Category: Employment

Lassman and Others v Secretary of State for Trade and Industry: CA 19 Apr 2000

The claimants worked for Rotaprint when it went into receivership in 1988, and then for the receiver before being transferred to Pan Graphics. Statutory redundany payments were made on the receivership of Rotaprint. The claimants sought further redundancy payment on the insolvency of Rotaprint. The Secretary now appealed the decision of the EAT that payments should be calculated by reference to te period of employment also with Rotaprint.
Held: Payments from the redundancy fund operated as equivalent to a redundancy and so the payment created a break in service for the employees receiving the payment. A subsequent redundancy payment was to be calculated from the date of the redundancy. The earlier payment had arisen on a transfer of an undertaking. Although those regulations operated to preserve employment rights, they could not create continuity where there was an interruption, even though there was now doubt about the correctness of the first payment.

Judges:

Beldam LJ, Chadwick LJ, Robert Walker LJ

Citations:

Times 05-May-2000, [2000] EWCA Civ 143

Links:

Bailii

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794), Employment Rights Act 1996

Jurisdiction:

England and Wales

Citing:

Appeal from – M Lassman and others v Secretary of State for Trade and Industry and Another EAT 27-Nov-1998
The appellants challenged the calculation of their length of service as decided by the tribunal which calculation then governed the calculation of their redundancy payments payable by the respondents on the insolvency of their former employer. . .
Cited – Secretary of State for Employment v Spence CA 1986
The employers went into receivership in November 1983. A number of the employees were made redundant but the receiver hoped to carry on with the remaining workforce until February. However, a major customer threatened to withdraw its custom unless . .
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 – Secretary of State for Employment v ASLEF (No 2) CA 1972
Railway employees had been instructed by their unions to ‘work to rule’ and more specifically to ban overtime, Sunday and rest day working. ‘Working to rule’ meant giving an unreasonably literal construction to certain requirements of the railway . .
Cited – Rowan v Machinery Installations (South Wales) Ltd EAT 1981
The claimant was made redundant. He was given statutory redundancy pay, but continued from week to week for two years more. He was again made redundant but calculated only from the earlier date.
Held: Although paragraph 12 of Schedule 13 of . .
Cited – Litster and Others v Forth Dry Dock and Engineering Co Ltd SCS 1988
(Second Division of the Inner House of the Court of Session) Twelve applicants worked for an employer who went into insolvent receivership. The receivers agreed to sell the business assets. An hour before completion the workers were dismissed and . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 May 2022; Ref: scu.82956

Leicester University Students Union v Mahomed: EAT 6 Dec 1994

The Union appealed a finding of unfair dismissal and discrimination. It denied that she had sufficient continuous service, saying that the peirod suggested involved working for two employers. It also said that since the objection went as to jurisdiction, there was no requirement for it to have leave to appeal.
Held: Meeting the continuous employment criteria is not a precondition to the Employment Tribunal having jurisdiction, but proof of meeting the qualifying period is a precondition to a finding of unfair dismissal: ‘the right under Section 67 to present a complaint does not depend upon prior proof that Section 54 applies. Jurisdiction to consider the complaint is conferred by Section 67. If, on the evidence, the qualifying period is not established, the Applicant has not established the right conferred by Section 54. It does not follow that a Tribunal decision that the right exists, made upon a complaint being presented to it and upon the evidence, was made without jurisdiction if it subsequently transpires that the qualifying period had not been served.’

Judges:

Pill LJ

Citations:

Times 06-Dec-1994, Ind Summary 09-Jan-1995, [1994] UKEAT 4 – 93 – 1310

Links:

Bailii

Statutes:

Employment Protection (Consolidation) Act 1988 64(1)(b)

Jurisdiction:

England and Wales

Citing:

Cited – Standing v Eastwood and Co 1912
A court’s jurisdiction cannot be created by the contract or consent of the parties. . .
Cited – House v Emmerson Electric Industrial Controls EAT 1980
An unsuccessful Applicant sought leave to argue a jurisdictional point which he had not raised at the hearing before the Industrial Tribunal.
Held: Talbot J allowed the point to be raised saying: ‘For instance, if an Industrial Tribunal had . .
Cited – Gardiner v London Borough of Merton 1980
The continuity of the period of employment is not broken when an employee is taken into the employment of an ‘associated employer’ of the first employer but the claimant can take advantage of that only if at least one of the employers is a limited . .
Cited – Russell v Elmdon Freight Terminal Limited EAT 1989
The claimant faced a finding that the Industrial Tribunal did not have jurisdiction. He sought leave to appeal to establish by another route under Schedule 13, the necessary continuity of employment under Section 64(1)(a).
Held: Continuity of . .
Cited – British Midland Airways Limited v Lewis EAT 1978
An airline pilot complained that he had been unfairly dismissed and the Industrial Tribunal, without considering whether or not they had jurisdiction to hear the complaint on the ground that the employee might ordinarily work abroad, found that the . .
Cited – Barber v Thames Television plc EAT 1991
The EAT has a power exceptionally, to receive an argument which had not been put to tribunal. Knox J said: ‘We do not accept the proposition that any and every contention by a party to an appeal that that party by calling further evidence can show . .
Cited – Barber v Thames Television plc CA 1992
The applicant was ‘precluded by Section 64(1)(b) from making his complaint to the industrial tribunal’ The appeal succeeded. . .
Cited – Meek v City of Birmingham District Council CA 18-Feb-1987
Employment Tribunals to Provide Sufficient Reasons
Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 May 2022; Ref: scu.83022

Kwik-Fit (GB) Ltd v Lineham: EAT 5 Feb 1992

The applicant claimed unfair dismissal. The employer replied that the employee had resigned.
Held: The employer’s appeal was dismissed. The resignation had taken place in a heated moment, and it was not conclusive. An employer may not be able to rely upon a resignation made by an employee which had obviously been made in the heat of the moment. Constructive dismissal might still be a possibility. However (Wood J) ‘As we have said the industrial members take the view that the way in which this industrial tribunal have expressed themselves puts too high a burden upon employers. If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (‘being jostled into a decision’) and indeed the intellectual make-up of an employee may be relevant: (and he gives a citation). These we refer to as `special circumstances’. Where `special circumstances’ arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer’s risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the `special circumstances’ the intention to resign was not the correct interpretation when the facts are judged objectively’.

Judges:

Wood J

Citations:

Gazette 05-Feb-1992, [1991] UKEAT 250 – 91 – 2410, [1992] ICR 183, [1992] IRLR 156

Links:

Bailii

Citing:

Cited – Chesham Shipping Ltd v Rowe 1977
. .
Cited – Sothern v Frank Charlesly and Co CA 1981
Where an employee gives an unequivocal and unambiguous notice of his resignation, then that can be accepted by an employer and there is no dismissal. Where the unambiguous words are said in a moment of anger or in the heat of the moment or where . .
Cited – J and J Stern v Simpson 1983
Unambiguous words of an employee resigning should be accepted as such. . .
Cited – Martin v Yeoman Aggregates Ltd EAT 1983
A director of the employer had engaged in an argument with the employee claimant, which resulted in the director telling the employee he was dismissed. Within five minutes, the director cooled down and retracted the dismissal. The employee insisted . .
Cited – Sovereign House Security Services Ltd v Savage CA 1989
S was employed as a Security Officer. After discovering a cash shortage, his superior, P, rang him and suspended him forthwith pending police investigations. S responded by saying ‘I am not having any of that, you can stuff it, I am not taking the . .
Cited – Western Excavating (ECC) Ltd v Sharp CA 1978
To succeed in a claim for constructive dismissal the plaintiff must establish a breach of contract by the defendant, that the breach was sufficiently serious to have justified the claimant resigning, or at least be the last in a series of events . .
Cited – Tanner v D T Kean Ltd EAT 1978
The court was asked whether the words used by the claimant were an unambiguous statemet of an intent to resign. . .
Cited – Barclay v Glasgow District Council 1983
B who was mentally disabled, worked cleaning up swing-parks. There was an altercation with the District Manager and the Foreman which ended by Mr Barclay saying that he wanted his books ‘the next day.’ The next day was a pay day and the manager gave . .
Cited – London Transport Executive v Clarke CA 1981
The employee had taken unauthorised leave to go to Jamaica. After sending two letters to his home address asking for an explanation and giving an ultimatum, the employers wrote on 26 March saying that his name had been permanently removed from their . .
Cited – Gale Ltd v Gilbert EAT 1978
The claimant had worked for the employer for many years. There was a disagreement, and the employee said ‘I am leaving, I want my cards’. He claimed unfair dismissal.
Held: The EAT upheld the employer’s appeal against a finding of unfair . .

Cited by:

Cited – Grainger v Pat Kirk Limited NIIT 7-Apr-2005
. .
Cited – Grainger v Pat Kirk Limited FENI 7-Apr-2005
. .
Cited – Roberts v Messrs F J and J Frost EAT 6-Oct-1993
. .
Cited – Squires v Hill Brothers (Chichester) Ltd EAT 23-Jan-1995
. .
Cited – Leeds Private Hospital Ltd v Sayles EAT 25-Jul-1995
. .
Cited – Rugby Travel Specialists Ltd v Spender EAT 16-Jul-1997
. .
Cited – Theodosopoulou v Bank of Cyprus (London) Ltd EAT 15-Jul-1999
. .
Cited – Walker v Heathrow Refuelling Services Company Ltd and others EAT 6-Oct-2004
. .
Cited – Liverpool Community College v Bogart EAT 5-Jul-2006
EAT Unfair dismissal – dismissal/ambiguous resignation
ET was required to decide a preliminary issue whether the Respondent agreed that the Claimant could withdraw his notice. In a majority judgment, they . .
Cited – Ali v Birmingham City Council EAT 27-Oct-2008
EAT UNFAIR DISMISSAL: Dismissal/ambiguous resignation
1. The claimant handed in a letter of resignation to the respondents and he was then given a period of about 30 minutes to reconsider his decision.
Cited – Willoughby v C F Capital Plc EAT 13-Jul-2010
EAT UNFAIR DISMISSAL – Dismissal/ambiguous resignation
Whether employee was dismissed – unambiguous words of dismissal used by employer – Tribunal erred in law in holding that by reason of ‘special . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 May 2022; Ref: scu.82875

Kapadia v Lambeth London Borough Council: CA 4 Jul 2000

The claimant asserted disability discrimination, and consented to a medical report for the purpose of the claim. He was then to be obliged to consent to its release to the other party. To order otherwise would be contrary to the need for expeditious and efficient litigation.

Judges:

Pill, Schiemann LJJ, Sir Murray Stuart-Smith

Citations:

Times 04-Jul-2000, [2000] EWCA Civ B1, [2000] IRLR 699

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Kapadia v London Borough of Lambeth EAT 19-Nov-1998
The Tribunal lifted the stay of the claimant’s claim of disability discrimination. . .
Appeal from – Kapadia v London Borough of Lambeth EAT 27-May-1999
The claimant appealed against rejection of his claim for disability discrimination which had been on the ground that his condition did not amount to a disability within section 1(1). He suffered from anxiety, stress, tension and depression.
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Employment

Updated: 19 May 2022; Ref: scu.82670

Khan v General Medical Council: EAT 24 Mar 1993

An Asian Doctor had repeatedly been refused full registration by the council. It was held that he could not bring a claim of indirect discrimination, because he had not exhausted his rights of appeal. An application for review under the Act gave sufficient opportunity of redress being by way of an independent hearing capable of overturning the original decision.

Citations:

Independent 24-Mar-1993, [1993] UKEAT 366 – 92 – 1802

Links:

Bailii

Statutes:

Race Relations Act 1976 12, Medical Act 1983

Jurisdiction:

England and Wales

Citing:

Appealed to – Khan v General Medical Council CA 11-Apr-1994
The appellant’s application for full registration as a qualified medical practitioner had been refused by the GMC after a five-year maximum period of limited registration. His application for full registration in accordance with section 25 of the . .

Cited by:

Appeal from – Khan v General Medical Council CA 11-Apr-1994
The appellant’s application for full registration as a qualified medical practitioner had been refused by the GMC after a five-year maximum period of limited registration. His application for full registration in accordance with section 25 of the . .
Lists of cited by and citing cases may be incomplete.

Employment, Health Professions

Updated: 19 May 2022; Ref: scu.82761

Harris v Lord Shuttleworth and Others (Trustee of National and Provincial Building Society Pension Fund): CA 26 Nov 1993

The employee was dismissed on notice. The employee applied to the trustees to be recognised as entitled to an immediate pension as having been permanently incapacitated, but her application was turned down, both on the ground that she could obtain other employment and also on the ground that dismissal was different from retirement.
Held: Dismissal for prolonged illness may be early retirement for pension purposes. ‘Unaffected by authority, I would conclude that if an employee before reaching normal pension age is incapacitated from following her employment by a physical or mental disability or ill health which renders it improbable that she will be able to follow her present or similar employment during any part of the period until she reaches normal pension age, and if as a result her employment with the Society comes to an end, it matters not how her employment is terminated. In my judgment, whether she gives notice of her intention to leave or the Society gives notice dismissing her, the termination can still properly be described as ‘retirement from the Service by reason of incapacity’.

