after the re-organisation because his work could not be excluded from consideration. His work is determined by what work he was doing rather than his strict contractual obligations.

Citations:

Gazette 14-Jul-1999, [1999] UKEAT 519 – 98 – 2502, [1999] IRLR 340

Links:

Bailii

Cited by:

Appeal From – Shawkat v Nottingham City Hospital NHS Trust CA 21-Jun-2001
The claimant doctor had been dismissed. He said it was unfairly, and the Trust replied that he had been made redundant ‘for some other reason’ since he had nt acceted new conditions of work.
Held: The employee’s appeal failed. The EAT had . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 May 2022; Ref: scu.89199

Barclays Bank Plc v O’Brien and Others: CA 25 Jul 1994

The court set out and restated the principles for determining what was the normal retiring age in an employment. The ‘Normal’ retirement age is 65 unless the employment contract provides a different age for retirement. A retirement policy does not fail to set an applicable normal retiring age only because the policy allows certain exceptions.

Citations:

Ind Summary 25-Jul-1994, [1993] ICR 347, 1994] IRLR 580

Statutes:

Employment Protection (Consolidation) Act 1978 64(1)(b) 109(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – Barclays Bank Plc v O’Brien and others EAT 19-Jan-1993
‘Normal retiring age’ . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 May 2022; Ref: scu.78213

Rubenstein and Another (T/A McGuffies Dispensing Chemists) v McGloughlin: EAT 28 Dec 1995

Half only of invalidity benefit received by the employee during his period of notice was to be deducted from an unfair dismissal award.

Citations:

Times 28-Dec-1995, [1996] UKEAT 767 – 94 – 2904, [1997] ICR 318

Links:

Bailii

Cited by:

Cited – Langley and Another v Burso EAT 3-Mar-2006
The claimant had been dismissed shortly after becoming unable to work. She sought payment of her normal salary during the period of notice saying this was established good practice.
Held: ‘We are put in the invidious position of being bound by . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 May 2022; Ref: scu.88911

Adams and Raynor v West Sussex County Council: 1990

The EAT does not have a general power of review of interlocutory orders made by Industrial Tribunals or a Chairman. An appellant must convince the appeal tribunal that the Industrial Tribunal had erred in legal principle in the exercise of the discretion or had failed to take into account relevant considerations or had taken irrelevant factors into account, or that no reasonable tribunal, properly directing itself could have refused the amendment. Wood P said that three questions should be answered: ‘(a) Is the order made one within the powers given to the tribunal? (b) Has the discretion been exercised within guiding legal principles)? . . (c) Can the exercise of the discretion be attacked on the principles in Associated Provincial Picture Houses Ltd v Wednesbury Corporation?’

Judges:

Wood J P

Citations:

[1990] ICR 546

Jurisdiction:

England and Wales

Cited by:

Cited – Bull Information Systems Ltd v Joy and Rose EAT 13-Apr-1999
The claimants complained of unfair dismissal. The appellant company said that the contracts, as apprenticeships, did not give rise to continuous service accruals. The company appealed against a refusal of an adjournment of the hearing.
Held: . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 May 2022; Ref: scu.403025

Wrottesley v Regent Street Florida Restaurant: QBD 1951

Waiters at an unlicensed restaurant (with their employer’s agreement) put all tips into a box whose key was held by the head waiter. At the end of each week the contents were distributed between the waiters in accordance with their agreed entitlements. The weekly wage paid to each waiter by the employer fell below the minimum prescribed by the 1949 Regulations, but if each waiter’s share of the boxed gratuities were added to the wage so paid, the total exceeded the prescribed minimum. The restaurant proprietors were prosecuted for failing to pay the minimum wage. Their obligation, under section 9(2) of the Order, was to ‘pay’ to the employee the statutory minimum remuneration. The magistrate dismissed the informations and the prosecutor appealed by way of case stated.
Held: The reasoning was that the locked box – or tronc – contained money that the customers had given to the waiters, not to the employer. It thus became the waiters’ property, and not the employer’s, and so when it was shared out the waiters were dividing up their own money. It followed that it could not be taken into account in computing the amounts that the employer paid them by way of remuneration. It was not paid by their employers. Lord Goddard said: ‘The amount of a man’s earnings in an employment and the amount of remuneration which his employer pays to him are not necessarily the same thing.’

Judges:

Lord Goddard CJ

Citations:

[1951] 2 KB 277

Statutes:

Wages Regulations (Unlicensed Place of Refreshment) Order 1949

Jurisdiction:

England and Wales

Cited by:

Cited – Annabel’s (Berkeley Square) Ltd and Others v Revenue and Customs CA 7-May-2009
The court considered whether tips paid at a restaurant by means of a credit card or cheque thus becoming the employer’s money could properly count toward the minimum wage when paid on to the employee. The revenue contended that the money received . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 May 2022; Ref: scu.342120

Leary v National Union of Vehicle Builders: 1971

The court faced questions on a trades union’s decision as to the membership of the applicant.
Held: As a general rule, ‘a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.’

Judges:

Megarry J

Citations:

[1971] Ch 34

Jurisdiction:

England and Wales

Cited by:

Applied but limited – Calvin v Carr PC 15-Jan-1979
(New South Wales) It was argued that a decision of the stewards of the Australian Jockey Club was void for having been made in breach of the rules of natural justice.
Held: The stewards were entitled to use the evidence of their eyes and their . .
Cited – Taylor v OCS Group Ltd CA 31-May-2006
The employer appealed against findings of unfair dismissal and disability discrimination. The employee worked in IT. He was profoundly deaf, but could lip read and read sign language. He had been accused of obtaining improper access to a senior . .
Cited – Lloyd v McMahon HL 12-Mar-1987
The district auditor had issued a certificate under the 1982 Act surcharging the appellant councillors in the sum of 106,103, pounds being the amount of a loss incurred or deficiency caused, as the auditor found, by their wilful misconduct.
Lists of cited by and citing cases may be incomplete.

