Category: Employment

City of Bradford Metropolitan District Council v Pratt: EAT 4 Oct 2006

EAT Practice and Procedure
Statutory dispute resolution procedures introduced by the Employment Act 2002 – modified grievance procedure – whether employee complied with requirement to set out in writing the basis for the grievance. Held, allowing the appeal, that the employee had not done so.

Judges:

His Honour Judge Richardson

Citations:

UKEAT/0391/06

Links:

EATn

Statutes:

Employment Act 2002

Citing:

Cited – Shergold v Fieldway Medical Centre EAT 5-Dec-2005
The claimant had submitted a grievance complaining in general terms of the way in which she had been treated by a manager. She did not, however, refer to a particular incident relied on in her pleading as one of the two ‘last straw’ incidents that . .
Cited – Canary Wharf Management Limited v Edebi EAT 3-Mar-2006
EAT Practice and Procedure – striking-out/dismissal
Grievance procedures. Were they complied with? Held not to be in the circumstances of this case. Observations on what counts as compliance and how . .
Cited – Grimmer v KLM Cityhopper UK EAT 17-Mar-2005
Claimant provided appropriate details of the claim
EAT Application to ET rejected by ET under Rules 1-3 of the 2004 Rules of Procedure contained in Schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 because claimant did . .
Cited – Alexander and Hatherley v Bridgen Enterprises Ltd EAT 12-Apr-2006
The company made selections for redundancy, but failed to give the appellants information about how the scoring system had resulted in the figures allocated. The calculations left their representative unable to challenge them on appeal. The . .

Cited by:

See Also – City of Bradford Metropolitan District Council v Pratt EAT 9-Jan-2007
bradford_prattEAT2007
EAT Practice and Procedure
Statutory dispute resolution procedures introduced by the Employment Act 2002 – modified grievance procedure – whether employee complied with requirement to set out in writing the . .
Cited – Riley v First Choice Homes Oldham Ltd EAT 30-Apr-2008
riley_firstEAT2008
EAT Statutory Discipline and Grievance Procedures – Whether applicable – Whether infringed – Was the modified or standard grievance procedure applicable? The Employment Tribunal found the former, and held that . .
Cited – Clyde Valley Housing Association Ltd v Macaulay EAT 3-Apr-2008
clyde_macaulayEAT2008
EAT Jurisdictional Points: 2002 Act and pre-action requirements
Statutory grievance procedure. Modified procedure. Whether letter from claimant’s solicitor set out the basis for her grievance. . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 17 May 2022; Ref: scu.257999

Khan v Kirklees Metropolitan Council, Hull, etc: EAT 13 Feb 2007

EAT Practice and Procedure – Striking out/dismissal; Bias, misconduct and procedural irregularity
Striking out after 50 days of hearing spread over three years. The Appellant deliberately refused to attend hearings, requesting a fresh Tribunal hear his case. Tribunal correct to strike out claim.

Appellant had conducted a lengthy campaign to force the Tribunal Chairman to recuse himself, culminating in naming him in Tribunal proceedings against a school of which the Tribunal Chairman was Chairman of Governors. No apparent bias, and the Tribunal were correct to continue.

No bias even though Appellant had named Tribunal Chairman in tribunal proceedings.

Order for costs was not a nullity because Tribunal mistakenly awarded costs under the 2004 Rules instead of 2001 Rules. The relevant provision contained the same wording.

Judges:

His Honour Judge Ansell

Citations:

UKEAT/0383/06 and UKEAT/0578/06

Links:

EAT

Jurisdiction:

England and Wales

Employment

Updated: 17 May 2022; Ref: scu.258056

London Borough of Southwark v Jiminez: EAT 17 Apr 2002

EAT Contract of Employment – Breach of Contract.

Judges:

The Honourable Mr Justice Bell

Citations:

EAT/1326/99

Links:

EAT

Cited by:

At EAT – London Borough of Southwark v Jiminez CA 31-Jul-2002
Renewed application for leave to appeal – granted on limited grounds . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 17 May 2022; Ref: scu.255970

Global Plant Ltd v Secretary of State for Social Services: 1972

Lord Widgery said: ‘One must not overlook that the intention of the parties was that the relationship should be that of an independent contractor, and although the parties cannot by intention make a transaction into something which it is not, yet it is recognised that such intention is a factor for consideration in these cases.’

Judges:

Lord Widgery

Citations:

[1972] 1 QBD 139

Jurisdiction:

England and Wales

Cited by:

Cited – Massey v Crown Life Insurance Company CA 4-Nov-1977
Massey worked as Crown Life’s manager under 2 contracts, one a contract of employment, the other a contract of general agency. Tax and other contributions were deducted from wages paid under the former, while commission was paid under the agency . .
Lists of cited by and citing cases may be incomplete.

Contract, Employment

Updated: 17 May 2022; Ref: scu.250994

Lansing Linde v Kerr: CA 1991

Staughton LJ held that ‘trade secrets’ embrace information used in a trade, restricted in its dissemination, and the disclosure of which would be liable to cause real or significant harm to the party claiming confidentiality. He considered the application for an interim injunction; ‘Turning to the present case, I do not consider it at all likely that the defendant will wish to bring the action to trial in or after April 1991, if an injunction is now granted. He has the support of his present employers in these proceedings for the purposes of resisting an injunction, and to enable a credible undertaking in damages to be given on his behalf. But we are not told that he would have that support for a five-day trial designed to secure damages for himself and freedom from restraint for the last two or three months in a 12-month period. In American Cyanamid both companies were chemical companies, no doubt with substantial resources and accustomed to litigation. Not so the defendant. Mr Brodie asserts that, even on the hypothesis of an interlocutory injunction being granted, the plaintiff would wish to proceed to trial in order to recover damages for the period from 30 July, to today, in which the defendant has broken his contract. I regard that too as unlikely.
So if an injunction had been granted by the judge, or is now granted, the likely effect would be to decide the dispute against the defendant for good and all. In those circumstances justice requires, in my opinion, some assessment of the merits and more than merely a serious issue to be tried.’
‘If it will not be possible to hold a trial before the period for which the plaintiff claims to be entitled to an injunction has expired, or substantially expired, it seems to me that justice requires some consideration as to whether the plaintiff would be likely to succeed at a trial. In those circumstances, it is not enough to decide merely that there is a serious issue to be tried. The assertion of such an issue should not operate as a lettre de cachet, by which the defendants is prevented from doing that which, as it later turns out, he has a perfect right to do, for the whole or substantially the whole of the period in question. On a wider view of the balance of convenience it may still be right to impose such a restraint, but not unless there has been some assessment of the plaintiff’s prospects of success. I would emphasise ‘some assessment’, because the courts constantly seek to discourage prolonged interlocutory battles on affidavit evidence. I do not doubt that Lord Diplock, in enunciating the American Cyanamid doctrine, had in mind what its effect would be in that respect. Where an assessment of the prospects of success is required, it is for the judge to control its extent. ‘

Judges:

Staughton LJ

Citations:

[1991] 1 WLR 251, [1991] IRLR 80

Jurisdiction:

England and Wales

Citing:

Cited – Herbert Morris Ltd v Saxelby HL 1916
For a covenant in restraint of trade to be treated as reasonable in the interests of the parties ‘it must afford no more than adequate protection to the benefit of the party in whose favour it is imposed.’ There is a need for the court to consider . .

Cited by:

Cited – Thomas v Farr Plc and Another CA 20-Feb-2007
The employee, the former chairman of the company, appealed a finding that his contract which restricted his being employed for one year in the same field after termination, was valid and enforceable. The company had provided insurance services to . .
Cited – SG and R Valuation Service Co v Boudrais and others QBD 12-May-2008
The claimant sought to require the defendants not to work during their notice period to achieve the equivalent of garden leave despite there being no provision for garden leave in the contracts. It was said that the defendants had conspired together . .
Cited – Associated Foreign Exchange Ltd v International Foreign Exchange (UK) Ltd and Another ChD 26-May-2010
The claimant sought interim injunctions to enforce a restrictive covenant against solicitation of customers in a former employee’s contract. The employee, a FOREX dealer, had been placed on garden leave for three months and then his contract . .
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 . .
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 . .
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, Intellectual Property

Updated: 17 May 2022; Ref: scu.249229

JA Mont (UK) Ltd v Mills: 1993

‘As a matter of policy, [the] court should not too urgently strive to find, within restrictive covenants ex facie too wide, implicit limitations such as alone would justify their imposition. Otherwise, employers would have no reason ever to impose restraints in appropriately limited terms. Thus would be perpetuated the long-recognised vice of ex-employees being left subject to apparently excessive restraints and yet quite unable, short of expensive litigation and at peril of substantial damages claims, to determine precisely what their rights may be.’

Citations:

[1993] IRLR 172

Jurisdiction:

England and Wales

Cited by:

Cited – Allan Janes Llp v Johal ChD 23-Feb-2006
The claimant sought to enforce a restrictive covenant against the defendant a former assistant solicitor as to non-competition within a certain distance of the practice for a period of three years. After leaving she had sought to set up partnership . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 May 2022; Ref: scu.240026

Haynes v Doman: CA 1899

A former servant entered into new employment carrying with him the trade secrets, with the constant risk of divulging them to rival manufacturers. The position of the expert witness was challenged.
Held: An expert witness may not give evidence on the ultimate issue in the proceedings.
As to contracts in restraint of trade, Lindley MR LJ said: ‘Such agreements cannot be properly held to apply to cases which, although covered by the words of the agreement, cannot be reasonably supposed ever to have been contemplated by the parties, and which on a rational view of the agreement are excluded from its operation by falling, in truth, outside, and not within, its real scope. But, even if some extreme case of a technical breach producing no injury to the party to be protected could be proved, sound principle requires, not that the agreement should be void in toto, but only in so far as it is really unreasonable. Even if the restriction could not be so construed as to exclude such a case, no jury would give the plaintiff any damages, and no judge would grant him an injunction. In such an extreme case the defendant is sufficiently protected against oppression without holding the agreement void in toto, and I am unable to see that public policy requires more.’

Judges:

Lindley MR L

Citations:

[1899] 2 Ch 13

Jurisdiction:

England and Wales

Cited by:

Cited – Leeds Rugby Ltd v Harris and Bradford Bulls Holdings Limited QBD 20-Jul-2005
The claimant sought damages from the defendants saying that the second defendant had induced a breach of contract by the first when he left to play rugby for the second defendant.
Held: The contract could not be said to be void as an agreement . .
Cited – Bluebell Apparel Ltd v Dickinson SCS 14-Oct-1977
The former employee challenged a restriction on his post employment career.
Held: The restriction was world-wide and as such tooo wide, and unenforceable. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Employment

Updated: 17 May 2022; Ref: scu.229007

Sinclair v Neighbour: CA 1967

The manager of a betting shop took andpound;15 from the shop till for the purpose of gambling; he knew that he would not have been given permission to do so if he had asked. He put an IOU in the till and repaid the money next day. He was summarily dismissed. The employer now appealed against his successful claim in the County Court his action having been found improper and reprehensible but not dishonest.
Held: The appeal suceeded. Although the employer had pleaded dishonesty, it did not matter whether the conduct was labelled as dishonest or not; it was seriously inconsistent and incompatible with the employee’s duty. Sellers LJ said: ‘The whole question is whether that conduct was of such a type that it was inconsistent, in a grave way – incompatible – with the employment in which he had been engaged as a manager.’
Davies LJ said: ‘With the greatest respect to the judge, I think that he fell into error in attaching too much weight to the label and not enough to the facts. The facts were established. The fact that the manager took the money from his employer’s till behind his back knowing that the employer would not consent was established; and it seems to me that it does not really matter very much whether that justifies the label ‘dishonest’ or not The judge ought to have gone on to consider whether even if falling short of dishonesty the manager’s conduct was nevertheless conduct of such a grave and weighty character as to amount to a breach of the confidential relationship between master and servant, such as would render the servant unfit for continuance in the master’s employment and give the master the right to discharge him immediately.’
Sachs LJ referred to the ‘well established law that a servant can be instantly dismissed when his conduct is such that it not only amounts to a wrongful act inconsistent with his duty towards his master but is also inconsistent with the continuance of confidence between them.’

