Appeal against a decision of the Employment Appeal Tribunal dismissing an appeal against an order of the Registrar refusing the Appellant an extension of time for filing his appeal.
Sir Brian Leveson P QBD, Underhill, Leggatt LJJ
[2018] EWCA Civ 751, [2019] ICR 771
England and Wales
Updated: 13 April 2022; Ref: scu.608720
DISABILITY DISCRIMINATION – Direct disability discrimination
Perceived Discrimination
The Employment Tribunal did not err in law in finding that the Respondent (1) perceived the Claimant to be disabled and (2) treated her less favourably because of the protected characteristic of disability.
David Richardson HHJ
[2017] UKEAT 0260 – 16 – 1912, [2018] WLR(D) 75, [2018] ICR 812, [2018] IRLR 193
England and Wales
Appeal from – Chief Constable of Norfolk v Coffey CA 21-Jun-2019
The claimant had a minor hearing impairment. It was not of itself sufficient to amount to a disability in law, but the appellant took her off front line duties because of it. The CC now appealed a finding that it had breached the 2010 Act, saying . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 April 2022; Ref: scu.601925
Practice and Procedure – Bias, misconduct and procedural irregularity PRACTICE AND PROCEDURE – Admissibility of evidence
[2017] UKEAT 0297 – 16 – 2104
England and Wales
Updated: 13 April 2022; Ref: scu.603709
The trades’ union had agreed with the employer that what had been irregular and non-pensionable payments made to employees would, in future, be paid regularly, but that only certain parts of the payments become pensionable. The employer now sought to enforce that agreement, on the inception of a new scheme which it had to be no worse than the previous scheme.
Held: There was no reduction in benefit, so the agreement did not fall foul of the order protecting the benefits on the transfer. There was no conflict with any existing agreement, and the agreement operated to create an inplied obligation on the employee not to seek any further benefit under the pension scheme in respect of these payments. A collective agreement under which consolidation of earnings excluded the attachment of pension rights remained enforceable after transfer.
Neuberger J
Times 14-Jan-1998
Railways Pension Schemes Order 1994 (1994 1433), Pensions Act 1995 67
England and Wales
Cited – Parry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .
Cited – National Coal Board v National Union of Mineworkers 1986
A collective agreement between employer and the recognised trades union was ‘inapt to become enforceable terms of an individual’s contract of employment.’ Such collective agreements may deal with the appropriate mechanisms for dealing with . .
Cited – Mihlenstedt v Barclays Bank International CA 1989
The company’s pension scheme provided that the trustees were to form an opinion as to the employee’s ability or otherwise to work. The plaintiff sought payment of an ill-health pension under the Bank Pension Scheme.
Held: A pension scheme . .
Cited – Hirachand Punamchand v Temple CA 1911
The defendant, a British army officer in India, had given a promissory note to the plaintiff moneylenders. Unable to pay, he suggested they apply to his father, Sir Richard Temple. In reply, Sir Richard Temple’s solicitors wrote saying they were . .
Cited – Mackay v Dick and Stevenson HL 1881
One party contracted to supply to the other ‘a steam navvy of novel construction’ on condition that it achieved a stipulated rate of excavation in stipulated circumstances. The purchaser did not make available the ‘opened up face’ that was necessary . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 April 2022; Ref: scu.89437
Sir John Donaldson said: ‘With respect to the tribunal, we think that it erred in holding that an unfair procedure which led to no injustice is incapable of rendering unfair a dismissal which would otherwise be fair. The question in every case is whether the employer acted reasonably or unreasonably in treating the reason as sufficient for dismissing the employee and it has to be answered with reference to the circumstances known to the employer at the moment of dismissal. If an employer thinks that his accountant may be taking the firm’s money, but has no real grounds for so thinking and dismisses him for this reason, he acts wholly unreasonably and commits the unfair industrial practice of unfair dismissal, notwithstanding that it is later proved that the accountant had in fact been guilty of embezzlement. Proof of the embezzlement affects the amount of the compensation, but not the issue of fair or unfair dismissal.’
Sir John Donaldson
[1973] 1 WLR 51
Approved – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.441859
DISABILITY DISCRIMINATION – Reasonable adjustments
The Claimant was disabled and requested additional adjustments relating to his taking the Legal Practice Course examinations in order to qualify as a solicitor. The particular adjustments were (a) extra time / beyond the 60% already given and (b) taking the exams at home. After the examinations he complained about the quality of the YMCA accommodation he had been provided with in Guildford to remove the stress and fatigue of travelling from his home in Brighton.
The EAT upheld the Employment Tribunal finding that the time requirement was a competency standard under s14A(5) of the SRA and as such there was no requirement to make a reasonable adjustment. In any event adequate reasonable adjustments had already been made. A submission as to the site requirement based on Meek was rejected as it was not argued before the ET.
Birtles J
[2011] UKEAT 0301 – 10 – 0803
England and Wales
Appeal from – Burke v The College of Law and Another CA 3-Feb-2012
. .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.430455
Serving an apprenticeship abroad will intitle a man to follow his trade here.
[1792] EngR 884, (1792) 1 Ld Raym 738, (1792) 91 ER 1394 (A)
Updated: 12 April 2022; Ref: scu.359096
[1988] ICR 885
England and Wales
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.
Updated: 12 April 2022; Ref: scu.374667
The Chairman of the Industrial Tribunal had struck out the employers’ Notice of Appearance for failure to comply with an order for particulars. Hld: The employers’ appeal to the EAT was dismissed. The court considered a strike out of an application before the Industrial Tribunal: ‘The striking-out of the entire notice of appearance was indeed a severe order, one that might even be regarded by many people as harsh. But it has to be remembered that Parliament has conferred upon the tribunals a jurisdiction of an exceptional kind and has constituted them at the same time masters (within their broadly framed procedural rules) of their own procedure. They are required to dispense their own distinctive form of justice: one that keeps formality to a minimum, which shuns legalism, and which sets out to achieve the maximum expedition consistent with fairness to the parties. Expedition is required not only by the nature of the cases themselves, which frequently involve hard or hurt feelings better given an early outlet than left to be brooded over. It is also called for by the nature of the remedy which the tribunals are required to provide. They are under a statutory duty to consider as their primary remedy in cases where a dismissal has been found to be unfair an order for reinstatement or re-engagement. The practicability of making any such order is bound in almost every case to diminish with the passing of time.
It seems to us, therefore, that the appeal tribunal should in principle be slow to infer a misguided exercise of discretion merely because an industrial tribunal happens in any particular case to have exercised the striking-out discretion with more severity (or for that matter with greater lenience) than might have been expected from a master or district registrar faced with comparable conduct in ordinary civil litigation. We see the order in the present case as a stern decision, certainly, but not as one with which there is any scope for intervention on our part. We have not been persuaded that the chairman left out of account anything which he ought to have had in mind or improperly took into account anything that was not necessary or relevant to the due exercise of his discretion. Nor do we regard his decision as perverse. Mr Malek went so far as to submit that a total striking-out order lay outside the scope of a proper exercise of the discretion altogether, because a striking-out of the insufficiently particularised paragraph 8 would have been sufficient to enable the industrial tribunal to do justice at the hearing. We do not agree. An order so limited would not have done anything to compensate the employee for what he had suffered as a result of the delay which had been occasioned by the failure to give those particulars, and the chairman was entitled in our judgment to take the view which he expressed in his decision that some more powerful and conspicuous sanction was required to demonstrate that the interlocutory directions of a tribunal are not made lightly and that parties who treat them casually are liable to do so at peril of losing their case altogether.’
[1985] ICR 578, [1985] IRLR 406
England and Wales
Cited – Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting CA 6-Dec-2001
The claimant had been struck from the register of nurses after convictions arising from failures of his staff at his nursing home with regard to drug management. He had then brought claims of unlawful race discrimination against the health authority . .
Applied – A v B and Another EAT 18-Feb-1997
The respondents appealed against a finding of unlawful sex discrimination. The claimant had been seeking psychotherapy, and the defendant sought discovery of her therapy history.
Held: The notes may have been relevant, and an order should have . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.277525
Sir Hugh Griffiths said: ‘It appears to this Court that the manifest overall purpose of Section 26 is to give a measure of protection to an employer if his business is faced with ruin by a strike. It enables him in those circumstances, if he cannot carry on the business without a labour force, to dismiss the labour force on strike; to take on another labour force without the stigma of its being an unfair dismissal. That being the overall purpose it would appear to be manifestly wrong, when an employer has beer told that strike action has been called off, that he should nevertheless still be free to dismiss those who took part in the strike, without any risk of a finding that he was acting unfairly. This is a result which the members of this Court would be anxious to avoid, unless the language of the Section drove them to it.’
Sir Hugh Griffiths
[1973] LCR 407
Industrial Relations Act 1971 26
England and Wales
Cited – Thompson and others v Eaton Ltd EAT 14-Apr-1976
The management introduced a new machine. The appellants left the premises and did not return. They were dismissed. They now appealed a finding that they had not been unfairly dismissed.
Held: The appeal failed. Whether the employer had through . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.272858
An artist was to be employed as a ‘panorama and scene-painter’ for a period of at least a month.
Held: The employer was entitled to terminate the contract after two days when the artist proved to be incompetent. Willes J said: ‘When a skilled labourer, artizan, or artist is employed, there is on his part an implied warranty that he is of skill reasonably competent to the task he undertakes, – Spondes peritiam artis. Thus, if an apothecary, a watch-maker or an attorney be employed for reward, they each impliedly undertake to possess and exercise reasonable skill in their several arts. The public profession of an art is a representation and undertaking to all the world that the professor possesses the requisite ability and skill.’
Willes J
(1858) 5 CB (NS) 236
England and Wales
Cited – Platform Funding Ltd v Bank of Scotland Plc (Formerly Halifax Plc) CA 31-Jul-2008
The parties disputed the extent of duty owed by a surveyor to a lender relying on his valuation of a property to be loaned.
Held: The valuer’s appeal failed. The valuer had valued the wrong property, after being misled by the borrower. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.279927
The courts should not too readily construe restrictive covenants, ex facie too wide, as being subject to implicit limitations since: ‘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.’