Employment, Natural Justice

Updated: 20 May 2022; Ref: scu.242342

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 matter of law, take into account only his period of service since the Directive had to be brought into force, 7th April 2000, and not any earlier period of service when discrimination against part-time workers had not been rendered unlawful under the Directive. This follows from many decisions of the ECJ/CJEU on occupational pensions and reflects the principle well-established in European law of legal certainty. This legal position is acte clair and no reference to the CJEU is required.
However, the Claimant was, as a matter of pleading, entitled to argue that his pension calculations should reflect a notional full-day’s pay for a full-day’s training, even though the fees actually paid had only been for a half-day.
For the purposes of comparison with the position of a full-time circuit judge and the pro-rata calculation of pension for the part-timer, the full-time judge should be taken to work for 210 days per annum.
Appeal by the Ministry of Justice allowed in part.

Judges:

Sir David Keene

Citations:

[2014] IRLR 440, [2014] UKEAT 0466 – 13 – 0403, [2014] ICR 773

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Department of Constitutional Affairs v O’Brien EAT 22-Apr-2008
EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: just and equitable
Appeal against Chair’s exercise of discretion to extend time for a PTWR claim . .
At SC (1) – 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 . .

Cited by:

Appeal from – 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 . .
At EAT – 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 . .
At EAT – Ministry Of Justice v O’Brien and Others CA 9-Nov-2015
. .
At EAT – 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) . .
Lists of cited by and citing cases may be incomplete.

Employment, Legal Professions, Discrimination

Updated: 20 May 2022; Ref: scu.522144

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 retroactivity’ principle of EU law was ‘that EU legislation does not have retroactive effect unless, exceptionally, it is clear from its terms or general scheme that the legislator intended such an effect. The purpose to be achieved so requires and that the legitimate expectations of those concerned are duly respected.’ The Part Time Workers Directive did not apply retrospectively so as to bring periods of service performed before the directive came into effect into the calculation of the claimant’s pension entitlement.
Lewison LJ identified two relevant principles of EU law. First was the ‘no retroactivity’ principle and the ‘future effects’ principle. The first of these principles prescribed that ‘EU legislation does not have retroactive effect unless, exceptionally, it is clear from its terms or general scheme that the legislator intended such an effect, that the purpose to be achieved so requires and that the legitimate expectations of those concerned are duly respected’. Having found that to require payment of a spouse’s pension to Mr Walker’s husband, after Mr Walker’s death, would be to give the Framework Directive retrospective effect, it concluded that the no retroactivity principle precluded this. The second principle was that amending legislation applies immediately to the future effects of a situation which arose under the law as it stood before amendment, unless there was a specific provision to the contrary.

Judges:

Lord Dyson MR, Lewison, Underhill LJJ

Citations:

[2015] EWCA Civ 1000, [2016] ICR 182, [2015] WLR(D) 406, [2015] Pens LR 543, [2016] 1 CMLR 28, [2015] IRLR 1005

Links:

Bailii, WLRD

Statutes:

Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 1(2)(3), Council Directive 97/81/EC

Jurisdiction:

England and Wales

Citing:

See Also – Department of Constitutional Affairs v O’Brien EAT 22-Apr-2008
EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: just and equitable
Appeal against Chair’s exercise of discretion to extend time for a PTWR claim . .
See Also – O’Brien v Department for Constitutional Affairs CA 19-Dec-2008
The claimant was a part time recorder. He claimed to be entitled to a judicial pension.
Held: The Employment Appeal Tribunal was wrong to find an error of law in the decision of the Employment Tribunal to extend time; but the court declined to . .
At ECJ – O’Brien v Ministry of Justice ECJ 1-Mar-2012
1) European Union law must be interpreted as meaning that it is for the member states to define the concept of ‘workers who have an employment contract or an employment relationship’ in clause 2.1 of the Framework Agreement . . and in particular, to . .
At SC (1) – 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 . .
Appeal from – 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 . .
Cited – Defrenne v Sabena (No 2) ECJ 8-Apr-1976
ECJ The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It may be relied on before the national courts. These courts have a . .

Cited by:

Cited – Emerald Supplies Ltd and Others v British Airways Plc ChD 4-Oct-2017
EC has sole jurisdiction over old cartels
Several claimants alleged that the defendant airway had been part of a cartel which had overcharged for freight services. The court now heard arguments about whether it had jurisdition to deal with claims which preceded the measures which had . .
Appeal from – 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 . .
Appeal from – 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 – 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) . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, European

Updated: 20 May 2022; Ref: scu.553048

O’Brien v Ministry of Justice: ECJ 17 Nov 2011

ECJ (Opnion) Directive 97/81/EC – Framework Agreement on part-time work – Notion of part-time workers who have an employment contract or employment relationship – Part-time judges
Kokott AG said: ‘In this connection, I would also point out that it is difficult to determine how the rights granted by the Framework Agreement in general, and an entitlement to a retirement pension in particular, can jeopardise the essence of the independence of a judge; on the contrary, an entitlement to a retirement pension strengthens the economic independence of judges, and thus also the essence of their independence.
Independence in terms of the essence of an activity is not therefore an appropriate criterion for justifying the exclusion of a professional category form the scope of the Framework Agreement.’