Judges:

Sellers LJ, Davies LJ, Sachs LJ

Citations:

[1967] 2 QB 279

Jurisdiction:

England and Wales

Cited by:

Cited – Fulham Football Club (1987) Ltd v Tigana CA 19-Jul-2005
The defendant had acted as manager of the claimant. The claimant appealed dismissal of its claim for breach of contract and of fiduciary duty, and his claim for payment of sums due under share options granted to him.
Held: The appeal failed. . .
Cited – Neary and Neary v Dean of Westminster 9-Jun-1999
Financial wrong-doing short of dishonesty can be a basis for summary dismissal. Gross misconduct sufficient to justify dismissal must in the particular circumstances so undermine the trust and confidence of an employer that he should no longer be . .
Mentioned – Coulson v Newsgroup Newspapers Ltd QBD 21-Dec-2011
The claimant had been employed by the defendant as editor of a newspaper. On leaving they entered into an agreement which the claimant said required the defendant to pay his legal costs in any action arising regarding his editorship. The defendant . .
Lists of cited by and citing cases may be incomplete.

Contract, Employment

Updated: 17 May 2022; Ref: scu.228929

Ahmad v Inner London Education Authority: CA 1977

The appellant said that his human rights were infringed when, as a moslem, he was refsued time off from his work as a primary school teacher to attend prayers at the mosque on Fridays. He had subsequentlly been re-instated part-time, but complained that this affected his pension rights.
Held: Lord Denning MR said that whilst the European Convention on Human Rights was not part of English law, the courts would do their best to see that their decisions were in conformity with it. Nevertheless, care should be taken to avoid special privileges, with resultant discontent and even resentment, in the name of religious freedom, and: ‘The school time-table was well known to Mr Ahmad when he applied for the teaching post. It was for the usual teaching hours from Monday to Friday, inclusive. If he wished to have every Friday afternoon off for his prayers, either he ought not to have applied for this post: or he ought to have made it clear at the outset and entered into a 4.5 -day engagement only. This was the sensible thing for him to do. Instead he undertook full-time work without making any disclosure that he wanted Friday afternoon off for prayers. I think that section 30 can be applied to the situation perfectly well by reading it as subject to the qualification ‘if the school time-table so permits’. So read, it means that he is entitled to attend for religious worship during the working week if it can be arranged consistently with performing his teaching duties under his contract of employment . . I have no doubt that all headmasters will try to arrange their time-table so as to accommodate devout Muslims like Mr Ahmad: but I do not think they should be compelled to do so, if it means disrupting the work of the school and the well-being of the pupils.’
. . and ‘I see nothing in the European Convention to give Mr Ahmad any right to manifest his religion on Friday afternoons in derogation of his contract of employment: and certainly not on full pay.’
Orr LJ: ‘Nor, in my judgment, can the answer to the question raised by this appeal be that a Muslim teacher has a right to absent himself for Friday prayers if his doing so will cause only a small inconvenience in the school. This solution would have some attraction because in the present case one of the headmasters concerned, Mr Foley, was able to accommodate Mr Ahmad’s absence and it may be that others might have done so but for the policy adopted by the ILEA. But such a solution, quite apart from the grave practical disadvantage that it would involve detailed investigation in each case as to the degree of difficulty involved, is in my judgment unacceptable in principle since absence without leave in school hours would be a breach of contract even if the inconvenience were slight.’
Scarman LJ (dissenting) observed that society had changed since 1944, as had the legal background in terms of the UK’s international obligations and the acknowledged importance of eliminating discrimination of all kinds. He would therefore have been willing to give to section 30, which was admittedly incorporated into Mr Ahmad’s contract, a broad construction designed to avoid discrimination on the ground of religious observance, so that timetabling arrangements would be required to enable attendance at religious worship consistent with the duty of full-time service: all that Mr Ahmad had needed, on the facts, was a leeway of 45 minutes, which could and should have been accommodated.

Judges:

Lord Denning MR, Scarman LJ (dissenting

Citations:

[1978] QB 36, [1977] ICR 490

Statutes:

European Convention on Human Rights 9(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – Ahmad v Inner London Education Authority EAT 1976
The appellant was a moslem junior school teacher. The Authority appealed an acceptance of his claim for unfair dismissal, having left his employment because he was not given time off to attend the mosque on Fridays. The Tribunal considered whether, . .

Cited by:

Appeal from – Ahmad v United Kingdom ECHR 1981
(Commision) The applicant was a devout Muslim. His religious duty was to offer prayers on Fridays and to attend a mosque if possible. He was employed as a full time primary school teacher. He complained that he was forced to resign because he was . .
Cited – Copsey v WWB Devon Clays Ltd CA 25-Jul-2005
The claimant said that his employer had failed to respect his right to express his beliefs by obliging him, though a Christian, to work on Sundays.
Held: The appeal failed. ‘The Commission’s position on Article 9, as I understand it, is that, . .
Lists of cited by and citing cases may be incomplete.

Employment, Human Rights

Updated: 17 May 2022; Ref: scu.229004

NWL Ltd v Woods: HL 1979

The phrase ‘trade dispute’ was defined by reference to (i) the parties to it and (ii) the subject matter. Lord Scarman referred to the legislative history of attempts to regulate strike actions by trades unions: ‘It is wrong to attempt to construe any section or subsection of these Acts without reference to their legislative purpose. And it is also necessary to have regard to the history of the statute law and the case law since 1906 for a full understanding of them. This history I would summarise as a shifting pattern of Parliamentary assertions and judicial responses-a legal point counter-point which has been more productive of excitement than of harmony.’
Lord Fraser considered the basis for granting interlocutory injunctions. The strength of the prima facie case is one a factor of which to take account in weighing the competing considerations.
Lord Diplock spoke of the basis for granting interlocutory injunctions: ‘. . . when properly understood, there is in my view nothing in the decision of this House in American Cyanamid Company v. Ethicon Limited to suggest that in considering whether or not to grant an interlocutory injunction the judge ought not to give full weight to all the practical realities of the situation to which the injunction will apply. American Cyanamid Company v. Ethicon Limited, which enjoins the judge on an application for an interlocutory injunction to direct his attention to the balance of convenience as soon as he has satisfied himself that there is a serious question to be tried, was not dealing with a case in which the grant or refusal of an injunction at that stage would, in effect, dispose of the action finally in favour of which ever party was successful in the application, because there would be nothing left on which it was in the unsuccessful party’s interest to proceed to trial. . .’

Cases of this kind are exceptional, but when they do occur they bring into the balance of convenience an important additional element. In assessing whether what is compendiously called the balance of convenience lies in granting or refusing interlocutory injunctions in actions between parties of undoubted solvency the judge is engaged in weighing the respective risks that injustice may result from his deciding one way rather than the other at a stage when the evidence is incomplete. On the one hand there is the risk that if the interlocutory injunction is refused but the plaintiff succeeds in establishing at the trial his legal right for the protection of which the injunction has been sought he may in the meantime have suffered harm and inconvenience for which an award of money can provide no adequate recompense. On the other hand there is the risk that if the interlocutory injunction is granted but the plaintiff fails at the trial the defendant may in the meantime have suffered harm and inconvenience which is similarly irrecompensable. The nature and degree of harm and inconvenience that are likely to be sustained in these two events by the defendant and the plaintiff respectively in consequence of the grant or the refusal of the injunction are generally sufficiently disproportionate to bring down, by themselves, the balance on one side or the other; and this is what I understand to be the thrust of the decision of this House in American Cyanamid v. Ethicon Limited. Where, however, the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other’.
And
‘Where … the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial, is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other.’

Judges:

Lord Scarman, Lord Diplock

Citations:

[1979] 1 WLR 1294, [1979] ICR 867, [1979] 3 All ER 614

Jurisdiction:

England and Wales

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 – In re P (a minor by his mother and litigation friend); P v National Association of Schoolmasters/Union of Women Teachers HL 27-Feb-2003
The pupil had been excluded from school but then ordered to be re-instated. The teachers, through their union, refused to teach him claiming that he was disruptive. The claimant appealed a refusal of an injunction. The injunction had been refused on . .
Cited – Adidas-Salomon Ag v Drape and others ChD 7-Jun-2006
The claimants had sponsored tennis players to wear their logo. The respondents organised tennis tournaments whose intended rules would prevent the display of the claimant’s logos. The claimants said that the restriction interfered with their rights . .
Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice

Updated: 16 May 2022; Ref: scu.223723

Hebden v Forsey and Son: NIRC 1973

The court referred to the test for frustration set down in Marshall and added: ‘This is a test to enable the court to determine whether the incapacity is of such a nature that it strikes at and destroys the root of the contract and thus the relationship of employer and employee, for it is only then that the contract is frustrated.’

Judges:

Sir Hugh Griffiths

Citations:

[1973] ICR 60

Citing:

Cited – Marshall v Harland and Wolff Ltd NIRC 1972
The doctrine of frustration can apply to contracts of employment. The Court looked at the situations in which it should extend time for an appeal to be filed: ‘Was the employee’s incapacity, looked at before the purported dismissal, of such a . .

Cited by:

Cited – James v The Greytree Trust EAT 17-Jan-1996
The tribunal was asked whether, due to incapacity, an employee has been dismissed, or his contract of employment frustrated. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 May 2022; Ref: scu.221579

Johanna Maria Delahaye v Ministre de la Fonction publique et de la Reforme administrative: ECJ 11 Nov 2004

Safeguarding of employees’ rights in the event of a transfer of an undertaking to the State – Possibility for the State to impose rules of public law – Reduction of the amount of remuneration.

Citations:

C-425/02

Jurisdiction:

European

European, Employment

Updated: 16 May 2022; Ref: scu.219611

Boston Deep Sea Fishing and Ice Co v Ansell: CA 1888

An employer having dismissed an employee (its managing director) later learnt of the employee’s fraud.
Held: The employer was allowed to rely upon that fraud to justify the dismissal. Where an agent is in wrongful repudiation of his contract with his principal, he loses his right to claim remuneration from his principal. It is sufficient if there was a fundamental breach of contract justifying a dismissal whether or not the employer knew of it at the time of dismissal. The managing director could not recover his salary for the part of the year which he had completed before his dismissal. His right to his salary was conditional on his fulfilling his duties for the year and that condition had not been fulfilled. The contract was indivisible, and no payment under it could be claimed.
Cotton LJ said: ‘Then when he was engaged in that contract, in respect of the matters of that very contract, he in one instance got a percentage of 1 per cent. from the Shipbuilding Company, and, in the other case, he insisted on getting – that is the evidence – and did get, a lump sum of andpound;50. It is suggested that we should be laying down new rules of morality and equity if we were to so hold. In my opinion if people have got an idea that such transactions can be properly entered into by an agent, the sooner they are disabused of that idea the better. If a servant, or a managing director, or any person who is authorized to act, and is acting, for another in the matter of any contract, receives, as regards the contract, any sum, whether by way of percentage or otherwise, from the person with whom he is dealing on behalf of his principal, he is committing a breach of duty. It is not an honest act, and, in my opinion, it is a sufficient act to shew that he cannot be trusted to perform the duties which he has undertaken as servant or agent. He puts himself in such a position that he has a temptation not faithfully to perform his duty to his employer. He has a temptation, especially where he is getting a percentage on expenditure, not to cut down the expenditure, but to let it be increased, so that his percentage may be larger. I do not, however, rely on that, but what I say is this, that where an agent entering into a contract on behalf of his principal, and without the knowledge or assent of that principal, receives money from the person with whom he is dealing, he is doing a wrongful act, he is misconducting himself as regards his agency, and, in my opinion, that gives to his employer, whether a company or an individual, and whether the agent be a servant, or a managing director, power and authority to dismiss him from his employment as a person who by that act is shewn to be incompetent of faithfully discharging his duty to his principal.’
Bowen LJ said: ‘This is an age, I may say, when a large portion of the commercial world makes its livelihood by earning, and by earning honestly, agency commission on sales or other transactions, but it is also a time when a large portion of those who move within the ambit of the commercial world, earn, I am afraid, commission dishonestly by taking commissions not merely from their masters, but from the other parties with whom their master is negotiating, and with whom they are dealing on behalf of their master, and taking such commissions without the knowledge of their master or principal. There never, therefore, was a time in the history of our law when it was more essential that Courts of Justice should draw with precision and firmness the line of demarcation which prevails between commissions which may be honestly received and kept, and commissions taken behind the master’s back, and in fraud of the master. . . Now, there can be no question that an agent employed by a principal or master to do business with another, who, unknown to that principal or master, takes from that other person a profit arising out of the business which he is employed to transact, is doing a wrongful act inconsistent with his duty towards his master, and the continuance of confidence between them. He does the wrongful act whether such profit be given to him in return for services which he actually performs for the third party, or whether it be given to him for his supposed influence, or whether it be given to him on any other ground at all; if it is a profit which arises out of the transaction, it belongs to his master, and the agent or servant has no right to take it, or keep it, or bargain for it, or to receive it without bargain, unless his master knows it.
Fry LJ said: ‘In my judgment, the conduct of Ansell in so dealing was a fraud-a fraud on his principals-a fraud, not according to any artificial or technical rules, but according to the simple dictates of conscience, and according to the broad principles of morality and law, and I think it is the duty of the Courts to uphold those broad principles in all cases of this description.
We were invited to consider the state of mind of Mr. Ansell; whether he thought it wrong; in other words we are invited to take as the standard for our decision the alleged conscience of a fraudulent servant. I decline to accept any such rule as one on which the Court is to decide such questions.’

