Category: Employment

Barber v Thames Television plc: CA 1992

The applicant was ‘precluded by Section 64(1)(b) from making his complaint to the industrial tribunal’ The appeal succeeded.

Judges:

Dillon LJ

Citations:

[1992] ICR 661

Statutes:

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

Citing:

Appeal from – Barber v Thames Television plc EAT 1991
The EAT has a power exceptionally, to receive an argument which had not been put to tribunal. Knox J said: ‘We do not accept the proposition that any and every contention by a party to an appeal that that party by calling further evidence can show . .

Cited by:

Cited – Leicester University Students Union v Mahomed EAT 6-Dec-1994
The Union appealed a finding of unfair dismissal and discrimination. It denied that she had sufficient continuous service, saying that the peirod suggested involved working for two employers. It also said that since the objection went as to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 May 2022; Ref: scu.270360

Collier v Sunday Referee Publishing Co: 1940

The plaintiff was a chief sub-editor with the defendant. He sought the right to work and be paid for working.
Held: The employee had the right to work. Asquith J discussed a former employee’s right to earn a living: ‘It is true that a contract of employment does not necessarily, or perhaps normally, oblige the master to provide the servant with work. Provided I pay my cook her wages regularly she cannot complain if I choose to take any or all of my meals out. In some exceptional cases there is an obligation to provide work. For instance, where the servant is remunerated by commission, or where (as in the case of an actor or singer) the servant bargains, among other things, for publicity, and the master, by withholding work, also withholds the stipulated publicity: see, for instance, Marbe v. George Edwardes (Daly’s Theatre), Ld.; but such cases are anomalous, and the normal rule is illustrated by authorities such as Lagerwall v. Wilkinson, Henderson and Clarke, Ld. (2) and Turner v. Sawdon and Co., where the plaintiffs (a commercial traveller and a salesman respectively, retained for a fixed period and remunerated by salary) were held to have no legal complaint so long as the salary continued to be paid, notwithstanding that owing to their employers’ action they were left with nothing to do.’

Judges:

Asquith J

Citations:

[1940] KB 647

Cited by:

Cited – SG and R Valuation Service Co v Boudrais and others QBD 12-May-2008
The claimant sought to require the defendants not to work during their notice period to achieve the equivalent of garden leave despite there being no provision for garden leave in the contracts. It was said that the defendants had conspired together . .
Cited – William Hill Organisation Ltd v Tucker CA 8-Apr-1998
In the absence of a sufficient clause providing otherwise, an employee required not to attend work during his notice period may work for another employer during that period. The court should ask whether the bargain between the employer and the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 May 2022; Ref: scu.270348

British Midland Airways Limited v Lewis: EAT 1978

An airline pilot complained that he had been unfairly dismissed and the Industrial Tribunal, without considering whether or not they had jurisdiction to hear the complaint on the ground that the employee might ordinarily work abroad, found that the dismissal was unfair. The case had been listed before the Industrial Tribunal upon the jurisdictional question but in the event nobody adverted to it. Paragraph 9(2) provided that paragraph 4 of the Schedule did not apply to any employment where under the contract of employment the employee ordinarily worked outside Britain. Paragraph 4(1) provided that: ‘in every employment to which this paragraph applies every employee shall have the right not to be unfairly dismissed by his employer and the remedy of an employee so dismissed for breach of that right shall be by way of complaint to an Industrial Tribunal under part three of this Schedule and not otherwise’.
Held: Phillips J stated:- ‘This being a question as to jurisdiction, the Industrial Tribunal should have taken the point themselves even if the parties did not; and they cannot merely by silence confer upon themselves a jurisdiction which they do not have’.
‘It seems to us that in a case like this where, as the law then was, a mistake may have been made and the matter has come to light, it is desirable for the Industrial Tribunal, if there is an application for review, to correct the matter even if it involves overturning the original decision of the Industrial Tribunal. From time to time we have appeals sometimes in relation to small matters of compensation, sometimes in relation to matters where there has been a slip or an error of law of some sort or another and the mistakes have come to light quite soon after the hearing of the Industrial Tribunal. It seems to us that the convenient course is for such mistakes, when they occur and are recognised, to be corrected by review rather than by appeal because the appeal takes much longer and is much more expensive.’

Judges:

Phillips J

Citations:

[1978] ICR 782

Statutes:

Trade Union and Labour Relations Act 1974 1 Sch 1

Cited by:

Cited – Leicester University Students Union v Mahomed EAT 6-Dec-1994
The Union appealed a finding of unfair dismissal and discrimination. It denied that she had sufficient continuous service, saying that the peirod suggested involved working for two employers. It also said that since the objection went as to . .
Cited – Trimble v Supertravel Ltd EAT 1982
The Industrial Tribunal had held that the appellant’s dismissal was unfair but then decided that she had failed to mitigate her loss. At the conclusion of the hearing, the Tribunal announced its decision and stated that she was to get no . .
Cited – Williams v Ferrosan Ltd EAT 5-Mar-2004
Acting on guidance, the parties representatives and the tribunal had assumed that part of the award relating to loss of future earnings would not be taxable. The question now was whether the tribunal had power of its own motion to review its . .
Cited – Council of The City of Newcastle Upon Tyne v Marsden (Rev 1) EAT 23-Jan-2010
EAT PRACTICE AND PROCEDURE – Review
Claim under Disability Discrimination Act 1995 dismissed at PHR because Claimant not available to give evidence as to long-term effect of injury – Judge willing to offer . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 May 2022; Ref: scu.270358

Brook Lane Finance Co Ltd v Bradley: EAT 1988

Popplewell J said: ‘We are however faced with what, at any rate, appear to be two conflicting Court of Appeal decisions. It is clear to us that ‘the time of transfer’ must be construed in the same way in relation to the Employment Protection (Consolidation) Act 1978 as to the Transfer of Undertakings (Protection of Employment) Regulations 1981. Is the time of transfer ‘a moment in time’ or ‘a period of time.’ The Court of Appeal in Teesside Times Ltd. v Drury [1980] ICR 338 although obiter, plainly in the majority decision took the view that it could be over a period of time albeit per Goff LJ it might only be a short period so as to enable the transaction to be carried out. In our judgment we are bound by the decision of the Court of Appeal in Secretary of State for Employment v Spence [1986] ICR 651. It is plainly directly on point. Although Teesside was not cited, it postdates Teesside. The judgments in Teesside were obiter. The three Lords Justices were not speaking with one voice and accordingly we feel ourselves bound by the decision in Secretary of State for Employment v Spence.’

Judges:

Popplewell J

Citations:

[1988] IRLR 283, [1988] ICR 423

Statutes:

Employment Protection (Consolidation) Act 1978

Citing:

Cited – Secretary of State for Employment v Spence CA 1986
The employers went into receivership in November 1983. A number of the employees were made redundant but the receiver hoped to carry on with the remaining workforce until February. However, a major customer threatened to withdraw its custom unless . .

Cited by:

Applied – Senior Heat Treatment Ltd v Bell and others EAT 20-Jun-1997
The employer appealed a finding as to the period of continuous employment of the claimants. Before a transfer of the undertaking to the employer, the former emloyer had paid redundancy payments to several employees, some whom in practice left to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 May 2022; Ref: scu.270315

Harvey v Port of London (Tilbury) Ltd: 1999

The various jurisdictions enjoyed by the Employment Tribunal require that claims be presented within the specified time limits (subject to the applicable power of extension), and those limits have always been regarded as going to jurisdiction.

Judges:

Lindsay P

Citations:

[1999] ICR 1030

Jurisdiction:

England and Wales

Cited by:

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: 15 May 2022; Ref: scu.270713

Provident Group plc v Hayward: 1989

Where there was a period of notice under a contract of employment, and it was not an excessive period, then it may be said, forcefully and correctly, that employers should be able to obtain its protection by paying the employee and preventing him working elewhere during that time: ‘I certainly would not wish to countenance the view that any employee can snap his fingers against his employers and disregard the notice provisions and obligations in his service agreement during his period of notice’

Judges:

Dillon LJ

Citations:

[1989] ICR 160

Cited by:

Applied – SG and R Valuation Service Co v Boudrais and others QBD 12-May-2008
The claimant sought to require the defendants not to work during their notice period to achieve the equivalent of garden leave despite there being no provision for garden leave in the contracts. It was said that the defendants had conspired together . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 May 2022; Ref: scu.270354

Sogbetun v Hackney London Borough Council: EAT 9 Oct 1998

Where the parties to an industrial tribunal application had consented to the matter being dealt with by a chairman sitting alone and disputes of fact looked as if they might arise, the chairman should refer the matter to a full tribunal for hearing.