Judges:

Kokott AG

Citations:

C-393/10, [2011] EUECJ C-393/10

Links:

Bailii

Statutes:

Directive 97/81/EC

Jurisdiction:

European

Citing:

At EAT – Department of Constitutional Affairs v O’Brien EAT 22-Apr-2008
EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: just and equitable
Appeal against Chair’s exercise of discretion to extend time for a PTWR claim . .
At CA – O’Brien v Department for Constitutional Affairs CA 19-Dec-2008
The claimant was a part time recorder. He claimed to be entitled to a judicial pension.
Held: The Employment Appeal Tribunal was wrong to find an error of law in the decision of the Employment Tribunal to extend time; but the court declined to . .
At SC – O’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .

Cited by:

Opinion – O’Brien v Ministry of Justice ECJ 1-Mar-2012
1) European Union law must be interpreted as meaning that it is for the member states to define the concept of ‘workers who have an employment contract or an employment relationship’ in clause 2.1 of the Framework Agreement . . and in particular, to . .
Opinion – 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.

European, Employment, Legal Professions

Updated: 20 May 2022; Ref: scu.448725

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 retirement pension falls due for payment. The directive applies ratione temporis where the pension falls due for payment after the directive has entered into force. In so far as part of the period of service took place prior to the directive’s entry into force, the directive applies to the future effects of that situation.’
Case referred to the ECJ: ‘Does Directive 97/81, and in particular clause 4 of the Framework Agreement annexed thereto concerning the principle of non-discrimination, require that periods of service prior to the deadline for transposing the Directive should be taken into account when calculating the amount of the retirement pension of a part-time worker, if they would be taken into account when calculating the pension of a comparable full-time worker?’

Judges:

Baroness Hale of Richmond DPSC, Lord Kerr of Tonaghmore, Lord Reed, Lord Carnwath, Lord Hughes JJSC

Citations:

[2017] UKSC 46, [2017] WLR(D) 478, [2017] IRLR 939, [2017] ICR 1101

Links:

Bailii, Bailii Summary, WLRD

Statutes:

Council Directive 97/81/EC, Judicial Pensions Act 1981, Judicial Pensions and Retirement Act 1993, Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000

Jurisdiction:

England and Wales

Citing:

See Also – Department of Constitutional Affairs v O’Brien EAT 22-Apr-2008
EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: just and equitable
Appeal against Chair’s exercise of discretion to extend time for a PTWR claim . .
See Also – O’Brien v Department for Constitutional Affairs CA 19-Dec-2008
The claimant was a part time recorder. He claimed to be entitled to a judicial pension.
Held: The Employment Appeal Tribunal was wrong to find an error of law in the decision of the Employment Tribunal to extend time; but the court declined to . .
At ECJ – O’Brien v Ministry of Justice ECJ 1-Mar-2012
1) European Union law must be interpreted as meaning that it is for the member states to define the concept of ‘workers who have an employment contract or an employment relationship’ in clause 2.1 of the Framework Agreement . . and in particular, to . .
At SC(1) – 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 . .
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 – 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 – Istituto nazionale della previdenza sociale (INPS) v Lotti, Matteucci (Social Policy) ECJ 10-Jun-2010
EU Directive 97/81/EC – Framework Agreement on part-time work – Equal treatment of part-time and full-time workers – Calculation of the period of service required to obtain a retirement pension – Periods not . .
Cited – Istituto nazionale della previdenza sociale (INPS) v Bruno, Pettini (Social Policy) ECJ 10-Jun-2010
Europa Directive 97/81/EC – Framework Agreement on part-time work – Equal treatment of part-time and full-time workers – Calculation of the period of service required to obtain a retirement pension – Periods not . .
Cited – Commission v Moravia Gas Storage ECJ 26-Mar-2015
Judgment – Appeals – Internal market in natural gas – Obligation of natural gas undertakings – Organisation of a system of negotiated third party access to gas storage facilities – Decision of the Czech authorities – Temporary exemption for future . .
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, . .

Cited by:

Reference to ECJ – 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) . .
Lists of cited by and citing cases may be incomplete.

European, Employment, Discrimination

Updated: 20 May 2022; Ref: scu.589261

Lodwick v London Borough of Southwark: EAT 7 Mar 2003

The applicant was employed by the respondent and sought leave to work for the CAB for a year, requesting a sabbatical. Leave was refused. He applied to the employment tribunal, but objected that the chairman had, in a previous case, indicated his strong dislike of the applicant. The chairman refused to recuse himself.
Held: The proposed appeal was not on a question of law, and the EAT did not have jurisdiction to hear the appeal. ‘The claim based on the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and the Directive 97/81 EC seems to me to have been entirely misconceived. Those provisions were designed to protect part-time workers from being discriminated against when compared with full-time workers. They do not give a right to an employee who wants to go and work for somebody else to insist that his original employer continues to employ him part-time. ‘

Citations:

[2003] EAT 1285 – 02 – 0703, [2003] UKEAT 1285 – 02 – 0703

Links:

Bailii, Bailii

Statutes:

Employment Tribunals Act 1996 21(1)

Jurisdiction:

England and Wales

Citing:

Appealed to – Lodwick v London Borough of Southwark CA 18-Mar-2004
The claimant alleged bias on the part of the employment appeal tribunal chairman hearing his appeal. The chairman refused to stand down, saying that he was only one of three tribunal members with an equal vote. The chairman had four year’s . .

Cited by:

Appeal from – Lodwick v London Borough of Southwark CA 18-Mar-2004
The claimant alleged bias on the part of the employment appeal tribunal chairman hearing his appeal. The chairman refused to stand down, saying that he was only one of three tribunal members with an equal vote. The chairman had four year’s . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 19 May 2022; Ref: scu.189318

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 on this tribunal. No such concession has been made by the parties in this case. The Court made no determination of the scope of the derogation in reg. 2. Further, as far as the regulations were interpreted by the European Court of Justice (which we do not believe they were), that Court’s powers are limited to the interpretation of community law, and do not extend to the interpretation of domestic law. That is a matter for the domestic court.’