Judges:

Bowen LJ, Cotton LJ, Fry LJ

Citations:

(1888) 39 ChD 339

Jurisdiction:

England and Wales

Cited by:

Cited – Fassihim, Liddiardrams, International Ltd, Isograph Ltd v Item Software (UK) Ltd CA 30-Sep-2004
The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
Held: A company . .
Cited – Miles v Wakefield Metropolitan District Council HL 1987
The claimant was a superintendent registrar of Births Deaths and Marriages. His union instructed him not to conduct weddings on Saturdays. He had been told that if he failed to perform his full range of duties on a Saturday (including marriages), he . .
Cited – RDF Media Group Plc and Another v Clements QBD 5-Dec-2007
The defendant had sold his business to the claimants and in part consideration had accepted restrictive covenants as to his not competing with them. On indicating his desire to leave the claimants and work for a competitor, made statements which the . .
Cited – Imageview Management Ltd v Jack CA 13-Feb-2009
The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .
Approved – Rhodes v Macalister CA 1923
The plaintiff agent acted to find a seller of mineral rights for the defendant principal. He told his principal that the properties could be purchased for from andpound;8,000 to andpound;10,000. If the agent could find a seller at below . .
Cited – Mr H TV Ltd v ITV2 Ltd ComC 8-Oct-2015
The claimant had contracted with the defendant for the production of a series of reality TV shows featuring celebrities. After severe personal clashes between the people involved on the claimants side, the contract was terminated. The claim was that . .
Cited – Phones 4U Ltd v EE Ltd ComC 16-Jan-2018
The parties contracted for the marketing of contracts for the marketing of the defendant’s mobile phone contracts. On the claimant entering administration, the defendant exercised a clause in their contract to terminate the contract. The claimant . .
Lists of cited by and citing cases may be incomplete.

Agency, Employment

Updated: 16 May 2022; Ref: scu.215864

Hyde v Lehman Brothers Limited: EAT 22 Mar 2004

EAT Unlawful Deduction from Wages
EAT Unlawful Deduction from Wages – (no sub-topic).

Judges:

The Honourable Mrs Justice Cox

Citations:

UKEAT/0184/04, UKEAT/0121/04

Links:

EATn

Jurisdiction:

England and Wales

Cited by:

See also – Hyde v Lehman Brothers Ltd EAT 4-Aug-2004
. .
Cited – Transport and General Workers Union v Safeway Stores Ltd EAT 23-Mar-2007
EAT Practice and Procedure – Amendment

Safeway closed a depot, leading to a large number of redundancies. The Union alleged that consultation was inadequate. Proceedings were initially commenced claiming only . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 May 2022; Ref: scu.200531

Printers and Finishers Limited v Holloway: 1965

The court considered the questions arising from the use of information acquired by an employee during his employment after that employment had ended, and noted that information the future use of which will not be restrained is information not readily separable in the mind of the employee from other information which he is free to use, and the actual or threatened misuse of information which has been deliberately memorised for the purpose of its being carried away and used elsewhere will be restrained.
The question was whether the knowledge was ‘a separate part of the employee’s stock of knowledge which a man of ordinary honesty and intelligence would recognise to be the property of his old employer.’ The law would defeat its own object if it sought to enforce standards which would be rejected by the ordinary person.
Cross J said: ‘The employee might well not realise that the feature or expedient in question was in fact peculiar to his late employer’s process and factory; but even if he did, such knowledge is not readily separable from his general knowledge of the flock printing process and his acquired skill in manipulating a flock printing plant, and I do not think that any man of average intelligence and honesty would think that there was anything improper in his putting his memory of particular features of his late employer’s plant at the disposal of his new employer.’ and
‘Although the law will not enforce a covenant directed against competition by an ex-employee, it will enforce a covenant reasonably necessary to protect trade secrets. If the managing director is right in thinking that there are features in the plaintiffs process which can fairly be regarded as trade secrets and which their employees will inevitably carry away with them in their heads, then the proper way for the plaintiffs to protect themselves would be by exacting covenants from their employees restricting their field of activity after they have left their employment, not by asking the court to extend the general equitable doctrine to prevent breaking confidence beyond all reasonable bounds.’

Judges:

Cross J

Citations:

[1965] RPC 239, [1965] 1 WLR 1

Cited by:

Cited – Poeton Industries Ltd and Another v Michael Ikem Horton CA 26-May-2000
The claimant sought damages and an injunction after their former employee set up in business, using, they said, information about their manufacturing procedures and customers obtained whilst employed by them. The defendant appealed the injunction . .
Cited – Faccenda Chicken Ltd v Fowler CA 1986
Nature of Confidentiality in Information
The appellant plaintiff company had employed the defendant as sales manager. The contract of employment made no provision restricting use of confidential information. He left to set up in competition. The company now sought to prevent him using . .
Cited – Thomas v Farr Plc and Another CA 20-Feb-2007
The employee, the former chairman of the company, appealed a finding that his contract which restricted his being employed for one year in the same field after termination, was valid and enforceable. The company had provided insurance services to . .
Cited – Napier and Another v Pressdram Ltd CA 19-May-2009
The claimant solicitors appealed against the refusal to grant them an injunction to prevent the publication of the outcome of a complaint against them to the Law society, and of the Ombudsman’s report. They said that the material remained . .
Cited – The Author of A Blog v Times Newspapers Ltd QBD 16-Jun-2009
The claimant, the author of an internet blog (‘Night Jack’), sought an order to restrain the defendant from publishing his identity.
Held: To succeed, the claimant would have to show that there would be a legally enforceable right to maintain . .
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 . .
Cited – Littlewoods Organisations Ltd v Harris CA 1977
When construing restrictive covenants in an employment contract, the court should construe the contract in the light of the object and intent of the contract as a whole. It may be read down and need not be read literally. Lord Denning said that it . .
Cited – Bluebell Apparel Ltd v Dickinson SCS 14-Oct-1977
The former employee challenged a restriction on his post employment career.
Held: The restriction was world-wide and as such tooo wide, and unenforceable. . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Employment

Updated: 16 May 2022; Ref: scu.200319

Steel Stockholders (Birmingham) Ltd v Kirkwood: EAT 1993

The tribunal considered the use of the word ‘procedural’ in the Polkey, and doubted whether Lord Bridge could have meant to classify matters such as the choice of a pool for redundancy, or the adoption of criteria for selection as procedural as opposed to substantive: ‘In any given case, therefore, it is necessary to consider whether the unfairness can properly be classified as procedural or substantive.’

Judges:

Lord Coulsfield

Citations:

[1993] IRLR 515

Jurisdiction:

England and Wales

Citing:

Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .

Cited by:

Cited – Lambe v 186K Ltd CA 29-Jul-2004
The claimant had been dismissed for redundancy, but the company had been found not to have consulted him properly, and he had therefore been unfairly dismissed. The tribunal had then found that even if consulted the result would not have been . .
Cited – King v Eaton Ltd (No 2) IHCS 1998
Employees were made redundant. The tribunal held the dismissals to be unfair because that there had been no consultation worthy of the name with any of the employees and because it was impossible to decide whether the selection criteria had been . .
Lists of cited by and citing cases may be incomplete.

Employment, Scotland

Updated: 16 May 2022; Ref: scu.200300

Mulrine v University of Ulster: CANI 1993

An employee was employed under a contract of employment for 2 years with a waiver clause. 5 weeks before the end of that period the employer wrote to the employee, extending her contract by nearly 4 months and specifying that all other conditions of the contract were to remain.
Held: ‘In many cases the correct answer may be reached by applying the ‘Denning test’, but if as in this case, an unfair and unreasonable result is produced one must go back and ask the allegedly more difficult question : was the second contract an extension of the first?’ If an employer became liable to make an unfair dismissal payment by extending for a short period a contract under which the employee had surrendered her compensation rights would be a conclusion which would be: ‘irrational, unjust and contrary to the clear contractual terms into which the parties had chosen to enter.’ Sir Brian Hutton LCJ: it was clear as a matter of construction that the employee was not employed under a new and separate contract when the original contract was extended but that she was employed under a contract for a fixed term of two years which was extended or renewed to make it a fixed term of two years, three months and three weeks. It was unreasonable and unjust to hold that because of the extension the employer lost the benefit of the exclusion clause which would have operated to protect it if the employment had ended on the expiry of the term of two years.

Judges:

MacDermott LJ, Sir Brian Hutton LCJ

Citations:

[1993] IRLR 545

Jurisdiction:

Northern Ireland

Citing:

Cited – BBC v Ioannou CA 1975
Mr I was employed on a 3-year contract determinable on notice. The contract was renewed by a 2-year extension, followed by a one-year extension, and a waiver clause was agreed for the latter extension. The statute required the fixed term to be of . .

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, Northern Ireland

Updated: 16 May 2022; Ref: scu.198055

BP Oil Ltd v Richards: EAT 12 Apr 1983

The tribunal considered how to treat a succession of fixed term contracts.
Held: The crucial question was whether one looks at the whole term of the original contract plus extensions as one contract or concentrates solely on the last contractual arrangement made between the parties. He could see no ground for distinguishing Triesman on that point and said: ‘As a matter of comity and in the interests of orderly industrial relations, it is undesirable for us to depart from that decision and therefore we follow it.’

Judges:

Browne-Wilkinson J

Citations:

Unreported, 12 April 1983

Jurisdiction:

England and Wales

Citing:

Followed – Open University v Triesman EAT 1978
An employee was employed under a contract for a fixed term of 18 months. 3 months before that period expired she was offered and accepted further employment for 7 months subject to a waiver clause.
Held: The judgments in BBC -v- Ioannou were . .

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: 16 May 2022; Ref: scu.198054

Dorothy Perkins Ltd v Dance: 1977

The court considered the difficulties in categorising and comparing employments: ‘Having then identified the parties, having then acquainted themselves with the nature of the contractual employment, the next thing that has to be done is to look at the position in very broad general terms. The old saying that it is sometimes difficult to see the wood because of the trees is particularly applicable in this type of investigation . . look at the wood . . if it sees one tree which is outstandingly different from the rest . . see whether or not . . [they] . . are doing something which may be significantly different.’

Judges:

Kilner Brown J

Citations:

[1977] IRLR 226

Statutes:

Equal Pay Act 1970

Cited by:

Cited – Matthews and others v Kent and Medway Towns Fire Authority and others CA 2-Jul-2004
Part time retained firefighters claimed discrimination under the Regulations when their conditions of service were compared with those of full-time firefighters. They appealed a finding that they had been employed under different types of contract . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 May 2022; Ref: scu.198545

Campbell v Dunoon HA: OHCS 1993

Citations:

[1993] IRLR 496

Jurisdiction:

Scotland

Citing:

Cited – Polkey v A E Dayton Services Limited CA 1986
The employee had been made redundant with no attempt at consultation and in breach of procedures.
Held: His claim of unfair dismissal was dismissed because even if the procedures had been followed, the result would have been the same. What . .

Cited by:

Cited – Dunnachie v Kingston Upon Hull City Council CA 11-Feb-2004
Compensation for non-economic loss brought about by the manner of an unfair dismissal is, on authority and on principle, recoverable. The award of such compensation by the employment tribunal in the present case was not excessive and was adequately . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 May 2022; Ref: scu.194788

Whitehart v Raymond Thomson Ltd: EAT 11 Sep 1984

A member of the tribunal was said to have dozed off once if not twice during the hearing. Popplewell J said: ‘It is axiomatic that all members of a tribunal must hear all the evidence and to have a trial in which one member of the tribunal is asleep even for a short part of the time, cannot be categorised as a proper trial. Justice does not appear to have been done.’