Judges:

Glidewell LJ

Citations:

Independent 26-Nov-1993, (1994) PLR 47, [1993] EWCA Civ 29, [1994] IRLR 547, [1994] ICR 991, [1994] Pens LR 47

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – AGCO Limited v Massey Ferguson Works Pension Trust Limited, Bradbury, Chater CA 17-Jul-2003
An employee sought payment under his pension scheme on taking redundancy at the employer’s request. The scheme did not make explicit provision for payment in such circumstances.
Held: The court had to begin with the words used. The kernel of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 May 2022; Ref: scu.81255

Hilton International Hotels (UK) Ltd v Faraji: EAT 10 Jan 1994

No reduction in compensation for unfair dismissal was to be made for invalidity benefit.

Citations:

Times 10-Jan-1994, [1993] UKEAT 136 – 93 – 1511

Links:

Bailii

Cited by:

Cited – Puglia v C James and Sons EAT 24-Oct-1995
The EAT considered the effect of the receipt of benefits during a period of sickness when calculating loss of earnings, and whether a hearing was properly conducted without the presence of the parties.
Held: There is no procedural irregularity . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 May 2022; Ref: scu.81385

Haddon v Van Den Bergh Foods Ltd: EAT 10 Nov 1999

An employee did not return to work after a presentation to him of a good service award, because he had drunk alcohol. A new policy required staff not to return to work after consuming alcohol, but had also said that alcohol would not be provided.
Held: The tribunal had failed to look properly at how the test of the reasonableness of the employer’s decision was to be assessed. The test went beyond the tribunal asking themselves what they would have done, and must recognise that their standards are not at issue. The tribunal should take care before applying accepted mantra’s.

Judges:

Morison P J

Citations:

Gazette 10-Nov-1999, EAT/1160/98, [1999] UKEAT 1160 – 98 – 2909, [1999] ICR 1150, [1999] IRLR 672

Links:

Bailii, EATn

Statutes:

Employment Rights Act 1996

Jurisdiction:

England and Wales

Citing:

See Also – Haddon v Van Den Bergh Foods Ltd EAT 9-Feb-1999
. .
Cited – Bessenden Properties Limited v Corness CA 1974
The court considered selection procedures in redundancy situations. Stamp LJ said: ‘It may be hard on employers in the embarrassing situation in which Mr Benfield [the employer] found himself in this case to have the matter so largely removed out of . .
Cited – Grundy v Willis 1976
Phillips J said: ‘So the duty of a tribunal is to take into account the reason . . and all the other facts and circumstances known to the employer, and ask whether for that reason, and in those circumstances, having regard to equity and the . .
Cited – George Whiley Ltd v Anderson 1-Jul-1976
. .
Cited – Wells v Derwent Plastics Limited EAT 1978
Bristow J said: ‘Where the legal right or obligation with which you are concerned is not a common law right or obligation but is created by statute, what the statute says, and nothing else, is the law. The judges cannot add to or subtract from the . .

Cited by:

Cited – Foley v Post Office; HSBC Bank Plc (Formerly Midland Bank Plc) v Madden CA 31-Jul-2000
When an Employment Tribunal looked at whether a dismissal was reasonable, the test related not to an assessment of what tribunal members would think or do, but rather whether to ask whether the employer’s response was within a ‘band or range of . .
Cited – J Sainsbury Ltd v Hitt; Orse Sainsburys Supermarkets Limited v Hitt CA 18-Oct-2002
Reasobaleness of Investigation Judged Objectively
The employer appealed against a decision that it had unfairly dismissed the respondent. The majority of the Employment Tribunal had decided that the employers had not carried out a reasonable investigation into the employee’s alleged misconduct . .
Cited – Bournemouth University Higher Education Corp v Buckland EAT 8-May-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
Whether fundamental breach of implied term of trust and confidence cured, so that the Claimant’s resignation did not amount to constructive dismissal.
Cited – Reilly v Sandwell Metropolitan Borough Council SC 14-Mar-2018
Burchell case remains good law
The appellant head teacher had been dismissed for failing to disclose the fact that her partner had been convicted of a sex offence. She now appealed from rejection of her claim for unfair dismissal.
Held: The appeal was dismissed. The . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 May 2022; Ref: scu.81127

Halfpenny v IGE Medical Systems Ltd: CA 18 Dec 1998

Where an employee had taken extended maternity leave but was then unable to return for post-natal depression, but she was dismissed, the resumption of her contract on issuing her notice of intention to return revived her sickness rights anew.
The applicant had had her claims of unfair dismissal and sex discrimination had been rejected by the Tribunald and by the EAT. She had been refused the right to return to work after maternity leave after she had extended her maternity. The employers now conceded that the recent decision of the CA in the Kwik Save case was indistinguishable.
Held: Under section 56, there had been a dismissal and such dismissal was unfair.

Judges:

Hirst, Ward and Robert Walker LJJ

Citations:

Times 04-Jan-1999, Gazette 03-Feb-1999, Gazette 06-May-1999, [1999] ICR 834, (1999) IRLR 177, [1998] EWCA Civ 3537, [1999] 1 FLR 944, [1999] Disc LR 265, (2000) 52 BMLR 153

Links:

Bailii

Statutes:

Employment Rights Act 1996 79(2), Employment Protection (Consolidation) Act 1978

Jurisdiction:

England and Wales

Citing:

Cited – Kwik Save Stores Limited v Greaves; Crees v Royal London Mutual Insurance Society Limited CA 20-Jan-1998
Women had taken extended maternity leave, but having followed the procedures, had been unable for illness to return to work on the day they had notified. The employer then asserted that the claimants had resigned. The EAT had confirm that they had . .

Cited by:

Appeal from – Halfpenny v IGE Medical Systems Ltd HL 19-Dec-2000
A woman who had taken maternity leave was deemed to have returned to work following the completion of that leave when, on the appropriate date she provided medical certificates in accordance with the contract of employment. The applicant had given . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 19 May 2022; Ref: scu.81142

Halfpenny v IGE Medical Systems Ltd: HL 19 Dec 2000

A woman who had taken maternity leave was deemed to have returned to work following the completion of that leave when, on the appropriate date she provided medical certificates in accordance with the contract of employment. The applicant had given notice of her intention to return after maternity leave, but obtained an extension of four weeks. She requested a further extension, but this was refused by her employers. She did not attend.
Held: The right to return could not be dependent on the simple ability to return on the day notified. Nor could the simple service of a notice under the section create a return to work. In this case, however, the employee had demonstrated her intention to comply with the requirements of the contract of employment, and that was sufficient to constitute a return to work under the Act even though she did not physically attend on the notified day.

Judges:

Lord Hope of Craighead Lord Mackay of Clashfern Lord Goff of Chieveley Lord Browne-Wilkinson Lord Clyde

Citations:

Times 19-Dec-2000, [2000] UKHL 64

Links:

House of Lords, Bailii

Statutes:

Sex Discrimination Act 1975, Employment Protection (Consolidation) Act 1978

Jurisdiction:

England and Wales

Citing:

Appeal from – Halfpenny v IGE Medical Systems Ltd CA 18-Dec-1998
Where an employee had taken extended maternity leave but was then unable to return for post-natal depression, but she was dismissed, the resumption of her contract on issuing her notice of intention to return revived her sickness rights anew.
Cited – Kwik Save Stores Limited v Greaves; Crees v Royal London Mutual Insurance Society Limited CA 20-Jan-1998
Women had taken extended maternity leave, but having followed the procedures, had been unable for illness to return to work on the day they had notified. The employer then asserted that the claimants had resigned. The EAT had confirm that they had . .
Cited – Kelly v Liverpool Maritime Terminals Limited CA 1988
An employee had no valid claim for unfair dismissal if illness prevented her from returning to work before the end of the twenty-nine week period after her confinement, allowing for only one statutory extension of 4 weeks. The applicant’s maternity . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 19 May 2022; Ref: scu.81144

Focsa Services (UK) Ltd v Birkett: EAT 30 Jan 1996

An IT was wrong to calculate damages for breach of contract as if it was a finding of unfair dismissal.
Clark J said: ‘The fallacy in our judgment, in the chairman’s reasoning is to disregard the normal common law rules as to loss in cases of wrongful dismissal. That loss is limited to the sums payable to the employee had the employment been lawfully terminated under the contract. Once a dismissal has taken place, as was accepted and found in this case, it is irrelevant to consider what might have happened had a contractual disciplinary procedure been followed. An employer is entitled to dismiss on contractual notice at common law for whatever reason.
The fact is that Mr Birkett was dismissed. In so far as he did not receive his full notice, he is generally entitled to damages to reflect the pay during the notice period and no more. The only exception is where employment would have been extended by operating the disciplinary procedure: Boyo v London Borough of Lambeth [1995] IRLR 50; Gunton v London Borough of Richmond-upon-Thames [1980] IRLR 321 . .’

Judges:

Clark J

Citations:

Gazette 10-Jul-1996, (1996) IRLR 325, [1996] UKEAT 826 – 95 – 3001

Links:

Bailii

Jurisdiction:

England and Wales

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, Damages

Updated: 19 May 2022; Ref: scu.80619

Goodwin v Patent Office: EAT 21 Oct 1998

An ability to carry out normal domestic day to day tasks did not mean that a physical impairment was not substantial. The word ‘substantial’ is potentially ambiguous. In that it might mean ‘very large’ or ‘more than minor or trivial’. The code of guidance resolves this ambiguity in favour of the latter alternative. The employment tribunal would: ‘wish to examine how the applicants abilities had actually been affected at the material time, whilst on medication, and then to address their minds the difficult question as to the effects which they think there would have been but for the medication: the deduced effects. The question is then whether the actual and deduced effects on the applicants ability to carry out normal day to day activities [are] clearly the more than trivial.’
The tribunal should consider four conditions: ‘(1) The impairment condition. Does the applicant have an impairment which is either mental or physical?
(2) The adverse effect condition. Does the impairment affect the applicant’s ability to carry out normal day-to-day activities in one of the respects set out in paragraph 4(1) of Schedule 1 to the Act, and does it have an adverse effect?
(3) The substantial condition. Is the adverse effect (upon the applicant’s ability) substantial?
(4) The long-term condition. Is the adverse effect (upon the applicant’s ability) long-term?’ He continued: ‘Frequently, there will be a complete overlap between conditions (3) and (4) but it will be as well to bear all four of them in mind. Tribunals may find it helpful to address each of the questions but at the same time be aware of the risk that disaggregation should not take one’s eye off the whole picture.’

Judges:

Morison J

Citations:

Times 11-Nov-1998, [1998] UKEAT 57 – 98 – 2110, [1999] ICR 302, [1999] IRLR 4

Links:

Bailii

Statutes:

Disability Discrimination Act 1995

Citing:

See also – Goodwin v Patent Office EAT 3-Feb-1999
Tribunals looking at Disability Discrimination should check the four factors in the Act without losing the overall picture. Assistance was available from the WHO Classification of Diseases. Being able to carry out a task did not mean ability was not . .

Cited by:

See also – Goodwin v Patent Office EAT 3-Feb-1999
Tribunals looking at Disability Discrimination should check the four factors in the Act without losing the overall picture. Assistance was available from the WHO Classification of Diseases. Being able to carry out a task did not mean ability was not . .
Cited – Conoco Ltd v Kevan Booth EAT 30-Jan-2001
EAT The employer appealed against a finding of unfair dsmissal and unlawful disability discrimination. He claimant suffered post traumatic stress after a fire at the appellant’s premises, and the employer was . .
Cited – J v DLA Piper UK Llp EAT 15-Jun-2010
EAT DISABILITY DISCRIMINATION – Disability
Job offer to Claimant withdrawn allegedly as a result of her disclosing a history of depression – On a preliminary issue Tribunal holds that at the material time . .
Cited – East Sussex County Council v Hancock EAT 5-Nov-2003
EAT The Council appealed against a finding that the respondent, their employee, was disabled under the 1995 Act. He suffered from a long term mixed anxiety and depression disorder, but the Council disputed that . .
Cited – Kapadia v London Borough of Lambeth EAT 27-May-1999
The claimant appealed against rejection of his claim for disability discrimination which had been on the ground that his condition did not amount to a disability within section 1(1). He suffered from anxiety, stress, tension and depression.
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 19 May 2022; Ref: scu.80923

Edmonds v Lawson: QBD 13 Oct 1999

A pupil barrister was engaged in a form of apprenticeship, which had sufficient characteristics of employment to make the pupil a worker within the Act, and so entitled to payment of the minimum wage. The contract was either of employment or for personal services and so was covered.

Citations:

Times 11-Oct-1999, Gazette 13-Oct-1999

Statutes:

National Minimum Wage Act 1998 1 (2) (a), 58

Cited by:

Appeal From – Edmonds v Lawson, Pardoe, and Del Fabbro CA 10-Mar-2000
A contract of apprenticeship is synallagmatic. The master undertakes to educate and train the apprentice (or pupil) in the practical and other skills needed to practise a skilled trade (or learned profession) and the apprentice (or pupil) binds . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Employment

Updated: 19 May 2022; Ref: scu.80252

Doyle and Others v Northumbria Probation Committee: QBD 19 Feb 1992

The right to seek a private law remedy after withdrawal of the right to claim some expenses on financial grounds was not lost despite there also being a public remedy because of public law elements in the decision. The matter was essentially one of contract between the parties.