Judges:

Mummery J, President

Citations:

[1995] IRLR 518, [1995] UKEAT 1083 – 93 – 2106

Links:

Bailii

Statutes:

Acquired Rights Directive (EC77/182), Transfer of Undertakings (Protection of Employment) Regulations 1981

Jurisdiction:

England and Wales

Citing:

Cited – Woodcock and others v Committee for the Time Being of the Friends School, Wigton CA 1987
A school, which had been operated by Quakers as a registered charity, had been sold to a company. The issue was whether or not this was a transfer covered by TUPE. The Industrial Tribunal, the Employment Appeal Tribunal held that it was not, on the . .
Cited – Schmidt v Spar und Leihkasse der fruheren Amter Bordesholm, Kiel und Cronshagen ECJ 14-Apr-1994
Safeguarding of employees’ rights in the event of the transfer of an undertaking. . .

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 May 2022; Ref: scu.189899

Lawson v Serco Ltd: EAT 12 Dec 2002

EAT Jurisdiction

Judges:

His Hon Judge J Altman

Citations:

EAT/18/02

Links:

EAT

Statutes:

Employment Rights Act 1996 196

Jurisdiction:

England and Wales

Cited by:

Appeal from – Serco Ltd v Lawson and Foreign and Commonwealth Office CA 23-Jan-2004
The applicant had been employed to provide services to RAF in the Ascension Islands. He alleged constructive dismissal. There was an issue as to whether somebody working in the Ascension Islands was protected by the 1996 Act. The restriction on . .
See Also – Lawson v Serco Ltd EAT 11-Mar-2003
. .
At EAT – Serco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL 26-Jan-2006
Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 May 2022; Ref: scu.179940

Rockfon A/S v Specialarbejderforbunde I Danmark Acting for Nielsen and Others: ECJ 17 Jan 1996

The term ‘establishment’ for the purpose of consultation on contemplated redundancies meant the work unit to which the relevant workers were assigned: ‘The term ‘establishment’ appearing in Article 1(1)(a) of Directive (75/129/EEC) must therefore be interpreted as designating, depending on the circumstances, the unit to which the workers made redundant are assigned to carry out their duties. It is not essential, in order for there to be an ‘establishment’, for the unit in question to be endowed with a management which can independently effect collective redundancies.
That interpretation is supported by the fact that the Commission’s initial proposal for a Directive uses the term ‘undertaking’ and that that term was defined in the last sub-paragraph of Article 1(1) of the proposal as ‘local employment unit’. It appears, however, that the Council decided to replace the term ‘undertaking’ by the term ‘establishment’, which meant that the definition originally contained in the proposal and considered to be superfluous was deleted.
The answer to the second part of the preliminary question must therefore be that the term ‘establishment’ appearing in Article 1(1)(a) . . must be understood as meaning, depending on the circumstances, the unit to which the workers made redundant are assigned to carry out their duties. It is not essential, in order for there to be an ‘establishment’ for the unit in question to be endowed with a management which can independently effect collective redundancies.’

Citations:

Times 17-Jan-1996, C-449/93, [1995] EUECJ C-449/93, [1996] IRLR 168, [1996] ICR 673, [1996] CEC 224, [1995] ECR I-4291

Links:

Bailii

Statutes:

Directive 79/129/EEC L48/29

Cited by:

Cited – MSF v Refuge Assurance Plc, United Friendly Insurance EAT 15-Feb-2002
EAT The EAT considered the employer’s duties to consult on making redundancies. The ET had found that company had satisfied the requirements. The Union argued that the duty to consult arose as soon as . .
Cited – Brookes and 334 Others v Borough Care Services and CLS Care Services Ltd EAT 4-Aug-1998
Where a transfer of a business had been arranged by way of a transfer of shares rather than of the business and particularly in order to avoid the Regulations, the transfer of shares took effect as a transfer of the undertaking and so the . .
Cited – Athinaiki Chartopoiia AE v L Panagiotidis and Others, third party: Geniki Sinomospondia Ergaton Elladas (GSEE) ECJ 15-Feb-2007
ECJ Free Movement of Persons – Collective redundancies – Council Directive 98/59/EC Article 1(1)(a) – Termination of the establishment’s activities of the employer’s own volition – Concept of ‘establishment’.
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 19 May 2022; Ref: scu.88831

Rotsart de Hertaing v Benoidt and IGC Housing Service (In Liquidation) and Another: ECJ 14 Nov 1996

ECJ Safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses – Transfer to the transferee of the rights and obligations arising from a contract of employment – Date of transfer.

Citations:

Times 25-Nov-1996, [1997] IRLR 127, C-305/94, [1996] EUECJ C-305/94

Links:

Bailii

Statutes:

EC Directive 77/187/EEC

Cited by:

Cited – North Wales Training and Enterprise Council Ltd v Astley and others HL 21-Jun-2006
Civil servants had been transferred to a private company. At first they worked under secondment from the civil service. They asserted that they had protection under TUPE and the Acquired Rights Directive. The respondent said that there had only been . .
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 19 May 2022; Ref: scu.88875

Rovenska v General Medical Council: EAT 22 Sep 1994

The complainant said that the respondent’s rules imposing language skills testing on doctors with recognised foreign qualifications were discriminatory.
Held: Discriminatory rules are a continuing act and the complaint was not barred by time limit. The complaint was not time-barred because it was: ‘about the maintenance and operation of a scheme for exemption which extends over a period, that period being the currency of the scheme or rules.’