Judges:

Popplewell J

Citations:

Unreported, 11 September 1984

Jurisdiction:

England and Wales

Cited by:

Cited – Red Bank Manufacturing Co Ltd v Meadows EAT 1992
A party wishing to complain about a member of the employment tribunal should make his complaint to that tribunal rather than at the EAT. The Polkey principle must be considered by the Tribunal in assessing compensation for unfair dismissal even . .
Cited – Stansbury v Datapulse Plc and Another CA 15-Dec-2003
In the course of a hearing in the Employment Tribunal, it appeared to one party that a member of the tribunal was drunk and fell asleep.
Held: Two questions arose. First whether that tribunal should deal with a complaint about a member of the . .
Cited – Stansbury v Datapulse Plc and Another CA 15-Dec-2003
In the course of a hearing in the Employment Tribunal, it appeared to one party that a member of the tribunal was drunk and fell asleep.
Held: Two questions arose. First whether that tribunal should deal with a complaint about a member of the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 May 2022; Ref: scu.193402

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 leave entitlement had come to an end and so had her contract of employment on the date at the end of the four week extension to her maternity leave on medical grounds. ‘The statutory scheme in relation to maternity leave entitles the employee to return to work within 29 weeks after the birth if appropriate notice is given. That period can be extended by four weeks once, but only once.’ and ‘I conclude that the contract terminated when the four-week extension of the maternity leave expired.’ and ‘In the event it was the problems with the pain in her back which prevented her from returning to work within the 29 week period after her confinement’

Judges:

Taylor LJ, Glidewell LJ

Citations:

[1988] IRLR 310

Jurisdiction:

England and Wales

Cited by:

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 – 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: 16 May 2022; Ref: scu.194002

British Coal Corporation v British Coal Staff Superannuation Scheme Trustees Ltd: 1994

The court considered the distinction between a power in relation to which the duty of the employer was limited to a duty of good faith and a power in respect of which the employer was a fiduciary and which was to be exercised solely in the interests of the objects of the power.

Judges:

Vinelott J

Citations:

[1994] ICR 537, [1995] 1 All ER 912

Jurisdiction:

England and Wales

Cited by:

Disapproved – National Grid Co Plc v Mayes and Others; International Power Plc (Formerly National Power Plc) v Healy and Others HL 7-Jun-2001
The release by the trustees of a sum due to the pension scheme from the employers, did not make funds payable to the employer, so as to trigger the clause within the scheme trust deed which would restrain such a payment. Where an actuarial surplus . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 May 2022; Ref: scu.191149

Perth and Kinross Council v Tony Donaldson and 14 Others Newtown Construction Scotland Ltd Meldru: EAT 30 Oct 2003

EAT Transfer of Undertakings – Acquired rights directive
The European Acquired rights directive sought to protect the rights of employees on the a transfer of a business to another employer. It was transposed into UK law by regulations purportedly made under 2(2) of the 1972 Act. The tribunal held that TUPE applied where the employer became irretrievably insolvent. It was to be considered whether, if TUPE did cover the case, it was to that extent ultra vires, because the Directive did not require the UK to afford that degree of protection in an irretrievable insolvency.
Held: The relevant provision was ultra vires. If it was desired to cover a business in that situation, recourse would have to be had to primary legislation. Lord Johnston: ‘[A] very material question of law arises which does not seem to have been decided authoritatively in the United Kingdom. The broad issue is whether or not, when a European Directive is implemented by subsidiary legislation of the United Kingdom parliament, under section 2 of the Treaty of Rome Act 1972 [sic], can the relevant Regulations be intra vires if the effect of those Regulations brought in by the UK Parliament is to widen the scope of the Directive which it is seeking to implement.’ and ‘The Tribunal focussed on this matter in Addison v. Denholm Ship Management (UK) Ltd [1997] IRLR, commenting critically upon a case R v. Secretary of State for Industry ex parte UNISON [1996] ICR 1003. This Tribunal stated in this context, ‘The child cannot be larger, wider or have great implications than its parent allows. . . Whatever may be the position of a liquidator with regard to the sale of a business as a going concern, when it comes to irretrievable insolvency and cessation of business, we are satisfied that European jurisprudence does not admit the application of the ARD Directive. If it is to be suggested that TUPE has effectively allowed the Directive to operate in that context we consider that if falls foul of the approach that we adopted in Addison to the effect that it is going beyond the scope of the Directive and would in that respect be ultra vires. The issue requires to be addressed by primary legislation.’ Although the Directive did not apply to a case of irretrievable insolvency and cessation of business, neither did it prevent a member state from providing employment protection in such circumstances if it so desired.

Judges:

The Honourable Lord Johnston

Citations:

EATS/0031/03

Statutes:

European Communities Act 1972 2(2)

Cited by:

Cited – Oakley Inc v Animal Ltd and others PatC 17-Feb-2005
A design for sunglasses was challenged for prior publication. However the law in England differed from that apparently imposed from Europe as to the existence of a 12 month period of grace before applying for registration.
Held: Instruments . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 May 2022; Ref: scu.188427

Bank Voor Handel En Scheepvaart NV v Slatford: 1951

A Dutch bank deposited a quantity of gold in London before the start of the 1939-1945 war. In May 1940 the Netherlands were invaded and they became an enemy territory for the purposes of the 1939 Act. The Royal Netherlands Government, with the approval of the UK Government, exercised their powers from London and in May 1940 they issued a decree which purported to have the effect of transferring property, including the gold, to the Netherlands Government (the A.1 decree). In July 1940, the Board of Trade made a vesting order transferring the gold to the Custodian of Enemy Property. He sold it for andpound;2 million. In May 1950 the Netherlands Government made an order returning the property in the gold to the Bank. The Bank then claimed against the Custodian in conversion for the present value of the gold. Devlin J held that the A.1 decree was ineffective to transfer moveable property in this country.
Held:
Devlin J said: ‘I think it is convenient to begin by considering what is the general principle of our law with regard to foreign legislation affecting property within our territory. There is little doubt that it is the lex situs which as a general rule governs the transfer of movables when effected contractually. The maxim mobilia sequuntur personam is the exception rather than the rule, and is probably to be confined to certain special classes of general assignments such as marriage settlements and devolutions on death and bankruptcy. Upon this basis the A.1 decree, not being a part of English law, would not transfer the property in this case. But decrees of this character have received in the authorities rather different treatment. Although there is not, as far as I am aware, any authority which distinguishes general legislation, such as part of a civil code, from ad hoc decrees, the effectiveness of such decrees does not appear on the authorities to be determined exclusively by the application of the lex situs. Apart from two recent cases on which the plaintiffs greatly rely, there has been no case in which such a decree has been enforced in this country, but the grounds for refusing effect to them have been variously put. Sometimes it is said that the decree is confiscatory. In the textbooks it is said sometimes that as a matter of public international law no State ought to seek to exercise sovereignty over property outside its own territory, and therefore the principle of comity is against enforcement; and sometimes it is said that the principle of effectiveness is against enforcement, since no State can expect to make its laws effective in the territory of another State. Dicey, Conflict of Laws, 6th ed., p. 13, states: ‘A State’s authority, in the eyes of other States and the courts that represent them, is, speaking very generally, coincident with, and limited by, its power. It is territorial. It may legislate for, and give judgments affecting, things and persons within its territory. It has no authority to legislate for, or adjudicate upon, things or persons not within its territory.’
Denning LJ said: ‘In this connection I would observe that the test of being a servant does not rest nowadays on submission to orders. It depends on whether the person is part and parcel of the organisation.’

Judges:

Devlin J, Denning LJ

Citations:

[1953] 1 QB 248, [1951] 2 TLR 755, [1951] 2 All ER 779

Statutes:

Trading With The Enemy Act 1939

Cited by:

Cited – Peer International Corporation Southern Music Publishing Company Inc Peermusic (UK) Limited v Termidor Music Publishers Limited Termidor Musikverlag Gmbh and Co Kg -And-Editoria Musical De Cuba CA 30-Jul-2003
Peer sought declarations that they were the owners, or licensees, of the UK copyright in musical works composed by Cuban nationals, relying on assignments in writing by the composers and in some instances by their heirs. The defendants claimed under . .
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.

Jurisdiction, Employment

Updated: 16 May 2022; Ref: scu.186123

London Underground Ltd v Ferenc-Batchelor; Harding v London Underground Ltd: EAT 10 Jul 2003

The employees argued that they should be allowed to be accompanied by a representative to a meeting where they might receive an oral warning.
Held: A disciplinary warning becomes a formal warning within the section where it is recordable as part of the employees formal disciplinary record.

Citations:

Gazette 10-Jul-2003, [2003] IRLR 252, [2003] ICR 656

Statutes:

Employment Relations Act 1999 13(4)(a)

Jurisdiction:

England and Wales

Cited by:

Cited – Refreshment Systems Ltd t/a Northern Vending Services v Wolsetnholme EAT 27-Oct-2003
The claimant had brought an action uunder the section with respect to his right to be accompanied at a disciplinary hearing. The employer lodged an appeal.
Held: The jurisdiction of the EAT was purely statutory. The powers to hear appeals were . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 May 2022; Ref: scu.184718

Vaughan v Weighpack Ltd: NIRC 1974

(National Industrial Relations Court) In a claim for compensation for unfair dismissal, the employee should be treated as having suffered a loss in so far as he received less than he would have received in accordance with good industrial practice. However, the court applied the principle as it had been applied in earlier cases to hold that the employee who had been entitled to 3 months notice was entitled to recover earnings for that period, without deduction of post dismissal earnings, as ‘an irreducible minimum’ compensatory award. The court would not award damages for non-economic loss after wrongful termination of employment. The loss of wages during the notice period was ‘the irreducible minimum’ to which an employee was entitled.

Judges:

Sir Hugh Griffiths

Citations:

[1974] ICR 261

Jurisdiction:

England and Wales

Citing:

Cited – Norton Tool Co Ltd v Tewson NIRC 30-Oct-1972
(National Industrial Relations Court) The court was asked to calculate damages on a dismissal, and particularly as to whether the manner of the dismissal should affect the damages.
Held: The common law rules and authorities on wrongful . .

Cited by:

Cited – Dunnachie v Kingston Upon Hull City Council; Williams v Southampton Institute; Dawson v Stonham Housing Association EAT 8-Apr-2003
EAT Unfair Dismissal – Compensation
In each case, The employee sought additional damages for non-economic loss after an unfair dismissal.
Held: The Act could be compared with the Discrimination Acts . .
Cited – Dunnachie v Kingston-upon-Hull City Council HL 15-Jul-2004
The claimant sought damages following his dismissal to include a sum to reflect the manner of his dismissal and the distress caused.
Held: The remarks of Lord Hoffmann in Johnson -v- Unysis were obiter. The court could not, under the section, . .
Cited – Tradewinds Airways v Fletcher EAT 1981
The employee, an airline pilot, was entitled to three months contractual notice. The Tribunal had awarded compensation for the full three months even although he had earned a salary from other employment during part of that period.
Bristow J . .
Cited – Langley and Another v Burso EAT 3-Mar-2006
The claimant had been dismissed shortly after becoming unable to work. She sought payment of her normal salary during the period of notice saying this was established good practice.
Held: ‘We are put in the invidious position of being bound by . .
Cited – Everwear Candlewick Ltd v Isaac EAT 2-Jan-1974
Sir John Brightman referred to Norton Tool, Stepek and Hilti and then said: ‘The principle behind these three cases is clear. If an employee is unfairly dismissed without due notice and without pay in lieu of notice, he is prima facie entitled to . .
Cited – Burlo v Langley and Carter CA 21-Dec-2006
The claimant had been employed by the defendants as a nanny. She threatened to leave, but then was injured in a car acident and given a sick note. The employer immediately engaged someone else. She was found to have been unfairly dismissed. The . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 16 May 2022; Ref: scu.183844

Regina v Commission for Racial Equality (ex parte Westminster City Council): QBD 1984

The council had dismissed a black road sweeper to whose appointment the trade union objected on racial grounds.
Held: The council’s motive for doing so, to avert industrial action, could not avail them. Woolf J said: ‘In this case although the employer’s motives are wholly unobjectionable, he is clearly treating the black employee less favourably on racial grounds and is clearly guilty of unlawful discrimination under the Act.’