Citations:

Gazette 19-Feb-1992

Jurisdiction:

England and Wales

Employment

Updated: 19 May 2022; Ref: scu.80113

Digital Equipment Co Ltd v Clements: EAT 11 Dec 1996

An excess redundancy payment is to be deducted from damages before any per cent pro rata redeuction is to be made for any other reason. An employer paying over statutory minimum on redundancy is entitled to full credit for extra payment of had dismissed unfairly.

Citations:

Times 11-Dec-1996, [1996] UKEAT 593 – 95 – 0512

Links:

Bailii

Statutes:

Employment Protection (Consolidation) Act 1978 74

Cited by:

Appeal from – Digital Equipment Co Ltd v Clements (No 2) CA 4-Dec-1997
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 May 2022; Ref: scu.79961

Diocese of Southwark and Others v Coker: EAT 4 Apr 1996

A curate is not an employee of the Church and cannot claim unfair dismissal.

Judges:

Hull QC

Citations:

[1995] UKEAT 374 – 95 – 0811

Links:

Bailii

Statutes:

Employment Protection (Consolidation) Act 1978

Citing:

Appeal from – Coker v Diocese of Southwark ET 16-Mar-1995
An Anglican clergyman is an employee of the church, and so has employment rights. . .

Cited by:

Appeal from – Reverend Doctor A B Coker v Diocese of Southwark; Bishop of Southwark and Diocesan Board of Finance CA 11-Jul-1997
A Church of England Assistant Curate is not an employee, but rather a holder of an ecclesiastical office. There is a presumption that ministers of religion were office-holders who did not serve under a contract of employment. Accordingly he is not . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 May 2022; Ref: scu.79972

D v M: QBD 18 Mar 1996

A post employment restrictive covenant was unreasonable where an employee was restricted even after the wrongful termination of his employment by the company. Laws J set out the appropriate principle: ‘A restrictive covenant, having effect after the termination of a contract of service or for services, which on its face applies to the employer’s benefit even where the termination has been induced by his own breach is necessarily unreasonable. Such a provision, if given effect, would constitute an evasion of the rule in General Billposting [1909] AC 118. Indeed, so far as I can see, the only purpose of inserting the material words (‘for whatever reason’ or ‘whether lawful or unlawful’ or however otherwise it might be expressed) would be to secure coercive rights to the employer which would survive his own contractual misconduct. I cannot think that that would be reasonable.’

Judges:

Laws J

Citations:

Times 18-Mar-1996, [1996] IRLR 192

Cited by:

Cited – Rock Refrigeration Limited v Jones and Seward Refrigeration Limited CA 10-Oct-1996
The claimant sought to enforce a post employment restrictive covenant given by the defendant. The defendant replied that the clause was too widely framed and was unreasonable since it applied to a temination of his contract ‘howsoever occasioned’. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 May 2022; Ref: scu.79764

Dattani v Trio Supermarkets Limited: CA 20 Feb 1998

No bar exists to claiming for unpaid wages after an industrial tribunal settlement did not state what matters had been resolved between the parties. The withdrawal of a claim did not give rise to an estoppel.

Judges:

Butler-Sloss, Swinton-Thomas, Mummry LJ

Citations:

Times 20-Feb-1998, Gazette 05-Mar-1998, [1998] EWCA Civ 158, [1998] ICR 872, [1998] IRLR 240

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Sodexho Ltd v Gibbons EAT 14-Jul-2005
EAT Deposit ordered. Order lost in post due to the Claimant putting wrong post-code on ET1. Review. Distinguishing Judgments from Orders. Strike-out. Extending time. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 May 2022; Ref: scu.79821

Davidson v City Electrical Factors Ltd: EAT 13 May 1998

All cases of unfair dismissal on claim where employment between one and two years may be adjourned pending outcome of appeal to House of Lords in ‘Seymour-Smith’ case, but applicants with a qualifying period of employment of less than one year should not have applications stayed.

Citations:

Gazette 13-May-1998, [1998] IRLR 108

Employment

Updated: 19 May 2022; Ref: scu.79828

Criminal Proceedings Against Arblade and Others Joined Cases C-369/96 and C-376/96: ECJ 7 Dec 1999

Where a member state had a minimum wage law, it was not contrary to the rules requiring the free movement of services, to require that a supplier from another state providing services within the state should do so subject to the minimum wage rules of the state in which the service is provided, and to criminalize breaches of such rules. There was no freedom to insist on payment of employers social funds contributions in both states.

Citations:

Times 07-Dec-1999

Statutes:

ECTreaty Article 234

Employment, European

Updated: 19 May 2022; Ref: scu.79653

Connolly v Sellers Arenascene Ltd: CA 2 Feb 2001

The fact that a director held a majority shareholding in a company was not enough of itself to say he was not an employee. It is an important factor, but the tribunal must look at all the factors. The tribunal having decided that the director’s service agreement was not a sham, it was inevitable they should conclude he was an employee, and had the right not to be unfairly dismissed.

Citations:

Times 08-Mar-2001, Gazette 22-Feb-2001, [2001] EWCA Civ 184

Links:

Bailii

Statutes:

Employment Rights Act 1996 230

Jurisdiction:

England and Wales

Citing:

Appeal from – Connolly v Sellers Arenascene Ltd EAT 14-Sep-1999
EAT Contract of Employment – Breach of Contract . .
Lists of cited by and citing cases may be incomplete.

Employment, Company, Insolvency

Updated: 19 May 2022; Ref: scu.79451

Cornwall County Care Ltd v Brightman and Others: EAT 10 Mar 1998

A dismissal after the transfer of an undertaking was not unfair when at the same time the old terms of employment remained in effect. Compensation would be awarded for the dismissal and the new terms would be applied to the new contract.

Citations:

Times 10-Mar-1998

Statutes:

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

Employment

Updated: 19 May 2022; Ref: scu.79512

Clean Car Autoservice Gesmbh v Landeshauptmann Von Wien: ECJ 13 May 1998

An employer can make use of EU legislation allowing free movement of workers as much as can individual employees. Member state requiring an own national head of company was invalid.

Citations:

Times 13-May-1998, C-350/96, [1998] EUECJ C-350/96

Links:

Bailii

Statutes:

ECTreaty Art 48

Employment, European

Updated: 19 May 2022; Ref: scu.79211

Clapson v British Airways Plc: EAT 12 Jan 2001

The employment tribunal power to require attendance by a witness includes the power to require a party to attend to give evidence. The consent of either party was not needed for its exercise.

Citations:

Times 21-Feb-2001, [2001] UKEAT 1266 – 00 – 1201

Links:

Bailii

Statutes:

Employment Tribunals (Constitution and Rules of Procedure) Regulations 1996 (1996 No 1757) Sch 1 Para 4(2)

Employment

Updated: 19 May 2022; Ref: scu.79174

Cerberus Software Ltd v Rowley: EAT 29 Sep 1999

Where an employment contract allows the employer to dismiss without notice by the payment of salary in lieu of notice, the employer was bound by that contract and could not rely upon the employee’s duty of mitigation of damages and dismiss without both notice and a payment in lieu of notice.

Citations:

Gazette 10-Nov-1999, (1999) IRLR 690, [1999] UKEAT 1023 – 98 – 2909

Links:

Bailii

Citing:

See Also – Cerberus Software Ltd v Rowley EAT 17-Nov-1998
. .
See Also – Cerberus Software Ltd v J A Rowley EAT 14-Jul-1999
EAT Contract of Employment – Breach of Contract . .

Cited by:

Appeal from – Cerberus Software Ltd v John Anthony Rowley CA 18-Jan-2001
Where a contract of employment gave the employee a right to six months notice but provided that the employer might pay salary in lieu, and the employee was wrongfully dismissed instantly, but found work within weeks, he was entitled to his full six . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 May 2022; Ref: scu.78959

Chief Adjudication Officer v Stafford and Banks: HL 29 Jun 2001

The appellant first applied for income support and then for job seeker’s allowance in respect of periods between terms. He was employed as a classroom assistant in a school, and was not paid outside term. He sought but could not obtain work. He was denied benefits. He claimed that when averaged over the year including holidays.
Held: With some reluctance, since the school year imposed a recognisable cycle, the rules which required holiday periods to be disallowed when calculating the average must be applied, which defeated his claim for benefits.

Citations:

Times 29-Jun-2001, Gazette 09-Aug-2001, [2001] UKHL 33, [2001] 1 WLR 1411

Links:

Bailii, House of Lords

Statutes:

Income Support (General) Regulations 1987 (1987 No 1967) 5(3B), Jobseekers Allowance Regulations 1996 (1996 No 207) 51(2)(c)

Citing:

Appeal from – Chief Adjudication Officer v Stafford; Same v Banks CA 27-Oct-1999
The provisions for requiring the averaging of pay over entire cycles of work were applied to ensure that workers who worked part time for educational establishments and who were not paid when the schools were closed, were not able to receive . .

Cited by:

Appealed to – Chief Adjudication Officer v Stafford; Same v Banks CA 27-Oct-1999
The provisions for requiring the averaging of pay over entire cycles of work were applied to ensure that workers who worked part time for educational establishments and who were not paid when the schools were closed, were not able to receive . .
Lists of cited by and citing cases may be incomplete.

Employment, Benefits

Updated: 19 May 2022; Ref: scu.79047

Carrington v Harwich Duck Co Ltd: EAT 31 Aug 1998

An employee resigned for his own financial purposes and was re-employed after the weekend. Later dismissed, his employment was said to be continuous.
Held: It was difficult to contract out of statutory rights when it came to an issue of jurisdiction. Intermediate employment not enough.

Citations:

Times 31-Aug-1998

Statutes:

Employment Rights Act 1996 212

Employment

Updated: 19 May 2022; Ref: scu.78916

Camelot Group Plc v Centaur Communications Plc: QBD 15 Jul 1997

Human rights law is no aid in protecting a journalist against an order requiring the return of confidential documents, even though this might identify the source of leak.

Citations:

Times 15-Jul-1997, [1999] QB 124

Statutes:

Contempt of Court Act 1981

Cited by:

Cited – Financial Times Ltd and others v Interbrew SA CA 8-Mar-2002
The appellants appealed against orders for delivery up of papers belonging to the claimant. The paper was a market sensitive report which had been stolen and doctored before being handed to the appellant.
Held: The Ashworth Hospital case . .
Appeal from – Camelot Group plc v Centaur Communications Limited CA 23-Oct-1997
An order for a journalist to disclose the name of an employee disclosing his employer’s information, may be made where there was a need to identify a disloyal employee. Here drafts of accounts had been released to embarrass the company. The . .
Cited – Mersey Care NHS Trust v Ackroyd QBD 7-Feb-2006
The trust, operators of Ashworth Secure Hospital sought from the defendant journalist disclosure of the name of their employee who had revealed to the defendant matters about the holding of Ian Brady, the Moors Murderer, and in particular medical . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Employment, Media

Updated: 19 May 2022; Ref: scu.78858

Burton and Another v De Vere Hotels: EAT 3 Oct 1996

Two black waitresses, clearing tables in the banqueting hall of a hotel, were made the butt of racist and sexist jibes by a guest speaker entertaining the assembled all-male company at a private dinner party.
Held: The employer of the waitresses had racially discriminated against the waitresses. Had the assistant managers in charge for the evening been properly instructed, the two young women would not have suffered embarrassment. They could, and should, have been withdrawn from the room. An hotel is liable, as an employer to its employees who had been offended by racially charged or offensive material uttered by a guest speaker by a guests’ guest speaker. The employer could have taken steps to intervene, but did not do so.

Judges:

Smith J, R Chapman, Lord Gladwin

Citations:

Times 03-Oct-1996, [1997] ICR 1, [1996] IRLR 596, Independent 04-Nov-1996

Statutes:

Race Relations Act 1976 4

Jurisdiction:

England and Wales

Cited by:

Cited – Chief Constable of Bedfordshire Police v Liversidge EAT 21-Sep-2001
The Chief Constable appealed against a refusal to strike out a claim by the respondent that he had racially discriminated against her. Force members had used code words for racially abusive terms about her. The claim was that he was vicariously . .
Overruled – MacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School HL 19-Jun-2003
Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
Held: The court should start by asking what gave rise to the act complained of. In this case it was the . .
Doubted – S S Hussain v HM Prison Service EAT 1-Mar-2002
EAT Race Discrimination – Direct . .
Cited – Chief Constable of Kent County Constabulary v Baskerville CA 3-Sep-2003
The claimant sought damages for sex discrimination by fellow police officers in an action against the Chief Constable. The Chief Constable said he was liable for the unlawful acts of fellow officers.
Held: Anything done by an employee was done . .
Cited – Conteh v Parking Partners Ltd EAT 17-Dec-2010
EAT HARASSMENT – Conduct
Where an employee worked in an environment in which her dignity was violated, or which became intimidatory, hostile, degrading, humiliating or offensive as a result of actions of . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 19 May 2022; Ref: scu.78768

British Broadcasting Corporation v Farnworth: EAT 13 Jul 1998

The claimant employee said that the non-renewal of her fixed term contract was not a redundancy as alleged.
Held: It could still be a redundancy situation when an employee is dismissed because the organisation requires an employee with more experience. The non renewal of a fixed term contract for a producer became a redundancy when she was needed to be replaced by someone with more experience.