[1993] IRLR 172
England and Wales
Cited – Rock Refrigeration Limited v Jones and Seward Refrigeration Limited CA 10-Oct-1996
The claimant sought to enforce a post employment restrictive covenant given by the defendant. The defendant replied that the clause was too widely framed and was unreasonable since it applied to a temination of his contract ‘howsoever occasioned’. . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.276822
EAT Transfer of Undertakings – Transfer.
The Honourable Lord Johnston
EAT/103/01, [2001] IRLR 597
Transfer of Undertakings (Protection of Employment) Regulations 1981
Not Followed – Kerry Foods Ltd v A Creber and others EAT 11-Oct-1999
Where a receiver of a company dismissed the employees and then transferred the business to a purchaser, that amounted to an unfair dismissal because it was a TUPE transfer, even though the manufacturing base also moved. The company was liable to the . .
Cited – Alamo Group (Europe) Ltd v Tucker and Another EAT 24-Feb-2003
The tribunal was asked whether Regulation 5 of the 1981 Regulations have the effect of transferring to the transferee the duties and liabilities imposed on the employer under Regulations 10 and 11? The Respondent (Alamo) appeals from the decision . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.255338
EAT Practice and Procedure – Withdrawal.
The Honourable Mr Justice Rimer
UKEAT/0581/05
England and Wales
See Also – Khan v Heywood and Middleton Primary Care Trust EAT 20-Jan-2006
EAT Rule 25 of The Employment Tribunals Rules of Procedure 2004
(i) Does an employment tribunal have jurisdiction to set aside a notice of withdrawal of a claim given under Rule 25(2) of The Employment . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.238183
Where a defence had been filed to an action without a claim for state immunity having been made, it would have to be shown that the head of mission had submitted to the jurisdiction.
Peter Gibson LJ
[1996] ICR 25
England and Wales
Cited – Aziz v Republic of Yemen CA 17-Jun-2005
The claimant had made a claim for unfair dismissal. The defendant state had filed a defence instead of claiming state immunity. It then sought to assert such immunity. The claimant said the state had waived its immunity.
Held: Section 2(7) of . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.227913
The Trades Union caused its members to withdraw their labour from the plaintiff, so preventing the plaintiff from performing a contract with a firm of printers. The conduct was aimed, primarily, not at the plaintiff but at the printers, with whom the union was in dispute.
Held: The plaintiff’s claim for an injunction was upheld.
[1984] 1 WLR 427
England and Wales
Appeal from – Dimbleby and Sons v National Union of Journalists CA 1983
. .
Cited – Douglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
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.
Updated: 12 April 2022; Ref: scu.225472
EAT Equal Pay Act – Like work
Mr Commissioner Howell QC
UKEAT/0375/04
England and Wales
Updated: 12 April 2022; Ref: scu.219853
EAT Practice and Procedure – Amendment
His Honour Judge Reid QC
UKEAT/0471/04
England and Wales
Updated: 12 April 2022; Ref: scu.201632
[1999] UKEAT 869 – 98 – 0102
England and Wales
See Also – Ball v Prudential Corporation Plc EAT 1-Oct-1998
. .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.204796
[1999] UKEAT 336 – 99 – 1709
England and Wales
Updated: 12 April 2022; Ref: scu.205578
The claimant sought damages. At the end of the day, a co-employee tried to startle her by pushing an insecure washbasin against her, but caused her actual injury.
Held: The plaintiff’s appeal was dismissed. It was an independent act not sufficiently connected with the employment. An employer would be liable for acts actually authorised and for the way the employee carries out those acts. It was not foreseeable that the washbasin would cause injury, or that it would be used in this way.
[1987] IRLR 292
England and Wales
Cited – Lister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
Cited – Gravil v Carroll and Another CA 18-Jun-2008
The claimant was injured by an unlawful punch thrown by the first defendant when they played rugby. He sought damages also against the defendant’s club, and now appealed from a finding that they were not vicariously liable. The defendant player’s . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.214709
[2002] UKEAT 668 – 01 – 2011
England and Wales
Updated: 12 April 2022; Ref: scu.203199
[1998] UKEAT 834 – 97 – 1401
England and Wales
Updated: 12 April 2022; Ref: scu.206025
[1984] IRLR 453
Northern Ireland
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.
Updated: 12 April 2022; Ref: scu.194005
[2003] UKEAT 827 – 01 – 1401
England and Wales
Updated: 12 April 2022; Ref: scu.191286
Unless there was some bad faith or other unreasonableness it was for the employer Health authority to categorise the conduct of which complaint was made about a doctor as either personal or professional.
Lightman J
(1998) 49 BMLR 55
England and Wales
Applied – Kramer v South Bedforshire Health Care Trust ChD 16-Oct-1995
It was for the Trust employer to decide which kind of disciplinary proceedings to institute. Absent bad faith or Wednesbury unreasonableness, the employer’s decision on categorisation was final. There can be no reason otherwise to include in the . .
Cited – Skidmore v Dartford and Gravesham NHS Trust HL 22-May-2003
The disciplinary code for doctors employed by the NHS provides different procedures cases involving allegations of ‘professional conduct’ or ‘personal conduct.’ The first would involve a more judicial process, and the second a more informal . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.182500
(Rec 2000,p FP-IA-15,II-61) Officials – Request for reclassification in grade – Objection of inadmissibility – Material new fact – Admissibility
T-111/97, [2000] EUECJ T-111/97
European
Updated: 12 April 2022; Ref: scu.173357
EAT Unfair Dismissal – Compensation
The Honourable Lord Johnston
EAT/85/02
Updated: 12 April 2022; Ref: scu.174268
EAT National Minimum Wage –
Mr Recorder Langstaff QC
EAT/121/01
Updated: 12 April 2022; Ref: scu.174271
EAT Trade Union Rights –
His Honour Judge Peter Clark
EAT/1440/98
Updated: 12 April 2022; Ref: scu.171403
EAT Procedural Issues – Employment Tribunal
The Honourable Lord Johnston
EAT/845/99
Updated: 12 April 2022; Ref: scu.171935
EAT Unfair Dismissal – Compensation
The Honourable Lord Johnston
EAT/1020/00
Scotland
Updated: 12 April 2022; Ref: scu.172054
The applicants appealed a finding that their employees were workers within the regulations. The question related to whether bank nurses, who were available to be called on the telephone at home during the night, were working as they waited. The words ‘on-call’ cold not be used simply. The Tribunal is to look at the ingredients of the particular case and the type of work involved, and the different elements to see if they can properly be described as work. A person awaiting calls, could not control the hour at which he might be called, and therefore had to restrict his activities to be available. The fact that pay was not related to the number of calls was also relevant. The Tribunal’s finding of fact was not to be disturbed. There is no general principle to apply to home work in defining whether or not a worker is working.
EAT National Minimum Wage
EAT National Minimum Wage –
His Honour Judge Altman
EAT/1387/00, (2001) IRLR 659
National Minimum Wage Regulations 1999 (1999 No 584) 15(1)
England and Wales
Distinguished – J M Walton v The Independent Living Organisation Ltd EAT 21-Mar-2002
The applicant worked as a care assistant. She was required to be resident but worked shifts through the week. She appealed a finding that she was working ‘unmeasured time’ under regulation 6, asserting that it should have been judged to be ‘time . .
Appeal from – British Nursing Association v Inland Revenue (National Minimum Wage Compliance Team) CA 2002
The employers provided ‘bank nurses’ for nursing homes and other institutions on an emergency basis, including a 24 hour telephone booking service. At night employees were based at home. The ‘duty nurse’ would answered a diverted phone call and then . .
Cited – Walton v The Independent Living Organisation CA 26-Feb-2003
The worker was employed as a carer for a lady who would need support at unpredictable times, but on average she would need some 6 hours’ care a day. Whilst at work, the claimant would stay with her patient for a full 24 hour day, but, except when . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.168230
EAT Contract of Employment – Breach of Contract
His Hon Judge D M Levy QC
EAT/1122/00
Updated: 12 April 2022; Ref: scu.168446
EAT Unfair Dismissal – Contributory Fault
The Honourable Lord Johnston
EAT/1403/00
Updated: 12 April 2022; Ref: scu.168165
EAT Procedural Issues – Employment Tribunal
The Honourable Mr Justice Lindsay (President)
EAT/229/01, EAT/1411/00
Updated: 12 April 2022; Ref: scu.168179
The respondent sought leave to appeal against a decision of the Employment Appeal Tribunal that he was an appropriate respondent to the claimant’s claim for sex discrimination. The claimant had been a police officer, and claimed she had been the subject of repeated and unwanted sexual advances from the respondent. He argued that only the Chief Constable was an appropriate defendant.
Held: A police officer against whom an allegation of discrimination was made was a proper respondent in addition to the Chief Constable. The case of Fara was of no assistance to him. The legislation clearly allowed that he might have responsibility.
Lord Justice Schiemann
[1999] EWCA Civ 2111
Discrimination Act 1975 6(2)(b) 41(1) 42 17(1)
England and Wales
Cited – Farah v Commissioner of Police for Metropolis CA 9-Oct-1996
Individual officers, but not the police force itself are answerable in a race discrimination claim. The force is not vicariously liable for an individual officer’s acts. . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.147026
The claimant appealed refusal of leave to appeal to the EAT out of time. He had miscalculated the closing date by ten days.
Held: ‘the existence of a ground of appeal does not in itself justify an extension of time. It has been held repeatedly that there must be strict compliance with the time limits in industrial cases, and that only in exceptional circumstances will an extension of time be granted. ‘ No proper reason had been shown. Appeal refused.
Lord Justice Peter Gibson Lord Justice Chadwick
[1999] EWCA Civ 1559
England and Wales
Cited – United Arab Emirates v Abdelghafar and Another EAT 10-Jul-1995
The appellant challenged a decision by the tribunal made in its absence that the tribunal had jurisdiction to hear against it a claim for unfair dismissal.
Held: The tribunal had erred. Though Sengupta had been decided under common law, it . .
Appeal from – Clancy v Cannock Chase Technical College EAT 1-Feb-1999
The claimant sought to appeal against refusal to allow him an extension of time for appeal. He miscalculated the date.
Held: Reasons given for failure to apply in time often did not excuse the failure. That applied here. ‘The time limits, it . .
Appealed to – Clancy v Cannock Chase Technical College EAT 1-Feb-1999
The claimant sought to appeal against refusal to allow him an extension of time for appeal. He miscalculated the date.