Citations:

Times 09-Oct-1998, Times 28-Oct-1998

Statutes:

Industrial Tribunals Act 1996 4(5)

Jurisdiction:

England and Wales

Employment

Updated: 15 May 2022; Ref: scu.89389

Smith v Secretary of State for Trade and Industry: EAT 15 Oct 1999

The claimant had been sole director of a company which went into liquidation. He sought a redundancy payment from the respondent under the 1996 Act. It was refused. The tribunal had applied Buchan. It had refused to hear an argument that the tribunal chairman was also employed by the respondent and could not therefore be independent.
Held: Although the Human Rights Act was not yet in force, when looking at a case which would be reheard after it has come into effect, it is right to allow for the Act. Article 6 of the Convention allows a fair trial, yet in this case, the bankrupt’s representative, and the tribunal hearing his case were both indirectly employees of the respondent. As a bankrupt, the claimant’s affairs were managed by the Official Reciver, again an employee of the respondent. The appellant should have been given chance to argue the point before the tribunal. In any event that fact that the claimant was a controlling shareholder did not of itself disqualify him from being an employee and entitled to a redindancy payment. His appeal was allowed.

Judges:

Morison J

Citations:

Times 15-Oct-1999, Gazette 10-Nov-1999

Statutes:

Human Rights Act 1998, European Convention on Human Rights and Fundamental Freedoms 6.1, Employment Rights Act 1996 166

Jurisdiction:

England and Wales

Citing:

Cited – Buchan and Ivey v Secretary of State for Employment EAT 20-Jun-1996
. .
See Also – Smith v Secretary of State for Trade and Industry EAT 13-Oct-1997
. .
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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Insolvency, Employment

Updated: 15 May 2022; Ref: scu.89343

Powdrill and Another v Watson and Another: HL 23 Mar 1995

A receiver of a companies assets, who employed former staff of the company, beyond an initial period of 14 days, becomes personally responsible for their employment contracts, and consequently becomes liable for making redundancy payments. The 1870 Act could be used to determine arrears of salary attributable to the period prior to the administrators’ appointment.
Lord Browne-Wilkinson said: ‘This ‘rescue culture’ which seeks to preserve viable businesses was and is fundamental to much of the Act of 1986. Its significance in the present case is that, given the importance attached to receivers and administrators being able to continue to run a business, it is unlikely that Parliament would have intended to produce a regime as to employees’ rights which renders any attempt at such rescue either extremely hazardous or impossible.’

Judges:

Lord Browne-Wilkinson

Citations:

Independent 23-Mar-1995, Gazette 03-May-1995, Times 23-Mar-1995, [1995] 2 AC 394

Statutes:

Insolvency Act 1986 19 44, Apportionment Act 1870 2

Jurisdiction:

England and Wales

Citing:

Appeal from – Powdrill and Another v Watson and Another CA 1-Mar-1994
The administrators of a company are deemed to have accepted the employees who had been kept on after 14 days. A letter from them denying that they would accept them as employees, was insufficient to prevent adoption of the contracts. . .

Cited by:

Appealed to – Powdrill and Another v Watson and Another CA 1-Mar-1994
The administrators of a company are deemed to have accepted the employees who had been kept on after 14 days. A letter from them denying that they would accept them as employees, was insufficient to prevent adoption of the contracts. . .
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 – Krasner v McMath; in Re Huddersfield Fine Worsteds Limited CA 12-Aug-2005
The administrators had adopted the contracts of certain employees, who now claimed that the protective awards should have priority to the expenses of the administration.
Held: The payments did fall within paragraph 99(5) and do not have . .
Cited – Freakley and others v Centre Reinsurance International Company and others HL 11-Oct-2006
When it became clear that the company would be financially overwhelmed by asbestos related claims, a voluntary scheme of arrangement was proposed under s425. The House was now asked whether the right to re-imbursement of the company’s lawyers after . .
Lists of cited by and citing cases may be incomplete.

Employment, Insolvency

Updated: 15 May 2022; Ref: scu.84826

Goodwin v Patent Office: EAT 3 Feb 1999

Tribunals looking at Disability Discrimination should check the four factors in the Act without losing the overall picture. Assistance was available from the WHO Classification of Diseases. Being able to carry out a task did not mean ability was not impaired. ‘The tribunal should bear in mind that with social legislation of this kind, a purposive approach to construction should be adopted. The language should be construed in a way which gives effect to the stated or presumed intention of Parliament, but with due regard to the ordinary and natural meaning of the words in question. ‘ and ‘the tribunal must consider whether the adverse effect is substantial. This is a word which is potentially ambiguous. ‘Substantial’ might mean ‘very large’ or it might mean ‘more than minor or trivial’. Reference to the Guide shows that the word has been used in the latter sense’ and ‘The Tribunal will wish to examine how the applicant’s abilities had actually been effected at the material time, whilst on medication, and then to address their minds to the difficult question as to the effects which they think there would have been but for the medication: the deduced effects. The question is then whether the actual and deduced effects on the applicant’s abilities to carry out normal day to day activities is clearly more than trivial.’

Judges:

Morison P

Citations:

Times 03-Feb-1999, [1999] IRLR 4, [1999] ICR 302

Statutes:

Disability Discrimination Act 1995 1

Jurisdiction:

England and Wales

Citing:

See also – Goodwin v Patent Office EAT 21-Oct-1998
An ability to carry out normal domestic day to day tasks did not mean that a physical impairment was not substantial. The word ‘substantial’ is potentially ambiguous. In that it might mean ‘very large’ or ‘more than minor or trivial’. The code of . .

Cited by:

Cited – Rugamel v Sony Music Entertainment UK Ltd; McNicol v Balfour Beatty Rail Maintenance Ltd EAT 28-Aug-2001
Both cases questioned the extent, as a disability, of functional or psychological ‘overlay’, where there may be no medical condition underlying the symptoms which the employee claims to be present. Neither claimant had asserted any psychological . .
See also – Goodwin v Patent Office EAT 21-Oct-1998
An ability to carry out normal domestic day to day tasks did not mean that a physical impairment was not substantial. The word ‘substantial’ is potentially ambiguous. In that it might mean ‘very large’ or ‘more than minor or trivial’. The code of . .
Cited – 1 Pump Court Chambers v Horton EAT 2-Dec-2003
The chambers appealed a finding of discrimination, saying that a pupil was not a member of the set so as to qualify under the Act.
Held: The barristers set or chambers was a trade organisation, but the position of a pupil barrister was not . .
Cited – Murphy v Sheffield Hallam University EAT 11-Jan-2000
The claimant challenged refusal of his claim of discrimination. He was profoundly deaf. He applied for work, and indicated his disability, but no provision was made for a signer to appear at the interview. The interview was re-arranged, but he . .
Cited – Council of the City of Manchester v Romano, Samariz CA 1-Jul-2004
The authority sought to evict their tenant on the ground that he was behaving in a way which was a nuisance to neighbours. The tenant was disabled, and claimed discrimination.
Held: In secure tenancies, the authority had to consider the . .
Cited – A McKenzie v East Sussex County Council EAT 13-Dec-1999
EAT Disability Discrimination – Disability
The parties sought to settle the appeal by consent. The Tribunal was obliged to consider the merits before making an order. In this case the order requested was . .
Cited – London Borough of Lewisham v Malcolm and Disability Rights Commission CA 25-Jul-2007
The court was asked, whether asked to grant possession against a disabled tenant where the grounds for possession were mandatory. The defendant was a secure tenant with a history of psychiatric disability. He had set out to buy his flat, but the . .
Cited – Abadeh v British Telecommunications Plc EAT 19-Oct-2000
EAT The claimant appealed dismissal of his claim under the 1995 Act. He was a telephone operator injured after a sudden shriek in his ear. They had found him not to be disabled within the 1995 Act.
Held: . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 15 May 2022; Ref: scu.80924

Connor v Secretary of State for Scotland: OHCS 22 Mar 2000

A prison governor sent out a warder with two violent prisoners where it was policy not to bring such prisoners together. The warder suffered injury as a result. There could be no breach of statutory duty where the governor exercised a discretion given to him as to how a statutory function was to be fulfilled. Nevertheless he might be liable in negligence.

Citations:

Times 22-Mar-2000

Employment, Health and Safety, Negligence

Updated: 15 May 2022; Ref: scu.79455

Credit Suisse First Boston (Europe) Ltd v Padiachy and Others: QBD 16 Jul 1998

Contrary position resulting from European judgement was inescapable. Better terms of employment imposed on an employee after transfer of undertaking were not enforceable against the employee.