Judges:

Mummery J

Citations:

Independent 22-Sep-1994, [1994] UKEAT 163 – 93 – 1103

Links:

Bailii

Cited by:

Appeal from – Rovenska v General Medical Council CA 4-Dec-1996
A Czechoslovakian doctor complained against the General Medical Council under Section 12(1)(a) of the 1976 Act 1976 in respect of the most recent of a series of refusals, under its rules for the grant of limited registration as a medical . .
Cited – Cast v Croydon College CA 19-Mar-1998
Complaint was made within time limit when the decision complained of was a reconsideration of an earlier decision, not just a reference back to it.
Held: In a sex discrimination case, where there has been a constructive dismissal, time runs . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 19 May 2022; Ref: scu.88876

Rhys-Harper v Relaxion Group plc: CA 3 May 2001

A sex discrimination claim involving a claim by an employee for damages for sexual harassment, had to be made during the period of employment. An employer’s failure to deal properly with an allegation of sexual harassment could itself be a detriment under the Act and Directive. The fact that the statutes against sex discrimination and race discrimination might have some disparities did not mean, that for this purpose at least, they could not be read similarly. The EAT had therefore been correct to follow the decision in Adekeye in this case.

Judges:

Lord Justice Pill, Lord Justice Mantell And Lord Justice Buxton

Citations:

Times 12-Jun-2001, Gazette 14-Jun-2001, [2001] EWCA Civ 634, [2001] 2 CMLR 44, [2001] IRLR 460, [2001] ICR 1176, [2001] Emp LR 646

Links:

Bailii

Statutes:

Sex Discrimination Act 1975

Jurisdiction:

England and Wales

Citing:

Applied – Post Office v Adekeye CA 13-Nov-1996
Race discrimination which took place after a dismissal was not unlawful within the section, since that first required the context of employment, and after the dismissal, the applicant was no longer in that employment. The natural meaning of the . .
Appealed to – Relaxion Group plc v Rhys-Harper; D’Souza v London Borough of Lambeth; Jones v 3M Healthcare Limited and three other actions HL 19-Jun-2003
The court considered whether discriminatory acts after the termination of employment were caught by the respective anti-discrimination Acts. The acts included a failure to give proper references. They pursued claims on the basis of victimisation . .
Cited – Coote v Granada Hospitality Ltd ECJ 22-Sep-1998
coote_granadaECJ1998
The employer had refused to provide a reference after the claimant had left the company after making a sex discrimination claim. She said this was victimisation.
Held: The state has a duty to protect workers against retaliation after . .

Cited by:

Appeal from – Relaxion Group plc v Rhys-Harper; D’Souza v London Borough of Lambeth; Jones v 3M Healthcare Limited and three other actions HL 19-Jun-2003
The court considered whether discriminatory acts after the termination of employment were caught by the respective anti-discrimination Acts. The acts included a failure to give proper references. They pursued claims on the basis of victimisation . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 19 May 2022; Ref: scu.88769

Regina v Secretary of State for Health, ex parte C: CA 21 Feb 2000

An extra-statutory database maintained by the Secretary of State of the names of people considered to be unsafe to work with children was lawful. Two competing and genuine interests were to be balanced. The right to pursue employment without being blacklisted and the need to protect children in the care of others. The list invited representations from those listed, and merely referred the potential employer to the authority which had requested placement of the name on the register. The Crown had the common law right to do anything which might be done by an individual.

Judges:

Lord Woolf MR, Hale, Mustill LJJ

Citations:

Gazette 09-Mar-2000, Times 01-Mar-2000, [2000] EWCA Civ 49

Links:

Bailii

Statutes:

Protection of Children Act 1999

Jurisdiction:

England and Wales

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 – New London College Ltd, Regina (on The Application of) v Secretary of State for The Home Department SC 17-Jul-2013
The Court was asked as to: ‘the system for licensing educational institutions to sponsor students from outside the European Economic Area under Tier 4 of the current points-based system of immigration control.’ The appellant’s license to sponsor . .
Lists of cited by and citing cases may be incomplete.

Employment, Administrative

Updated: 19 May 2022; Ref: scu.88609

Regina v Secretary of State for Trade and Industry ex parte Broadcasting, Entertainment, Cinematographic and Theatre Union: ECJ 26 Jun 2001

The rule in United Kingdom law under which the entitlement to be paid annual leave arose only after an employee had been continuously employed for 13 weeks, did not satisfy European law. Members of the applicant trade union were typically employed on short term repeating contracts and did not receive paid annual holidays. The Directive sought to improve working conditions for employees. There were certain derogations, but not from Article 7, the particular applicable condition. The right was a social right directly conferred on each worker, and the UK regulations were incompatible with that right.

Citations:

Times 28-Jun-2001, C-173/99, [2001] EUECJ C-173/99

Links:

Bailii

Statutes:

Council Directive 93/104/EC concerning certain aspects of the organisation of working time, Working Time Regulations 1998 (1998 No 1833) 13(7)

Cited by:

Cited – Munro v M P B Structures Ltd IHCS 1-Apr-2003
The respondent firm paid their staff holiday pay by adding a proportion to each wage packet. The employee complained that this was in breach of the regulations.
Held: The Regulations gave effect to the directive. The directive treated holiday . .
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 19 May 2022; Ref: scu.88660

Preston and Others v Wolverhampton Healthcare NHS and Others; Fletcher and Others v Midland Bank Plc: HL 26 Feb 1998

‘Employment’ in context of a sex discrimination claim referred to a current employment contract even in context of there having been a series of repeated contracts of employment. The question was referred to the European Court of Justice.