Held: Reasons given for failure to apply in time often did not excuse the failure. That applied here. ‘The time limits, it . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.146474
[1999] EWCA Civ 1886
England and Wales
Appeal from – Pandya v Leicester City Council EAT 26-Mar-1999
. .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.146801
The court considered the nature of the employment duties of retained firefighters: ‘their [i.e. whole time firefighter’s] ‘principal duty’ or . . core obligation had been firefighting.’
Burton J
[1999] EWHC Admin 395
England and Wales
Cited – Mihlenstedt v Barclays Bank International CA 1989
The company’s pension scheme provided that the trustees were to form an opinion as to the employee’s ability or otherwise to work. The plaintiff sought payment of an ill-health pension under the Bank Pension Scheme.
Held: A pension scheme . .
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.
Updated: 12 April 2022; Ref: scu.139659
The appellant had resigned after many years working weekdays in the defendants laundry. She was found to have been constructively dismissed, but that the employer had good reason within the section, in that their need included the need to have a service at weekends The respondents felt it would be unfair to seek someone who would work weekends and bank holidays only. The EAT ordered a rehearing, and the employer appealed on the basis that the EAT reasoning was unclear, and that they had rejected the respondent’s ethical reasoning. However the original tribunal was entitled to its own conclusion on this point, and the EAT was wrong to substitute its own.
[1996] EWCA Civ 658
Employment Protection (Consolidation) Act 1978 57(1)(b)
England and Wales
Updated: 12 April 2022; Ref: scu.140525
EAT Practice and Procedure – Disclosure.
The Honourable Mr Justice Burton
UKEAT/0728/04 and UKEAT/0729/04, [2005] UKEAT 0728 – 04 – 2004
England and Wales
See Also – Coldridge v HM Prison Service EAT 2-Feb-2005
Time Limits/ Practice and Procedure
Preliminary hearing. Issues as to extension of time, whether proceedings were issued in time, and disclosure. . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.225512
When looking at certificates of professional competence issued by other member states, the host Member State cannot be obliged to overlook matters which occurred within its own territory and which are of direct relevance to the real and genuine character of the period of professional activity completed in the Member State from which the beneficiary comes. Here a certificate was manifestly inaccurate.
C-130/88, [1989] ECR 3039[26]
Cited – Dr A Lambiris v The Specialist Training Authority of the Medical Royal Colleges and the General Medical Council, the Secretary of State for Health – Interested Parties CA 8-May-2003
The applicant challenged the failure to register him properly to reflect his specialism for which he had been qualified in Greece.
Held: The Directive set out principles for the recognition of medical qualifications within the Union. The Order . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 April 2022; Ref: scu.134870
Europa 1. Officials – recruitment – appointment to the starting grade – exception authorized by the staff regulations – application by means of a general decision – discretionary power of the administration – limits – no discretion allowed (staff regulations of officials, arts. 5 (3) and 31 (2) (b)) 2.Measures adopted by the institutions – internal directive – rule of conduct indicating the practice to be followed – legal force as regards the administration (staff regulations of officials, art. 5 (3))
C-129/82
Updated: 11 April 2022; Ref: scu.133432
ARFP sought to enforce post-termination covenants against the defendant, and inter alia an order which would prevent him from working for a competitor for a time. H contended that ARFP were relying on covenants that were already spent and in any case were unreasonable restraints of trade and so unenforceable.
Andrew Smith J
[2013] EWHC 1185 (QB), [2013] IRLR 637
England and Wales
Cited – Tillman v Egon Zehnder Ltd SC 3-Jul-2019
The company appealed from rejection of its contention that its former employee should be restrained from employment by a competitor under a clause in her former employment contract. The court particularly considered the severability of a section . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 April 2022; Ref: scu.509114
The company appealed from rejection of its contention that its former employee should be restrained from employment by a competitor under a clause in her former employment contract. The court particularly considered the severability of a section requiring the former employee to take no interest in a competing company.
Held: The court should set aside the Court of Appeal’s order and should overrule the decision in the Attwood case; and that, although the contractual period of the restraints has expired long ago, it should formally restore the injunction granted by Mann J, subject only to the removal of the words ‘or interested’.
Lady Hale, President, Lord Kerr, Lord Wilson, Lord Briggs, Lady Arden
[2019] UKSC 32, [2020] AC 154, [2019] ICR 1223, [2019] 3 WLR 245, [2019] WLR(D) 395, [2020] 1 All ER 477, [2019] IRLR 838, [2019] FSR 39, [2019] 2 BCLC 143, UKSC 2017/0182
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 21 Jan 2019 am Video, SC 2019 Jan 21 pm Video, SC 2019 Jan 22 am video
England and Wales
Appeal from – Tillman v Egon Zehnder Ltd CA 21-Jul-2017
Post employment restrictive covenant – unreasonable restraint of trade – six months restriction – not to become shareholder in a competitor.
Held: The injunction against employment and holding the shares was discharged. The Court rejected the . .
At First Instance – Egon Zehnder Ltd v Tillman ChD 23-May-2017
Application for an injunction to enforce an employee restrictive covenant which, if effective, would restrain the defendant from working for a competitor of the claimant for a period of six months from the termination of her employment. Mann J, at . .
Cited – Colgate v Bacheler 1653
The defendant agreed that, if for three years his son worked as a haberdasher in Canterbury or Rochester, he would pay the plaintiff pounds 20. The court held the agreement to be void irrespective of its limitations of time and place because it was . .
Cited – Mitchel v Reynolds 1711
A bond or promise to restrain oneself from trading in a particular place, if made upon a reasonable consideration, is good. (So Davis v Mason, 5 TR 118.) Secus if it be on no reasonable consideration, or to restrain a man from trading at all.
Cited – Scully UK Limited v Lee CA 9-Feb-1998
An employee had covenanted that throughout the year following termination he would not engage in or be ‘otherwise interested in, whether as a shareholder . . employee or . . in any other capacity’ any business, which was defined in terms not limited . .
Cited – National Enterprises Ltd v Racal Communications Ltd 1975
When a court makes an assumption about the law, instead of reaching a focussed determination in relation to it, the decision based upon it does not carry binding authority under the doctrine of precedent . .
Cited – George Hill and Co v Hill 1886
The plaintiff company acquired the meat export business of the defendant, who covenanted not to ‘be in any way concerned or interested in any similar business’ within ten miles of the Royal Exchange. He became an employee of a similar business . .
Cited – Nordenfelt v Maxim Nordenfelt Guns and Ammunition Company HL 1894
Exceptions to Freedom to Trade
The purchaser of the goodwill of a business sought to enforce a covenant in restraint of trade given by the seller.
Held: At common law a restraint of trade is prima facie contrary to public policy and void, unless it can be shown that the . .
Cited – Servais Bouchard v Princes Hall Restaurant CA 1904
A restaurant in Piccadilly had contracted with a supplier of burgundy not to sell burgundy to its customers other than such as it had purchased from the supplier. The restaurant broke the contract
Held: A contract by which defendant Restaurant . .
Cited – Wood v Capita Insurance Services Ltd SC 29-Mar-2017
Construction of term of contract for the sale and purchase of the entire issued share capital of a company.
Held: The appeal was dismissed: ‘the SPA may have become a poor bargain, as it appears that it did not notify the sellers of a warranty . .
Cited – Proactive Sports Management Ltd v Rooney and Others CA 1-Dec-2011
Wayne Rooney set up a company to which he assigned his image rights, in other words his rights to exploit his image by, for example, his indorsement of sports products and by other forms of promotion and sponsorship. His company contracted with the . .
Cited – McPhail v Doulton (on appeal from In re Baden’s Deed Trusts) HL 6-May-1970
The settlor asked whether the test for validity, in point of certainty of objects, is the same for trusts and powers, or whether the test for trusts is more demanding.
Held: The test is the same. The context was a provision, held to be a . .
Cited – Dickson v Pharmaceutical Society of Great Britain HL 1970
The Society was concerned by the extension of the range of non-pharmaceutical goods sold in chemist’s shops and the effect which it might have on the quality and status of the profession, proposed a new rule for inclusion in the code of ethics and . .
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 – Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd HL 1968
Agreement in Restraint of Trade Unenforceable
The defendant ran two garages under solus agreements with the plaintiffs who complained when the defendants began to purchase petrol from cheaper alternative sources. The House was asked whether the solus agreements were be regarded in law as an . .
Cited – In re Baden’s Deed Trusts CA 1969
The Court by a majority, determined the meaning of a deed of settlement by reference to the validity principle.
Harman LJ said: ‘the court is at liberty, if the considerations on both sides seem evenly balanced, to lean towards that which may . .
Cited – TFS Derivatives Ltd v Morgan QBD 15-Nov-2004
The claimant sought to enforce a post employment restrictive covenant. There was a 6 months’ prohibition, post-termination of employment (less any period of garden leave) on any employment which was competitive with the business of a former . .
Cited – Anglo Continental Educational Group (GB) Ltd v Capital Homes (Southern) Ltd CA 17-Mar-2009
The two parties to this appeal are locked in battle over a contractual provision for a discount in the calculation of the purchase price for two properties.
Arden LJ said: that ‘if the agreement is susceptible of an interpretation which will . .
Cited – Inland Revenue Commissioners v Williams ChD 1969
Megarry J adverted to the need for an even balance when construing a clause in a deed: ‘It is possible that the same approach might be adopted where the scales are tilted only slightly to one side or the other; but plainly it cannot apply where, . .
Cited – Tindall Cobham 1 Ltd and Others v Adda Hotels and Others CA 5-Sep-2014
Tenants had assigned their leases to subsidiary companies as part of a company re-organisation, and now claimed the benefit of the 1995 Act to relieve them from liability under an authorised guarantee agreement. . .
Cited – The Great Estates Group Ltd v Digby CA 13-Oct-2011
The Claimant, an estate agent, considers that it was cut out of its entitlement to commission on the sale of a property in London in the buoyant market of the summer of 2007. By these proceedings it seeks compensation for that loss.
Toulson LJ . .
Cited – Smith v Hancock ChD 23-Apr-1894
The defendant sold his grocery business near Stoke-on-Trent to the claimant and agreed not for the following ten years to carry on or be ‘in any wise interested’ in any similar business operating within five miles of it. The defendant’s wife set up . .