Citations:

Times 16-Jul-1998

Statutes:

Acquired Rights Directive 77/187/EEC

Jurisdiction:

England and Wales

Employment

Updated: 15 May 2022; Ref: scu.79617

Chorion Plc and Others v Lane: ChD 7 Apr 1999

A former executive director brought a claim for unfair dismissal in the Employment Tribunal. Chorion brought proceedings in the Chancery Division alleging wrongful acts committed by him while he was a senior executive.
Held: There was an overlap in the issues to be tried in both sets of proceedings, and it was wrong to have two tribunals investigating what are essentially the same facts. In case of an overlap between issues before an Industrial Tribunal and the High Court, the Tribunal matter should be stayed pending the outcome of the other case. Laddie J reached his conclusion that such an Order should be granted because: ‘it would be wrong for essentially the same serious issues to be run in two separate tribunals . . I have come to the conclusion, notwithstanding the powerful arguments advanced by Mr Collins, it would be wrong for essentially the same issues to be run in two separate tribunals. It seems to me that in view of the allegations of dishonesty which are to be found permeating the whole of this dispute it is right and proper that the issues should be determined in one set of proceedings. I am of the view that the preferable forum is the High Court.’

Judges:

Laddie J

Citations:

Times 07-Apr-1999, Gazette 26-May-1999, CH-1999 00233

Cited by:

Cited – Clyde and Co Llp and Another v Winkelhof QBD 22-Mar-2011
The claimant firm of solicitors sought an order requiring the defendant to amend her employment tribunal claim so as to accord with the partnership agreement to which she was party, and to submit to arbitration. The defendant said that statutory . .
Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice

Updated: 15 May 2022; Ref: scu.79110

Stepek (J) Ltd v Hough: NIRC 1973

Citations:

[1973] 8 ITR 516 NIRC

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 – 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 . .
Mentioned – 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: 15 May 2022; Ref: scu.270012

Redcar and Cleveland Borough Council v Bainbridge and others: EAT 16 Oct 2006

EAT Equal pay in the North East. Women whose jobs had been rated as equivalent with comparator men (and in some cases had been rated higher) were paid less because of the effect of bonuses and other extra payments known as attendance allowances and wet weather payments. Disparate impact was conceded and indeed, in the case of a number of claimants who submitted their claims before a particular date, it was conceded that they were entitled to the bonuses. However, for claims submitted after that date the employers claimed that the difference in pay was objectively justified because it resulted from productivity schemes which conferred real efficiency savings on the Council and were largely self financing. The Tribunal held in some cases the bonuses no longer reflected any genuine incentive bonus scheme, and even with respect to the group of workers where they did, namely refuse collectors, the extra bonus was not justified because it would have been possible to construct a different kind of bonus scheme for the claimants, albeit not one which made any relevant cost savings. It was conceded by the employer that where the claimants could have been subject to a similar productivity scheme, then the bonus payments could not be justified. The Tribunal therefore had to consider whether this would have been possible. They found that although in some cases analogous productivity schemes could not have been constructed, in a number of other cases there was no evidence before them to suggest that they could not, and since the burden was on the employer, these cases succeeded. The Tribunal also held that the attendance allowances were not justified but that the wet weather payments were justifiably paid only to those who worked in inclement weather. They also held that claimants could legitimately compare themselves with a comparator rated lower in the job evaluation scheme.
The claims related to a period pre April 2004. Since that date a new job evaluation scheme has been entered into. This provided pay protection (red circling) for those whose pay was adversely affected as a consequence. The claimants contended that if their claims succeeded (and some had been conceded) then they should also be given the benefit of pay protection on the basis that although they were not in fact in receipt of the higher pay, they ought to have been had they been given equal pay. Accordingly they contended that the employers could not rely upon a genuine material factor defence under s.1(3) of the Equal Pay Act because the factor relied upon was not a material factor ‘other than sex’ within the meaning of that section. It was sex tainted. The employers contended that the historic sex discrimination was irrelevant. The purpose of pay protection was to cushion employees from the practical consequences of having to move towards lower pay; if they had not in fact been in receipt of that pay, and adjusted their financial arrangements accordingly, it was wholly reasonable that they did not qualify for the payment. The Employment Tribunal found against the Council.
EAT
There were various appeals and cross appeals. The Council appealed the finding that there was no objective justification with respect to the refuse workers; that comparison could be made with those rated lower; that there was no evidence that bonus incentive schemes could not have been introduced for certain of the claimant groups; and the conclusion that the claimants should receive the protected pay which would have been available to them had they been paid their legal entitlement at the relevant time. The claimants cross appealed certain detailed findings relevant to particular claimants, principally on perversity grounds.
The EAT upheld two of the grounds of appeal. They held that the Tribunal had erred in finding that the fact that some other non-incentive based bonus scheme could have been introduced for some claimants defeated the council’s GMF defence with respect to those claimants; and that the Tribunal was wrong to say that there was no evidence relating to the issue whether some of the claimant groups could or could not be subject to a productivity scheme. The other grounds of appeal, and the grounds raised in the cross appeal, were all dismissed.

Judges:

The Honourable Mr Justice Elias (President)

Citations:

[2006] UKEAT 0135 – 06 – 1610, UKEAT/0135/06

Links:

Bailii, EATn

Jurisdiction:

England and Wales

Cited by:

See Also – Redcar and Cleveland Borough Council v Bainbridge and others EAT 15-Nov-2006
. .
See Also – Bainbridge and others, Redcar and Cleveland Borough Council v Redcar and Cleveland Borough Council, Williams and others EAT 31-Jan-2007
EAT Practice and Procedure – Compromise. . .
See Also – Bainbridge and others v Redcar and Cleveland Borough Council EAT 23-Mar-2007
EAT Practice and Procedure – Compromise
Equal Pay Act – Work rated equivalent; Damages/Compensation
This case raises three issues, two of which are of particular significance in the field of equal . .
See Also – Redcar and Cleveland Borough Council v Bainbridge and others CA 21-Sep-2007
The council appealed against a finding of discrimination under the 1970 Act, saying it was impermissible to use as a comparator somebody found after a job evaluation study to be of a different, but lower grade, but with higher pay.
Held: The . .
See Also – Redcar and Cleveland Borough Council v Bainbridge and others (‘Bainbridge 1’) CA 29-Jul-2008
Pay protection provisions are commonly adopted, and provided any differential in pay does not continue for too long, they may justify what would otherwise be unlawful indirect discrimination. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 May 2022; Ref: scu.247827

Redcar and Cleveland Borough Council Jarvis Plc v Degnan, Carter, Forster, Johnson: EAT 27 Jul 2004

EAT Equal Pay Act – Article 141 – A fixed bonus and attendance allowance payable for performance of a contractual duties during normal working hours are payable under a distinct part or term of a contract, together with the hourly rate, and not separate parts or terms. Correspondingly, for the purposes of an equal pay comparison, all three are to be aggregated, by direction by the number of hours normally worked, an hourly rate calculated. It is with the hourly rate that the comparison is to be made.
EAT Equal Pay Act – Article 141

Judges:

The Honourable Mr Justice Mitting

Citations:

UKEAT/321/04/SM, UKEAT/0321/04, [2004] UKEAT 0321 – 04 – 2707

Links:

Bailii, EATn

Statutes:

Equal Pay Act 1970 1(2)(b)

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 15 May 2022; Ref: scu.222399

Redcar and Cleveland Borough Council v Scanlon: EAT 22 May 2007

Unfair dismissal – Automatically unfair reasons/ Reasonableness of dismissal
Appeal on the grounds that the Employment Tribunal had not applied the correct statutory tests of causation under s.103A Employment Rights Act 1996 and s.4(1) Sex Discrimination Act 1975 upheld. The Employment Tribunal erred in finding only a causation link and failed to apply the statutory tests in each case. Case remitted to the same Employment Tribunal to apply the correct statutory tests in the light of its findings of fact.

Citations:

[2007] UKEAT 0369 – 06 – 2205

Links:

Bailii

Statutes:

Employment Rights Act 1996 103A, Sex Discrimination Act 1975 4(1)

Jurisdiction:

England and Wales

Citing:

See Also – Redcar and Cleveland Borough Council v Scanlon EAT 27-Feb-2007
EAT Unfair Dismissal – Automatically unfair reasons. . .