Judges:

Lord Slynn of Hadley, Lord Goff of Chieveley Lord Nolan Lord Hope of Craighead Lord Clyde

Citations:

Times 09-Feb-1998, Gazette 26-Feb-1998, [1998] UKHL 6, [1998] 1 All ER 528, [1998] 1 WLR 280, [1998] ICR 227

Links:

House of Lords, Bailii

Statutes:

Equal Pay Act 1970 2(4), Occupational Pension Schemes (Equal Access to Membership) Regulations 1976 (1976 No 142) 12

Jurisdiction:

England and Wales

Citing:

Appeal from – Preston and others v Wolverhampton Healthcare Trust Secretary of State for Health CA 13-Feb-1997
. .
Cited – Barber v Guardian Royal Exchange Assurance Group ECJ 17-May-1990
Europa The benefits paid by an employer to a worker on the latter’s redundancy constitute a form of pay to which the worker is entitled in respect of his employment, which is paid to him upon termination of the . .
Cited – Defrenne v Sabena (No 2) ECJ 8-Apr-1976
ECJ The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It may be relied on before the national courts. These courts have a . .
Cited – Fisscher v Voorhuis Hengelo and Stichting Bedrijfspensioenfonds voor de Detailhandel ECJ 28-Sep-1994
Europa The right to join an occupational pension scheme, the rules of which were not laid down directly by law but were the result of negotiation between both sides of the industry concerned and all that the . .
Cited – Rewe Zentralfinanz v Landwirtschaftskammer Westphalen-Lippe ECJ 11-Oct-1973
ECJ Customs duties – charges having an effect equivalent to – meaning – phyto-sanitary examination – charges – imposition – prohibition (EEC Treaty, article 13 (2)) Pecuniary charges, whatever their amount, . .
Cited – Marshall v Southampton and South West Hampshire Area Health Authority (No 2) ECJ 2-Aug-1993
The UK law limiting awards of damages in sex discrimination cases is unlawful, and fails to implement European directive fully. Financial compensation must be at a level adequate to achieve equality between the workers identified. . .
Cited – Levez v T H Jennings (Harlow Pools) Ltd ECJ 1-Dec-1998
Regulations debarred a claim after a certain time even where the delay had been because of a deliberate concealment of information by an employer.
Held: Availability of other means of redress was not sufficient to displace this rule.
Cited – Emmott v Minister for Social Welfare and Attorney General ECJ 25-Jul-1991
Europa So long as a directive has not been properly transposed into national law, individuals are unable to ascertain the full extent of their rights. That state of uncertainty for individuals subsists even after . .
Cited – Magorrian and Cunningham v Eastern Health and Social Services Board and Department of Health and Social Services ECJ 11-Dec-1997
Pension entitlements for part time workers discriminated against were to be re-calculated to allow for wrongful treatment since 1976
Europa Reference for a preliminary ruling: Office of the Industrial . .

Cited by:

Cited – Amica v Rhone-Poulenc Chemicals Ltd CA 28-Nov-2003
Applications for permission to appeal. . .
Reference From – Preston and Others v Wolverhampton Healthcare NHS Trust and Others; Fletcher and Others v Midland Bank plc ECJ 16-May-2000
ECJ Social policy – Men and women – Equal pay – Membership of an occupational pension scheme – Part-time workers – Exclusion – National procedural rules – Principle of effectiveness – Principle of equivalence. . .
See Also – Preston and Others v Wolverhampton Healthcare NHS Trust and Others, Fletcher and Others v Midland Bank Plc (No 2) HL 8-Feb-2001
Part-time workers claimed that they had been unlawfully excluded from occupational pension schemes because membership was dependent on an employee working a minimum number of hours per week and that that was discriminatory because a considerably . .
See Also – Powerhouse Retail Ltd and others v Burroughs and others; Preston and others v Wolverhampton Healthcare NHS Trust and others (No 3) HL 8-Mar-2006
The appellants said they had been had been discriminated against on the grounds of their sex by the TUPE Regulations. Their discrimination cases had been dismissed as out of time.
Held: The employees’ appeals were dismissed: ‘A statute cannot . .
Cited – Unison v Allen and others EAT 26-Jul-2007
EAT Equal pay Act – Out of time
The claimants before the Employment Tribunal alleged that when they were employed by NUPE, that union had breached their rights under the Equal Pay Act in connection with . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 19 May 2022; Ref: scu.85026

Port of London Authority v Payne and Others: CA 3 Nov 1993

The practicality of re-instatement of an employee is to be decided on the evidence immediately before the tribunal.

Citations:

Times 25-Nov-1993, [1993] EWCA Civ 26, [1994] IRLR 9, [1994] ICR 555

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Port of London Authority v Payne and Others EAT 7-May-1992
A decision as to the practicality of an order for re-engagement is to be made at time of the order. . .
Appeal from – Port of London Authority v Payne and others EAT 17-Dec-1992
. .
See Also – Payne and others v Port of London Authority EAT 9-Jun-1993
. .

Cited by:

Cited – McBride v Scottish Police Authority (Scotland) SC 15-Jun-2016
The court was asked whether the employment tribunal had been correct, after finding that the appellant had been unfairly dismissed, to order her reinstatement. She had worked as a fingerprint officer, but her reinstatement was to be on terms that . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 May 2022; Ref: scu.84801

Port of London Authority v Payne and Others: EAT 7 May 1992

A decision as to the practicality of an order for re-engagement is to be made at time of the order.