Cited – Gophir Diamond Co v Wood ChD 26-Mar-1902
The ex-employee of a jewellery shop in Regent Street had become a salaried employee of a rival shop in the same street. Swinfen Eady J noted that his covenant had only been not to be ‘interested’ in a similar business; and the judge added that in . .
Cited – David Chesman, Et Ux v Margery Nainby, Widow HL 22-Feb-1727
Miss Nainby traded as a draper from her home in Drury Lane. Prior to her marriage Mrs Chesman became apprenticed to Miss Nainby. Mrs Chesman entered into a bond that, after leaving Miss Nainby’s service, she would not trade as a draper, nor assist . .
Cited – Mason v Provident Clothing and Supply Co Ltd HL 1913
The employee had covenanted not to work for any of the employer’s competitors ‘within 25 miles of London’. The appellate committee held that the employer had failed to establish that the extension of the restraint to the area thus specified was . .
Cited – Nevanas (SV) and Co v Walker and Foreman ChD 11-Dec-1913
In 1908 the plaintiff company agreed to employ the defendant F. as manager of the company at Liverpool for five years from January, 1909, and by clause 7 it was provided that the manager should not for a period of one year after the determination of . .
Cited – Goldsoll v Goldman 1914
. .
Cited – Tradition Financial Services Ltd v Gamberoni and Others QBD 12-Apr-2017
Post-employment restrictions on the employee included a covenant on his part not for six months to ‘undertake, carry on or be employed, engaged or interested in any capacity in . . any business activity’ of a specified character. Among the . .
Cited – Philip William Carney v John Edward Herbert and Others PC 29-Oct-1984
(New South Wales) The security for payment of the price, for which a contract for the sale of shares had provided, was not only a guarantee but also mortgages which were statutorily illegal. The Privy Council indorsed a decision of the Supreme Court . .
Cited – CEF Holdings Ltd and Another v City Electrical Factors Ltd and Others QBD 1-Jun-2012
The claimant sought continuation of interim orders requiring the defendants not to solicit the employment of its workers, and restraining any use of its intellectual property by defendants who had already left.
Held: That for various reasons . .
Overruled – Attwood v Lamont KBD 1920
The claimant carried on business in Kidderminster as a draper, tailor and general outfitter, employed the defendant as a cutter in the tailoring department. The defendant covenanted not at any time thereafter to trade as ‘a tailor, dressmaker, . .
Cited – Attwood v Lamont CA 2-Jan-1920
A court considering whether a restrictive covenant in an employment contract is reasonable, can sever words which render it too broad ‘if the severed parts are independent from one another and can be severed without the severance affecting the . .
Cited – Putsman v Taylor KBD 1927
The plaintiff employed the defendant as manager of his tailoring business at 49 Snow Hill in Birmingham. The defendant covenanted that, following the end of his employment, he would not be employed by a tailor (a) anywhere else on Snow Hill nor (b) . .
Cited – Scorer v Seymour Jones CA 1966
The claimant, an estate agent in Dartmouth, opened a branch in Kingsbridge and employed the defendant to manage it. The defendant’s post-employment covenant was not to set up as an estate agent within five miles either of Kingsbridge or of . .
Cited – T Lucas and Co Ltd v Mitchell CA 1974
The claimant, which manufactured foodstuffs, employed the defendant as a salesman in Manchester. His post-employment covenant was not to deal in goods similar to those manufactured by the claimant nor to solicit orders from, nor to supply, any of . .
Cited – Sadler v Imperial Life Assurance Co of Canada Ltd QBD 1988
The defendant employed the claimant as an insurance agent on commission, to be calculated by reference to premiums paid to the defendant for the first ten years under any policy which he had procured. A clause of the contract stated that, if in . .
Cited – Marshall v NM Financial Management Ltd ChD 10-Jul-1995
A post-termination restriction on an employment was in restraint of trade and ineffective despite a payment having been made for the restriction. The agent was not entitled to any commission after termination under the relevant clause.
Mr . .
Cited – NM Financial Management Limited v Marshall CA 13-Mar-1997
The court considered a provision that a commission agent would be paid commission following the termination of his agency provided that he did not within a year become an independent intermediary or work for a competitor. Here the suspension of . .
Cited – Beckett Investment Management Group Ltd and others v Hall and others CA 28-Jun-2007
The defendants, who had been employed by the claimant as independent financial advisers, covenanted that, for the year immediately following termination of their employment, they would not deal with any of the claimant’s clients with whom they had . .
Cited – Freshasia Foods Ltd v Lu ChD 20-Mar-2019
The Court considered continuation of an interim injunction to enforce a post employment restrictive covenant.
Held: Arnold J ruled that the employer had failed to establish legitimate interests which required the protection of the covenant. He . .
Cited – UK Power Reserve Ltd v Read ChD 2014
The court focussed on whether the effect of the words ‘concerned or interested’ in a post-employment restraint was to preclude the ex-employee from having no more than a passive minority shareholding in a competitor, because, if so, they were . .
Cited – East England Schools CIC (T/A 4Myschools) v Palmer and Another QBD 20-Dec-2013
The claimant company sought to enforce post employment restrictive covenants against the defendants, its former employees. The defendant argued that the increasing use by teachers and schools of social media and the internet means that the employer . .
Cited – Ashcourt Rowan Financial Planning Ltd v Hall QBD 10-May-2013
ARFP sought to enforce post-termination covenants against the defendant, and inter alia an order which would prevent him from working for a competitor for a time. H contended that ARFP were relying on covenants that were already spent and in any . .
Cited – British Reinforced Concrete Engineering Co Ltd v Schelff CA 1921
Younger LJ said: ‘Now the effect of severing by striking out with a blue pencil the obnoxious part of a covenant is not to alter or affect the construction of what is left. That must be construed as if the portion struck out still remained . . ‘ . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 April 2022; Ref: scu.639249
The claimant company sought to enforce post employment restrictive covenants against the defendants, its former employees. The defendant argued that the increasing use by teachers and schools of social media and the internet means that the employer no longer has any protectable connection with its customers. The claimant’s business was that of an agency which sought to find teachers for schools with teaching vacancies. Among the post-employment restraints included in the first defendant’s contract with the claimant was a provision that, whether as shareholder or otherwise, she should not be ‘concerned with the supply . . of Services’ to any school or teacher with whom she had had recent dealings.
Held: The provision, which specifically extended to her status as a shareholder, was unreasonably wide because it would even prevent her from having a minority shareholding in a competing company which supplied such services. But, by reference to the three criteria and the additional criterion, the court proceeded to declare that the provision should be severed and removed from the remainder of the restraints, which were enforceable. He had therefore asked himself whether severance would change the underlying character of the contract. He had not asked himself whether the unreasonable provision in effect formed a separate covenant.
Salter QC HHJ
[2013] EWHC 4138 (QB), [2014] IRLR 191
England and Wales
Cited – Tillman v Egon Zehnder Ltd SC 3-Jul-2019
The company appealed from rejection of its contention that its former employee should be restrained from employment by a competitor under a clause in her former employment contract. The court particularly considered the severability of a section . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 April 2022; Ref: scu.519769
C-100/78
Updated: 10 April 2022; Ref: scu.132693
Europa The provision in paragraph 1 of point I (United Kingdom) of annex V to Regulation no 1408/71, far from restricting the definition of the term ‘worker’ as it emerges from clarify the scope of subparagraph (ii) of this paragraph vis-a-vis British legislation. A person who:- was compulsorily insured against the contingency of ‘ sickness ‘ successively as an employed person and as a self-employed person under a social security scheme for the whole working population; – was a self-employed person when this contingency occurred; – at the said time and under the provisions of the said scheme, nevertheless could have claimed sickness benefits in cash at the full rate only if there were taken into account both the contributions paid by him or on his behalf when he was an employed person and those which he made as a self-employed person;
constitutes, as regards british legislation, a ‘worker’ within the meaning of article 1(a)(ii) of regulation no 1408/71 for the purposes of the application of the first sentence of article 22(1)(ii) of that regulation.
C-17/76
Updated: 10 April 2022; Ref: scu.132425
The Court considered continuation of an interim injunction to enforce a post employment restrictive covenant.
Held: Arnold J ruled that the employer had failed to establish legitimate interests which required the protection of the covenant. He therefore declined to continue the injunction; and, apart from adverting to the difficulty of reconciling the decision in the Beckett case with the decision in Tillman, he explained that he had no need to address the issues relating to severance. This final disposal of the application does not however detract from the value of the deputy judge’s observations. In particular he
(a) observed that the deeming provision in the Beckett case could not be regarded as a separate covenant but had nevertheless been severed;
(b) inferred from the Beckett case that the historical reluctance to sever, exemplified in the Mason and Attwood cases, was something of a relic;
(c) recognised on the one hand that an employer had legitimate interests worthy of protection in the public interest; that they might easily be prejudiced when an important employee left; and that they should not be frustrated by too narrow an approach to severability;
(d) recognised on the other hand that Lord Moulton’s concerns in the Mason case remained valid; and that the law should not allow an employer first to extract an unreasonably wide restraining covenant, inhibiting the employee from leaving to work elsewhere and even from threatening to do so in order to obtain fairer terms from him, and then, if challenged in court, too easily to secure its removal and the enforcement of the remainder;
(e) questioned whether Lord Moulton’s concerns were best addressed by a rule which denies severance of a term within a single covenant, even if insignificant; and
(f) concluded that it might be preferable to address substance rather than form and thus to permit the removal of relatively minor terms if it would not materially change the nature of the contract.
Arnold J
[2019] EWHC 638 (Ch)
England and Wales
Interlocutory Injunction – Freshasia Foods Ltd v Jing Lu ChD 4-Jan-2019
The Court granted an interlocutory injunction by way of enforcement of parts of an employee’s non-solicitation post-employment covenant. Treating the inquiry as purely interlocutory, he made only provisional determinations. These were that three . .
Cited – Tillman v Egon Zehnder Ltd CA 21-Jul-2017
Post employment restrictive covenant – unreasonable restraint of trade – six months restriction – not to become shareholder in a competitor.
Held: The injunction against employment and holding the shares was discharged. The Court rejected the . .