Judges:

Woolf J

Citations:

[1985] ICR 827, [1984] IRLR 230

Statutes:

Race Relations Act 1976 1

Jurisdiction:

England and Wales

Cited by:

Cited – European Roma Rights Centre and others v Immigration Officer at Prague Airport and Another CA 20-May-2003
A scheme had been introduced to arrange pre-entry clearance for visitors to the United Kingdom by posting of immigration officers in the Czech Republic. The claimants argued that the system was discriminatory, because Roma visitors were now . .
Cited – A C Redfearn v Serco Ltd T/A West Yorkshire Transport Service EAT 27-Jul-2005
The claimant said that he had been indirectly discriminated against on racial grounds. He was dismissed after being elected as a local councillor for the BNP. The employer considered that for Health and Safety reasons, his dismissal was necessary . .
Cited – James v Eastleigh Borough Council HL 14-Jun-1990
Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and . .
Cited – Amnesty International v Ahmed EAT 13-Aug-2009
amnesty_ahmedEAT2009
EAT RACE DISCRIMINATION – Direct discrimination
RACE DISCRIMINATION – Indirect discrimination
RACE DISCRIMINATION – Protected by s. 41
UNFAIR DISMISSAL – Constructive dismissal
Claimant, of . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 16 May 2022; Ref: scu.182465

Skyrail Oceanic Ltd v Coleman: CA 1981

Damages in respect of an unlawful act of discrimination may indeed include compensation for injury to feelings.
In contrast to a jury, the Tribunal is expected to give reasons and hence can be judged by those reasons.
Lawton LJ said that: ‘any injury to feelings must result from the knowledge that it was an act of sex discrimination . .’

Judges:

Lawton LJ

Citations:

[1981] ICR 864, [1981] IRLR 398

Jurisdiction:

England and Wales

Cited by:

Cited – Bennett T/A Foxbar Hotel v Reid EAT 26-Sep-2001
The employer appealed an award of ten thousand pounds for injured feelings, following a finding of sex discrimination. It was said that the award went beyond compensation to punishment. To vary such an award, the EAT must find some error of . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Damages

Updated: 16 May 2022; Ref: scu.181280

Ultraframe UK Limited v Clayton, Fielding and Others: ChD 3 Oct 2002

The claimants asserted infringement of their registered design rights in parts used in their double glazing and conservatory units. ‘Therefore it is possible for design right to subsist in the design of the part of the article which is not excluded under the must match provisions.’

Judges:

The Honourable Mr Justice Laddie

Citations:

[2003] RPC 435

Statutes:

Copyright Designs and Patents Act 1988 213(6) 215

Jurisdiction:

England and Wales

Citing:

Cited – Montgomery v Johnson Underwood Ltd CA 9-Mar-2001
A worker who had strictly been employed by an agency but on a long term placement at a customer, claimed to have been unfairly dismissed by the customer when that placement ended.
Held: To see whether she was an employee the tribunal should . .
Cited – Secretary of State for Trade and Industry v Bottrill CA 12-Feb-1999
There is no rule of law, to suggest that a sole director and owner of majority of shareholding, could not be an employee of that company, and be entitled to a redundancy payment on the liquidation of the company. ‘If the tribunal considers that the . .
Cited – Trussed Steel Concrete Ltd v Green 1946
A company director required to work full time for the company in return for a salary may be an employee: ‘… the question I have to consider is . . whether a managing director serving under a contract such as that by which Mr Green is bound is a . .
Cited – Anderson v James Sutherland (Peterhead) Ltd 1941
The court discussed the authorities on the question of whether a managing director of a company was an employee or contractor. ‘Each of the decisions was given in cases where the context played a vital part in the conclusions arrived at.’ . .
Cited – British Leyland Motor Corporation Ltd v Armstrong Patents Co Ltd HL 1986
The claimant’s product was made from drawings. The drawings were protected as copyright artistic works. They were reproduced in a three dimensional form by the claimant’s own products. Someone who copied the claimant’s products indirectly copied the . .
Cited – Secretary of State for Trade and Industry v Bottrill EAT 28-May-1998
There is no rule of law to suggest that a sole director and owner of majority of shareholding could not be an employee and entitled to redundancy payment on the liquidation of the company. ‘The higher courts have taken the view that the issue as to . .
Cited – Lakeview Computers Plc v Steadman 26-Nov-1999
. .

Cited by:

Cited – A Fulton Company Limited v Totes Isotoner (UK) Limited CA 4-Nov-2003
The defendants appealed a finding that they had infringed the claimant’s unregistered design rights in collapsible umbrellas. The defendants said the law protected only the design as a whole, and that only part had been copied.
Held: Authority . .
Appeal from – Ultraframe UK Limited v Clayton, Fielding and Others CA 12-Dec-2003
The company was 100% owned by its designer. He purported to retain the design right.
Held: The designer held the rights in trust for the company. An assignment by a shareholder holding all the shares in a company was possible, but not when the . .
See Also – Ultraframe UK Ltd v Clayton and others ChD 14-Feb-2003
Laddie J said: ‘I have to resolve a dispute between the parties on the issue of costs following on from the determination of the preliminary issues ordered to be heard by His Honour Judge Behrens. It is difficult to summarise the complex . .
See Also – Ultraframe UK Ltd v Fielding and others ChD 12-Jan-2004
. .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Employment

Updated: 16 May 2022; Ref: scu.178499

B Hedden v Exeter Diocesan Board for Christian Care: EAT 9 Mar 2000

EAT Unfair Dismissal – Reason for Dismissal

Judges:

The Honourable Mr Justice Charles

Citations:

EAT/125/97

Citing:

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 – Hedden v Exeter Diocesan Board for Christian Care EAT 26-Jun-1998
. .
See Also – Hedden v Exeter Diocesan Board for Christian Care CA 17-Feb-1999
. .
Lists of cited by and citing cases may be incomplete.

Employment, Costs

Updated: 16 May 2022; Ref: scu.171769

Comitu Central d’Entreprise de la SA Vittel and Comitu d’Etablissement de Pierval v Commission of the European Communities: ECFI 6 Jul 1993

ECFI Where the effect of suspending the operation of a Commission decision authorizing, at the request of employees’ representative bodies in some of the undertakings concerned, a concentration between undertakings pursuant to Regulation No 4064/89 would be to suspend the authorization granted throughout the course of the proceedings before the Court, and where the effect of granting the interim measures applied for in the alternative would be to prolong the existence of a dominant position liable to have irreversible repercussions on competition in the sector concerned, it is incumbent on the judge hearing the application for interim measures to weigh all the interests involved. Accordingly, not only must the interests of the applicants be balanced against the Commission’ s interest in restoring effective competition but regard must also be had to the interests of third parties, in particular the undertakings concerned, so as to avoid both the creation of an irreversible situation and serious and irreparable damage to one of the parties to the proceedings or to a third party or else to the public interest. In circumstances such as those, there is no justification for granting the measures sought unless it appears that the employees represented by the applicants would otherwise be exposed to a situation jeopardizing their future position. In this case, the decision at issue cannot, in principle, have repercussions on the rights of the employees of the undertakings concerned and there is no risk of direct damage to them such as to justify the grant of interim measures. As regards the damage which the employees of the transferor allege would result from the fact that, in their view, the transfer runs counter to their right to maintenance of the assets of the undertaking, the applicants, merely referring to the minimal amount of the financial consideration given for the transfer, have not shown how a decrease in the assets of that undertaking would be liable, at first sight, to entail a risk of serious and irreparable damage regarding the maintenance of employment within the undertaking. In any event, it is common ground that the transfer price derives not from the Commission decision but from the negotiations undertaken by the undertakings concerned. As regards the damage that the employees of the undertaking to be transferred allege they would suffer by ceasing to enjoy the social advantages conferred on them either by their individual contracts or by the collective agreement in force in the transferor undertaking, Articles 3 and 4 of Directive 77/187/EEC on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings provide that a transferor’s rights and obligations arising from a contract of employment or from an employment relationship are transferred to the transferee. Moreover, under the applicable domestic employment legislation, any collective employment agreement of indefinite duration may be repudiated by the parties to it under the conditions laid down therein. It follows that, even if the alleged damage appears sufficiently certain, it cannot be a direct result of the Commission decision. Just as the decision does not require the new employers to call in question the collective agreement applicable to the employees of the undertaking transferred, suspension of its transfer would not provide any protection against the possibility of repudiation of the collective agreement in force.

Citations:

T-12/93

Cited by:

See Also – CCE Vittel and others v Commission ECFI 27-Apr-1995
ECJ Competition – Regulation (EEC) No 4064/89 – Decision declaring a concentration compatible with the common market – Action for annulment – Admissibility – Trade unions and works councils – Act of direct and . .
Lists of cited by and citing cases may be incomplete.

European, Employment

Updated: 16 May 2022; Ref: scu.172641

Harada Ltd T/A Chequepoint UK Ltd v Turner: EAT 2 Nov 1999

EAT Jurisdiction –

Judges:

The Honourable Mr Justice Lindsay (President)

Citations:

EAT/517/99, EAT/516/99

Citing:

See Also – Turner v Harada Ltd (T/A Chequepoint UK) EAT 23-Mar-1999
Appeal by Mr Turner against an Employment Tribunal’s order that his case on the merits be not heard until after the Employment Appeal Tribunal has heard and determined an appeal by his former employers, which they wish to make against a previous . .
See Also – Harada Ltd (T/A Chequepoint UK Ltd) v Turner EAT 15-Jul-1999
Appeal against finding that defendant was subject to the jurisdiction of the court. . .

Cited by:

See Also – Harada Ltd v Turner CA 6-Apr-2001
The claimant had sought damages alleging unfair dismissal and unlawful deductions from his wages. The defendant argued that it was not subject to the jurisdiction of the court. During preliminary discussions, the judge hearing the application was . .
See Also – Harada Ltd (T/A Chequepoint Uk) v Turner EAT 25-Feb-2003
EAT Procedural Issues – Employment Tribunal. . .
See Also – Harada Ltd (T/A Chequepoint UK) v Turner EAT 17-Mar-2003
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 May 2022; Ref: scu.171423

Gould v The Governors of Haileybury and Imperial Services College and others: EAT 19 Jul 2002

EAT Unfair Dismissal – Compensation

Judges:

The Honourable Mr Justice Lindsay (P)

Citations:

EAT/1191/00, EAT/635/00

Citing:

See Also – Lambrook Haileybury School v Gould EAT 1-Dec-1998
. .
See Also – Gould v Lambrook Haileybury School EAT 5-Jul-1999
. .
See Also – Gould v Lambrook Haileybury School EAT 28-Jul-1999
. .
See Also – Gould v Haileybury and Imperial Service College and Another EAT 6-Jun-2001
. .
Cited – Gould v Haileybury and Imperial Service College and Another EAT 6-Jun-2001
. .
Cited – Gould v Haileybury and Imperial Service College and Another EAT 6-Jun-2001
. .
Cited – Gould v Haileybury and Imperial Service College and Another EAT 6-Jun-2001
. .
Cited – Gould v Haileybury and Imperial Service College and Another EAT 6-Jun-2001
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 May 2022; Ref: scu.174758

Celtec Limited v John Astley Julie Owens, Deborah Lynn Hawkes: EAT 5 Oct 2001

The employer appealed a finding that there had been continuity of employment between itself and a previous employer. The employees had sought a statement as to their terms of employment. The employer was a training and enterprise council, to whom the employees had first been seconded from the Department of Employment. There was an unresolved dispute at the time about whether continuity of employment was maintained. The EAT noted the statutory presumption in favour of continuity. The organisation was a labour intensive one. The Tribunal had been right to ask first what it was had been transferred, and then when. The tribunal was correct in allowing a wide interpretation of the meaning of ‘undertaking’ under the regulations. The employees had resigned before taking up employment, and so were not employed immediately before the transfer. The appeal was allowed.
EAT Transfer of Undertakings – Transfer
EAT European Material – Acquired Rights Directive

Judges:

The Honourable Mr Justice Hooper

Citations:

EAT/293/00, [2001] IRLR 788, [2001] UKEAT 293 – 00 – 0510

Links:

Bailii, EATn

Statutes:

Employment Rights Act 1996 218, Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794), Acquired Rights Directive 75/129/EEC

Jurisdiction:

England and Wales

Citing:

See Also – Celtec Limited v John Astley Julie Owens Deborah Lynn Hawkes EAT 1-Oct-2001
EAT Transfer of Undertakings – Transfer. . .