Cited by:

See Also – Redcar and Cleveland Borough Council v Scanlon EAT 20-May-2008
EAT VICTIMISATION DISCRIMINATION: Whistleblowing / Protected disclosure
Employment Tribunal did not go beyond the remit directed by the Employment Appeal Tribunal in further considering the Claimant’s . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 15 May 2022; Ref: scu.252475

Tait v Redcar and Cleveland Borough Council: EAT 2 Apr 2008

EAT Jurisdictional Points – Claim in time and effective date of termination
The Appellant employee brought a claim (inter alia) that he had been subjected to a disciplinary suspension because he was a ‘whistleblower’. The Tribunal decided that the claim was out-of-time. Decision upheld on the basis that, although the suspension was ‘an act extending over a period’ within the meaning of sec 48 (3) (a) of the Employment Rights Act1996, it had come to an end more than six months before the institution of proceedings.

Citations:

[2008] UKEAT 0096 – 08 – 0204

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hogg v Dover College EAT 1990
The claimant asserted unfair dismissal after his contract was changed to provide that his post as head of the history department would be part time. He had been ill, and the head teacher reduced his teaching periods. He accepted the change in . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 May 2022; Ref: scu.266512

British Industrial Plastics Ltd v Ferguson: HL 1939

The plaintiff’s former employee offered the defendant information about one of the plaintiff’s secret processes which he, as an employee, had invented. The defendant knew that the employee was obliged by his contract not to reveal trade secrets but mistakenly thought that if the process was patentable, it would be the exclusive property of the employee. He took the information in the honest belief that the employee would not be in breach of contract.
Held: The former employer’s appeal failed. If a third party, with knowledge of a contract between the contract breaker and another, has dealings with a contract breaker which the third party knows to be inconsistent with the contract, he has committed an actionable interference. However, the defendant was not guilty, in this state of mind, of having induced a breach of contract. Mr Ferguson did not deliberately abstain from inquiry into whether disclosure of the secret process would be a breach of contract. He negligently made the wrong inquiry, but that is an altogether different state of mind.

Citations:

[1940] 1 All ER 479

Jurisdiction:

England and Wales

Citing:

Appeal from – British Industrial Plastics Ltd v Ferguson CA 1938
The defendant received information about a patentable invention from the plaintiff’s former employee. He said that his (mistaken) view was that since the employee had himself made the invention, it was patentable by him, and not covered by the . .

Cited by:

Cited – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Lists of cited by and citing cases may be incomplete.

Employment, Information, Torts – Other

Updated: 14 May 2022; Ref: scu.251743

Tanner v D T Kean Ltd: EAT 1978

The court was asked whether the words used by the claimant were an unambiguous statemet of an intent to resign.

Judges:

Phillips P

Citations:

[1978] IRLR 110

Cited by:

Cited – Kwik-Fit (GB) Ltd v Lineham EAT 5-Feb-1992
The applicant claimed unfair dismissal. The employer replied that the employee had resigned.
Held: The employer’s appeal was dismissed. The resignation had taken place in a heated moment, and it was not conclusive. An employer may not be able . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 14 May 2022; Ref: scu.251735

Martin v Yeoman Aggregates Ltd: EAT 1983

A director of the employer had engaged in an argument with the employee claimant, which resulted in the director telling the employee he was dismissed. Within five minutes, the director cooled down and retracted the dismissal. The employee insisted that he was dismissed, and sought to pursue his statutory remedies for unfair dismissal.
Held: It was possible to have second thoughts. Words of dismissal spoken in the heat of the moment were ineffective if withdrawn immediately the heat died down.

Citations:

[1983] ICR 314

Cited by:

Cited – Kwik-Fit (GB) Ltd v Lineham EAT 5-Feb-1992
The applicant claimed unfair dismissal. The employer replied that the employee had resigned.
Held: The employer’s appeal was dismissed. The resignation had taken place in a heated moment, and it was not conclusive. An employer may not be able . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 14 May 2022; Ref: scu.251737

J T Stratford and Son Ltd v Lindley: HL 1965

Lord Reid considered the tort of causing loss by unlawful means where the defendant was accused of calling a strike: ‘the respondent’s action made it practically impossible for the appellants to do any new business with the barge hirers. It was not disputed that such interference with business is tortious if any unlawful means are employed.’

Judges:

Lord Reid

Citations:

[1965] AC 269, [1966] 1 All ER 1013, [1966] 1 WLR 691

Jurisdiction:

England and Wales

Cited by:

Cited – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Employment

Updated: 14 May 2022; Ref: scu.251730

Chesham Shipping Ltd v Rowe: 1977

Citations:

[1977] IRLR 391

Cited by:

Cited – Kwik-Fit (GB) Ltd v Lineham EAT 5-Feb-1992
The applicant claimed unfair dismissal. The employer replied that the employee had resigned.
Held: The employer’s appeal was dismissed. The resignation had taken place in a heated moment, and it was not conclusive. An employer may not be able . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 14 May 2022; Ref: scu.251736

David v New England College of Arundel: 1977

Citations:

[1977] 1 ICR 6

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.

Employment, Contract

Updated: 14 May 2022; Ref: scu.250996

Chapman v Aberdeen Construction Group: 1991

It having been conceded that contracts of service fell within section 15 of the 1977 Act, the court found that the question whether the contract was a consumer contract depended on the circumstances. Though the employee pursuer was to be regarded as a consumer in relation to his contract of employment with the defenders, the term consumer may not sit comfortably on an employee in relation to his work.

Judges:

Lord Caplan

Citations:

[1991] IRLR 505

Statutes:

Unfair Contract terms Act 1977 15

Cited by:

Cited – Brigden v American Express Bank Ltd 2000
A clause providing that the employer could dismiss an employee in the first two years of employment without implementing the disciplinary procedure was not void under the 1977 Act. Section 3 extended to contracts of employment and although the . .
Cited – Commerzbank Ag v Keen CA 17-Nov-2006
The bank had sought summary dismissal of a claim for non-payment of bonuses to the claimant a former employee, and now appealed refusal of its request for summary dismissal, saying that the claim had no prospect of success. The claimant said that . .
Lists of cited by and citing cases may be incomplete.

Contract, Employment, Scotland

Updated: 14 May 2022; Ref: scu.246222

Oliver v Nautilus Steam Shipping Co Ltd: 1903

Where an employee was injured at work, but by an outside person, section 6 of the 1897 Act provides that the worker could ‘at his option, proceed, either at law against that person to recover damages, or against his employer for compensation under this Act, but not against both’. If compensation under the Act was paid, the ’employer [was] entitled to be indemnified’ by that other person.
Receipts given ‘without prejudice’ were accepted by the employers.
Held: The workman had not exercised the option under the Act.

Citations:

[1903] 2 KB 639

Statutes:

Workmen’s Compensation Act 1897 6

Cited by:

Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Employment, Personal Injury

Updated: 14 May 2022; Ref: scu.243136

Harper v National Coal Board: 1980

If a reason for dismissal is whimsical or capricious, it will be excluded from consideration as a reason supporting a dismissal.

Judges:

Lord McDonald

Citations:

[1980] IRLR 260[8]

Cited by:

Cited – Willow Oak Developments Ltd. (T/A Windsor Recruitment) v Silverwood and others CA 25-May-2006
The employer appealed a finding that he had been unreasonable in seeking to vary the employment contracts of his staff by adding post employment restrictive covenants, and that the consequent dismissals were unfair. Copies of the new contracts had . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 14 May 2022; Ref: scu.242253

Sartor v P and O European Ferries (Felixstowe) Ltd: CA 1992

When considering whether an employer had acted reasonably in a disciplinary hearing, all that section 57 required was (Purchas LJ) ‘that the employer should have a reason falling within the provisions and that, in reaching that reason, he acted reasonably’.
Ralph Gibson LJ said: ‘The appeal was by rehearing and there was on that occasion no significant defect in the proceedings. Any defects in what had gone before were cured by the opportunity to appeal.’
The fact that a particular manager has been involved at an earlier stage does not necessarily prevent him sitting on a disciplinary hearing.
The question of the fairness of the procedures and the hearings at either stage of the disciplinary hearing or the appeal process, were fair or fundamentally flawed, is a question of fact for the Industrial Tribunal.

Judges:

Purchas LJ, Ralph Gibson LJ

Citations:

[1992] IRLR 271

Jurisdiction:

England and Wales

Cited by:

Cited – Taylor v OCS Group Ltd CA 31-May-2006
The employer appealed against findings of unfair dismissal and disability discrimination. The employee worked in IT. He was profoundly deaf, but could lip read and read sign language. He had been accused of obtaining improper access to a senior . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 14 May 2022; Ref: scu.242343

Wetherall (Bond Street W1) Ltd v Lynn: 1978

The court considered a claim of constructive dismissal against a claim by an employee that the employer had failed to meet its duty of care to protect an employee against bullying or ill treatment by other members of staff. If the respondent had not provided enough work for the appellant so as to enable her to make a reasonable earning, the respondent could well be the sort of employer of whom an employee is entitled without notice to rid himself.