Judges:

Levy QC J

Citations:

Times 07-Oct-1998, Gazette 28-Oct-1998, [1998] UKEAT 1000 – 97 – 1307

Links:

Bailii

Citing:

Cited – Safeway Stores Plc v Burrell EAT 24-Jan-1997
The tribunal set out the test for whether a dismissal was for redundancy: ‘Free of authority, we understand the statutory framework . . involve a three-stage process: (1) was the employee dismissed: If so, (2) had the requirements of the employer’s . .
Cited – Vaux and Associated Breweries Ltd v Ward 1968
Definition of the phrase ‘work of a particular kind’. . .
Cited – Kleboe v Ayr County Council 1971
Meaning of ‘work of a particular kind’ in the context of redundancy. . .
Cited – Murphy v Epsom College CA 1984
The College replaced a plumber who could do the work of a heating engineer with a heating engineer who could do plumbing work. The number of employees and the work remained the same.
Held: The dismissal was by reason of redundancy because the . .
Cited – Pillinger v Manchester Area Health Authority 1979
The claimanat said his dismissal had not been a redundancy, since the person who replaced him did the same work.
Held: The dismissal must have been for some other reason. It was not a redundancy. The court discussed the meaning of the phrase . .
Cited – Loudon v Crimpy Crisps Ltd 1966
In order to test whether there has been a redundancy the statute asks as to the requirements of the business for employees to do work of a particular kind. The personal attributes of the employee are not relevant except in so far as they reflect . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 May 2022; Ref: scu.78608

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 regulations caught the transaction, even though the Directive made no mention of such a transfer.

Citations:

Gazette 10-Dec-1998, [1998] IRLR 636, [1998] UKEAT 210 – 98 – 0408, [1998] ICR 1198

Links:

Bailii

Statutes:

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

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .

Cited by:

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

Employment, European

Updated: 18 May 2022; Ref: scu.78672

British Coal Corporation v Smith and Others: HL 23 May 1996

The phrase ‘common terms of employment’ means broadly comparable terms. There is no need for them to be identical, and the phrase should be construed liberally, though there can be no general commonality where there is no commonality in terms and conditions between comparative establishments.
Lord Slynn said that the terms had to be sufficiently similar to allow a fair comparison to be made: ‘generally’ does not necessarily mean ‘all’.
A genuine material factor defence, between different collective bargaining pay structures for claimant and comparator work groups, can become discriminatory: ‘Whilst accepting that differences in rates of pay historically were due to separate bargaining processes, which themselves were untainted by sex, the question remained whether at the relevant date (January 1986) the difference between workers had been shown by the Corporation to be objectively justified on grounds other than sex.’

Judges:

Lord Slynn

Citations:

Times 23-May-1996, Gazette 12-Sep-1996, Gazette 03-Jul-1996, [1996] ICR 515

Statutes:

Equal Pay Act 1970 1(6), Employment Protection Act 1970 1(2)(c)

Citing:

Cited – Leverton v Clwyd County Council HL 1989
The claimant, employed as a nursery nurse by the respondent in an infant school sought to compare herself with clerical staff employed by the respondent, but not in schools.
Held: The employee’s appeal succeeded. The majority of the Employment . .

Cited by:

Cited – White v Burton’s Foods Ltd EAT 6-Jul-2010
EAT EQUAL PAY ACT – Like work
The Claimant had been employed by the Respondent since 1984 before becoming Production Planning Manager at the Respondent’s Blackpool site. She brought a claim under the Equal . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 18 May 2022; Ref: scu.78619

British Coal Corporation v Smith and Others: EAT 23 Feb 1993

An application of equal pay involved consideration of 150 comparators, and at great cost to all involved. The industrial members of the tribunal, with the support of the legal member, criticised the delay and complexity of Employment law. The growing complexity of industrial law was operating against the interests of those seeking to work within it in industry.

Citations:

Times 23-Feb-1993

Statutes:

Equal Pay Act 1970 208, Sex Discrimination Act 1975, Equal Pay (Amendment) Regulations 1983 (1983 No 1794)

Employment, Discrimination

Updated: 18 May 2022; Ref: scu.78623

British Sugar Plc v Kirker: EAT 3 Feb 1999

The Tribunal was not wrong to find disability discrimination where an employee was selected for redundancy drawing inferences from events which had occurred before the Act came into force. No need in this law for comparison with treatment of comparitors.

Citations:

Gazette 03-Feb-1999, [1998] IRLR 624

Statutes:

Disability Discrimination Act 1995

Employment, Discrimination

Updated: 18 May 2022; Ref: scu.78635

British Telecommunications Plc v Williams: EAT 3 Jun 1997

Sexual harassment was defined as ‘unwanted conduct of a sexual nature, or other conduct based upon sex affecting dignity at work’. It would be no defence to a complaint of sexual harassment that a person of the opposite sex would have been similarly treated. In general in cases of sexual harassment there is no necessity to look for a comparison with a particular person of the opposite sex.

Judges:

Morison J

Citations:

Gazette 14-Jan-1998, [1997] IRLR 668, [1997] UKEAT 1340 – 95 – 0306

Links:

Bailii

Cited by:

Disapproved – MacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School HL 19-Jun-2003
Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
Held: The court should start by asking what gave rise to the act complained of. In this case it was the . .
Cited – Pearce v Mayfield School CA 31-Jul-2001
The claimant teacher was a lesbian. She complained that her school in failed to protect her against abuse from pupils for her lesbianism. She appealed against a decision that the acts of the pupils did not amount to discrimination, and that the . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 18 May 2022; Ref: scu.78649

Berkshire and Oxfordshire Magistrates’ Courts v Gannon and Another: QBD 10 May 2000

The applicants had been employed on the administrative staff of a Magistrates’ Court, spending 25-40% of their working day performing duties delegated to them by the clerk to the justices. The Tribunal held that, as an ‘appreciable’ part of their duties was in assisting the JC, they came within the definition in regulation 3(1)(b).
Held: The case was remitted to the Tribunal. The Tribunal had misdirected itself in holding that, for the purposes of the regulation, assisting the JC need be no more than an ‘appreciable’ part of the employment. More was required. Provided a person’s duties at work were predominantly devoted to providing assistance to the holder of the office of justices’ clerk, that person would be entitled to compensation upon termination of office under the Regulations.
Carnwath J explained the meaing of regulation 3: ‘Is it sufficient that assisting the justices’ clerk should be ‘an appreciable (as opposed to insignificant or negligible’) feature of the employment, as the tribunal concluded? Or is Mr Lynch right in submitting that the employment must be wholly or predominately devoted to providing such assistance? . . In my view Mr Lynch is correct on this issue. The words of regulation 3(1) itself are ambiguous. I accept that a person, only part of whose duties consist of assisting the justices’ clerk, could still properly be said to be ’employing in assisting’ him. However, the context is of an employment which is comparable to that of the office of justices’ clerk. That is much more readily understandable in relation to someone whose main job is to assist the clerk, rather than someone who merely spends part of his time assisting the clerk’.
He concluded ‘It would be convenient if one could treat that dividing-line, between delegated and non-delegated functions, as corresponding precisely to the relevant distinction under regulation 3. However, that is not how the regulation is drafted. Nor does it appear, from the Tribunal’s finding, that there was in practice a clear dividing-line. Even the non-delegated functions seem to have been considerably more significant than those of ‘typists, secretaries or ushers.’ A conclusion that these duties, or some of them, also amounted to ‘assisting the clerk’, in the sense defined by the Tribunal, would not necessarily be unreasonable.’

Judges:

Carnwath J

Citations:

Times 10-May-2000, [2000] ICR 1003, [2000] EWHC Admin 326

Links:

Bailii

Statutes:

Justices of The Peace Act 1949 (Compensation) Regulations 1978 (1978 No 1682)

Cited by:

Approved – Slee v Secretary of State for Justice (1) Admn 19-Nov-2007
The claimant sought compensation under the Regulations as a result of her dismissal on the re-organisation of the Magistrates Court at Wimbledon from her position as court clerk. The EAT had allowed her claim for unfair dismissal. Her position on . .
Cited – Secretary of State for Justice v Slee CA 24-Jan-2011
The claimant had been found to have been unfailry dismissed by respondent, on the termination of her employment as an assistant Clerk to the Justices. The EAT had upheld her claim, but had at first rejected her claim for long-term and retirement . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Employment

Updated: 18 May 2022; Ref: scu.78358

Bernadone v Pall Mall Services Group Ltd and Others: QBD 2 Aug 1999

Where an undertaking was transferred, and there remained outstanding a liability of the employer to an employee for damages for personal injuries, even though not pleaded under Health and Safety legislation, was transferred to the transferee by virtue of the regulations to the new employer where the liability may also have arisen by virtue of the employer employee relationship.

Citations:

Times 02-Aug-1999

Statutes:

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

Cited by:

Appeal from – Martin v Lancashire County Council Appeal (and Cross Appeals) Bernadone v Pall Mall Services Group and Haringey Healthcare Nhs Trust and Independent Insurance Ltd CA 16-May-2000
Where an undertaking was transferred, existing liabilities arising out of the employment were transferred notwithstanding that these liabilities were not contractual. A claim for personal injuries became the responsibility of the new employer. At . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 May 2022; Ref: scu.78364

Bhatt v Chelsea and Westminster Health Care Trust and Another: EAT 9 Sep 1997

The tribunal must first decide if a renewal of a fixed term contract was an extension or a re-engagement before deciding if unfair dismissal was possible: ‘We accept the submission that a contract for a fixed term may be extended as to its term, leaving the same contract in place. We accept too, that when a contract of employment for a fixed term of a year or more is extended as to its term by a lesser period, that extension alone is not to be taken as the correct point of focus for the purposes of s.197(1). The contract remains in place and the extension does not taken it outside s.197(1).’

Judges:

Kirkwood J

Citations:

Times 24-Oct-1997, [1997] UKEAT 479 – 97 – 0909, [1997] IRLR 660

Links:

Bailii

Statutes:

Employment Rights Act 1996 197

Cited by:

Cited – British Broadcasting Corporation v Kelly-Phillips CA 24-Apr-1998
When a one year fixed term employment contract was extended by a period of less than a year, but then not again renewed, there was no unfair dismissal, since the exemption for the original term applied also to any extension. There had been . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 May 2022; Ref: scu.78382

Beedell v West Ferry Printers Ltd: CA 15 Mar 2001

It could be correct for an appeal to be dismissed rather than allow an appeal against the grant of leave to appeal. The subject matter was important and highly controversial, even if the law appeared to be clear and the appeal to be hopeless. To revoke the leave to appeal would leave no way of settling the controversy, but to dismiss the appeal would leave open the possibility of an application in turn to the House of Lords for leave to appeal.

Citations:

Times 05-Apr-2001, [2001] EWCA Civ 400, [2001] ICR 962

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Bournemouth University Higher Education Corp v Buckland EAT 8-May-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
Whether fundamental breach of implied term of trust and confidence cured, so that the Claimant’s resignation did not amount to constructive dismissal.
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Employment

Updated: 18 May 2022; Ref: scu.78316

Barber and Others v RJB Mining Uk Ltd: QBD 8 Mar 1999

The working time provisions now impose contractual obligations on employers. An employee, working hours over the limit, was entitled to cease work until such time as he was brought back within the maximum working hours. There could be no obligation to opt out.

Citations:

Times 08-Mar-1999, Gazette 06-May-1999

Statutes:

Working Time Regulations 1998 (1998 No 1833) 4(1)

Employment

Updated: 18 May 2022; Ref: scu.78180

Barnett v Brabyn (Inspector of Taxes): ChD 5 Jul 1996

Re-statement of character of contracts of employment and services and difference. The form of contract is important but not conclusive. It is necessary to look at the terms of the contract as a whole concentrating on the substantive rights and obligations of the parties and decide whether they are more or less strongly indicative of one form of relationship than the other.

Citations:

Times 05-Jul-1996, [1996] STC 716

Cited by:

Cited – Robin Ray v Classic FM Plc PatC 18-Mar-1998
Contractor and Client Copyrights
The plaintiff had contributed a design for a system of classifying and selecting tracks to be played on a radio station. He did so under a consultancy contract.
Held: A Joint authorship claim required that the contributor had made some direct . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 May 2022; Ref: scu.78236

Balmoral Group Ltd v Rae: EAT 25 Jan 2000

Where a tribunal looked to assess compensation for unfair dismissal, and issues of causation arose, the tribunal should take a broad approach looking fairly at what was just and equitable looking at the claimant’s loss and the extent to which the loss was attributable to the employer. It would normally be wrong to seek to apply considerations appropriate in other contexts such as forseeability, and remoteness of damage.

Citations:

Times 25-Jan-2000

Employment, Damages

Updated: 18 May 2022; Ref: scu.78126

Bank of Credit and Commerce International Sa (In Liquidation) v Ali and Another: ChD 17 Feb 1999

A compromise of a claim involved a settlement with the value given, and a release did not import requirement for any consideration. A compromised claim could not be set aside for lack of knowledge, and no duty of disclosure of any wrongdoing existed.