Citations:

Gazette 02-Sep-1992, [1992] UKEAT 511 – 91 – 0705

Links:

Bailii

Statutes:

Employment Protection (Consolidation) Act 1978 58(1)(b)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Port of London Authority v Payne and Others CA 3-Nov-1993
The practicality of re-instatement of an employee is to be decided on the evidence immediately before the tribunal. . .
See Also – Port of London Authority v Payne and others EAT 17-Dec-1992
. .
See Also – Payne and others v Port of London Authority EAT 9-Jun-1993
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 May 2022; Ref: scu.84802

Nottingham University v Fishel: QBD 19 Jan 2000

When a university embryologist, the respondent, worked abroad he did not act in any breach of fiduciary duty. He remained under a specific duty to direct his fellow embryologists to work in the interests of the university and not in his own financial interest. When receiving financial reward for work undertaken by other embryologists abroad, he was acting in breach of his fiduciary duty and was required to account for the profit he had made.
In the absence of an explicit term in his contract for this purpose, an employee has no duty to inform his employer of any employment taken by him outside that contract, even if it was in breach of that contract. The relation of trust and confidence between employer and employee did not make it a fiduciary relationship. An employee other than a senior employee is in a different position to a director, and an employee had no duty to pursue his employer’s interests at the expense of his own. Care must be taken not to equate the duty of good faith and loyalty owed by every employee with a fiduciary obligation. Unless that distinction is maintained common law rules of causation and remoteness of damages may be:- ‘miraculously sidestepped by intoning the magic formula (breach of fiduciary duty)’.
‘in determining whether a fiduciary relationship arises in the context of an employment relationship, it is necessary to identify with care the particular duties undertaken by the employee, and to ask whether in all the circumstances he has placed himself in a position where he must act solely in the interest of his employer. It is only once those duties have been identified that it is possible to determine whether any fiduciary duty has been breached.’

Judges:

Elias J

Citations:

Times 31-Mar-2000, [2000] EWHC 221 (QB), [2000] Ed CR 505, [2001] RPC 22, [2000] ICR 1462, [2000] IRLR 471, [2000] ELR 385

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – SG and R Valuation Service Co v Boudrais and others QBD 12-May-2008
The claimant sought to require the defendants not to work during their notice period to achieve the equivalent of garden leave despite there being no provision for garden leave in the contracts. It was said that the defendants had conspired together . .
Cited – Helmet Integrated Systems Ltd v Tunnard and others CA 15-Dec-2006
Whilst employed by the claimants as a salesman, the defendant came to want to develop his idea for a modular helmet suitable for fire-fighters and others. He took certain steps including showing the proposal confidentially to a competitor, and then . .
Cited – Ranson v Customer Systems Plc CA 27-Jun-2012
Lewison LJ considered the contractual duty of fidelity within an employment contract:
‘It is not disputed that an employee has an obligation of fidelity towards his employer. If the obligation is not expressed, it will invariably be implied.
Cited – Whitmar Publications Ltd v Gamage and Others ChD 4-Jul-2013
Whitmar claimed damages for breach of contract; an account of profits; damages for breach of fiduciary duty and/or for infringement of its Database Rights under the Copyright and Rights in Database Regulations 1997; and for a permanent injunction . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 May 2022; Ref: scu.84377

P v National Association of School Masters/Union of Women Teachers: CA 25 May 2001

Industrial action taken by teachers refusing to teach a disruptive pupil was related to their terms and conditions of employment. Encouragement to take such action by the teachers’ union made the union responsible for such action. The breach related to a refusal to comply with the employer’s requests as to the manner and circumstances of performance of the employment contract obligations. Nevertheless, an accidental failure to ballot each and every union member of staff, was not sufficient to remove the union’s exemption of liability where the mistake if corrected would clearly have made no difference to the result of the ballot.

Citations:

Times 25-May-2001, [2001] ICR 1241, [2001] EWCA Civ 652

Links:

Bailii

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992 235A 232B

Jurisdiction:

England and Wales

Citing:

Appeal from – P v National Association of School Masters/Union of Women Teachers QBD 3-May-2001
Action taken by teachers to refuse to teach a disruptive pupil was in the nature of industrial action. Encouragement to take such action by the teachers’ union made the union responsible for such action. The breach related to a refusal to comply . .

Cited by:

Appeal from – 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, Education

Updated: 19 May 2022; Ref: scu.84523

O’Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School: EAT 7 Jun 1996

The dismissal by a Roman Catholic school of a teacher who was pregnant by a priest, was on the grounds of pregnancy, and for an inadmissible reason. The pregnancy was an effective cause of the adverse treatment of the Appellant by her employer.

Judges:

Mummery P

Citations:

Gazette 12-Sep-1996, Times 07-Jun-1996, [1996] IRLR 372, [1996] UKEAT 1180 – 94 – 304, [1997] ICR 33

Links:

Bailii

Statutes:

Sex Discrimination Act 1975

Citing:

See Also – O’Neill v Governors of St Thomas More RC School EAT 12-Oct-1995
The claimant had lodged an appeal against a rejection of her claim of sex discrimination, and against the amount of damages awarded on the success of her claim of unfair dismissal. After rejection of her request for a review, her counsel had lodged . .

Cited by:

Applied – Martin v Goldsobel EAT 6-Sep-2001
The employee had been dismissed. She alleged that it was because of her pregnancy, and was automatically unfair. The employers, a firm of solicitors, alleged that it related to her standards of work.
Held: To establish sex discrimination a . .
Cited – Murphy v Sheffield Hallam University EAT 11-Jan-2000
The claimant challenged refusal of his claim of discrimination. He was profoundly deaf. He applied for work, and indicated his disability, but no provision was made for a signer to appear at the interview. The interview was re-arranged, but he . .
Cited – A C Redfearn v Serco Ltd T/A West Yorkshire Transport Service EAT 27-Jul-2005
The claimant said that he had been indirectly discriminated against on racial grounds. He was dismissed after being elected as a local councillor for the BNP. The employer considered that for Health and Safety reasons, his dismissal was necessary . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 19 May 2022; Ref: scu.84460

Mobbs v Nuclear Electric Ltd: EAT 8 Aug 1996

An IT Chair should not sit alone at preliminary hearing if evidence is to be given.