Citations:

[1978] 1 WLR 200

Jurisdiction:

England and Wales

Cited by:

Cited – Waters v Commissioner of Police for the Metropolis HL 27-Jul-2000
A policewoman, having made a complaint of serious sexual assault against a fellow officer complained again that the Commissioner had failed to protect her against retaliatory assaults. Her claim was struck out, but restored on appeal.
Held: . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 14 May 2022; Ref: scu.241284

The Marley Tile Co Ltd v Johnson: 1982

A post employment non-solicitation restrictive covenant failed because it prevented the former employee dealing with any of the employer’s customers, and not just those the employee had himself assisted. The employee had had contact with, at most, 15 or 16 per cent of the defined class of customers.

Citations:

[1982] IRLR 75

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: 14 May 2022; Ref: scu.240036

Edmundson v Render: 1905

The court considered a suggestion that a solicitor was not in breach of a non-compete clause promising to refrain from practising within a certain area where the work was carried out from an office outside the area.
Buckley J said: ‘The other [class of case] which I think would be equally a breach, is as follows. Suppose a client residing within the prohibited area comes to Harrogate to consult the solicitor, and the solicitor, after taking time to consider the matter, advises him by letter sent to him at his address within the prohibited area, is he acting as solicitor within the area? In my opinion he is. It does not matter whether he goes in person to the man ‘s house and says ‘I advise you’ so and so, or whether he writes him a letter and says, ‘I advise you’ so and so.’

Judges:

Buckley J

Citations:

[1905] 2 Ch 320

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, Legal Professions

Updated: 14 May 2022; Ref: scu.240033

Hollis and Co v Stocks: CA 2000

The court upheld a solicitor’s covenant restricting him from practising within ten miles of the firm for twelve months.
Held: The employee’s appeal against the upholding of the covenant as reasonable failed: ‘The claimant’s are a small firm with a local clientele, much of it being clients who are frequently in trouble with the law in all sorts of fashions, in crime, in matrimonial affairs, in motoring matters, frequently having extended families with children who are getting into trouble and new generations appearing from time to time that provide the staple work o a small solicitor in the provinces . . and other similar small towns . . Such clients frequently attach themselves to one firm and they and their families come back to the same firm throughout generations for their divorce cases and for their matrimonial troubles and for their petty crime and on occasions their more substantial crime.’ The court respected the county court’s judge’s knowledge of the local area.

Citations:

[2000] IRLR 712

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: 14 May 2022; Ref: scu.240035

Powerhouse Retail Ltd and others v Burroughs and others: EAT 2004

Citations:

[2005] ICR 222

Jurisdiction:

England and Wales

Cited by:

Appeal from – Powerhouse Retail Ltd and others v Burroughs and others CA 7-Oct-2004
The court considered the non-admission of part time workers to pension scheme benefits after a transfer of employment.
Held: (Pill LJ) While the effect of TUPE was that the continuing contract of employment was deemed always to have been with . .
At EAT – Powerhouse Retail Ltd and others v Burroughs and others; Preston and others v Wolverhampton Healthcare NHS Trust and others (No 3) HL 8-Mar-2006
The appellants said they had been had been discriminated against on the grounds of their sex by the TUPE Regulations. Their discrimination cases had been dismissed as out of time.
Held: The employees’ appeals were dismissed: ‘A statute cannot . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 14 May 2022; Ref: scu.239030

Wilson v Maynard Shipbuilding Consultants AB: CA 1978

The applicant, a management consultant was said by his employer to ‘ordinarily work outside Great Britain’ and thus to be outside the protection of UK employment legislation.
Held: The legislation had in ‘deceptively simple-looking words’ thrown up some problems which he did not think Parliament had foreseen. The Act threw emphasis on the contract of employment at its inception: ‘It means that the question whether or not this important statutory right exists is settled at, and can be ascertained by reference to, the time of the making of the contract.’ Megaw LJ: ‘In a case such as the present it appears to us that the correct approach is to look at the terms of the contract, express and implied (with reference, it may be, to what has happened under the contract, for the limited purpose which we have expressed above) in order to ascertain where, looking at the whole period contemplated by the contract, the employee’s base is to be. It is, in the absence of special factors leading to a contrary conclusion, the country where his base is to be which is likely to be the place where he is to be treated as ordinarily working under his contract of employment. Where his base, under the contract, is to be will depend on the examination of all relevant contractual terms. These will be likely to include any such terms as expressly define his headquarters, or which indicate where the travels involved in his employment begin and end; where his private residence – his home – is, or is expected to be; where, and perhaps in what currency, he is to be paid; whether he is to be subject to pay National Insurance Contributions in Great Britain. These are merely examples of factors which, among many others that may be found to exist in individual cases, may be relevant in deciding where the employee’s base is for the purpose of his work, looking to the whole normal, anticipated, duration of the employment.’

Judges:

Megaw LJ

Citations:

[1978] ICR 376, [1978] QB 665

Statutes:

Employment Protection Act 1975 119(5)

Jurisdiction:

England and Wales

Cited by:

Cited – Serco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL 26-Jan-2006
Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
Cited – Ravat v Halliburton Manufacturing and Services Ltd SC 8-Feb-2012
The respondent was employed by the appellant. He was resident in GB, and was based here, but much work was overseas. At the time of his dismissal he was working in Libya. The company denied that UK law applied. He alleged unfair dismissal.
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 14 May 2022; Ref: scu.238148

Perth and Kinross Council v Donaldson and Others: 2004

The court considered whether the TUPE regulations in going beyond what was required under the European Directive was invalid.
Held: ‘If it is to be suggested that the 1981 Regulations have effectively allowed the Directive to operate in that context, we consider that it falls foul of the approach that we adopted in Addison v Denholm Ship Management (UK) Ltd [1997] ICR 770 to the effect that it is going beyond the scope of the Directive and would therefore in that respect be ultra vires. The issue requires to be addressed by primary legislation.’

Judges:

Lord Johnson

Citations:

[2004] ICR 667

Jurisdiction:

Scotland

Citing:

Cited – Addison v Denholm Ship Management (UK) Ltd EAT 1997
An issue before the EAT was whether regulations made under section 2(2) of the 1972 Act applied to the crew of a floating hotel/ship in the North Sea.
Held: According to European law the UK could choose whether or not to apply employment . .

Cited by:

Cited – Oakley Inc v Animal Ltd and others CA 20-Oct-2005
It was argued that the Secretary of State, when implementing the Directive in the 2001 Regulations, had exceeded his powers in preserving provisions of the Registered Designs Act. The judge had held the Seceretary had exceeded his powers. The . .
Lists of cited by and citing cases may be incomplete.