Judges:

Lightman J

Citations:

Times 25-Jan-1999, Gazette 17-Feb-1999, [1999] ICR 1068

Cited by:

See also – Bank of Credit and Commerce International Sa (In Compulsory Liquidation) v Munawar Ali, Sultana Runi Khan And Others (No 3) ChD 25-Jun-1999
In order for an employee to claim that his employer was conducting his business in an unlawful manner so as to destroy the relationship of trust and confidence between them, the activity had to be such that the employee could not reasonably be . .
At First Instance – Bank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice

Updated: 18 May 2022; Ref: scu.78147

Sun Valley Foods Limited v Vincent: 2000

The court considered the grant of ‘springboard relief’. Jonathan Parker J said: ‘For reasons which I have already explained, there is no room for doubt that the defendants have made unlawful use of material in which Sun Valley/Fields has a proprietary interest. But, as Nourse L.J. explained in Bullivant, that in itself is not enough to found a claim for ‘springboard’ relief. Sun Valley also has to establish (a) that the defendants thereby gained unfair competitive advantage over Sun Valley ‘to use the words of Roxburgh J.’ (an ‘unfair start’) and (b) as of today that advantage still exists and will continue to have effect unless the relief sought is granted.
It is, therefore, necessary to consider on the evidence as it stands (and, of necessity, without the benefit of cross-examination) the extent to which the unlawful copying of Fields’ material assisted the defendants in starting up Fusion’s business and in thereby shortening the start-up period.
In undertaking this task, I must bear in mind that there was nothing unlawful in the individual defendants making use of their own expertise and experience in setting up in competition with Sun Valley/Fields immediately following their resignations. In those respects, a ‘seamless transaction’ from Fields to Fusion was a legitimate aim which cannot found an application for ‘springboard’ relief.’

Judges:

Jonathan Parker J

Citations:

[2000] FSR 825

Jurisdiction:

England and Wales

Cited by:

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, Litigation Practice

Updated: 18 May 2022; Ref: scu.619038

Gamlen Chemical Co (UK) Ltd v Rochem Ltd: 1983

Goulding J said: ‘For servants during their employment and in breach of their contractual duty of fidelity to their master to engage in a scheme, secretly using their master’s time and money, to take the master’s customers and employees and make profit from them in a competing business built up to receive themselves on leaving the master’s service, I would have thought that commercial men and lawyers alike would say that that is fraud.’

Judges:

Goulding J

Citations:

[1983] RPC 1

Jurisdiction:

England and Wales

Cited by:

Appeal from (Dicta approved) – Gamlen Chemical Co (UK) Ltd v Rochem Ltd CA 4-Dec-1979
Solicitors accepted instructions against a promise of sums on account of costs. After non-payment they began to apply to be removed from the record. The new solicitors sought transfer of the solicitors file, and obtained an order to that effect . .
Cited – X v Y Ltd (Practice and Procedure – Disclosure) EAT 9-Aug-2018
Iniquity surpasses legal advice privilege
PRACTICE AND PROCEDURE – Disclosure
PRACTICE AND PROCEDURE – Striking-out/dismissal
An Employment Judge struck out paragraphs of the Claimant’s claim as they depended on an email in respect of which legal advice privilege was claimed. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 May 2022; Ref: scu.621167

Coleman v S and W Baldwin: 1977

Whether unilateral changes to an employment contract amounted to a constructive dismissal.

Citations:

[1977] IRLR 342

Jurisdiction:

England and Wales

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: 18 May 2022; Ref: scu.618745

Lawrence David Limited v Ashton: CANI 1989

The American Cyanamid principles apply in cases of interlocutory injunctions in restraint of trade just as they do in other cases.

Citations:

[1989] IRLR 22

Jurisdiction:

Northern Ireland

Citing:

Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .

Cited by:

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 . .
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: 18 May 2022; Ref: scu.619036

Hardaker v Idle District Council: CA 1896

A reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract.
A statutory duty to maintain the highway could not be delegated to independent traders.
Lindley LJ identified an innominate class of cases in which an employer will be held liable for the negligence of an independent contractor engaged to perform what is conceived to be a duty owed by the employer to another: ‘It is not always easy to avoid mistakes in applying this, or indeed any other, principle to difficult cases, as is shewn by Gray v Pullen [25] and Butler v Hunter.[26] The latter case is inconsistent with Bower v Peate and Quarman v Burnett, the well-known job-master’s case. I will take the law, however, as it was laid down by Lord Blackburn in Dalton v Angus. Lord Blackburn there said: ‘Ever since Quarman v Burnett it has been considered settled law that one employing another is not liable for his collateral negligence, unless the relation of master and servant existed between them. So that a person employing a contractor to do work is not liable for the negligence of that contractor or his servants. On the other hand, a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. He may bargain with the contractor that he shall perform the duty, and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it…’ Lord Blackburn in this passage contrasts a contractor’s negligence, which he calls ‘collateral’ with failure on the part of a contractor to perform the duty of his employer. For the first the employer is not liable; for the second he is, whether the failure is attributable to negligence or not. Lord Blackburn’s language in Hughes v Percival shews that this is really what he meant, for he points out that the employer’s duty was to see that his contractor did his work properly. Lord Watson said the same thing.’

Judges:

Lindley, A L Smith LJJ

Citations:

(1896) 65 LJQB 363, (1896) 74 LT 69, [1896] 1 QB 335

Cited by:

Cited – Ready Mixed Concrete Southeast Ltd v Minister of Pensions and National Insurance QBD 8-Dec-1967
Contracts of service or for services
In three cases appeals were heard against a finding as to whether a worker was entitled to have his employer pay National Insurance contributions on his behalf which would apply if he were an employee. He worked as an ‘owner-driver’
Held: The . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 May 2022; Ref: scu.567823

Leigh v National Union of Railwaymen: 1970

Citations:

[1970] Ch 326

Cited by:

Cited – Foster v McNicol and Another QBD 28-Jul-2016
Incumbent Labour leader did not need nominations
The claimant challenged a decision of the National Executive Committee of the Labour Party to allow its present Leader to stand in the leadership election challenging his position without the need for him to submit first the otherwise standard . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 May 2022; Ref: scu.567812

Association of University Teachers v University of Newcastle-upon-Tyne: EAT 1987

The Employment Appeal Tribunal held that the definition of ‘being redundant’ in the 1992 Act covered the lack of further funding for the post of a lecturer employed under an Limited Term Contract and so the consultation duty should have been observed when the contract was not renewed.

Citations:

[1987] ICR 317

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992

Cited by:

Cited – University and College Union v The University of Stirling SC 29-Apr-2015
The University needed to reduce its staff. They and the Union disputed whether research assistants on limited term contracts would simply cease to be employd as their terms concluded, or were entitled to be made redudant.
Held: The appeal was . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 May 2022; Ref: scu.565707

Bents Brewery and Co Ltd v Hogan: 1945

The employer complained that the defendant had disclosed details of the plaintiffs’ weekly sales and total wages’ bill.
Held: These were confidential. In order to prove that the tort of unlawful interference with contractual relations was committed, it would be necessary to prove that the plaintiffs suffered sime damage.
An employee owes a duty to his employer not to disclose confidential information gained through the employment. This can be implied without explicit assertion in the contract.

Citations:

[1945] 2 All ER 570

Employment, Torts – Other

Updated: 18 May 2022; Ref: scu.537577

Rogers v Bodfari (Transport): NIRC 1973

Time limits in the context of unfair dismissal claims go to jurisdiction, and that jurisdiction cannot be conferred on a tribunal by agreement or waiver. However, There is nothing to prevent the time bar issue in relation to a particular act being determined after a full hearing. Here, the point on jurisdiction was not heard until after the tribunal had considered the merits of the case.
Sir John Donaldson said: ‘Mr Mitchell, for the appellant, has given us every possible assistance. He has considered this matter very carefully and finally come up with two arguments, and they are these. First, in his submission, once a tribunal has reached a conclusion as to whether a man has been fairly or unfairly dismissed, it is too late to raise the time bar point. As to that, the major difficulty in his way is the decision of this Court in Westward Circuits Ltd v Read [1973] IRLR 138. There the Court held that bearing in mind the wording of para. 5 of the Sixth Schedule to the 1971 Act, the time limit must be regarded and interpreted as a jurisdictional provision – which of course the parties cannot waive – and not as a limitation provision which they can waive or may be stopped from taking’

Judges:

Sir John Donaldson

Citations:

[1973] IRLR 172

Cited by:

Approved – Dedman v British Building and Engineering Appliances CA 1973
The claimant sought to bring his claim under a provision which required a complaint to the industrial tribunal to be made within four weeks of the dismissal unless the employment tribunal was satisfied that this was not ‘practicable’. He did not . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 May 2022; Ref: scu.503461

Balston Ltd v Headline Filters Ltd and Another: ChD 1990

The claimant, a manufacturer of filter tubes, employed the defendant as a director. He gave notice to leave, but during his notice period, he was contacted by a customer who informed him of a meeting between that customer and the company at which the company had informed them of an impending price increase and that supplies would be discontinued. The defendant told the customer that he was leaving, and said he would be able to supply them himself. He began to prepare his business, buying in stock and taking on former and current employees of the claimant. The claimant now alleged breach of his fiduciary duties as director, of acting in conflict of interest, and of his duties of faithfulness as an employee.
Held: The mere intention to set up a competing business whilst employed as a director was not a breach of fiduciary duty, and nor did he have a duty to disclose that intention. Though general preparation were not a breach of his duty of fidelity as an employee, the taking of an order from a customer, and the taking on of an employee did each amount to such a breach.
There was no misues of confidential information. Although the new business used similar fibre mixes, the defendant’s own skill could account for his preparation of them without misuse of the claimant’s confidential information.
Falconer J said: ‘In my judgment an intention by a director of a company to set up business in competition with the company after his directorship has ceased is not to be regarded as a conflicting interest within the context of the principle, having regard to the rules of public policy as to restraint of trade, nor is the taking of preliminary steps to investigate or forward that intention so long as there is no actual competitive activity, such as, for instance, competitive tendering or actual trading, while he remains a director.’

Judges:

Falconer J

Citations:

[1990] FSR 385

Jurisdiction:

England and Wales

Citing:

Cited – Robb v Green 1895
An employee intending to enter business for himself may prepare for that step, provided he does not breach terms of his contract of employment or breach the confidence reposed in him by his employers. The duty may be breached by an employee . .
Cited – Bell v Lever Brothers Ltd HL 15-Dec-1931
Contract – Mutual Mistake Test
Bell was director and chairman of Niger, a subsidiary of Lever Brothers Ltd who dismissed him, offering and paying pounds 30,000 compensation. Lever then discovered that Mr Bell had made secret profits at the expense of Niger for which he could have . .
See Also – Balston Ltd v Headline Filters Ltd and Another 1987
The second defendant, whilst still during his notice period to leave employment by the plaintiff, began to make arrangements to start his own competing business, and solicited future business from a customer of the plaintiff. The plaintiff sought an . .
Cited – Island Export Finance v Umunna ChD 1986
The defendant director had resigned from the plaintiff company from dissatisfaction with its progress. He later received an order from the company’s former customer. The court considered the continuing duties of a company director after the . .

Cited by:

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 – 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, Company

Updated: 18 May 2022; Ref: scu.442530

Balston Ltd v Headline Filters Ltd and Another: 1987

The second defendant, whilst still during his notice period to leave employment by the plaintiff, began to make arrangements to start his own competing business, and solicited future business from a customer of the plaintiff. The plaintiff sought an interlocutory injunction.
Held: The second defendant was free to set up such a business even whilst employed by the plaintiff. Though he might be in breach of contract by soliciting customers in the way he had, this was not an issue suitable for the interlocutary relief sought. A court should be careful to find a balance between the plaintiff’s rights over its own confidential material, and the defendant’s right to make use of his technical knowledge and experience to make his living.
Scott J discussed the enforcement of restrictive covenants in employment contracts: ‘The use of confidential information restrictions in order to fetter the ability of these employees to use their skills and experience after determination of their employment to compete with their ex-employer is, in my view, potentially harmful. It would be capable of imposing a new form of servitude or serfdom, to use Cumming-Bruce LJ’s words [in G D Searle and Co Ltd v Celltech Ltd [1982] FSR 92], on technologically qualified employees. It would render them unable in practice to leave their employment for want of an ability to use their skills and experience after leaving. Employers who want to impose fetters of this sort on their employees ought in my view to be expected to do so by express covenant. The reasonableness of the covenant can then be subjected to the rigorous attention to which all employee covenants in restraint of trade are subject.’
As to the use of injunctions: ‘These past breaches of duty . . cannot, in my judgment, sustain an interlocutory injunction on their own account. Whether an injunction, interlocutory or otherwise, can ever be justified on the ground that the grant is necessary in order to deprive a contract breaker of the fruits of his breach of contract, I regard as highly questionable.’