Cited by:

Appeal from – J Astley and others v Celtec Ltd CA 19-Jul-2002
Civil servants had been transferred to Training and Enterprise Councils in 1990, and resigned from the Civil Service in 1993. They appealed a decision that there had not been a transfer of an undertaking, and that they had continuity of employment. . .
See Also – Celtec Limited v John Astley Julie Owens Deborah Lynn Hawkes EAT 1-Oct-2001
EAT Transfer of Undertakings – Transfer. . .
At EAT – Celtec Limited v Astley and others HL 10-Nov-2003
The employments of civil servants had been transferred to the defendant company. There had been some delay between their resignations and the new arrangements. The employee claimed the protection of the directive, saying that there had been a . .
At EAT – Celtec Ltd v John Astley and Others ECJ 26-May-2005
Europa Directive 77/187/EEC – Article 3(1) – Safeguarding of employees’ rights in the event of transfers of undertakings – Transferor’s rights and obligations arising from a contract of employment or from an . .
At EAT – North Wales Training and Enterprise Council Ltd v Astley and others HL 21-Jun-2006
Civil servants had been transferred to a private company. At first they worked under secondment from the civil service. They asserted that they had protection under TUPE and the Acquired Rights Directive. The respondent said that there had only been . .
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 16 May 2022; Ref: scu.168356

Foy As Chairperson of the Committee of Weaver Community Playgroup v K Brzezicki: EAT 8 May 2001

The appellant had dismissed the respondent. She was given notice, but the tribunal found an agreement that she need not work her notice, and would be given pay in lieu, and that that agreement waived any breach of contract by the employee.
Held: The decision was supported by evidence, and no error identified.
EAT Contract of Employment – Breach of Contract

Judges:

Mrs Recorder Cox QC

Citations:

EAT/355/00

Jurisdiction:

England and Wales

Employment

Updated: 16 May 2022; Ref: scu.168187

TBA Industrial Products Limited v Moreland: CA 1981

Effective date of termination of employment. M had been told by letter that his Employment would finish on August the 2nd 1980, when he would receive a payment in lieu of notice then unexpired, and that, if he wished to leave before August 2nd, he should complete the enclosed form. M did complete the form, saying that he wished to leave earlier on the 7th of June. That request was agreed.
Held: The court did not accept the company’s appeal from the tribunal decision. The date of termination was the 2nd of August. Although he had left early, he had received pay for the period of the original notice, and nothing in these events had altered the notice as given.

Citations:

[1982] IRLR 331

Jurisdiction:

England and Wales

Cited by:

Cited – Wedgewood v Minstergate Hull Ltd EAT 13-Jul-2010
EAT JURISDICTIONAL POINTS – Worker, employee or neither
The Claimant employee was given notice that his contract would expire on 1 December 2008.
By a letter dated 26 November 2008 the Respondent . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 May 2022; Ref: scu.614997

Lupetti v Wrens Old House Ltd: EAT 1984

The applicant was given notice on 3rd February 1983 terminating his employment on 28th February 1983. The question arose on appeal whether the date of the notice or the date when he left employment was the relevant date.
Held: With a discriminatory dismissal, time does not run until the notice of dismissal has expired and the employment ceased: ‘ The act complained of here is the dismissal of the applicant and the short point is: for the purposes of the Race Relations Act 1976, did that dismissal occur on 3 February, when notice was given, or 28 February, when the employment was terminated? We have been referred, in this context, to Dedman v. British Building and Engineering Appliances Ltd. [1974] I.C.R. 53, which dealt with the effective date of termination of a contract, and we find that decision and, indeed, definitions which occur in the Employment Protection (Consolidation) Act 1978 of no help to us in this case, because Dedman’s case is dealing with a different section, and the definitions in the Act of 1978 cover matters on which the Race Relations Act 1976 is silent. It appears to us that we have to approach the construction of the Act of 1976 by considering what was the mischief that Parliament was intending to cover by providing that it was unlawful to discriminate against an employee by dismissing him.
Putting it quite shortly, it seems to us that the mischief which Parliament was intending to cover by those provisions was that of a person finding himself out of a job because of racial or other discriminatory grounds. If that be right (and it appears to us that it is), then the act complained of is the termination of employment and accordingly the effective date for considering when time starts to run is the date when the man finds himself out of job rather than the date when he is given notice.’
Balcombe LJ said: ‘That is sufficient to dispose of this appeal but, in case it goes elsewhere and in order to give proper respect to the able arguments which were presented to us by both counsel in this case, it is right that we should deal with the two other grounds of appeal. The second ground of appeal was that section 68(7)(b) of the Act of 1976 provides that any act extending over a period should be treated as done at the end of that period. Mr Cofie, for the applicant, argues that the act of dismissal extended over the period between the giving of notice and the date when the notice expired. Accordingly, under that subsection, it should be treated as having occurred at the end of the period.
We accept Mr Jeremy’s submissions on that ground of appeal both that it is inconsistent with the earlier argument which we have accepted – although that does not of itself render the earlier argument the less effective – but secondly this was not an act done over a period. It was an act of dismissal. Either that act took place when the notice was given or, as we have held, when the employment terminated. So we reject that ground of appeal.’

Judges:

Balcombe LJ

Citations:

[1984] ICR 348

Statutes:

Race Relations Act 1976 68(1)

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 16 May 2022; Ref: scu.616315

Chapman v Letheby and Christopher Ltd: 1981

Date of termination of employment – employer required to show that the notice was clearly to the particular effect asserted by him.

Citations:

[1981] IRLR 440

Jurisdiction:

England and Wales

Citing:

Cited – Adams v GKN Sankey Ltd EAT 1980
The employee had been given twelve weeks notice of redundancy dismissal, and was not required to attend work during the notice period, but then worked additional days. A letter was written in November stating ‘you are given 12 weeks’ notice of . .

Cited by:

Cited – Tallon v Manchester TEC Ltd EAT 18-Jan-1996
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 May 2022; Ref: scu.614996

York City and District Travel Ltd v Smith: EAT 1990

In March 1988 the employers, the bus company, York City and District Travel Limited negotiated an agreement with the trade union varying their employees contracts of employment so as to provide that the employers were entitled to deduct any cash shortages from the wages of staff handling cash. On the 10th June 1988 minutes of the Union Committee Meeting recorded receipt of the agreement and that it would be duly signed. On the 9th September an agreement in identical form was signed by the Union and the employers. Between the 10th June and the 9th September, namely, on the 9th August 1988 Mr Smith, who was the Applicant, and was employed as a Travel Office Clerk, was found to have been responsible for takings which were missing. The EAT was asked to consider the phrase ‘any relevant provision of the worker’s contract and Section 1(1)(a) and it looked at a clause in the collective agreement with the Trade Union.
Held: When looking at Section 1(4) of the 1986 Act was that any variation under Section 1(4)(a) must come into effect before the conduct of the worker or other event occurring: ‘It is clear – indeed not argued to the contrary – that by section 1(3)(b) a variation of the original contract of employment may be oral, but that any such variation must be notified to the employee in writing prior to the date of the deduction. That is not the end of the matter because by section 1(4) the variation must have been agreed before the conduct or event on account of which the deduction is made. Thus to apply those principles to the present case the variation must have been agreed before 9 August and the notification in writing of the variation must have been given to the employee by the employers before 8 December 1988.’

Citations:

[1990] ICR 344

Jurisdiction:

England and Wales

Cited by:

Cited – Discount Tobacco and Confectionary Ltd v Williamson EAT 12-Jan-1993
The company appealed against a finding that they had made an unlawful deduction from the claimant’s salary. He was manager of a store where there had been shortfalls of stock, and had deducted part of its value from his salary on dismissing him. . .
Cited – Science Warehouse Ltd v Mills EAT 9-Oct-2015
EAT Practice and Procedure : Amendment – Amendment of an ET claim to add a new cause of action – ACAS Early Conciliation (Section 18A Employment Tribunals Act 1996 (as amended))
At a Preliminary Hearing, . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 May 2022; Ref: scu.614930

Redbridge London Borough Council v Fishman: EAT 1978

Unfair and wrongful dismissal are separate and distinct causes of action. Phillips J said: ‘The jurisdiction based on paragraph 6 (8) of Schedule 1 to the Trade Union and Labour Relations Act 1974 has not got much to do with contractual rights and duties. Many dismissals are unfair although the employer is contractually entitled to dismiss the employee. Contrariwise, some dismissals are not unfair although the employer was not contractually entitled to dismiss the employee. Although the contractual rights and duties are not irrelevant to the question posed by paragraph 6(8), they are not of the first importance.’

Judges:

Phillips J

Citations:

[1978] ICR 569

Jurisdiction:

England and Wales

Cited by:

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 . .
Adopted – Weston Recovery Services v Fisher EAT 7-Oct-2010
EAT UNFAIR DISMISSAL – Reasonableness of dismissal
CONTRACT OF EMPLOYMENT – Wrongful dismissal
Employment Tribunal found Claimant guilty of serious misconduct for which dismissal fell within the range . .
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: 16 May 2022; Ref: scu.606351

Wilson v Racher: CA 1974

Edmund Davis LJ said: ‘does the conduct make it impossible for the continuance of the master and servant relationship and show that the employer was resolved to follow a line of conduct that mof behaviour justifying instant dismissalakes the continuation of that relationship impossible? In that case the court was not prepared to find that the employee’s conduct in swearing at her employer was a deliberate flouting of the essential contractual terms.

Judges:

Edmund Davis LJ

Citations:

[1974] IRLR 114

Cited by:

Cited – Mason v Huddersfield Giants Ltd QBD 15-Jul-2013
The claimant rugby league player complained of his dismissal under a clause allowing such for behaviour which might bring the club into disrepute. He had engaged in a celebratory evening out involving a naked run. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 May 2022; Ref: scu.560124

Caase XLIV Co Lit 3 B Hob 148 5 E 4 Mich Rot 66 Br Office, 48 9 Co 97 B Dyer, 4 &Amp;Amp: 1220

The King’s grant of an office which requires skill, as in the Common Plea or King’s Bench, to an unskilful man, is void ; even though it be made to him and his assigns. A grant of an office of skill to an inifant, to he exercised in presenti, is void ; but if in futuro, arid that he be of full age and expert, when the ottice is to be exercised, the grant is good. The Bishop of Rochester granted the office of register there to A, for life, and after the death of A to B an infant ; at the time of the death of A. H. was become of full age, and being expert was capable of the office; this grant is good.

Citations:

[1220] EngR 713, 5 Mar 150 11 Co 89, The Earl of Devons case Office, Grants, Nonability, (1220-1623) Jenk 121, (1220) 145 ER 85 (B)

Links:

Commonlii

Employment

Updated: 15 May 2022; Ref: scu.461625

Regina v Regional Office of the Employment Tribunals (London North), Ex p Sojorin (unreported): CA 21 Feb 2000

The Employment Appeal Tribunal is immune from judicial review.

Judges:

Sedley LJ

Citations:

Unreported, 21 February 2000

Jurisdiction:

England and Wales

Cited by:

Cited – Cart v The Upper Tribunal SC 21-Jun-2011
Limitations to Judicial Reviw of Upper Tribunal
Three claimants sought to challenge decisions of various Upper Tribunals by way of judicial review. In each case the request for judicial review had been first refused on the basis that having been explicitly designated as higher courts, the proper . .
Lists of cited by and citing cases may be incomplete.

Employment, Judicial Review

Updated: 15 May 2022; Ref: scu.442731

Regina v Essex County Council, ex parte EB: 1997

It was wrong to require a plaintiff to begin a claim in the employment tribunal where the possible remedies in the County Court were greater or different.

Judges:

McCullough J

Citations:

[1997] ELR 327

Jurisdiction:

England and Wales

Cited by:

Cited – Shoesmith, Regina (on The Application of) v OFSTED and Others CA 27-May-2011
The claimant appealed against dismissal of her claim. She had been head of Child Services at Haringey. After the notorious violent death of Baby P, the Secretary of State called for an inquiry under the Act. He then removed her as director. She . .
Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice

Updated: 15 May 2022; Ref: scu.440288

Quinn v Calder: EAT 1996

Employees sought to establish a contractual right to an enhanced redundancy payment. Lord Coulsfield referred to Duke and said: ‘In a case such as the present, the factors to which Browne-Wilkinson J referred are likely to be among the most important circumstances to be taken into account, but they have to be taken into account along with all the other circumstances of the case. Thus, for example, in our view, the question is not whether the period for which a policy has been followed is ‘substantial’ in some abstract sense, but whether, in relation to the other circumstances, it is sufficient to support the inference that that policy has achieved the status of a contractual term. Again, with regard to communication, the question seems to us to be not so much whether the policy has been made or become known directly to the employees or through intermediaries, but whether the circumstances in which it was made or has become known support the inference that the employers intended to become contractually bound by it.’
Such a situation had only arisen on four occasions in seven years and from the employer’s perspective, payment of the enhanced terms had not been automatic but had required a decision on each occasion: ‘The fact that the employees’ knowledge came from fellow-employees would not preclude the possibility of treating the enhanced terms as established, by custom and practice, as part of the contract; but it is necessary to take that knowledge along with the other circumstances, including the fact that there does not appear to have been any evidence that any employee actually entered into the employment on the faith of an expectation that those terms would be applied.’