Employment, Constitutional

Updated: 14 May 2022; Ref: scu.235765

Regina v Broxtowe Borough Council ex parte Bradford: CA 2000

A tennis coach wanted employment with the borough council as a coach. It made inquiries of another council and found that he had been suspected of improper conduct towards young girls. It not only refused him a job but imposed a ban upon him teaching in their public tennis courts interfering with the existing and further jobs that he had obtained providing coaching on those courts to private individuals.
Held: The Court stated the principles: ‘Judicial Review is not concerned with technicalities in relation to the conduct of public bodies, it is concerned with ensuring justice. However, where an applicant for judicial review is denied a right to be heard which should have been granted to him, the courts should exercise considerable caution before concluding that the absence of the hearing has not resulted in any injustice. The correct approach in this situation was clearly indicated by Bingham LJ, as he then was, in R v The Chief Constable of the Thames Valley Police ex parte Cotton [1990] IRLR 344. At p352, paragraph 60, Bingham LJ said: ”While cases may no doubt arise in which it can properly be held that denying the subject of a decision an adequate opportunity to put his case is not in all the circumstances unfair, I would expect these cases to be of great rarity. There are a number of reasons for this: ‘1. Unless the subject of the decision has had an opportunity to put his case it may not be easy to know what case he could or would have put if he had had the chance. ‘2. As memorably pointed out by Megarry J in John v Rees [1970] Ch 345 at p402, experience is by no means always that which happens. It is generally desirable that decision-makers should be reasonably receptive to argument, and it would therefore be unfortunate if the complainant’s position became weaker as the decision-maker’s mind became more closed. In considering whether the complainant’s representations would have made any difference to the outcome the court may unconsciously stray from its proper province of reviewing the propriety of the decision-making process into the forbidden territory of evaluating the substantial merits of a decision. This is a field in which appearances are generally thought to matter. Where a decision-maker is under a duty to act fairly the subject of the decision may properly be said to have a right to be heard, and rights are not to be lightly denied. The decision in that case was referred to the learned judge. It is apparent from his judgment that he had the guidance indicated in that paragraph of Bingham LJ’s judgment in mind when he gave his judgment. I recognise that, in relation to the matters to which I will turn, the council had a difficult task. They were under a heavy responsibility not to expose children in their locality unnecessarily to the risk of molestation. They are required to take all steps which are reasonably open to them to protect children from such conduct. However, they also have a responsibility not to use their position as a local authority to interfere with an individual’s right to earn his living without proper cause and without extending to the individual concerned the basic requirements of fairness. This case involved the responsibilities of the local authority in relation to the terms on which they allow their property to be used, that property being the tennis club. Ordinarily, a property owner is entitled to decide for entirely commercial or personal reasons what he or she is to permit to take place on that property. A local authority is in a different position from a normal landowner since, in determining what use is to be made of its property, it is exercising a statutory discretion. In the exercise of that statutory discretion, it must act in accordance with proper administrative standards. Those standards include an obligation to be reasonable and fair in the actions which the council takes which could have adverse consequence on third parties.’

Judges:

Lord Woolf

Citations:

[2000] IRLR 329

Jurisdiction:

England and Wales

Cited by:

Cited – Montgomery, Regina (on the Application of) v Hertfordshire County Council Admn 2-Sep-2005
The applicant, a former senior employee sought review of an order banning her from all the respondent’s premises. She had left the employment after a settlement, but the order would make it impossible to continue the work she had later taken up.
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, Local Government

Updated: 13 May 2022; Ref: scu.230901

Inman v Ackroyd: 1901

In the absence of some custom as to the method of payment a Director’s salary would not be payable until the years service was completed, which necessarily would require that it be paid outside the period of the year in which it was earned

Citations:

[1901] 1 QB 613

Statutes:

Apportionment Act 1870

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

Employment

Updated: 13 May 2022; Ref: scu.215869

Capron v Capron: 1874

By a will made before the 1870 Act, but amended by a codicil after the Act commenced to the use of his wife with remainders over. After her death having inherited the property, the parties disputed the apportionment of the rents.
Held: The rents were to be apportioned under the 1870 Act. The court noted that an equivalent result would have obtained without the codicil.

Judges:

Malins V-C

Citations:

(1874) 29 LT 826, [1874] LR17 Eq 288, 43 LJ Ch 677, 22 WR 347

Statutes:

Apportionment Act 1870

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 – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Wills and Probate

Updated: 13 May 2022; Ref: scu.215868

Balfron Trustees Ltd v Peterson: CA 2001

The court analysed in detail the decision in Lister v Hesley Hall and continued: ‘All of these passages emphasise the necessity of identifying the duty or responsibility of the employer to the victim. If such a duty or responsibility exists, the employer cannot avoid liability because it was delegated to an employee who failed to comply with his employer’s instructions. Even though the employee’s acts are so heinous that they could not reasonably be said to form part of his obligations vis a vis his employer, they are treated as within the scope of his employment vis a vis the victim, since he was employed to discharge the employer’s duty to the victim. If this analysis is right, then the first issue to be determined is whether or not the employer owed a duty to the victim/claimant. This is, no doubt, an area in which there is room for development (cf White v. Jones [1995] 2 AC 207 in relation to negligence). Whether or not a duty of care of the employer to the victim is involved, there must be some form of responsibility towards the victim. Once there is, the employer cannot escape his obligations by delegating to an employee.’

Judges:

Laddie J, Dyson LJ

Citations:

[2001] IRLR 758

Jurisdiction:

England and Wales

Citing:

Considered – Lister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .

Cited by:

Cited – Mattis v Pollock (T/A Flamingo’s Nightclub) QBD 24-Oct-2002
The claimant sought damages after being assaulted by a doorman employed by the defendant.
Held: The responsibility of the nightclub owner for the actions of his aggressive doorman was not extinguished by the separation in time and place from . .
Lists of cited by and citing cases may be incomplete.

Employment, Vicarious Liability

Updated: 13 May 2022; Ref: scu.214874

Dixon v BBC: CA 1978

The fact that a term of employment is determinable by notice does not preclude the term being a fixed term.

Judges:

Lord Denning

Citations:

[1978] QB 438

Jurisdiction:

England and Wales

Citing:

Wrong – 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

Updated: 13 May 2022; Ref: scu.211373

Reid and Sigrist Ltd v Moss and Mechanism Ltd: 1932

An employee can be obliged not to use or disclose information acquired by him during his employment after leaving it in respect of designs or special methods of construction.

Citations:

(1932) 49 RPC 461

Jurisdiction:

England and Wales

Cited by:

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

Intellectual Property, Employment

Updated: 13 May 2022; Ref: scu.200323

Steggall v Lymburner: 1912

The defendant deducted from the wages of an employee, either at his request or by his consent, the amount of a debt due by the employee to the plaintiffs, and promised the plaintiffs to pay the amount to them.
Held: ‘The contention on the part of the defendant before the magistrate was that his promise to pay was a promise to pay a debt of another person and, therefore, was not actionable, as there was no evidence in writing. In answer to that it is said that the Statute of Frauds has nothing to do with the case, and that the promise of the defendant is not to discharge the debt of another person, but a promise to pay his own debt. In Leake on Contracts, 5th edition, p.839, it is stated ‘the contract or promise of the debtor to pay according to the order or assignment of his creditor is a promise to pay his own debt, although it operates in discharge of the debt of his creditor. It is, therefore, not a promise to pay the debt of another within the Statute of Frauds, and does not require written evidence.” Burnside J agreed, describing it as ‘a very simple case’.

Judges:

McMillan J

Citations:

(1912) 14 WALR 201

Employment, Contract

Updated: 13 May 2022; Ref: scu.199772

G A Croft and others v Cathay Pacific Airways Ltd Veta Ltd USA Basing Ltd (Dickie v Cathay Pacific Airways Ltd): EAT 2004

EAT Unfair Dismissal – Exclusions including worker

Judges:

His Honour Judge Clark

Citations:

UKEAT/0367/03, [2004] ICR 1733

Cited by:

Appeal from – Crofts and others v Cathay Pacific Airways Ltd and others CA 19-May-2005
The claimants were airline pilots employed by the respondent company with headquarters in Hong Kong. The court was asked whether an English Tribunal had jurisdiction to hear their complaints of unfair dismissal.
Held: The pilots were employed . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 May 2022; Ref: scu.198697

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 applied ‘not only because they are of high persuasive authority, but because . . we respectfully agree with them’. There were three considerations: the validity or otherwise of exclusions of that character should so far as possible be easy to determine, and it would not be if it was necessary to distinguish between reengagement under a new contract and renewal and extension of an existing contract; it did not necessarily follow that because a second or subsequent contract of employment was a renewal of an earlier one, it was correct to say that together they constituted a fixed term of a length equivalent to their cumulative length, though Phillips J. acknowledged that one could so describe it; and because the contract referred to a fixed term of two years or more which was renewed, the renewal must also be of two years or more

Judges:

Phillips J

Citations:

[1978] ICR 524

Jurisdiction:

England and Wales

Citing:

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

Employment

Updated: 13 May 2022; Ref: scu.198053

Wynne v Hair Control: 1978

A sole proprietorship gave way to a partnership of which the previous sole proprietor was a member. The employee’s continuous employment was broken.

Citations:

[1978] ICR 870

Jurisdiction:

England and Wales

Citing:

Applied – Harold Fielding Ltd v Mansi NIRC 1974
An employee had been employed by two partners and later by one of them.
Held: Mr Mansi could not bring himself within the provision because: ‘Where one of two partners leaves the partnership, there are no partners, but only a sole proprietor, . .