Judges:

Scott J

Citations:

[1987] FSR 330

Jurisdiction:

England and Wales

Citing:

Cited – G D Searle and Co Ltd v Celltech Ltd CA 1982
The court was asked as to an employee’s covenant now said to be in restraint of trade.
Held: In disputes between employers and ex-employees courts will usually seek to protect the rights of employees to advance their chosen trade and . .

Cited by:

Cited – UBS Wealth Management (UK) Ltd v Vestra Wealth Llp QBD 4-Aug-2008
The court considered the grant of ‘springboard relief’ and said: ‘In my judgment, springboard relief is not confined to cases where former employees threaten to abuse confidential information acquired during the currency of their employment. It is . .
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 . .
See Also – Balston Ltd v Headline Filters Ltd and Another ChD 1990
The claimant, a manufacturer of filter tubes, employed the defendant as a director. He gave notice to leave, but during his notice period, he was contacted by a customer who informed him of a meeting between that customer and the company at which . .
Cited – Caterpillar Logistics Services (UK) Ltd v Huesca De Crean QBD 2-Dec-2011
The claimant sought an order to prevent the defendant, a former employee, from misusing its confidential information said to be held by her. Her contract contained no post employment restrictions but did seek to control confidential and other . .
Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice

Updated: 18 May 2022; Ref: scu.432829

Hamish Armour (Receiver of Barry Staines Ltd) v ASTMS: 1979

Where an employer is contemplating making collective redundancies, it may be appropriate to disclose the information required under a confidentiality agreement. In order to demonstrate a ‘special circumstances’ defence an employer must show ‘something out of the ordinary, something uncommon’.

Citations:

[1979] IRLR 24

Jurisdiction:

England and Wales

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

Employment

Updated: 18 May 2022; Ref: scu.421404

Lee and others v GEC Plessey Telecommunications: 1993

The court was asked whether consideration had been given for a change in the employees’ terms and conditions.
Held: Where improvements in employee contracts are announced by an employer in the context of pay negotiations, the employees’ continuing to work was consideration for the change.
Connell J said: ‘the plaintiffs assert that where an improvement in the employees’ terms and conditions is announced by the employer, the employee gives consideration by continuing to work on the basis of the improved terms and without seeking a larger or more significant improvement. Otherwise, say the plaintiffs, the result would be ludicrous because any employer who announced a pay increase in the context of a pay claim which is then paid by the employer and accepted by the employee could thereafter withdraw the pay increase at will and without being liable to a damages claim for the difference on the basis that there was no consideration for the increased payment.
The consideration is, they say: (a) the employee continuing to work; and (b) not continuing with his pay claim, so that the employer avoids industrial action and benefits from the continued services of a known employee . .
The situation is similar with an increase in the severance payments made to those who lose their employment due to redundancy, for a redundancy payment is part of the remuneration package. The employee continues to work for the employer, thereby abandoning any argument that the increase should have been even greater and removing a potential area of dispute between employer and employee. The employer has both secured a benefit and avoided a detriment (see Williams v Roffey Bros and Nicholls (Contractors) Ltd [1991] 1 QB 1).
The case of Price v Rhondda Urban Council [1923] 2 Ch 372 is plainly distinguishable from the instant case, since in Price there was no negotiation between the employer and the employee as to whether married women should be employed or not, so that there was no extra value to the employer in women teachers continuing in their employment.
Further, in the instant case, if in each individual contract of employment there were incorporated the provisions of relevant collective agreements agreed from time to time, as well as general instructions and notices, the contention that each improvement in the employees’ terms requires fresh consideration fails to give proper recognition to the value to be attributed by the employer to the continuation of the same workforce in his employ and/or to the possibility of making adjustments from time to time to the detail of the contracts of employment without having to issue new contracts whenever adjustments are put into effect.’

Judges:

Connell J

Citations:

[1993] IRLR 383

Jurisdiction:

England and Wales

Cited by:

Cited – Parties Named In Schedule A v Dresdner Kleinwort Ltd and Another QBD 28-May-2010
The defendant merchant banks resisted two group claims for annual bonuses for 2008 made by the employee claimants. They now sought summary judgment against the claims. The employer had declared a guaranteed minimum bonus pool available to make the . .
Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 18 May 2022; Ref: scu.416728

Regina v British Coal Corporation and Secretary of State for Trade and Industry ex parte Vardy and Others: QBD 1993

British Coal Corporation had decided to close 31 deep mine collieries. The court was asked as to just what consultation obligations fell on the employer under the 1946 Act.
Held: The section did create an obligation to consult. Glidewell LJ, made obiter comments on the similar consultation duties under section 188 of the 1992 Act: ‘In my judgment, this section does not require a consultation about the reason for the redundancy, including whether or not a plant should close. ‘ As to article 2 of the Directive, he said: ‘By Article 2(2) the scope of the consultations is in part defined. In my view the fact that consultations are to begin as soon as the employer contemplates redundancies and that they are to include ways and means of avoiding redundancies indicates that the Directive is to be interpreted as including consultation on ways of avoiding redundancies by not closing the particular establishment, if that is what the employer has in mind.’ Section 188 was therefore not consistent with the Directive: ‘In my view the difference between the wording of the Directive and the wording of section 188 of the Act 1992 is such that the section cannot be interpreted as having the same meaning as the Directive.
I say this because in the Directive consultation is to begin as soon as an employer contemplates redundancies, whereas under the Act of 1992 it only needs to begin when he proposes to dismiss as redundant an employee. The verb ‘proposes’ in its ordinary usage relates to a state of mind which is much more certain and further along the decision-making process than the verb ‘contemplates;’ in other words, the Directive envisages consultation at an early stage when the employer is first envisaging the possibility that he may have to make employees redundant. Section 188 applies when he has decided that, whether because he has to close a plant or for some other reason, it is his intention, however reluctant, to make employees redundant. Moreover, section 188 of the Act 1992 contains no words equivalent to those contained in Article 2 (2) of Directive (75/129/EEC).’

Judges:

Glidewell LJ, Hidden J

Citations:

[1993] IRLR 104, [1993] ICR 720

Statutes:

Coal Industry (Nationalisation) Act 1946 46, Council Directive of 24 June 1992 92/56/EEC, Trade Union and Labour Relations (Consolidation) Act 1992 188(2)(a) 189

Jurisdiction:

England and Wales

Cited by:

Cited – Securicor Omega Express Ltd v GMB (A Trade Union) EAT 7-Apr-2003
EAT The company decided to close two branches and make redundancies. They presented the closure itself as a fait accompli to the union representatives. The Tribunal found that this involved a failure to consult . .
Followed – Middlesbrough Borough Council v TGWU Unison EAT 4-May-2001
The council sought to make redundancies because of its financial circumstances following re-organisation. The employees said the consultation procedure had been a sham.
Held: Fair consultation involves giving the body consulted a fair and . .
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 . .
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 18 May 2022; Ref: scu.416025

Berriman v Delabole Slate Ltd: CA 1985

Browne-Wilkinson LJ described the potential difficulty of fitting together the concept of fairness and a constructive dismissal, but said: ‘In our judgment, the only way in which the statutory requirements . . can be made to fit a case of constructive dismissal is to read . . as requiring the employer to show the reasons for their conduct which entitled the employee to terminate the contract thereby giving rise to a deemed dismissal by the employer. We can see nothing in the decision in Savoia . . which conflicts with this view.’ and
‘Applying those provisions to the present case, the first question was whether Mr Berriman was constructively dismissed by the company’s attempt to impose on him a lower guaranteed wage. The Industrial Tribunal held that he was constructively dismissed and the company did not challenge this finding in the EAT. The next question was whether the company’s reason for dismissing Mr Berriman was the transfer of the undertaking to the company or a reason connected with it so as to bring the case within regulation 8(1). The Industrial Tribunal held that it was and that accordingly the dismissal was rendered unfair by regulation 8(1). The next question was whether the case was taken out of the automatic unfairness provided for by regulation 8(1) in that the company’s reason or principal reason for dismissing Mr Berriman was an ‘economic, technical or organisational reason entailing changes in the workforce’. The Industrial Tribunal held that the company’s reason for dismissal was such a reason, but the EAT reversed them on this point holding that, although the reason for dismissal was an economic, technical or organisational reason, such reason did not ‘entail changes in the workforce’. Finally, the Industrial Tribunal decided that the dismissal of Mr Berriman was fair within the meaning s57(3). That finding was challenged before the EAT who did not decide the point: there is no respondent’s notice raising the point before us.’

Judges:

Browne-Wilkinson LJ

Citations:

[1985] ICR 546, [1985] IRLR 305

Citing:

Cited – Savoia v Chiltern Herb Farms Ltd CA 1982
The employee submitted that a constructive dismissal cannot be fair.
Held: The submission failed. Waller LJ said: ‘He has cited to us a number of authorities, nearly all of which are against him but which he says are wrong.’ In considering . .

Cited by:

Cited – Bournemouth University Higher Education Corp v Buckland EAT 8-May-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
Whether fundamental breach of implied term of trust and confidence cured, so that the Claimant’s resignation did not amount to constructive dismissal.
Considered – Nationwide Building Society v Benn and Others EAT 27-Jul-2010
EAT TRANSFER OF UNDERTAKINGS
Economic technical or organisational reason
The Employment Tribunal erred in taking into account a perceived breach of the consultation requirements of Transfer of . .
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: 18 May 2022; Ref: scu.377345

Wessex Dairies Limited v Smith: CA 1935

A milk roundsman employed by a dairy who canvassed the dairy’s customers while in the employ of the dairy but to take effect after his employment had terminated.
Held: The question to be determined depended upon the term to be implied in the ordinary case of a contract of employment in the absence of express agreement, and held that it ‘is a necessary implication which must be engrafted on such a contract that the servant undertakes to serve his master with good faith and fidelity’. Except in special circumstances, there is no general restriction on an ex-employee canvassing or doing business with customers of his former employer, and ‘the servant may, while in the employment of the master, be as agreeable, attentive and skilful as it is in his power to be to others with the ultimate view of obtaining the benefit of the customers’ friendly feelings when he calls upon them if and when he sets up business for himself’.
Greer LJ formulated the implied term thus: ‘during the continuance of his employment he will act in his employer’s interests and not use the time for which he is paid by the employers in furthering his own interests.’

Judges:

Maugham LJ, Greer LJ

Citations:

[1935] 2 KB 80, [1935] All ER 7

Jurisdiction:

England and Wales

Cited by:

Cited – Dass Solicitors v Southcott ChD 2-Apr-2009
The claimant solicitors said that the defendant employed solicitor had sought to leave without giving the required three months’ notice and had sought to persuade clients of the firm to go to his new practice. Application was made on a without . .
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: 18 May 2022; Ref: scu.375143

Dimtsu v Westminster City Council: EAT 1991

The EAT considered the application of the rule in Henderson v Henderson in Employment Appeal Tribunal proceedings.
Knox J said: ‘The majority is fortified in the view expressed so far by three further considerations. First, this jurisdiction is intended to provide a speedy remedy. The taking of fresh points on appeal militates against that. In this particular case the events in issue if they include those of 3 May 1988 are now close on three and a half years old. If the appeal is to succeed on this point there would have to be a fresh hearing of the application made under s.68(6) of the Act on matters that are now very stale. Secondly, as between Mr Dimtsu and the Council there can be no doubt but that the responsibility lies on Mr Dimtsu’s side regarding the failure to make an application under s.68(6) of the Act. Thirdly, we regard it as important that the principles set out in Kumchyk v Derby County Council be upheld, and not eroded by qualifications based upon inferences which a chairman of an Industrial Tribunal might make. In saying this the majority would not wish to cast any doubt on the propriety of the long-established practice whereby chairmen of Industrial Tribunals give assistance where it is needed in the formulation and presentation of the cases of persons before them, be they applicant or respondent, who have not got the benefit of professional representation and indeed on some occasions when they have such representation. But this must be a matter for the judgment of the Industrial Tribunal in each individual case and should not be erected into an obligation which if not fully complied with leads to a conclusion that an error in law has been committed.’

Judges:

Knox J

Citations:

[1991] IRLR 450

Jurisdiction:

England and Wales

Citing:

Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
Cited – Kumchyk v Derby County Council EAT 1978
The appellant sought to advance an argument that a certain term was implied into the contract of employment which, for its consideration, would have required consideration of a factual framework which had not been explored in evidence.
Held: . .

Cited by:

Cited – Divine-Bortey v London Borough of Brent CA 14-May-1998
The claimant had brought and lost an action relating to his dismissal by the defendant, who now appealed against an order that he was not estopped from bring a second claim on a different basis namely race discrimination, disapplying the rule in . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 May 2022; Ref: scu.293902

The Queen, On The Prosecution Of Mappin And Another v Youle: 29 Apr 1861

By memorandum in writing P agreed to serve M as a cutler for three years, arid M agreed to employ him aid pay him for his work according to a schedule of prices. Having quitted his service during the term, he was convicted under the 4 Geo 4, c. 34, and imprisoned for twenty-one
days, for unlawfully absenting himself from his service After his discharge from prison he did not return to the service of M , but went and worked elsewhere. On a second information laid against him for unlawfully absenting himself from the service, it was proved to the satisfaction of the justices that on the first occasion he absented himself on account of a difference with his master as to the scale of prices, that when, after his discharge from prison, he refused to return, he was advised by his attorney that he was not bound to do so, and the justices stated that they thought very probable that he bona fide believed what his attorney told him. Held; The conviction could not be sustained.