Judges:

Lord Coulsfield

Citations:

[1996] IRLR 126

Citing:

Cited – Duke v Reliance Systems Limited EAT 1982
The EAT was asked whether a policy in regard to a retiring age had been communicated to employees or whether there was evidence of any universal practice to that effect. Browne-Wilkinson J said: ‘[T]here was no evidence that the employers’ policy of . .

Cited by:

Cited – Garratt v Mirror Group Newspapers Ltd CA 13-Apr-2011
The claimant had been employed by the defendant. They made him redundant. He claimed and enhanced payment saying that his emloyment was covered by a collective agreement, but when he refused to sign a compromise agreement, the company paid him only . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 May 2022; Ref: scu.434917

Green v A and I Fraser (Wholesale Fish Merchants) Ltd: EAT 1985

EAT One of four drivers was to be made redundant. The claimant had the shortest service and was selected on this basis. He said that another employee, with occasional driving duties and shorter service should have been selected.
Held: The appeal failed. The dismissal was not unfair. There was no general principle requiring an employer to consider employees with different positions, since the requirement to show that the employer had acted reasonably had now been removed.
Lord McDonald MC said: ‘In certain circumstances in making a selection for redundancy, an employer should not confine himself to employees holding similar positions in the same undertaking . . We do not consider that this case lays down any hard and fast principle which must be followed in every other case irrespective of the circumstances.’ He concluded: ‘In our view the proper approach to this matter is as follows. S.57(3) raises the question of reasonableness. As has been said in a number of recent cases this is a situation in which one employer may act in a certain way and act perfectly reasonably and another employer in identical circumstances may act in the opposite way and still act perfectly reasonably. There is in short what has been described as a band of reasonableness and the actions of an employer will only be unfair if it is shown that they fell outwith that band.’

Judges:

Lord McDonald MC

Citations:

[1985] IRLR 55

Cited by:

Cited – Mugford v Midland Bank Plc EAT 23-Jan-1997
The court considered the test for reasonableness in a procedure for selection for redundancy. Peter Clarke J said: ‘As to whether a reasonable employer would or would not consult with an individual employee is, it seems to us, essentially a question . .
Cited – P Byrne v Arvin Meritor LVS (UK) Ltd EAT 22-Jan-2003
EAT The appellant had taken a temporary promotion with re-assurances that on completion he would return to his former position. That old role disappeared during the period. The temporary role finished early and . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 May 2022; Ref: scu.425339

Lees v Arthur Greaves (Lees) Limited: CA 1974

The employee was dismissed in October but given six months notice. It was agreed that he should work out that notice until March. However, on 28 January 1972 the employee was persuaded to finish, accepting two months pay in lieu of working during February or March. He received his holiday pay, insurance cards and P45 on 28 February and he signed on at the employment exchange sometime after 31 March. He claimed unfair dismissal. The employer argued that if the effective date of any termination was 28 January. Section 23(2) referred to the effective date of termination refered to ‘the date on which that notice expires’ while the present legislation refers to ‘the date on which the notice expires’.
Held: The agreement simply waived the duty to work and the contract remained in force until 31 March 1972. Lord Denning said of the employee ‘he was still employed but not required to work for the remaining period from 28th January to 31st March’
. Stamp LJ dissented holding that the contract was effectively terminated on 28 January 1972.

Judges:

Lord Denning MR and Scarman LJ, Stamp LJ

Citations:

[1974] 2 All ER 393, [1974] ICR 501, [1974] 3 IRLR 93

Statutes:

Industrial Relations Act 1971 23(2)

Jurisdiction:

England and Wales

Cited by:

Cited – Wedgewood v Minstergate Hull Ltd EAT 13-Jul-2010
EAT JURISDICTIONAL POINTS – Worker, employee or neither
The Claimant employee was given notice that his contract would expire on 1 December 2008.
By a letter dated 26 November 2008 the Respondent . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 May 2022; Ref: scu.420796

Hough and Apex v Leyland DAF Ltd: EAT 1991

EAT The employer requested a report as to contracting out their security arrangements in late 1996. The recommendation to contract out came in January 1997. After enquiries in May, a second report repeated the recommendation. Managers were consulted in August and a contract was offered in October, for the change at Christmas, The employer told the union. Meetings took place but each accepted that the question of redundancies was already decided. 29 security staff were made redundant, and their complaint under section 99 EPA was upheld by an Industrial Tribunal. They said the consultation should have commenced in May.
Held: The employer’s appeal failed. Knox J said: ‘We were also pressed on behalf of the employees with the argument that the consultations which the section requires must be meaningful: compare E. Green and Son (Castings) Ltd v Association of Scientific, Technical and Managerial Staffs [1984] ICR 352, 359H and Transport and General Workers’ Union v Ledbury Preserves (1928) Ltd [1985] IRLR 412, and that the quality of the consultation formed a significant factor in leading to the industrial tribunal’s decision that Leyland were in breach of section 99 as well as the timing of the consultation. On the other hand for Leyland it was submitted that although the consultation has to be genuine it does not follow as a matter of law that an employer who embarks on consultation believing that he has an unanswerable case has failed in his statutory obligation to consult. In principle we accept this latter submission but it does not, in our judgment, go to the point which we have to decide which is whether the industrial tribunal erred in law in reaching the decision that Leyland were in breach of section 99.
In our view, they asked themselves the right question that is to say ‘when did Leyland propose to dismiss the security staff as redundant?’ Although they did in our view make two discernible errors in the course of their decision, neither of them affects the validity of the answer which they gave to that question.’
Those errors were, first a finding of fact, found by the EAT to be immaterial, which was unsupported by any evidence; the second was a self-direction by the tribunal that it was not open to them to construe section 99 in line with EC Directive 75/129/ECC.
Knox J said: ‘We are not persuaded that the Directive requires any construction to be adopted of the words of section 99(1) ‘an employer proposing to dismiss as redundant an employee’ which would require a later stage in the employer’s decision-making process to be identified than section 99 (1) in the context of the Act of 1975 alone would require. Whether or not an earlier stage would be appropriate does not arise for decision.’

Judges:

Knox J

Citations:

[1991] ICR 696

Statutes:

Employment Protection Act 1975 99, EC Directive 75/129/ECC

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, European

Updated: 15 May 2022; Ref: scu.421397

E Green and Sons (Castings) Ltd v ASTMS: EAT 1984

Nolan J considered the sub-section and the disclosure requirements on a consultation: ‘Flexibility in the course of consultation is obviously desirable, but the consultation envisaged by s. 99 cannot begin until the employer has provided the information set out in subsection (5).’

Judges:

Nolan J

Citations:

[1984] IRLR 135, [1984] ICR 352

Statutes:

Employment Protection Act 1975 99(5)

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 . .
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: 15 May 2022; Ref: scu.416024

Hollier v Plysu: CA 1983

The Tribunal may reduce any compensatory award by such proportion as it considers just and equitable. A Tribunal’s decision on this question is ‘so obviously a matter of impression, opinion, and discretion, that there must be a plain error of law or perversity before an appellate court can intervene’. The tribunal must consider: ‘what, if any, part the employee’s own conduct played in causing or contributing to his or her dismissal and then, in the light of that finding, decide what, if any, reduction should be made in assessment of his or her loss.’

Judges:

Stephenson LJ

Citations:

[1983] IRLR 260

Jurisdiction:

England and Wales

Cited by:

Cited – Punch Pub Company Ltd v O’Neill EAT 23-Jul-2010
EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Employment Tribunal failed to consider the effect of S98A(2) of the Employment Rights Act . .
Applied – Circle Anglia Ltd v Simons EAT 16-Oct-2012
EAT Unfair Dismissal : Reasonableness of Dismissal – Contributory fault
The majority of the Employment Tribunal, the Employment Judge dissenting, found the Respondent liable for the unfair dismissal for . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 15 May 2022; Ref: scu.421327

Paul v NALGO: 1987

The Certification Officer considered a challenged Union election, and said: ‘I take ‘election’ in this context to mean a process involving choice by nomination and, where there is more than one nomination, by vote.’

Citations:

[1987] IRLR 43

Statutes:

Trade Union Act 1984

Cited by:

Cited – Scargill v National Union of Mineworkers EAT 27-Jan-2010
EAT CERTIFICATION OFFICER
Various issues arising out of disputed elections for positions within the National Union of Mineworkers.
Held:
(1) The Certification Officer had been entitled to find that . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 May 2022; Ref: scu.415951

William Muir (Bond 9) Ltd v Lamb: EAT 1985

The employee was found to have been unfairly dismissed, but he had not pursued his internal appeal rights.
Held: A failure by a dismissed employee to appeal against his dismissal could not amount to a failure to mitigate his losses within section 74(4).
Lord McDonald MC said: ‘The appellants accept the finding of unfair dismissal. They argue however that, because she declined to follow the internal appeal procedure, she had therefore failed to mitigate her loss. The suggestion was made to us that we should take account of this and reduce the award of compensation by 50%.
We take it to be clearly established that there is no obligation upon an employee who is dismissed to follow up an internal appeal procedure before making application to an industrial tribunal. This in our opinion is clear from the case of Chrystie v. Rolls Royce (1971) Ltd [1976] IRLR 336 and Hoover Ltd v. Forde [1980] ICR 239. It is true that in the latter case an industrial tribunal had found that had the dismissed employee availed himself of the appeal procedure the decision to dismiss him might have been rescinded and on that ground apparently his compensation was reduced by 50%. We are bound to say that we have great difficulty in accepting the reasoning in that case. It seems to us to be purely speculative to attempt to assess what would have happened in the event of an appeal being taken. There are many imponderable factors. One is the manner in which the appeal is handled. Another is the person or persons to whom the appeal lies. In an industrial situation it may very often happen that an employee who has been dismissed considers that there is no point in him following up the internal appeal procedure because he does not have confidence in the persons who would hear that appeal. It would therefore be quite wrong in our view to penalise an employee who has been unfairly dismissed by reducing her compensation because she did not follow through whatever internal appeal procedure may have existed.
That is enough to decide the case in favour of the respondent and the appeal is therefore dismissed.’

Citations:

[1985] IRLR 95

Statutes:

Employment Protection (Consolidation) Act 1978 74(4)

Cited by:

Cited – Lock v Connell Estate Agents EAT 10-May-1994
The employee had failed to meet targets in a difficult sales market. He was dismissed. The ET had found that the sales targets were impossible. The EAT considered what was the effect of his failure to appeal against his dismissal.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Employment, Scotland

Updated: 15 May 2022; Ref: scu.402934

Snowball v Gardner Merchant: EAT 1987

The employee claimed that she had been sexually harassed by her manager. In the course of her evidence the employers sought to cross-examine her as to her general attitude towards sexual matters, based on events which had occurred during the course of her employment. She denied the allegations put to her. The employers then sought to call evidence to establish the truth of those allegations; the employee objected. The Tribunal decided in the employers’ favour.
Held: The tribunal’s decision was upheld. The evidence ought to be called, save insofar as it went only to establish an atmosphere of prejudice, was relevant both to the issue of credibility and to the issue of the extent of the alleged detriment and injury to feelings sustained by the employee.
The EAT doubted (obiter) the validity of the proposition in Rosedale that an Employment Tribunal has no power to exclude evidence which is admissible: ‘We have doubts about the validity of this proposition, because as we have said earlier in this judgment, our opinion is that the power extends in some cases to the exclusion of evidence which strictly may be admissible. In Rosedale Mouldings [1980] IRLR 387 the wrongly excluded evidence was highly probative and there was no room for balancing prejudice against probative value.’