Cited by:

Cited – Bower v Stevens and Another CA 6-Apr-2004
The claimant had been employed by the respondents, partners in a former firm of solicitors. On the retirement of one partner, the practice was continued by the sole remaining partner, who claimed that the dissolution broke the continuity of the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 May 2022; Ref: scu.197756

Nottinghamshire County Council v Bowly: 1978

Citations:

[1978] IRLR 252

Jurisdiction:

England and Wales

Cited by:

Cited – X v Y (Employment: Sex Offender) CA 28-May-2004
The claimant had been dismissed after it was discovered he had been cautioned for a public homosexual act. He appealed dismissal of his claim saying that the standard of fairness applied was inappropriate with regard to the Human Rights Act, and . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 May 2022; Ref: scu.197891

National Westminster Bank Plc v Parry: EAT 5 Feb 2004

EAT Unfair Dismissal – Reason for dismissal

Judges:

His Hon Judge J R Reid QC

Citations:

UKEAT/977/03

Jurisdiction:

England and Wales

Citing:

Appealed to – Parry – National Westminster Bank plc CA 1-Nov-2004
The employee had been found to be unfairly dismissed. The company did not re-engage him, and he sought as part of his damages, the lost earnings up to the date of the hearing. The employer said these should be included within the overall damages . .

Cited by:

Appeal from – Parry – National Westminster Bank plc CA 1-Nov-2004
The employee had been found to be unfairly dismissed. The company did not re-engage him, and he sought as part of his damages, the lost earnings up to the date of the hearing. The employer said these should be included within the overall damages . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 May 2022; Ref: scu.196047

Barber v Thames Television plc: EAT 1991

The EAT has a power exceptionally, to receive an argument which had not been put to tribunal. Knox J said: ‘We do not accept the proposition that any and every contention by a party to an appeal that that party by calling further evidence can show that the applicant’s case falls outside the jurisdiction of the industrial tribunal has to be acceded to on appeal. A question of jurisdiction is not necessarily and in all circumstances a trump card which if played upon an appeal automatically determines the appeal in favour of the party playing that card’.
Knox J referred to the case of House and said: ‘It does not however follow from this that all jurisdictional points must be allowed at any stage even if they involve a further hearing to establish further facts. In our view in each case the appeal tribunal has to decide on balance whether justice requires that the new point should be allowed to be taken. If it appears on existing evidence that the decision appealed from is a nullity that will be a consideration of overwhelming strength. Where what is relied upon is a chance of establishing a lack of jurisdiction by calling fresh evidence which was always available the case is far less straightforward’. And ‘We are unpersuaded that it would be just for the employers to have a second bite at the cherry of trying to persuade the industrial tribunal that the employee is disqualified by Section 64(1)(b) of the Act by advancing evidence which was always available but was not used for what no doubt at the time seemed, to be excellent reasons’

Judges:

Knox J

Citations:

[1991] ICR 253

Statutes:

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

Citing:

Cited – House v Emmerson Electric Industrial Controls EAT 1980
An unsuccessful Applicant sought leave to argue a jurisdictional point which he had not raised at the hearing before the Industrial Tribunal.
Held: Talbot J allowed the point to be raised saying: ‘For instance, if an Industrial Tribunal had . .

Cited by:

Cited – M Dowling v M E Ilic Haulage, Berkeley Logistics Ltd EAT 19-Feb-2004
EAT Procedural Issues – Employment Tribunal
EAT Trade Union Rights – Action short of dismissal
It had been found that the claimant had been dismissed for an . .
Appeal from – Barber v Thames Television plc CA 1992
The applicant was ‘precluded by Section 64(1)(b) from making his complaint to the industrial tribunal’ The appeal succeeded. . .
Cited – Leicester University Students Union v Mahomed EAT 6-Dec-1994
The Union appealed a finding of unfair dismissal and discrimination. It denied that she had sufficient continuous service, saying that the peirod suggested involved working for two employers. It also said that since the objection went as to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 May 2022; Ref: scu.195718

TGWU v Gainsborough Distributors: EAT 1978

Redundancy consultation – protective award

Citations:

[1978] IRLR 460

Jurisdiction:

England and Wales

Citing:

Approved – Talke Fashions Ltd v Society of Textile Workers EAT 1978
The employer announced the closure of two factories and the redundancy of the workforce, at one factory in 15 days’ time and, at the other, in 63 days’ time. There was no consultation. The employer appealed a 60 day protective award.
Held: . .

Cited by:

Cited – Susie Radin Ltd v GMB and others CA 20-Feb-2004
The company made redundancies but failed to carry out any effective or honest consultation. The tribunal awarded the maximum 90 days protective order. The company appealed saying that it had given the employees greater notice than was strictly due. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 May 2022; Ref: scu.194617

Stapp v The Shaftesbury Society: CA 1982

The employer had told the claimant: ‘I must ask you to relinquish your duties with effect from today 7 February 1981’ and thereby summarily dismissed him.
Held: The employer was clearly summarily dismissing with immediate effect in a wholly unambiguous way.
In a common law action for wrongful dismissal, the dismissed employee could recover damages for the loss of his right to allege unfair dismissal ‘particularly if the summary dismissal had been effected for the specific purpose of depriving him of his right’.

Judges:

Stephenson LJ, Sir David Cairns

Citations:

[1982] IRLR 326

Jurisdiction:

England and Wales

Citing:

Cited – Robert Court and Son Ltd v Charman EAT 1981
The EAT considered the effect of the statutory period of notice: ‘As a result, in our view Mr Charman has no right to complain to the Industrial Tribunal of unfair dismissal. Even if, as one must, one treats the effective date of termination as . .
Cited – Brindle v Smith CA 1972
A question arose as to the position of an employee wrongfully dismissed just before the end of his first 104 weeks of service where he would have qualified to have a right not to be unfairly dismissed if he had been given proper notice.
Held: . .

Cited by:

Cited – Sally Harper v Virgin Net Limited CA 10-Mar-2004
The employee had been dismissed. Her contractual notice period was longer than the statutory period.
Held: The statutory notice period prevailed in calculating the date of dismissal. The contractual period could not be used to extend the total . .
Cited – Raspin v United Shops Ltd EAT 24-Mar-1999
A breach of contract by an employer failing to follow disciplinary procedure which leaves an employee unable to pursue claim for unfair dismissal, was remediable as a breach of contract by wrongful dismissal and damages accordingly. What must be . .
Cited – M-Choice UK Ltd v Aalders EAT 10-Aug-2011
mchoice_aaldersEAT2011
EAT JURISDICTIONAL POINTS – Claim in time and effective date of termination
The employee was dismissed on notice expiring on 1 February 2011. On its expiry she would have had sufficient qualifying service to . .
Cited – Tallon v Manchester TEC Ltd EAT 18-Jan-1996
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 May 2022; Ref: scu.194626

Clarks of Hove Ltd v Bakers’ Union: EAT 1978

Protective award – redundancy consultation. Kilner Brown J discussed what was meant by special circumstances by comparison with disqualification as a driver and the Road Traffic Acts where ‘special reasons’ have been held to mean ‘special to the facts of the case’.

Citations:

[1978] 1 WLR 563

Jurisdiction:

England and Wales

Citing:

Approved – Talke Fashions Ltd v Society of Textile Workers EAT 1978
The employer announced the closure of two factories and the redundancy of the workforce, at one factory in 15 days’ time and, at the other, in 63 days’ time. There was no consultation. The employer appealed a 60 day protective award.
Held: . .

Cited by:

Cited – Susie Radin Ltd v GMB and others CA 20-Feb-2004
The company made redundancies but failed to carry out any effective or honest consultation. The tribunal awarded the maximum 90 days protective order. The company appealed saying that it had given the employees greater notice than was strictly due. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 May 2022; Ref: scu.194616

Joshua Wilson and Bros Ltd v USDAW: 1978

Redundancy consultation – protective award

Citations:

[1978] ICR 614

Jurisdiction:

England and Wales

Citing:

Approved – Talke Fashions Ltd v Society of Textile Workers EAT 1978
The employer announced the closure of two factories and the redundancy of the workforce, at one factory in 15 days’ time and, at the other, in 63 days’ time. There was no consultation. The employer appealed a 60 day protective award.
Held: . .