Cited – Tillman v Egon Zehnder Ltd SC 3-Jul-2019
The company appealed from rejection of its contention that its former employee should be restrained from employment by a competitor under a clause in her former employment contract. . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 April 2022; Ref: scu.634798
Post employment restrictive covenant – unreasonable restraint of trade – six months restriction – not to become shareholder in a competitor.
Held: The injunction against employment and holding the shares was discharged. The Court rejected the construction placed by Mann J upon the word ‘interested’ in the non-competition covenant. It held that its effect would be to prohibit Ms Tillman from holding even a minority shareholding in any of the competing businesses there specified and that, as such, the covenant was in unreasonable restraint of trade; and it refused to sever the word from the remainder of the clause so as to save the remainder of the prohibition.
Longmore, Patten, Sales LJJ
[2017] EWCA Civ 1054, [2017] WLR(D) 492, [2017] IRLR 906, [2018] ICR 574
England and Wales
Appeal from – Egon Zehnder Ltd v Tillman ChD 23-May-2017
Application for an injunction to enforce an employee restrictive covenant which, if effective, would restrain the defendant from working for a competitor of the claimant for a period of six months from the termination of her employment. Mann J, at . .
Appeal from – Tillman v Egon Zehnder Ltd SC 3-Jul-2019
The company appealed from rejection of its contention that its former employee should be restrained from employment by a competitor under a clause in her former employment contract. . .
Cited – Freshasia Foods Ltd v Lu ChD 20-Mar-2019
The Court considered continuation of an interim injunction to enforce a post employment restrictive covenant.
Held: Arnold J ruled that the employer had failed to establish legitimate interests which required the protection of the covenant. He . .
Cited – Freshasia Foods Ltd v Jing Lu ChD 4-Jan-2019
The Court granted an interlocutory injunction by way of enforcement of parts of an employee’s non-solicitation post-employment covenant. Treating the inquiry as purely interlocutory, he made only provisional determinations. These were that three . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 April 2022; Ref: scu.591197
The defendants, who had been employed by the claimant as independent financial advisers, covenanted that, for the year immediately following termination of their employment, they would not deal with any of the claimant’s clients with whom they had dealt in the preceding year; and that, if they had then dealt with agents of its clients, the agents should be deemed to be its clients for this purpose. The company sought to enforce restrictive covenants entered into by employees of its subsidiary. The employees said that the covenants did not benefit them.
Held: The court should take a realistic view of corporate identity in such situations. The covenants were enforceable. The deeming of agents as clients was unreasonable; that the covenant should be severed and the deeming provision removed; and that the remainder of the restraint should be enforced against the defendants.
Maurice Kay LJ observed a) that ‘[a]t one stage’ there had been an assumption in the authorities, such as the Mason case, that courts should be reluctant to sever a covenant in restraint of trade in favour of an employer;
(b) declared at paras 35-37 that the appropriate starting-point was what Lord Sterndale and Younger LJ had said in the Attwood case;
(c) noted at para 38 that in the T Lucas case, cited in para 69 above, the court had authoritatively rejected the second prerequisite of severance which Younger LJ had identified;
(d) addressed at para 40 the three criteria identified in the Sadler case and noted that it had been applied both in the Marshall case and in the TFS Derivatives case cited in para 41 above;
(e) rejected at paras 41 and 42 the suggestion that those three criteria applied only to claims by employees to post-employment commission and likened the third criterion to the reference in the T Lucas case to the availability of severance if achievable ‘without altering the nature of the contract’;
(f) suggested at para 43 that ‘the threefold test . . is a useful way of approaching these cases and should be adopted’; and
(g) concluded at para 44 that application of those three criteria rendered the deeming provision removable.
Sir Anthony Clarke Mr Carnwath LJ , Maurice Kay LJ
[2007] EWCA Civ 613, Times 11-Jul-2007, [2007] IRLR 793, [2007] ICR 1539
England and Wales
Appeal from – Beckett Investment Management Group Ltd. Beckett Financial Services Ltd. Beckett Asset Management Ltd and others v Hall and others QBD 16-Feb-2007
. .
Cited – Office Angels Ltd v Rainer-Thomas CA 1991
Reasonability Test of Post Employment Restriction
The court re-stated the principles applicable in testing whether an employee’s restrictive covenant was reasonable: ‘The court cannot say that a covenant in one form affords no more than adequate protection to a covenantee’s relevant legitimate . .
Cited – Tillman v Egon Zehnder Ltd SC 3-Jul-2019
The company appealed from rejection of its contention that its former employee should be restrained from employment by a competitor under a clause in her former employment contract. . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 April 2022; Ref: scu.253739
The Court granted an interlocutory injunction by way of enforcement of parts of an employee’s non-solicitation post-employment covenant. Treating the inquiry as purely interlocutory, he made only provisional determinations. These were that three aspects of the covenant were unreasonably wide but that, following severance, they should be removed from the remainder. Prompted in part, so it would seem, by the Court of Appeal’s decision against which this present appeal is brought, he conducted a wide-ranging survey of the law of severance of post-employment restraints in which he made a number of valuable observations.
Mr Daniel Alexander QC
[2018] EWHC 3644 (Ch)
England and Wales
Cited – Tillman v Egon Zehnder Ltd CA 21-Jul-2017
Post employment restrictive covenant – unreasonable restraint of trade – six months restriction – not to become shareholder in a competitor.
Held: The injunction against employment and holding the shares was discharged. The Court rejected the . .
Interlocutory Injunction – Freshasia Foods Ltd v Lu ChD 20-Mar-2019
The Court considered continuation of an interim injunction to enforce a post employment restrictive covenant.
Held: Arnold J ruled that the employer had failed to establish legitimate interests which required the protection of the covenant. He . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 April 2022; Ref: scu.632154
A post-termination restriction on an employment was in restraint of trade and ineffective despite a payment having been made for the restriction. The agent was not entitled to any commission after termination under the relevant clause.
Mr Jonathan Sumption QC said: ‘I do not think that there can be any doubt that proviso (i) is a restraint of trade. It had been well established since the decision of the Court of Appeal in Wyatt v Kreglinger and Fernau [1933] 1 K.B. 793 that there is no relevant difference between a contract that a person will not carry on a particular trade and a contract that if he does not do so he will receive some benefit to which he would not otherwise be entitled. Proviso (i) is a financial incentive to the agent not to carry on business in the specified fields. It is therefore unlawful unless it is justified as being reasonable in the interests of the parties and in that of the public.’
Jonathan Sumption QC
Times 10-Jul-1995, [1995] 1 WLR 1461, [1996] IRLR 20
England and Wales
Cited – Wyatt v Kreglinger and Fernau CA 1933
An employer agreed to grant the employee a gratuitous pension payable by monthly instalments upon retirement on condition that he did not compete with the employer.
Held: When considering whether a provision operates in restraint of trade, . .
Appeal from – NM Financial Management Limited v Marshall CA 13-Mar-1997
The court considered a provision that a commission agent would be paid commission following the termination of his agency provided that he did not within a year become an independent intermediary or work for a competitor. Here the suspension of . .
Cited – Futter and Another v Revenue and Customs; Pitt v Same SC 9-May-2013
Application of Hastings-Bass Rule
F had created two settlements. Distributions were made, but overlooking the effect of section 2(4) of the 2002 Act, creating a large tax liability. P had taken advice on the investment of the proceeds of a damages claim and created a discretionary . .
Cited – Tillman v Egon Zehnder Ltd SC 3-Jul-2019
The company appealed from rejection of its contention that its former employee should be restrained from employment by a competitor under a clause in her former employment contract. . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 April 2022; Ref: scu.83435
A tribunal having decided not to call for expert evidence as to the situation of comparators in an equal pay claim, dismissed the application after deciding that the appellants had no reasonable prospect of success. This was wrong, and it failed to recognise the two stages of the procedure, which should have later allowed the claimant themselves to choose to bring such evidence. The appellants had accordingly been denied a proper hearing, and the case was remitted.
Gazette 08-Dec-1999, (1999) IRLR 773
England and Wales
Updated: 10 April 2022; Ref: scu.90583
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 with others to practice in competition. During the period of her notice she worked also on files for other firms and diverted work to her new practice. She defended the action saying the restrictive covenants were not reasonable.
Held: ‘Solicitors are not therefore a ‘special case’ in the sense that they are immune from the principles in this branch of the law applicable generally to, eg milk roundsmen and every one else in commerce, merely on the grounds that they are solicitors. But that does not mean that a clause which is unreasonable for milk roundsmen would also be unreasonable for a solicitor – and vice versa. This is because whether a restriction is reasonable or not is a question of fact and is dependent on all the circumstances of the case. There are differences in the way in which milk roundsmen and solicitors pursue their business interests and obtain and secure their business connections and it does therefore follow that the different ways in which they do business may well have the effect of making a clause which is reasonable for the one to be unreasonable for the other and vice versa. It is a question of fact. ‘ The question for the court was ‘whether the restriction is in all the circumstances reasonable for the protection of the legitimate interests of the claimant. ‘ The respondent’s bad behaviour did not affect the issue. The Law Society’s professional rule 1 did not allow the employers to claim any special exemption. ‘. . . the fact that the restriction is not limited to those clients with whom the claimant had personal contact in the period of 1 year prior to termination is an important consideration which significantly widens the restriction and attempts to justify it must be carefully considered. After due consideration it is my judgment that the width of the clause is not fatal to its reasonableness.’ Events after the covenant had been made did not affect its reasonableness. The covenant would not prevent the solicitor acting for commercial lenders. The interim injunction was made final.
Bernard Livesey QC
[2006] EWHC 286 (Ch), [2006] IRLR 599, [2006] ICR 742
England and Wales
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 – 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 . .
Cited – Home Counties Dairies v Skilton CA 1970
In construing an employee’s restrictive covenant, a court should disregard fanciful hypotheses or arguments leading to a reductio ad absurdum. . .
Cited – Stenhouse Australia Ltd v Phillips PC 2-Oct-1973
(Australia) An employer’s claim for protection from competition by a former employee under a restrictive covenant must be based upon the identification of some advantage or asset inherent in the business which can properly be regarded as, in a . .
Mentioned – 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 – Attwood v Lamont CA 2-Jan-1920
A court considering whether a restrictive covenant in an employment contract is reasonable, can sever words which render it too broad ‘if the severed parts are independent from one another and can be severed without the severance affecting the . .