Judges:

Kilner Brown J

Citations:

[1987] IRLR 397

Statutes:

Industrial Tribunals (Rules of Procedure) Regulations 1985 Sch 1 8(1)

Citing:

Doubted (obiter) – Rosedale Ltd v Sibley EAT 1980
The tribunal had ruled that a document sent by a Union District Secretary to head office claiming dispute benefit for the Claimant and other employees of the Appellant employer; although admissible in evidence at common law, would not be received . .

Cited by:

Cited – Krelle v C Ransom Tradeteam Ltd EAT 27-Jan-2006
EAT Unfair Dismissal: Reason for Dismissal including Substantial Other Reason:
Practice and Procedure: Appellate Jurisdiction / Reasons / Burns-Barke
ET did not state what acts or omissions . .
Cited – Digby v East Cambridgeshire District Council EAT 30-Nov-2006
EAT Unfair dismissal – Reasonableness of dismissal
Practice and Procedure – Admissibility of evidence
Total exclusion of evidence relating to final written warning inextricably linked with sanction of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 May 2022; Ref: scu.393372

Armitage Marsden and HM Prison Service v Johnson: EAT 1997

The tribunal set out the relevant principles for assessing awards for injury to feelings for unlawful discrimination. The principles are: ‘(1) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation should not be allowed to inflate the award.
(2) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could . . be seen as the way to untaxed riches.
(3) Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think this should be done by reference to any particular type of personal injury award; rather to the whole range of such awards.
(4) In exercising their discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind.
(5) Finally, tribunals should bear in mind . . the need for public respect for the level of awards made.’
As to the claim for aggravated damages: ‘It seems to us that there were here factors which entitled the tribunal to make an award of aggravated damages. In particular they identified the third appellant’s conduct of the investigation of the complaints of race discrimination. The tribunal described this as a travesty of what it should have been. Instead of providing the respondent with a remedy for the wrongs which he had suffered, the third appellants added to his injury by attributing all his problems to his own defects of personality. We think this was a true case of aggravation: a case where the appellant’s actions rubbed salt in the respondent’s wounds.’

Judges:

Smith J

Citations:

[1997] IRLR 162, [1997] ICR 275

Jurisdiction:

England and Wales

Cited by:

Cited – Zaiwalla and Co (a Firm) v Walia EAT 24-Jul-2002
The claimant sought aggravated damages for the aggressive way the respondent firm had defended her action for sex discrimination.
Held: In exceptional circumstances, and this was one, the tribunal could award additional damages where a . .
Doubted – London Borough of Hackney v Sivanandan and Others EAT 27-May-2011
EAT RACE DISCRIMINATION – Compensation
SEX DISCRIMINATION – Compensation
APPEAL
Council and a charity both supplied members to a recruitment panel which victimised the Claimant – Tribunal makes . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 15 May 2022; Ref: scu.381291

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 Mr. Slack’s dismissal had been unfair because of certain procedural deficiencies (primarily a failure to disclose to him the contents of the statement of an independent witness on which the employers had primarily relied in holding that he was the more at fault). However, it decided that his compensation should be reduced by 50% on the basis that he had been guilty of serious misconduct in participating in the fight (irrespective of whether he was the aggressor, as to which it made no finding). Mr. Slack contended that that finding was unjust having regard to the lesser penalty meted out to the other employee.
Held: In considering any reduction in compensation for the claimant’s contribution to his dismissal, the focus will be on the nature and quality of the claimant’s conduct that is under consideration. Broad considerations of justice were not relevant for the purpose of the exercise under the sections.
Balcombe LJ said: ‘subsection (6) is looking only to the causative or contributory conduct of the complainant as a ground for the reduction of the compensatory award to which the complainant would otherwise be entitled under subsection (1). The words ‘just and equitable’ in subsection (6) . . do not, in my judgment, entitle the tribunal to take into account matters other than the causative or contributory conduct as a ground for deciding the proportion by which the compensatory award is to be reduced.’

Judges:

Balcombe LJ, Woolf LJ

Citations:

[1992] ICR 302, [1992] IRLR 11

Statutes:

Employment Protection (Consolidation) Act 1978 73(7B) 74(6)

Citing:

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

Employment

Updated: 15 May 2022; Ref: scu.374368

Sir Robert Wayland’s Case: 1795

Holt CJ said: ‘the master at his peril ought to take care what servant he employs; and it is more reasonable that he should suffer for the cheats of his servant than strangers and tradesmen’.

Judges:

Holt CJ

Citations:

[1795] EngR 3131, (1795) 3 Salk 234, (1795) 91 ER 797 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Mohamud v WM Morrison Supermarkets plc SC 2-Mar-2016
The claimant had been assaulted and racially abused as he left a kiosk at the respondent’s petrol station by a member of staff. A manager had tried to dissuade the assailant, and the claim for damages against the supermarket had failed at first . .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Employment

Updated: 15 May 2022; Ref: scu.355476

The Queen v The Inhabitants of Braintree: 8 Nov 1858

The appellants against an order of removal set up a settlement of the pauper by apprenticeship under an indenture, which had been lost. To prove proper search, they proposed to ask certain witnesses what inquiries they had made of, and what answers they had received from, parties who were likely to have the document in their possession : but the parties themselves were not called. The Sessions refused to allow the questions to he put. Held, that the evidence was admissible, upon the preliminary inquiry whether proper search had been made, though it might not be admissible as evidence iri the main issue before the Court : arid the appeal was setit back to be reheard.

Citations:

[1858] EngR 1096, (1858) 1 El and El 51, (1858) 120 ER 827

Links:

Commonlii

Jurisdiction:

England and Wales

Employment

Updated: 15 May 2022; Ref: scu.289567

Millership v John Brookes The Elder: 24 May 1860

An indenture sealed and delivered to an attorney who is acting for all the parties to it, with directions that it is not to take effect till something else is done, operates merely as an escrow. Quaere, whether, in order to enable a master to sue on the covenants in an indenture of apprenticeship, it is necessary that he should have executed the deed or a counterpart of it.

Citations:

[1860] EngR 774, (1860) 5 H and N 797, (1860) 157 ER 1399

Links:

Commonlii

Employment

Updated: 15 May 2022; Ref: scu.285613

Maund v Penwith District Council: CA 1984

The employee alleged that he had been dismissed for trade Union activities. The Industrial Tribunal held that he had the burden of proving that. The EAT disagreed.
Held: The appeal against the decision of the EAT failed.
Griffiths LJ said: ‘If an employer produces evidence to the Tribunal that appears to show that the reason for the dismissal is redundancy, as they undoubtedly did in this case, then the burden passes to the employee to show that there is a real issue as to whether that was the true reason. The employee cannot do this by merely asserting in argument that it was not the true reason; an evidential burden rests upon him to produce some evidence that casts doubts upon the employer’s reason. The graver the allegation, the heavier will be the burden. Allegations of fraud or malice should not be lightly cast about without evidence to support them.
But this burden is a lighter burden than the legal burden placed upon the employer; it is not for the employee to prove the reason for his dismissal, but merely to produce evidence sufficient to raise the issue or, to put it another way, that raises some doubt about the reason for the dismissal. Once this evidential burden is discharged, the onus remains upon the employer to prove the reason for the dismissal.’ and in discussing the authorities: ‘To my mind, these passages, and many others, show beyond peradventure that the tribunal was applying its mind to the real issue raised in this case, namely, whether or not the employee was dismissed for redundancy or whether redundancy was merely the pretext that cloaked his dismissal because of his union activities.’
Purchas LJ said: ‘As my Lord has already said, clearly Parliament was not extending an open invitation to an employee who was angry at being dismissed to raise frivolous, imaginary or unsubstantiated allegations against his employer; and where that employer is a public body, a local authority, the bona fide performance of their duties by the members of that authority. With respect, I agree with Lord Justice Griffiths in criticising the description of the effect of an apparently properly arrived at resolution by a responsible body as being of little weight. In my judgment the onus that rests upon the employee is to show that there is an issue which warrants investigation existing, against which an alternative reason, or competing reason, may be established. I emphasise that the onus resting upon the employee is not to prove, on a balance of probabilities, that his contending reason is the principal reason, but he must prove, on the basis of probabilities, that the issue exists. The gravity of the accusations, if any, involved in raising the issue will reflect upon the quality of the evidence necessary to establish the existence of the issue. Once the employee has adduced evidence to establish, on the balance of probabilities, the existence of the issue, the onus of showing which of the two competing reasons, or more if there are more, is the principal reason, remains as it always had been, on the shoulders of the employer. If the exercise being carried out by the Industrial Tribunal, and reported in paragraphs 19 and 25 of their reasons, had been confined to a consideration of the question: Had the applicant established the existence of the issue? – then they would, in my judgment, have been correct in looking at the evidence to see whether the applicant had established the existence of the issue.’

Judges:

Griffiths LJ, Purchas LJ

Citations:

[1984] ICR 143, [1984] IRLR 129

Statutes:

Employment Protection (Consolidation) Act 1978

Citing:

Approved – Smith v Hayle Town Council CA 1978
In a case on the issue of sufficiency of qualifying service for bringing an ordinary case of unfair dismissal, the court considered the allocation of the burden of proof in employment cases.
Held: The burden is upon he who is seeking to rely . .

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 – Kuzel v Roche Products Ltd CA 17-Apr-2008
The claimant had argued that she had been unfairly dismissed since her dismissal was founded in her making a protected disclosure. The ET had not accepted either her explanation or that of the employer.
Held: The employee’s appeal failed, and . .
Cited – Ross v Eddie Stobart Ltd (Unfair Dismissal : Automatically Unfair Reasons) EAT 8-Aug-2013
EAT UNFAIR DISMISSAL – Automatically unfair reasons
Burden of proving the ‘whistleblowing’ reason for dismissal under s.103A Employment Rights Act 1996 lies on the employee who has insufficient continuous . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 May 2022; Ref: scu.276824

Watts v Seven Kings Motor Co Ltd: EAT 1983

The tribunal had made an award against the defendant, but only later was the true identity of the defendant company setled, and they were substituted.
Held: The EAT allowed an amendment to name the firm as Respondent; the Employment Tribunal’s order stood against the new Respondent, but an opportunity was given to that Respondent to apply to the Industrial Tribunal for a review under Rule 11.

Citations:

[1983] ICR 135

Cited by:

Cited – Linbourne v B R Constable (Gatwick Moat House) EAT 9-Feb-1993
The application proceeded against one named respondent. Even though the true identity of the intended defendant was known throughout, no application to substitute the correct defendant was made. An unfair diamissal was found, but not as against the . .
Cited – 1A Centre Community Association Ltd v Gwiazda and others EAT 14-Jul-2000
The claimants alleged an unlawful deduction from their wages, and unfair dismissal. The employer appealed, complaining that the limited company had been added late. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 May 2022; Ref: scu.276513

Huntley v Thornton: 1957

It was an unlawful conspiracy at common law to pursue a closed shop against individuals beyond the point which the courts regarded as the defence of genuine trade union interests.
Harman J looked at the law of conspiracy where employees threatened to strike: ‘No doubt it is not necessary that all the conspirators should join at the same time, but it is, I think, necessary that they should know all the facts and entertain the same object. ‘ and (obiter) ‘If, however, their actions amount to threats of illegal strike action – that is to say, action to withdraw labour in breach of contract – then those acts were tortious and illegal’. The 1906 Act did not protect the defendants.

Judges:

Harman J

Citations:

[1957] 1 WLR 321, [1957] 1 All ER 234

Statutes:

Trade Disputes Act 1906 1 2 3

Cited by:

Cited – Torquay Hotel v Cousins CA 17-Dec-1968
The plaintiff contracted to buy oil for his hotel from Esso. Members of the defendant trades union blocked the deliveries of oil by Esso to the Hotel because of a trade dispute they had with the management of the hotel. The hotel sued for an . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Employment

Updated: 15 May 2022; Ref: scu.272905

Shove v Downs Surgical plc: 1984

The court considered the correct approach to calculating damages for breach of an employment contract, and in particular in the context of income tax on any award over the andpound;30,000 limit, and the need to gross up any award.

Citations:

[1984] IRLR 17, [1984] ICR 532

Cited by:

Approved – Global Crossing (UK) Telecommunications Ltd v Jones EAT 22-May-2008
EAT CONTRACT OF EMPLOYMENT: Damages for breach of contract
The proper approach to the assessment of damages for breach of a contract of employment in a case of wrongful dismissal is that explained in Shove . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 15 May 2022; Ref: scu.272843