Citations:

[1861] EngR 528, (1861) 6 H and N 753, (1861) 158 ER 311

Links:

Commonlii

Jurisdiction:

England and Wales

Employment, Magistrates

Updated: 18 May 2022; Ref: scu.284289

Sun and Sand Ltd v Fitzjohn: 1979

The EAT considered the deduction of sickness benefit from the compensatory award. Arnold J said: ‘The appellants before us say that that amount of sick ness benefit should be deducted from the amount awarded within the compensatory award for the 13 weeks of pay between the date of dismissal and the date of new emp loyment. The matter for consideration seems to us to depend upon whether the amount of the loss sustained by Miss Fitzjohn in consequence of her dismissal was the whole amount of lost pay or was the amount of lost pay less the sickness benefit. If the applicant was entitled to retain the sickness benefit to which she was justly enti tled, so long as her employment continued, in addition to receiving her pay, the loss would in our judgment be the net pay lost without any deductions; but if either she was obliged to accept some reduced amount of pay by reference to the sickness benefit she had received or so long as she was being paid under a continuing contract of employment was disentitled from receiving sick benefit at all, then in either of those cases it seems to us that the compensatory award for lost pay should be reduced by the amount of the sickness benefit which she received. It is not contended by the appellants that so long as her contract of employment continued she would have been obliged to accept any deduction from her wages by reference to the amount of sickness benefit she had received or otherwise obliged to account to her employers for the amount of that sickness benefit. They do however submit that the applicant was not in fact entitled to receive sickness benefit so long as her contract of employment continued and that therefore all that she lost, if she had received no more than she was justly entitled to, would have been the net pay and it would follow from that that, since during the period of unemployment she received in fact sickness benefit, then her loss would be the amount of net pay less the amount of sickness benefit. For this proposition the appellants rely on the language of s.14(1)(b) of the Social Security Act 1975; the relevant part of the sub-section reads thus:
‘A person shall be entitled to unemployment benefit in respect of any day of unemployment which forms part of a period of interruption of employment and to sickness benefit in respect of any day of incapacity for work which forms part of such a period’
and they point out that ‘such a period’ plainly means a period of interruption of employment. So they say she is entitled to sickness benefit only during a period of unemp loyment since this is what ‘interruption of employment’ means, so that if she had continued to be employed by the appellants she would not, so long as that employment con tinued, notwithstanding that she was off work for sick ness, be entitled to sickness benefit. The answer to that proposition is in our judgment plainly contained in the definition which is to be found in s.17(1)(c) of the Social Security Act 1975, which provides that the expression ‘day of interruption of employment’ means a day which is a day of unemployment or incapacity for work. It follows from this, in our judgment, that where a person suffers from an incapacity for work such as that from which Miss Fitzjohn suffered during the relevant period it matters not that she has the benefit of a current contract of employment, in relation to her entitlement to sickness benefit.

Judges:

Arnold J

Citations:

[1979] IRLR 154

Cited by:

Cited – Puglia v C James and Sons EAT 24-Oct-1995
The EAT considered the effect of the receipt of benefits during a period of sickness when calculating loss of earnings, and whether a hearing was properly conducted without the presence of the parties.
Held: There is no procedural irregularity . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 18 May 2022; Ref: scu.278237

Jacques v Amalgamated Union of Engineering Workers: 1986

The rules of a Trades Union are not to be construed as if they were a statute but are ‘to be given a reasonable interpretation which accords with their intended meaning; bearing in mind their authorship, their purpose and the readership to which they are addressed’

Citations:

[1986] ICR 683

Cited by:

Cited – Associated Society of Locomotive Engineers and Firemen v Brady EAT 31-Mar-2006
The reason adduced by the union for the dismissal of the climant was found by the Tribunal on the facts not to be the true reason for dismissal, the true reason being the union executive committee’s political antipathy to Mr Brady.
Held: It . .
Cited – Foster v McNicol and Another QBD 28-Jul-2016
Incumbent Labour leader did not need nominations
The claimant challenged a decision of the National Executive Committee of the Labour Party to allow its present Leader to stand in the leadership election challenging his position without the need for him to submit first the otherwise standard . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 May 2022; Ref: scu.276826

Lamb v Evans: CA 1893

The plaintiff printed and published a multi-lingual European trade directory, engaging the defendants as commission agents to solicit paid entries for the directory. The businessmen could, if they wished, supply wood blocks or other materials from which illustrations could be printed in the directory. The defendants left to work for a rival publication, intending to use the wood blocks and other materials still in their possession to get illustrations printed in the rival publication. There was nothing in their contract which expressly prevented them from doing so.
Held: The injunction, having been granted to restrain breaches of good faith, was upheld.
Lindley LJ said: ‘That suggests this question – which has nothing to do with copyright – What right has any agent to use materials obtained by him in the course of his employment and for his employer against the interest of that employer? I am not aware that he has any such right. Such a use is contrary to the relation which exists between principal and agent. It is contrary to the good faith of the employment, and good faith underlies the whole of an agent’s obligations to his principal. No case, unless it be the one which I will notice presently, can I believe be found which is contrary to the general principle upon which this injunction is framed, viz, that an agent has no right to employ as against his principal materials which that agent has obtained only for his principal and in the course of his agency. They are the property of the principal. The principal has, in my judgment, such an interest in them as entitles him to restrain the agent from the use of them except for the purpose for which they were got.’
Bowen LJ said: ‘Has not the Plaintiff a right to restrain the Defendants from using such blocks and materials or copies as they obtain while they were in the employment of the Plaintiff and for the purposes of their service and work which they had to do, that is to say, which they obtained for the purpose of doing their duty to the Plaintiff? Ought not the Plaintiff be able to restrain them from afterwards using those materials and of those documents in competition with the Plaintiff himself? It is not a question of copyright – that must be kept out of sight altogether – nor is it, on the other hand, a simple question of the absolute property at law in the documents themselves or in the blocks themselves. It is a question of whether the Plaintiff, whatever the property in the documents may be, or whatever the property in the materials may be, has not sufficient special property in them to entitle him to restrain the use of them against him when they had been obtained for his use by his agents in the course of their employment. That depends entirely, I think, upon the terms upon which the employment was constituted through which the fiduciary relation of principal and agent came into existence. I think my Brothers have already during the course of the argument expressed what I fully believe, that there is no distinction between law and equity as regards the law of principal and agent. The common law, it is true, treats the matter from the point of view of an implied contract, and assumes that there is a promise to do that which is part of the bargain, or which can be fairly implied as part of the good faith which is necessary to make the bargain effectual. What is an implied contract or an implied promise in law? It is that promise which the law implies and authorises us to infer in order to give the transaction that effect to the parties must have intended it to have and without which it would be futile.’
Referring to cases where an employee has ‘surreptitiously copied something which came under his hands while he was in the possession of that trust and confidence’, Kay LJ said that the employee ‘has been restrained from communicating that secret to anybody else, and anybody who has obtained that secret from him has also been restrained from using it.’
He agreed, saying that he assumed that the agents would have had notebooks in which they would note down all the information collected from the people they canvassed. He then said: ‘The argument was put most forcibly as I followed it in this form: Why should they not retain these notebooks in their hands, having now left the Plaintiff’s employer, and use them in order to find out the persons abroad with whom they had formally entered into engagements, and to obtain from those advertisers authority to put advertisements of theirs into a rival publication to be published as a rival of the Plaintiff’s book? The answer is a very simple one. All those materials were obtained awhile you, the Defendants, were acting as the Plaintiff’s agents, while you were in that confidential relation to him and for the purpose for which he employed and paid you, viz, of compiling this book of the Plaintiffs, and therefore to allow you to use any of those materials for your own purposes would be allowing you to use them for a purpose for which they were not compiled – you, while you compiled them, being in the position of the Plaintiff’s agent, and there being a confidential relation between you and the Plaintiff. I turn to one of the leading cases on the subject, and I take the language of Lord Justice Turner in his judgment in Morison v Moat: ‘That the Court has exercised jurisdiction in cases of this nature does not, I think, admit of any question. Different grounds have indeed been assigned for the exercise of that jurisdiction. In some cases it has been referred to property, in others to contract, and in others, again, it has been treated as founded upon trust or confidence – meaning, as I conceive, that the Court fastens the obligation on the conscience of the party, and enforces it against him in the same manner as it enforces against a party to whom a benefit is given, the obligation of performing a promise on the faith of which the benefit has been conferred; but upon whatever grounds that jurisdiction is founded, the authorities leave no doubt as to the exercise of it . . The jurisdiction against these Defendants is because these materials which they want to use were obtained by them when they were in the position of agents for the Plaintiff, and, although the Plaintiff might not be able to prevent anybody else in the world from publishing or using such materials as he is trying to prevent these Defendants from using, that would be no answer, because these Defendants, from the position in which they were in, are put under a duty towards the Plaintiff not to make this use of the materials.’

Judges:

Kay LJ, Lindley LJ, Bowen LJ

Citations:

[1893] 1 Ch 218

Citing:

Approved – Prince Albert v Strange ChD 8-Feb-1849
The Prince sought to restrain publication of otherwise unpublished private etchings and lists of works by Queen Victoria. The etchings appeared to have been removed surreptitiously from or by one Brown. A personal confidence was claimed.
Held: . .
Approved – Morison v Moat 20-Aug-1851
A servant, Moat, sought to use a secret formula of his employer’s. The plaintiff requested an injunction to restrain use of the formula.
Held: The Vice Chancellor reiterated the principles, as to which he said there was ‘no doubt’, adding: . .

Cited by:

Cited – Lord Ashburton v Pape CA 1913
Pape’s bankruptcy discharge was opposed by Lord Ashburton. He subpoenaed Brooks, a clerk to Lord Ashburton’s solicitor and obtained privileged letters written by Lord Ashburton to Mr Nocton, which Pape proposed to use. Pape and Brooks had colluded. . .
Cited – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
Cited – The Newspaper Licensing Agency Ltd and Others v Meltwater Holding Bv and Others ChD 26-Nov-2010
The claimant newspapers complained of the spidering of the web-sites and redistribution of the materials collected by the defendants to its subscribers. The defendants including the Public Relations Consultants Association (PRCA) denied that they . .
Cited – The Newspaper Licensing Agency Ltd and Others v Meltwater Holding Bv and Others CA 27-Jul-2011
The defendant companies provided media monitoring services, automatically searching web-sites for terms of interest. The claimant newspapers operated a licensing system through the first claimant permitting the re-use of the content on its members . .
Cited – Fairstar Heavy Transport Nv v Adkins and Another CA 19-Jul-2013
The court was asked whether the appellant company was entitled to an order requiring its former Chief Executive Officer, after the termination of his appointment, to give it access to the content of emails relating to its business affairs, and . .
Lists of cited by and citing cases may be incomplete.

Employment, Information

Updated: 18 May 2022; Ref: scu.270395

RSPCA v Cruden: EAT 1986

The dismissal of an employee of the RSPCA was unfair simply because of a delay with no good reason of some 7 months in initiating proceedings. This was even though the employee had suffered no prejudice as a result of the delay.
If a contribution is to be found, on principle, it should be found equally in proportion both to the basic award, and to the compensatory award, but in an exceptional case, a tribunal can make a different percentage reduction. ‘It should be made clear . . there is a discretion, and that any suggestion that the mere fact that the Tribunal has not reduced the basic and the compensatory awards in precisely the same proportions is necessarily indicative of a failure properly to exercise their discretion cannot be sustained.’ and ‘Plainly both subsections involve the exercise of a discretion, and the wording of each, while sufficiently different to admit of differentiation in cases where the Tribunal finds on the facts that it is justified, is sufficiently similar to lead us to conclude that it is only exceptionally that such differentiation will be justified.’

Citations:

[1986] ICR 205, [1986] IRLR 83

Cited by:

Cited – A v B EAT 14-Nov-2002
The claimant worked as a residential social worker. Allegations were made against him of inappropriate behaviour with a child. The girl’s allegations varied. A criminal investigation took place but insufficient evidence was found. The investigation . .
Cited – Styles v London Borough of Southwark EAT 12-Apr-2006
EAT Dismissal for misconduct. Tribunal concluded that whilst there were certain procedural failings, the dismissal was fair. Were they entitled to reach that conclusion or were the failings, considered . .
Approved – Parker Foundry Ltd v Slack CA 1992
The appellant employee had been involved in a fight with a fellow-employee and had been dismissed. The other employee received a lesser penalty because the employer believed that Mr. Slack had been the aggressor. The industrial tribunal held that . .
Cited – Sterling Granada Contract Services Ltd v Hodgkinson EAT 29-Mar-1996
. .
Cited – Emms v UCATT EAT 28-Mar-2003
EAT Practice and Procedure – Application/Claim. . .
Cited – The Fire Brigades Union v Croucher EAT 2-Jun-2004
EAT Unfair Dismissal – Reasonableness of dismissal – Failure of Employment Tribunal to apply Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23.
EAT Unfair Dismissal – . .
Cited – Edinburgh Council v Wood EAT 2-May-2008
EAT UNFAIR DISMISSAL: Constructive dismissal – Tribunal found two ‘stand alone’ material breaches, one in respect of penalty imposed for misconduct and one in respect of respondents’ response to claimant’s . .
Cited – Birmingham City Council and Another v Samuels EAT 24-Oct-2007
EAT Unfair dismissal – Procedural fairness/automatically unfair dismissal
Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke
Race discrimination – Direct / Burden of proof / . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 May 2022; Ref: scu.268060

East Sussex County Council v Walker: 1972

(National Industrial Relations Court) Mrs Walker was a school cook, who was told that her services were no longer required. She was invited to resign, and did so. The court was asked to decide whether she had resigned or been dismissed.
Held: She had been dismissed. Brightman J said: ‘In our judgment, if an employee is told that she is not longer required in her employment and is expressly invited to resign, a court of law is entitled to come to the conclusion that, as a matter of common sense, the employee was dismissed. Suppose that the employer says to the employee, ‘Your job is finished. I will give you the opportunity to resign. If you don’t, you will be sacked’. How, we would ask, is it possible to reach a conclusion other than that the employment is being terminated by the employer, even though the employee takes the first and more respectable alternative of signing a letter of resignation rather than being the recipient of a letter of dismissal? We feel that in such circumstances there really can be no other conclusion than the employer terminated the contract.’