Cited – Wallace Bogan and Co v Cove and others CA 7-Feb-1997
The court considered whether a contract of employment for a solicitor was in a special class when considering the implication of restrictive covenants into an assistant solicitor’s contract. As to the solicitor’s connection: ‘The essential question . .
Cited – Office Angels Ltd v Rainer-Thomas CA 1991
Reasonability Test of Post Employment Restriction
The court re-stated the principles applicable in testing whether an employee’s restrictive covenant was reasonable: ‘The court cannot say that a covenant in one form affords no more than adequate protection to a covenantee’s relevant legitimate . .
Cited – Gledhow Autoparts Ltd v Delaney CA 1965
When considering the reasonableness of an employee’s restrictive covenant, the court must test it at the time when it was entered into. If a covenant was unreasonable it will be wholly unenforceable – not partly unenforceable to the extent of what . .
Cited – 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 . .
Cited – Fitch v Dewes HL 1921
An assistant solicitor had already worked for his employer in humbler status for many years when, aged 27, he signed a covenant restricting his acting in competition with his employer within seven miles of Tamworth Town Hall for an unlimited time. . .
Cited – 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 . .
Cited – Shell UK Ltd v Lostock Garage Ltd 1976
The implication of a term into a contract does not depend on the parties’ intention, actual or presumed, but on broader considerations.
As to the requirement for certainty when implying a term into a contract, the proposed implied term must be . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Dentmaster (UK) Limited v Kent CA 2-May-1997
The court was asked as to whether a post-employment non-solicitation restrictive covenant was reasonable.
Held: The covenant was upheld. It extended for a period of twelve months to customers within the last six months with whom the employee . .
Cited – Austin Knight (UK) Ltd v Hinds 1994
A post employment restrictive covenant prevented the employee dealing with any of the employer’s clients whether or not he had himself dealt with them. The defendant would be known to only one third of the customers.
Held: The covenant was not . .
Cited – 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, . .
Cited – Dairy Crest Ltd v Piggott CA 1989
When considering restrictive covenants in employment cases, courts must not seek to uphold a clause as reasonable only because the same clause was upheld in a different case. It is an error of law. There is no ‘tariff’ of what is reasonable. In this . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 April 2022; Ref: scu.240013
Equal rights applied to occupational pension schemes, and to part timers.
Times 07-Dec-1994, C-57/93
European
Updated: 10 April 2022; Ref: scu.90196
The Chairman of a tribunal may always hear questions as to matters of jurisdiction alone.
Times 06-Nov-1996, [1997] IRLR 4
Industrial Tribunals Act 1996 4(6)
Disapproved – Mobbs v Nuclear Electric Ltd EAT 8-Aug-1996
An IT Chair should not sit alone at preliminary hearing if evidence is to be given. . .
Cited – Sarker v South Tees Acute Hospitals NHS Trust EAT 25-Mar-1997
CS The appellant applied for a job with the respondent. Her offer was confirmed in writing. When the offer was withdrawn before she began to work, she claimed damages under s131.
Held: The employment . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 April 2022; Ref: scu.90015
Football’s transfer fee system is in conflict with the EC freedom of movement for workers.
Times 17-Jan-1996
Updated: 10 April 2022; Ref: scu.90062
The employer had a written policy against discrimination on the grounds of age. The employee was required to retire early. It was held that this was not a breach of contract which gave the employer a wide discretion in these matters, and in this case the decision was not of itself discriminatory.
Gazette 14-Jul-1999, (1999) IRLR 362
Updated: 10 April 2022; Ref: scu.89750
The Industrial Tribunal should take account of the surrounding circumstances after the dismissal of the employee during strike action.
Times 28-Jul-1993, Independent 17-Aug-1993
Employment Protection (Consolidation) Act 1978 62(1)
Updated: 10 April 2022; Ref: scu.89904
The employee went on strike for a half day. The employer deducted a whole day’s pay, and the employee sought to complain to the Industrial Tribunal that the extra half days deduction was unlawful. It was held that the tribunal had no power to hear the complaint. The deduction arose from the strike, and so was excluded under the section. The amount of the deduction could not affect the jurisdiction.
Times 16-Mar-1993
Updated: 10 April 2022; Ref: scu.89606
EAT disapproved of growing practice of professional IT chairmen taking preliminary points alone. It saved money but at the potential expense of the appearance of injustice. The importance of the contribution capable of being made by lay members is not to be forgotten.
Gazette 03-Sep-1998, Times 25-Jun-1998, [1998] IRLR 428
Updated: 10 April 2022; Ref: scu.89622
Fear of transfer terms was insufficient to found claim of unfair dismissal on its own; TUPE regulations gave some protection.
Times 05-Dec-1996
Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794)
Updated: 10 April 2022; Ref: scu.89282
Industrial Tribunals should state facts as found and relied on, when making finding of dismissal for trade union membership.
Times 22-Mar-1996
Trade Union and Labour Relations (Consolidation) Act 1992 152(1)(a)
Updated: 10 April 2022; Ref: scu.89450
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 whether a person is or is not an employee is a pure question of fact. The shareholding of a person in the company by which he alleges he was employed is a factor to be taken into account, because it might tend to establish either that the company was a mere simulacrum or that the contract under scrutiny was a sham. In our judgment it would be wrong to say that a controlling shareholder who, as such, ultimately had the power to prevent his own dismissal by voting his shares to replace the board, was outside the class of persons given rights under the Act of 1996 on an insolvency.’
Morison J
Gazette 28-May-1998, [1998] IRLR 120
Employment Rights Act 1996 213
Appeal from – 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 – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 April 2022; Ref: scu.89124
Tribunals looking at ‘reasonable adjustment’ cases in disability discrimination are reminded to check the case against the wording of the Act and the published Codes of Practice.
Gazette 03-Feb-1999
Disability Discrimination Act 1995
Updated: 10 April 2022; Ref: scu.88785
Post-employment restrictions on the employee included a covenant on his part not for six months to ‘undertake, carry on or be employed, engaged or interested in any capacity in . . any business activity’ of a specified character. Among the employee’s various contentions that the restrictions were in unreasonable restraint of trade was a contention that the word ‘interested’ disabled him from holding even a small quantity of shares in companies of the specified character.
In response the employer adverted to two features of the contract. Thus, as Foskett J explained the employer relied on an earlier clause of the contract under which during his employment the employee had been permitted to hold small amounts of shares, even apparently in competing companies. This was the foundation of the employer’s primary argument, which the judge described as follows and which he accepted: ‘it cannot sensibly have been intended that [the employee] should be subject to a more onerous restriction as to shareholdings after his employment had terminated than whilst still an employee, particularly if it is suggested that the more onerous obligation is created by a clause that makes no express reference to shareholdings at all. In other words, whatever ‘interested in any capacity . . in any business activity’ means, it cannot be a reference to a shareholding.’
Foskett J explained that the employer also relied on the fact that the covenant prohibited the employee from being interested in a ‘business activity’ and it argued that passive investment by way of a minority shareholding was not a ‘business activity’.
Foskett J
[2017] EWHC 768 (QB), [2017] IRLR 698
England and Wales
Cited – Tillman v Egon Zehnder Ltd SC 3-Jul-2019
The company appealed from rejection of its contention that its former employee should be restrained from employment by a competitor under a clause in her former employment contract. . .
Cited – Tillman v Egon Zehnder Ltd SC 3-Jul-2019
The company appealed from rejection of its contention that its former employee should be restrained from employment by a competitor under a clause in her former employment contract. . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 April 2022; Ref: scu.581983
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 terminated. The contract sought a further twelve months’ restriction.
Held: At trial it was likely to be held that the twelve months’ duration of the non-solicitation clause went beyond what was reasonably necessary for the protection of AFEX’s legitimate interests. Cousins J thought it likely that any period beyond six months would be found objectionable. Also the extension of the covenant to potential customers was unreasonable.
Cousins QC J
[2010] EWHC 1178 (Ch), [2010] IRLR 964
England and Wales
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 – Credit Suisse Asset Management Ltd v Armstrong and Others CA 3-Jun-1996
The employer provided fund management services to private clients. The notice periods for the various employees ranged between three and twelve months, but the handbook governing the terms of employment provided that during the respective notice . .
Cited – 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 . .
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 – Kores Manufacturing Co Ltd v Kolok Manufacturing Ltd CA 1959
When considering a post employment restrictive covenant on an employee, the court should allow that an employer has a legitimate interest in maintaining a stable and trained workforce. However, even accepting that interest, an employer has no . .
Cited – Stenhouse Australia Ltd v Phillips PC 2-Oct-1973
(Australia) An employer’s claim for protection from competition by a former employee under a restrictive covenant must be based upon the identification of some advantage or asset inherent in the business which can properly be regarded as, in a . .
Cited – Mason v Provident Clothing and Supply Co Ltd HL 1913
The employee had covenanted not to work for any of the employer’s competitors ‘within 25 miles of London’. The appellate committee held that the employer had failed to establish that the extension of the restraint to the area thus specified was . .
Cited – TFS Derivatives Ltd v Morgan QBD 15-Nov-2004
The claimant sought to enforce a post employment restrictive covenant. There was a 6 months’ prohibition, post-termination of employment (less any period of garden leave) on any employment which was competitive with the business of a former . .
Cited – International Consulting Services (UK) Ltd v Hart QBD 26-Jan-2000
The claimant sought damages and an injunction from their former employee, the defendant, saying that he had breached a post-employment restrictive covenant.
Held: The court upheld a 12-month non-solicitation clause. This was however a . .
Cited – Dowden and Pook Ltd v Pook CA 1904
When an employment covenant is unlimited, the covenant cannot be rewritten to limit its territorial extent. . .
Cited – Home Counties Dairies v Skilton CA 1970
In construing an employee’s restrictive covenant, a court should disregard fanciful hypotheses or arguments leading to a reductio ad absurdum. . .
Cited – Dawnay, Day and Co Limited; Wilcourt Investments Limited v D’Alphen; Johnston; Parkman; Cantor Fitzgerald International CA 22-May-1997
The defendants were investment managers who left the plaintiff’s employment to take up posts with a rival. DD issued these proceedings claiming to enforce inter alia contractual undertakings by the defendants not to compete with the business of DDS, . .