Cited by:

Cited – Susie Radin Ltd v GMB and others CA 20-Feb-2004
The company made redundancies but failed to carry out any effective or honest consultation. The tribunal awarded the maximum 90 days protective order. The company appealed saying that it had given the employees greater notice than was strictly due. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 May 2022; Ref: scu.194618

Cheeseman v R Brewer Contracts Ltd: EAT 2001

Judges:

Lindsay J

Citations:

[2001] IRLR 144

Jurisdiction:

England and Wales

Cited by:

Cited – Fairhurst Ward Abbotts Limited v Botes Building Limited and others CA 13-Feb-2004
A claim was made under the TUPE regulations. The company replied that the part of the business transferred was not a discrete economic entity.
Held: The regulations did not require that in order to be governed by the regulations, a business . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 May 2022; Ref: scu.194785

Brindle v Smith: CA 1972

A question arose as to the position of an employee wrongfully dismissed just before the end of his first 104 weeks of service where he would have qualified to have a right not to be unfairly dismissed if he had been given proper notice.
Held: The dismissal took place when the contract was terminated, and that the termination took place when the notice expired or was due to expire. ‘I would add at this point that I do not think the Act can be got round by wrongfully dismissing a person summarily or by giving him a notice that is too short. No person should be able to take advantage of his own wrong in that way. If an employer should try to escape the Act by giving no notice at all or a notice that was too short, I should have thought that the tribunal, by means of a claim for wrongful dismissal (see s 113 of the Act), or by some such way, would see that the employee would get the same compensation as he would have done if he had been given notice of a proper length.’

Judges:

Lord Denning MR, Megaw LJ

Citations:

[1972] IRLR 125

Jurisdiction:

England and Wales

Cited by:

Cited – Sally Harper v Virgin Net Limited CA 10-Mar-2004
The employee had been dismissed. Her contractual notice period was longer than the statutory period.
Held: The statutory notice period prevailed in calculating the date of dismissal. The contractual period could not be used to extend the total . .
Cited – Stapp v The Shaftesbury Society CA 1982
The employer had told the claimant: ‘I must ask you to relinquish your duties with effect from today 7 February 1981’ and thereby summarily dismissed him.
Held: The employer was clearly summarily dismissing with immediate effect in a wholly . .
Cited – Raspin v United Shops Ltd EAT 24-Mar-1999
A breach of contract by an employer failing to follow disciplinary procedure which leaves an employee unable to pursue claim for unfair dismissal, was remediable as a breach of contract by wrongful dismissal and damages accordingly. What must be . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 May 2022; Ref: scu.194623

Dowuona v John Lewis Plc: 1987

Citations:

[1987] ICR 788

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

Employment

Updated: 13 May 2022; Ref: scu.194006

Clifford v Union of Democratic Mineworkers: 1991

Where the only relevant material was documentary the question whether A is employed by B or C is a matter of law but otherwise is a mixed question of law and fact: ‘This description (a mixed question of law and fact) does not, however, in my judgment mask the reality that the answer to the question is determined by the determination and evaluation of the relevant material. This is the task of the Industrial Tribunal and is not for either the Appeal Tribunal or this Court. Neither can interfere with the resolution of an issue of fact unless the resolution contains an explicit or implicit misdirection in law . . In the present case therefore the question is not whether the Industrial Tribunal were ‘wrong’ but whether their conclusion betrays a self-misdirection.’

Judges:

Mann LJ, Lord Donaldson MR

Citations:

[1991] IRLR 518

Cited by:

Cited – Clark v Oxfordshire Health Authority CA 18-Dec-1997
A nurse was employed under a contract, under which there was no mutuality of obligation; she could refuse work and employer need offer none. This meant that there was no employment capable of allowing an unfair dismissal issue to arise.
Sir . .
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 . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 May 2022; Ref: scu.194298

Association of Patternmakers and Allied Craftsmen v Kirvin Ltd: EAT 1978

The court discussed the punitive nature of a protective award made where a company failed to consult on redundancies: ‘A Tribunal, however, is specifically enjoined to determine the [protected] period and so the amount of the award by paying regard to the seriousness of the employer’s default. This introduces a punitive element into the jurisdiction of an Industrial Tribunal and in contrast with eg, the calculation of a compensatory award which is based upon what is just and equitable having regard to the loss sustained.’

Judges:

Lord McDonald

Citations:

[1978] IRLR 318

Jurisdiction:

England and Wales

Cited by:

Cited – Susie Radin Ltd v GMB and others CA 20-Feb-2004
The company made redundancies but failed to carry out any effective or honest consultation. The tribunal awarded the maximum 90 days protective order. The company appealed saying that it had given the employees greater notice than was strictly due. . .
Cited – Sweetin v Coral Racing EAT 20-Dec-2005
EAT Claimant sought compensation for unfair constructive dismissal and failure to consult prior to a TUPE transfer of a bookmaker’s business for which the claimant worked. Her contract of employment described her . .
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, Scotland

Updated: 13 May 2022; Ref: scu.194607

Talke Fashions Ltd v Society of Textile Workers: EAT 1978

The employer announced the closure of two factories and the redundancy of the workforce, at one factory in 15 days’ time and, at the other, in 63 days’ time. There was no consultation. The employer appealed a 60 day protective award.
Held: (Majority) Appeal allowed in part. The ET were misled into thinking that the statutory provisions were merely penal.

Mr Sirs (dissenting) thought that the ET came to the right answer because, once the ET decided to make an award, it should be of the maximum period unless the employer could show mitigating factors, and there was none.
Kilner Brown J: ‘In linking the maximum period of a protective award with the period of notice and consultation required before dismissing for redundancy the legislation would appear to contemplate an award of compensation commensurate with the loss suffered by an employee who has been given short shrift in a redundancy situation. This is consistent with the whole spirit of both the Redundancy Payments Act 1965 and, more particularly, the Trade Union and Labour Relations Act 1974.’ and ‘The other factor which has to be considered when reaching an answer which is just and equitable is the seriousness of the employer’s default. The wording seems to us to be singularly unfortunate. Does this import an element of punishment for a bad breach of industrial relations? We are told that many industrial tribunals do so regard it. Indeed, in this instant case Mr. Lisle, the well known and much respected general secretary of the trade union involved, made no bones about it. In a submission reminiscent of a (foreign) public prosecutor calling for a maximum punishment, he maintained that it was a penal clause and a bad case of default called for the maximum period of award against the employer. If this interpretation and this approach be right, then this part of this subsection is wholly inconsistent with the spirit of the Trade Union and Labour Relations Act 1974.’

Judges:

Kilner Brown J, Brian Sirs

Citations:

[1978] 1 WLR 558

Jurisdiction:

England and Wales

Cited by:

Disapproved – Susie Radin Ltd v GMB and others CA 20-Feb-2004
The company made redundancies but failed to carry out any effective or honest consultation. The tribunal awarded the maximum 90 days protective order. The company appealed saying that it had given the employees greater notice than was strictly due. . .
Approved – Clarks of Hove Ltd v Bakers’ Union EAT 1978
Protective award – redundancy consultation. Kilner Brown J discussed what was meant by special circumstances by comparison with disqualification as a driver and the Road Traffic Acts where ‘special reasons’ have been held to mean ‘special to the . .
Approved – TGWU v Gainsborough Distributors EAT 1978
Redundancy consultation – protective award . .
Approved – Joshua Wilson and Bros Ltd v USDAW 1978
Redundancy consultation – protective award . .
Cited – Haine v Secretary of State for Business Enterprise and Regulatory Reform and Another; Day v Haine CA 11-Jun-2008
Former employees had obtained a protective award against the company for failing to consult on the impending redundancies and submitted proofs of debt to the liquidator who sought guidance from the court. The judge had held that since the Act . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 May 2022; Ref: scu.194615

Mears v Safecar Security Ltd: CA 2 Jan 1981

There is generally a presumption that sick pay will be paid. A term would be implied if the contract was silent on the point. In implying terms into a contract of employment (the terms in that case relating to sick pay) courts and tribunals were not bound by the traditional tests relating to commercial contracts, but should consider all the facts and evidence in each case, including the way in which the particular contract of employment had worked in practice, and the way the parties had behaved, since it was made.

Judges:

Stephenson LJ

Citations:

[1983] 2 QB 54, [1981] ICR 409, [1982] IRLR 183

Statutes:

Employment Protection (Consolidation) Act 1978 11

Jurisdiction:

England and Wales

Citing:

Appeal from – Mears v Safecar Security Ltd EAT 1981
Slynn P summarised the case law on implying terms into employment contracts: ‘In our judgment the proper approach is to look at all the facts and the circumstances to see whether a term is to be implied that wages shall or shall not be paid during . .

Cited by:

Cited – Brook Street Bureau (UK) Ltd v Dacas CA 5-Mar-2004
The applicant cleaner sought compensation for unfair dismissal. The issue was whether she was an employee of the respondents, of their client where she did her work, or was not an employee at all. She worked for an agency, who sent her out to . .
Cited – Lindsey Beveridge v KLM UK Ltd EAT 16-Feb-2000
EAT The claimant appealed refusal of her claim for unlawful deduction. She had been off sick long term. Her doctor certified her fit to return, and she asked to return, but her employer waited a further six weeks . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 May 2022; Ref: scu.194300