Judges:

Brightman J

Citations:

(1972) IITR 280

Statutes:

Redundancy Payments Act 1965 3(1)(a)

Jurisdiction:

England and Wales

Cited by:

Cited – Sandhu v Jan De Rijk Transport Ltd CA 10-May-2007
The court was asked whether the claimant had been dismissed or had resigned. He had attended a meeting to be told that his contract was to be finished. The company later complained that he had resigned when they were unable to reach a compromise on . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 May 2022; Ref: scu.268098

Regina v Ministry of Defence Ex Parte Smith and Others: QBD 7 Jun 1995

An MOD ban on employing homosexuals was not Wednesbury unreasonable, even though it might be out of date. Pannick (counsel for the applicant, approved): ‘The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.’ After referring to changes of attitude in society towards same-sex relationships: ‘I regard the progressive development and refinement of public and professional opinion at home and abroad, here very briefly described, as an important feature of this case. A belief which represented unquestioned orthodoxy in year X may have become questionable by year Y and unsustainable by year Z. Public and professional opinion are a continuum.’
Sir Thomas Bingham MR: ‘It is, inevitably, common ground that the United Kingdom’s obligation, [under article 8] binding in international law, to respect and secure compliance with this article is not one that is enforceable by domestic courts. The relevance of the Convention in the present context is as background to the complaint of irrationality. The fact that a decision-maker failed to take account of convention obligations when exercising an administrative discretion is not of itself a ground for impugning that exercise of discretion.’

Judges:

Simon Brown LJ and Curtis J

Citations:

Times 13-Jun-1995, Independent 08-Jun-1995

Statutes:

European Convention on Human Rights 8

Citing:

Cited – Associated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .

Cited by:

Appeal from – Regina v Secretary of State for Defence Ex Parte Smith; Regina v Same Ex Parte Grady Etc CA 6-Nov-1995
A ban on homosexuals serving in the armed forces was not irrational, and the challenge to the ban failed. The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more . .
Cited – Regina v Secretary of State for Home Department ex parte Turgut CA 28-Jan-2000
When the Court of Appeal was asked to look at the decision of the Home Secretary on an appeal to him for asylum, the court should investigate the factual circumstances which lay behind the decision. The court must follow the practice of the European . .
Cited – Regina v Secretary of State for Home Department ex parte Turgut CA 28-Jan-2000
When the Court of Appeal was asked to look at the decision of the Home Secretary on an appeal to him for asylum, the court should investigate the factual circumstances which lay behind the decision. The court must follow the practice of the European . .
Cited – Cumming and others v Chief Constable of Northumbria Police CA 17-Dec-2003
The six claimants sought damages for wrongful arrest and false imprisonment. Each had been arrested on an officer’s suspicion. They operated CCTV equipment, and it appeared that tapes showing the commission of an offence had been tampered with. Each . .
Cited – Fitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Manelfi Admn 25-Oct-1996
The applicant sought judicial review of the defendant’s refusal to employ him to work at GCHQ, which had a policy not to employ anyone with non-British parents save exceptionally. The claimant said this was racially discriminatory.
Held: The . .
Cited – Rogers, Regina (on the Application of) v Swindon NHS Primary Care Trust CA 12-Apr-2006
The claimant challenged the policy of her local health authority not to allow prescription to her of the drug Herceptin.
Held: The policy had not been settled upon lawfully and was to be set aside. On the one hand the PCT developed a policy . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Appeal from – Regina v Ministry of Defence ex parte Smith; ex parte Grady CA 3-Nov-1995
Four appellants challenged the policy of the ministry to discharge homosexuals from the armed services.
Held: Where a measure affects fundamental rights or has profoundly intrusive effects, the courts will anxiously scrutinise the decision to . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Lists of cited by and citing cases may be incomplete.

Employment, Administrative, Human Rights, Discrimination, Armed Forces

Updated: 17 May 2022; Ref: scu.87365

Associated British Ports v Palmer and Others; Associated Newspapers Ltd v Wilson: EAT 23 Jul 1992

It was wrongful treatment to give differential pay rises according to whether or not an employee chose to be a member of a trade union. An offer of personal contracts to abandon union membership was not a penalty.

Judges:

Wood J

Citations:

Gazette 18-Nov-1992, Gazette 16-Sep-1992, [1992] UKEAT 99 – 92 – 2307, [1992] ICR 681

Links:

Bailii

Statutes:

Employment Protection (Consolidation) Act 1978 23(1)(a)

Jurisdiction:

England and Wales

Citing:

See Also – Associated Newspapers Ltd v Wilson EAT 26-Mar-1992
. .

Cited by:

Appeal from – Associated British Ports v Palmer and Others; Associated Newspapers Ltd v Wilson CA 5-May-1993
In a case where union member employees were not granted the same pay rise as was given to non-union members they were not personally treated worse for their trade union membership. . .
At EAT – Associated Newspapers Ltd v Wilson; Associated British Ports v Palmer HL 31-Mar-1995
The Daily Mail had recognised the Union to which their journalists belonged. They wanted to end this arrangement, and offered a better rate of pay to non-members. The union said this was an unlawful action taken because of union membership. Similar . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 May 2022; Ref: scu.77924

Mann and others v Secretary of State for Employment: HL 8 Jul 1999

When acting effectively as a guarantor of a company’s obligations to its employees upon insolvency in paying unpaid wages, the Secretary of State for Employment was entitled to set off against those payments, payments made by way of compensation by administrative receivers by way of a protective award for employment entitlements. European Directives did not apply on receiverships. The House described the provisions of section 166 and 167 as a ‘state guarantee’ and the Secretary of State was a ‘guarantor, liable only for whatever the employee was entitled to be paid by his employer’.

Citations:

Times 19-Jul-1999, [1999] UKHL 29, [1999] ICR 898

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Mann and Others v Secretary of State for Employment CA 30-Sep-1996
LMA An Industrial tribunal does not have the jurisdiction to entertain Francovich state liability for damages actions – these must be heard by the ordinary courts. . .

Cited by:

Cited – Secretary of State for Trade and Industry v Frid HL 13-May-2004
The company went into insolvent liquidation. The secretary of state was to make payments to employees and there were other state preferential creditors. At the same time a refund of VAT was due from the Commissioners of customs and Excise.
Lists of cited by and citing cases may be incomplete.

Employment, Insolvency, European

Updated: 17 May 2022; Ref: scu.159013

Aparau v Iceland Frozen Foods Plc: CA 12 Nov 1999

Where a case had been remitted by the EAT to a tribunal for reconsideration in respect of matters specified by the EAT, the tribunal’s consideration was to be limited to those matters remitted. It was not open to the tribunal to consider matters outside the scope of the elements remitted. ‘The effect of an order remitting a case to a tribunal which had otherwise exhausted its jurisdiction was considered by this court in the context of arbitral proceedings in Interbulk Ltd v Aiden Shipping Co Ltd (The ‘Vimeira’ (No.1)) [1985] 2 Lloyd’s Rep. 410. Ackner L.J. pointed out that the extent to which the tribunal’s jurisdiction is revived in consequence of an order remitting the matter to it depends entirely on the scope of the remission. If, as occurred in the present case, the matter is remitted for the tribunal to consider certain specific issues, it will have no jurisdiction to hear or determine matters outside the scope of those issues and it must follow that it has no power to allow one party to amend its case to raise issues which were not previously before it. In the present case it is clear from the passages in the judgment of the Employment Appeal Tribunal to which I have already referred that remission was ordered in very limited terms simply to enable the industrial tribunal to reconsider whether Iceland’s new terms of employment had been accepted by Mrs Aparau. That being so, the tribunal did not by virtue of the remission have jurisdiction to reopen the case generally, nor did it have jurisdiction to hear or determine any argument on the part of Iceland relating to the fairness of any dismissal. Although Mr Glennie sought to persuade us to the contrary, I for my part am quite satisfied that that was not an issue which had previously been raised in the proceedings and it was certainly not within the scope of the remission.’

Judges:

Moore-Bick J, Peter Gibson, Mance LJJ

Citations:

Times 12-Nov-1999, Gazette 25-Nov-1999, Gazette 01-Dec-1999, [2000] ICR 341, [2000] IRLR 196, [1999] EWCA Civ 3047, [2000] 1 All ER 228

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Aparau v Iceland Frozen Foods Plc EAT 9-Oct-1995
. .
Cited – Aiden Shipping Co Ltd v Interbulk Ltd (The ‘Vimeira’) HL 1986
Wide Application of Costs Against Third Party
A claim had been made against charterers by the ship owners, and in turn by the charterers against their sub-charterers. Notice of motion were issued after arbitration awards were not accepted. When heard, costs awards were made, which were now . .
See Also – Aparau v Iceland Frozen Foods Plc EAT 13-Oct-1997
. .
Appeal from – Aparau v Iceland Frozen Foods Plc EAT 12-Mar-1998
. .
Lists of cited by and citing cases may be incomplete.

Employment, Administrative

Updated: 17 May 2022; Ref: scu.77830

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 though some management was common within the group.

Citations:

Times 10-Dec-1999, [2000] ICR 436, C-234/98, [2000] IRLR 119, [1999] EUECJ C-234/98

Links:

Bailii

Statutes:

Council Directive 77/187/EEC

Jurisdiction:

European

Citing:

Cited – 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 . .
Cited – Suzen v Zehnacker Gebaudereinigung Krankenhausservice (Judgment) ECJ 11-Mar-1997
A transfer of a contract to provide business services, without the transfer of significant assets was not a transfer of an undertaking within the Directive. Nevertheless the transfer of tangible assets was only one factor among several. . .

Cited by:

Considered – ADI (UK) Limited v Firm Security Group Limited CA 22-Jun-2001
ADI appealed against a decision that, when they took over a services contract, there had been a transfer within the Regulations.
Held: Though no assets tangible or otherwise, had been transferred, this was a contract to provide services at a . .
Cited – Fairhurst Ward Abbotts Limited v Botes Building Limited and others CA 13-Feb-2004
A claim was made under the TUPE regulations. The company replied that the part of the business transferred was not a discrete economic entity.
Held: The regulations did not require that in order to be governed by the regulations, a business . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 May 2022; Ref: scu.77740

Adams and Others v British Airways Plc: QBD 26 Jul 1995

British Airways were in breach of contract with their own employees, by bringing British Caledonian pilots into the company at a level above their own original staff.

Citations:

Times 26-Jul-1995

Jurisdiction:

England and Wales

Cited by:

Appeal from – Adams and Others v British Airways Plc CA 7-May-1996
The merger of the pilots’ seniority lists on a company merger was not a breach of any employment contract term. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 May 2022; Ref: scu.77642

Affleck and Others v Newcastle Mind and Others: EAT 10 Mar 1999

EAT Employees of an unincorporated charitable association are employed by the management committee or other similar body within the association, and not by the members of the association at large. The employees have continuity of employment despite any change in the constitution of the committee. In practice such actions should be brought against a representative member or members of the committee. The case was remitted to the ET to hold a case management hearing to determine who should be the correct respondents.

Judges:

Morison J

Citations:

Gazette 11-Aug-1999, (1999) IRLR 405, [1999] UKEAT 537 – 98 – 1003, [1999] ICR 852

Links:

Bailii

Statutes:

Charities Act 1993 97(1), Employment Rights Act 1996 218(2)

Employment, Company, Charity

Updated: 17 May 2022; Ref: scu.77664

Deighton v Secretary of State for Education and Skills, Henley College: EAT 2 May 2006

EAT Equal Pay Act – Article 141

Judges:

His Honour Judge McMullen QC

Citations:

UKEAT/0303/05

Links:

EAT

Jurisdiction:

England and Wales

Citing:

Cited – Securicor Omega Express Ltd v GMB (A Trade Union) EAT 7-Apr-2003
EAT The company decided to close two branches and make redundancies. They presented the closure itself as a fait accompli to the union representatives. The Tribunal found that this involved a failure to consult . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 May 2022; Ref: scu.257826