Citations:

Times 08-Aug-1996, [1996] UKEAT 1182 – 95 – 0506, [1996] IRLR 536

Links:

Bailii

Cited by:

Disapproved – Tsangacos v Amalgamated Chemicals Ltd and Another EAT 6-Nov-1996
The Chairman of a tribunal may always hear questions as to matters of jurisdiction alone. . .
Distinguished – Sarker v South Tees Acute Hospitals NHS Trust EAT 25-Mar-1997
CS The appellant applied for a job with the respondent. Her offer was confirmed in writing. When the offer was withdrawn before she began to work, she claimed damages under s131.
Held: The employment . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 May 2022; Ref: scu.83777

Morse v Wiltshire County Council: EAT 1 May 1998

A tribunal considering a claim of disability discrimination should best consider the various statutory elements in the order given in the Act, so as to avoid confusion in unraveling what is a complex statutory structure. The wide language of section 6(2) and 6(3) is capable of applying to a ‘dismissal situation’. Although section 6 makes no express mention of dismissal, termination of service or redundancy, the Code of Practice assumes that section applies to a dismissal in the circumstances of the applicant in that case. ‘Arrangements on which employment . . is offered or afforded’ include alternatives to dismissal, such as are mentioned in section 6(3)-allocation of the disabled person’s duties to another person, assigning him to a different place of work or transferring him to fill an existing vacancy.

Judges:

Bell J

Citations:

Times 11-May-1998, [1998] UKEAT 1279 – 97 – 0105, [1998] ICR 1023

Links:

Bailii

Statutes:

Disability Discrimination Act 1995 5 6

Cited by:

Cited – Clark v TDG Limited (Trading As Novacold) CA 25-Mar-1999
The applicant had soft tissue injuries around the spine as a consequence of a back injury at work. He was absent from work for a long time as a result of his injuries, and he was eventually dismissed when his medical advisers could provide no clear . .
Cited – Rothwell v Pelikan Hardcopy Scotland Ltd EAT 23-Sep-2005
EAT DISABILITY DISCRIMINATION
Reasonable adjustments
UNFAIR DISMISSAL
Procedural fairness
The claimant, who suffered from Parkinson’s Disease, claimed that he had been unfairly dismissed and . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 19 May 2022; Ref: scu.83862

Nerva and Others v R L and G (T/a Paradiso E Inferno and Trota Blu Wine Bar): CACD 15 May 1996

A waiter’s tips which were received, and then re-distributed by the employer, are part of the employees’ wages for minimum wage purposes. The gratuities became the employer’s property so that when they paid the waiters their share of them, they were doing so with their (the employer’s) own money and such payments therefore counted towards the remuneration they paid.

Citations:

Times 28-May-1996, Gazette 19-Jun-1996, [1996] EWCA Crim 449, [2002] IRLR 815, [1997] ICR 11

Statutes:

Wages Council Act 1979, Wages Act 1986 16(1)

Jurisdiction:

England and Wales

Cited by:

Appeal From – Nerva And Others v The United Kingdom ECHR 24-Sep-2002
The claimants were waiters. Tips paid were included in credit card payments to their employers, who then paid them out in ‘additional pay’. The waiters claimed that this was then included within the wage, and used to calculate their minimum pay. . .
Cited – Annabel’s (Berkeley Square) Ltd and Others v Revenue and Customs CA 7-May-2009
The court considered whether tips paid at a restaurant by means of a credit card or cheque thus becoming the employer’s money could properly count toward the minimum wage when paid on to the employee. The revenue contended that the money received . .
Lists of cited by and citing cases may be incomplete.

Employment, Crime

Updated: 19 May 2022; Ref: scu.84250

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 number, category or workplace of the employees’ concerned did not include lists of names, but did include numbers in particular grades, and at particular work places so far as the union had that information. The complainant company had obtained emergency relief preventing the respondent trade union from calling strike action on the basis of their having failed properly to provide to the employers details of their members. The union sought leave to appeal, saying it had provided the information it had.
Held: The union had the ability to contact its members. It had the ability to tell the employer who they were, and had failed to do so. The clear legislative purpose was to enable an employer to know which part or parts of its workforce were being invited to take industrial action. The leave to appeal was granted, but the appeal refused.

Judges:

Lord Justice Aldous, Lord Justice Robert Walker, And Lord Justice Dyson

Citations:

Times 07-Mar-2001, [2001] EWCA Civ 211, [2001] IRLR 228, [2001] ICR 647

Links:

Bailii

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992 226A(3A) 226A(3B)

Jurisdiction:

England and Wales

Citing:

Dictum disapproved – Post Office v Union of Communication Workers CA 1990
De minimis principle inindustrial relations ballots. . .

Cited by:

Cited – In re P (a minor by his mother and litigation friend); P v National Association of Schoolmasters/Union of Women Teachers HL 27-Feb-2003
The pupil had been excluded from school but then ordered to be re-instated. The teachers, through their union, refused to teach him claiming that he was disruptive. The claimant appealed a refusal of an injunction. The injunction had been refused on . .
Cited – Metrobus Ltd v Unite the Union CA 31-Jul-2009
The union sought leave to appeal against an interim injunction restraining it from calling a strike. It now called in aid also its members’ Article 11 Human Rights. The company had questioned whether the ballot met the requirements of the 1992 Act. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 May 2022; Ref: scu.83174