Cited – Dairy Crest Ltd v Piggott CA 1989
When considering restrictive covenants in employment cases, courts must not seek to uphold a clause as reasonable only because the same clause was upheld in a different case. It is an error of law. There is no ‘tariff’ of what is reasonable. In this . .
Cited – Gilford Motor Co Ltd v Horne CA 1933
The defendant was the plaintiff’s former managing director. He was bound by a restrictive covenant after he left them. To avoid the covenant, he formed a company and sought to transact his business through it. At first instance, Farwell J had found . .
Cited – M and S Drapers (a Firm) v Reynolds CA 1956
The defendant, a collector salesman entered the employment of a firm of credit drapers at a weekly wage of andpound;10. He brought with him the connection of customers acquired in previous employments. He entered into a restrictive covenant that he . .
Cited – Office Angels Ltd v Rainer-Thomas CA 1991
Reasonability Test of Post Employment Restriction
The court re-stated the principles applicable in testing whether an employee’s restrictive covenant was reasonable: ‘The court cannot say that a covenant in one form affords no more than adequate protection to a covenantee’s relevant legitimate . .
Cited – Basic Solutions Ltd v Sands QBD 23-Jun-2008
The claimant sought injunctions to prevent misuse by former employees of confidential information in their possession and breach of a post employment restrictive covenant.
Held: Eady J said that he could not see, as a matter of general . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 April 2022; Ref: scu.416206
The purchaser of the goodwill of a business sought to enforce a covenant in restraint of trade given by the seller.
Held: At common law a restraint of trade is prima facie contrary to public policy and void, unless it can be shown that the restraint is, in the circumstances of the particular case, reasonable.
Lord Watson said: ‘I think it is now generally conceded that it is to the advantage of the public to allow a trader who has established a lucrative business to dispose of it to a successor by whom it may efficiently be carried on. That object could not be accomplished if, upon the score of public policy, the law reserved to the seller an absolute and indefeasible right to start a rival business the day after he sold. Accordingly it has been determined judicially, that in cases where the purchaser, for his own protection, obtains an obligation restraining the seller from competing with him, within bounds which having regard to the nature of the business are reasonable and are limited in respect of space, the obligation is not obnoxious to public policy, and is therefore capable of being enforced.’
Lord MacNaughten discussed the doctrine of restraint of trade: ‘In the age of Queen Elizabeth all restraints of trade, whatever they were, general or partial, were thought to be contrary to public policy, and therefore void.’ and ‘The true view at the present time I think, is this: The public have an interest in every person’s carrying on his trade freely: so has the individual. All interference with individual liberty of action in trading, and all restraints of trade of themselves, if there is nothing more, are contrary to public policy, and therefore void. That is the general rule. But there are exceptions: restraints of trade and interference with individual liberty of action may be justified by the special circumstances of a particular case. It is a sufficient justification, and indeed it is the only justification, if the restriction is reasonable – reasonable, that is, in reference to the interests of the parties concerned and reasonable in reference to the interests of the public, so framed and so guarded as to afford adequate protection to the party in whose favour it is imposed, while at the same time it is in no way injurious to the public.’
Lord Macnaughten, Lord Watson
[1894] AC 535, [1893] 1 Ch 630
England and Wales
Restated – Mitchel v Reynolds 1711
A bond or promise to restrain oneself from trading in a particular place, if made upon a reasonable consideration, is good. (So Davis v Mason, 5 TR 118.) Secus if it be on no reasonable consideration, or to restrain a man from trading at all.
Appeal from – Maxim Nordenfelt Guns and Ammunition Co v Nordenfelt CA 1893
Bowen LJ said: ‘Rules which rest upon the foundation of public policy, not being rules which belong to the fixed or customary law, are capable, on proper occasion, of expansion or modification’ . .
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 – Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd HL 1968
Agreement in Restraint of Trade Unenforceable
The defendant ran two garages under solus agreements with the plaintiffs who complained when the defendants began to purchase petrol from cheaper alternative sources. The House was asked whether the solus agreements were be regarded in law as an . .
Cited – Norris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .
Cited – Alec Lobb (Garages) Ltd v Total Oil Ltd CA 1985
The court was asked whether the terms of a lease and lease back amounted to an unconscionable bargain and was unenforceable.
Held: The court affirmed the decision at first instance, but emphasised the need for unconscientious behaviour rather . .
Cited – Tillman v Egon Zehnder Ltd SC 3-Jul-2019
The company appealed from rejection of its contention that its former employee should be restrained from employment by a competitor under a clause in her former employment contract. . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 April 2022; Ref: scu.249228
An employee had covenanted that throughout the year following termination he would not engage in or be ‘otherwise interested in, whether as a shareholder . . employee or . . in any other capacity’ any business, which was defined in terms not limited to the employer’s competitors. The employer sought to enforce a post employment restrictive covenant to protect confidential information known to the former employee. The trial judge held that the prohibition against shareholding on the part of the employee was too wide because it would catch even a small holding but that it should be severed and removed and that the remainder should be enforced against him.
Held: The Court of Appeal took no issue with the judge’s objection to the prohibition against shareholding but upheld the employee’s appeal on the basis that there were other unreasonable features of the covenant incapable of severance.
Aldous LJ said: ‘In cases where a restrictive covenant is sought to be enforced, the confidential information must be particularised sufficiently to enable the court to be satisfied that the plaintiff has a legitimate interest to protect. That requires an enquiry as to whether the plaintiff is in possession of confidential information which it is entitled to protect. (See Littlewoods Organisation v Harris [1977] 1 WLR 1472 at 1479F). Sufficient detail must be given to enable that to be decided but no more is necessary.’
Sir Richard Scott VC, Potter LJ, Aldous LJ
[1998] EWCA Civ 188, [1998] IRLR 259
England and Wales
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 – 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 – Living Design (Home Improvements) Ltd for Interim Interdict SCS 19-Feb-1999
The petitioner company sought to enforce a post employment restrictive covenant agreed to by the respondent. He had given notice to leave, and the parties had setteled the departure with an additional restriction. The respondent denied that the . .
Cited – Tillman v Egon Zehnder Ltd SC 3-Jul-2019
The company appealed from rejection of its contention that its former employee should be restrained from employment by a competitor under a clause in her former employment contract. . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 April 2022; Ref: scu.143666
The claimant sought to enforce a post employment restrictive covenant. There was a 6 months’ prohibition, post-termination of employment (less any period of garden leave) on any employment which was competitive with the business of a former employer.
Held: When considering a restrictive covenant the court must first decide what it means when properly construed, secondly whether the former employers have a legitimate business interest requiring protection in relation to the employee’s employment, and thirdly once such interests have been established the covenant must be shown to be no wider than is reasonably necessary for the protection of those interests. Even where the covenant is held to be reasonable the court will then finally decide whether, as a matter of discretion, injunctive relief should be granted having regard to its reasonableness at the time of trial. The court cannot blue pencil or sever parts of a restrictive covenant unless that can be done without changing the sense of the contract.
Cox J
[2004] EWHC 3181 (QB), [2005] IRLR 246
England and Wales
Cited – Office Angels Ltd v Rainer-Thomas CA 1991
Reasonability Test of Post Employment Restriction
The court re-stated the principles applicable in testing whether an employee’s restrictive covenant was reasonable: ‘The court cannot say that a covenant in one form affords no more than adequate protection to a covenantee’s relevant legitimate . .
Cited – Intercall Conferencing Services Ltd v Steer QBD 15-Mar-2007
The claimant company sought an interim injunction to prevent the defendant, a former employee, from working for a competitor in breach of a clause in his contract and from divulging any confidential information. The defendant said that the . .
Cited – Intercall Conferencing Services Ltd v Steer QBD 15-Mar-2007
The claimant company sought an interim injunction to prevent the defendant, a former employee, from working for a competitor in breach of a clause in his contract and from divulging any confidential information. The defendant said that the . .
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 – Tillman v Egon Zehnder Ltd SC 3-Jul-2019
The company appealed from rejection of its contention that its former employee should be restrained from employment by a competitor under a clause in her former employment contract. . .
Cited – Tillman v Egon Zehnder Ltd SC 3-Jul-2019
The company appealed from rejection of its contention that its former employee should be restrained from employment by a competitor under a clause in her former employment contract. . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 April 2022; Ref: scu.269953
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 when determining whether the restraint secured no more than adequate protection to the party in whose favour it was imposed, in each particular case what it is for which and what it is against which protection is required.
Lord Parker could find no case in which a covenant against competition by a servant or apprentice had, as such, ever been upheld by the court. Wherever such covenants had been upheld it had been on the ground, not that the servant or apprentice would, by reason of his employment or training, obtain the skill and knowledge necessary to equip him as a possible competitor in the trade, but that he might obtain such personal knowledge of and influence over the customers of his employer, or such an acquaintance with his employer’s trade secrets as would enable him, if competition were allowed, to take advantage of his employer’s trade connection or utilise information confidentially obtained.
Lord Parker of Waddington said: ‘As I read Lord MacNaughten’s judgment, he was of the opinion that all restraints on trade of themselves, if there is nothing more, are contrary to public policy and therefore void. It is not that such restraints must of themselves necessarily operate to the public injury, but that it is against the policy of the common law to enforce them except in cases where there are special circumstances to justify them. The onus of proving such special circumstances must, of course, rest on the party alleging them.’ However: ‘It is quite different in the case of an employer taking such a covenant from his employee or apprentice. The goodwill of his business is, under the conditions in which we live, necessarily subject to the competition of all persons (including the servant or apprentice) who choose to engage in a similar trade. The employer in such a case is not endeavouring to protect what he has, but to gain a special advantage which he could not otherwise secure. I cannot find any case in which a covenant against competition by a servant or apprentice has, as such, ever been upheld by the court. Whenever such covenants have been upheld it has been on the ground, not that the servant or apprentice would, by reason of his employment or training, obtain the skill and knowledge necessary to equip him as a possible competitor in the trade, but that he might obtain such personal knowledge of and influence over the customers of his employer, or such acquaintance with his employer’s trade secrets as would enable him, if competition were allowed, to take advantage of his employer’s trade connection or utilise information confidentially obtained.’
Lord Parker of Waddington
[1916] 1 AC 688, [1916-17] All ER 305
England and Wales
Cited – Nordenfelt v Maxim Nordenfelt Guns and Ammunition Company HL 1894
Exceptions to Freedom to Trade
The purchaser of the goodwill of a business sought to enforce a covenant in restraint of trade given by the seller.
Held: At common law a restraint of trade is prima facie contrary to public policy and void, unless it can be shown that the . .
Cited – Allan Janes Llp v Johal ChD 23-Feb-2006
The claimant sought to enforce a restrictive covenant against the defendant a former assistant solicitor as to non-competition within a certain distance of the practice for a period of three years. After leaving she had sought to set up partnership . .
Cited – 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 – McEllistrim v Ballymacelligott Co-operative Society HL 1919
The Co-operative had changed its rules to prevent any member from selling (except under heavy penalty) any milk produced by him in a large area of County Kerry to anyone except the Society, and a member could not terminate his membership without the . .
Cited – Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd HL 1968
Agreement in Restraint of Trade Unenforceable
The defendant ran two garages under solus agreements with the plaintiffs who complained when the defendants began to purchase petrol from cheaper alternative sources. The House was asked whether the solus agreements were be regarded in law as an . .
Cited – Living Design (Home Improvements) Ltd for Interim Interdict SCS 19-Feb-1999
The petitioner company sought to enforce a post employment restrictive covenant agreed to by the respondent. He had given notice to leave, and the parties had setteled the departure with an additional restriction. The respondent denied that the . .
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 – 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 – Office Angels Ltd v Rainer-Thomas CA 1991
Reasonability Test of Post Employment Restriction
The court re-stated the principles applicable in testing whether an employee’s restrictive covenant was reasonable: ‘The court cannot say that a covenant in one form affords no more than adequate protection to a covenantee’s relevant legitimate . .
Cited – 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 . .
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 – Tillman v Egon Zehnder Ltd SC 3-Jul-2019
The company appealed from rejection of its contention that its former employee should be restrained from employment by a competitor under a clause in her former employment contract. . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 April 2022; Ref: scu.240024
An employee may not challenge his dismissal by judicial review; it is a private claim which should be heard before the Industrial Tribunal.
Ind Summary 30-Oct-1995
Updated: 09 April 2022; Ref: scu.87107
A Court having made a declaration in the course of a hearing, was then functus officio as regards that decision, and could not revisit it at a later hearing. Nor in this case was it possible for the Corporation to approach the court for a declaration in advance that a decision it might want to make would or would not be in contempt.
Times 23-Feb-1993
Coal Industry Nationalisation Act 1946 46
Updated: 09 April 2022; Ref: scu.86212
An employer may be liable for damages for passive smoking if the claim is pleaded correctly.
Times 22-Apr-1997
Offices Shops and Railway Premises Act 1963 7
Updated: 09 April 2022; Ref: scu.85639
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 compared for the purposes of assessing damages was the position in which the employee found herself when dismissed, at a date when she had no right to complain of unfair dismissal, with the position in which she would have found herself had she been dismissed on or after the date at which the right to bring such a complaint arose: ‘Once one makes that comparison then one is inevitably, in our view, and in a perfectly orthodox way, in a situation where chances have to be evaluated, because there is no certainty as to what would have happened had she still been employed on 16th May [when the statutory right would have accrued to her] but the possibilities are limited.’
Judge Hicks QC
Gazette 24-Mar-1999, [1999] IRLR 9
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 – 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: . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 April 2022; Ref: scu.85671
There is no power in law for a police authority to fund payment of legal expenses incurred by an officer of the rank of Superintendent or below when defending disciplinary proceedings. The statutory code was not displaced by the Duckinfield case. The Regulations and Act were clear in restricting such assistance to appeals against disciplinary findings, and to proceedings against senior officers.
Times 10-Oct-2000
Police Act 1996, Police (Conduct) Senior Officer Regulations 1999 (1999 No 731)
Updated: 09 April 2022; Ref: scu.85565
The general power of the Secretary of State to promote education did not extend to provision for the terms and conditions of teachers’ employment or establishing systems for the payment of higher rates of pay to teachers meeting performance standards. Reference to Parliament was necessary. The Secretary of State had not followed consultation procedures set down for the making of significant alterations to teachers contracts.
Times 08-Aug-2000
School Teachers’ Pay and Conditions Act 1991
Updated: 09 April 2022; Ref: scu.85477
A senior officer had begun a claim against the police officer alleging sex discrimination. She complained that when disciplinary proceedings were commenced against her, the person making the decision would be the Chief Constable, and that his decision there would affect the other proceedings. Even though the Chief Constable had come into post after the events giving rise to the claim, he was being sued in a sufficiently personal capacity to make it a breach of natural justice to hear the disciplinary proceedings.
Times 18-Jul-2000, Gazette 27-Jul-2000
Appeal from – Regina v Chief Constable of Merseyside Police, ex parte Carol Ann Bennion CA 4-May-2001
The claimant sought a judicial review against a Chief Constable against whose force she had made complaints of sex discrimination and victimisation, not to remit disciplinary proceedings against her under regulation 14 of the 1985 Regulations to . .
Cited – Heath v Commissioner of Police for the Metropolis CA 20-Jul-2004
The female civilian officer alleged sex discrimination against her by a police officer. Her complaint was heard at an internal disciplinary. She alleged sexual harrassment, and was further humiliated by the all male board’s treatment of her . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 April 2022; Ref: scu.85181
Application for an injunction to enforce an employee restrictive covenant which, if effective, would restrain the defendant from working for a competitor of the claimant for a period of six months from the termination of her employment. Mann J, at first instance, observed that the company regarded Ms Tillman as ‘a bit special’ and that it expected to promote her. It duly promoted her to be a principal in 2006 and to be a partner in 2009. A condition of her becoming a partner was that she should hold shares in the Swiss holding company; and she began to do so. In 2012 she became joint global head of the company’s financial services practice area. The agreement made in 2003 was never replaced in order to reflect her promotions although no doubt a few of its terms, in particular relating to her remuneration, then changed.
Held: The injunction was granted. Mann J so construed the word ‘interested’ in the non-competition covenant as not to prohibit Ms Tillman from holding shares in any of the competing businesses there specified. He therefore had no need to address what he took to be the company’s alternative contention that, together of course with the word ‘or’, the word should be severed and removed from the remainder of the clause; he added however that, although it had not been developed at any length, he did not find that contention appealing.
Mann J
[2017] EWHC 1278 (Ch), [2017] IRLR 828
England and Wales
Appeal from – Tillman v Egon Zehnder Ltd CA 21-Jul-2017
Post employment restrictive covenant – unreasonable restraint of trade – six months restriction – not to become shareholder in a competitor.
Held: The injunction against employment was discharged . .
At First Instance – Tillman v Egon Zehnder Ltd SC 3-Jul-2019
. .
Lists of cited by and citing cases may be incomplete.
Updated: 09 April 2022; Ref: scu.588010
Direction regarding practice on appeals from industrial tribunal on matters of contract pending restoration of EAT power by statute.
Times 03-Dec-1997
Updated: 09 April 2022; Ref: scu.84881
The right of appeal from the tribunal to the EAT in matters of contract law was lost in the new regulations; there are no statutory provision for what would be a statutory procedure..
Times 19-Nov-1997
See Also – Pendragon Plc v Jackson EAT 30-Jun-1998
. .
Lists of cited by and citing cases may be incomplete.
Updated: 09 April 2022; Ref: scu.84648
An employer’s counterclaim before an industrial tribunal for damages for breach of contract, stood independent of the employee’s claims. If the employee’s claims are dismissed as out of time, the employer’s claims can stand.
Gazette 21-Apr-1999
Updated: 09 April 2022; Ref: scu.84603
Once a tribunal finds that the applicant’s behaviour has contributed to his dismissal, the award must be reduced to some extent to reflect that finding.
Gazette 10-Nov-1999, (1999) ICR 984
Updated: 09 April 2022; Ref: scu.84472
A wrongfully dismissed employee is entitled to pension damages in addition to his dismissal award, and it should not be deducted.
Ind Summary 01-Nov-1993, Times 13-Oct-1993
England and Wales
Updated: 09 April 2022; Ref: scu.84321
Where a member state accepted a foreign national and later gave him a work permit upon his marriage, it was permissible not to renew that residence and work permit where the circumstance warranting the work permit disappeared upon his separation from his wife. It would be different where the employment rights granted had been greater in extent than the residence permit.
Gazette 11-Aug-1999
Updated: 09 April 2022; Ref: scu.84380
A tribunal’s discretion not to grant witness summonses because the witnesses appeared to be only of limited relevance was not to be interfered with, save where it was unreasonable. A tribunal can always act to remedy the refusal later if this appeared correct.
Gazette 21-Apr-1999, (1999) IRLR 184
See Also – Noorani v Merseyside TEC Limited CA 19-Oct-1998
The claimant had claimed race discrimination. The tribunal declined to order the issue of witness summonses. The EAT overturned that decision on the basis that the tribunal had not recognised that it had a discretion to issue the summonses, and had . .
See Also – Merseyside Tec Limited v Noorani CA 21-Nov-1997
Application for leave to appeal. The respondent had said that the EAT had erred in overturning the tribunal chair’s decision not to issue witness summonses.
Held: Leave was granted. . .
See Also – Noorani v Merseyside TEC Ltd EAT 17-Jun-1997
The claimant appealed against the dismissal of his complaint of race discrimination saying that the tribunal had erred in not issuing a witness summons. The tribunal had said that the potential evidence was not relevant.
Held: There had been . .
Cited – Abbey National Plc v Fairbrother EAT 12-Jan-2007
EAT Unfair Dismissal
Disability discrimination
The Tribunal had found a dismissal to be unfair because of flaws in a grievance procedure, following which the Claimant had resigned. They also found . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 April 2022; Ref: scu.84317
Limited members of union were correctly excluded from ballot on transfer of union to other.
Times 21-Feb-1995
Trade Union and Labour Relations (Consolidation) Act 1992 100B
Updated: 09 April 2022; Ref: scu.84202
Where an employee was dismissed by a receiver before the receiver entered into negotiations for the sale of a business, he was dismissed as part of a transfer. The word ‘transfer’ did not have to relate to a particular deal.
Gazette 16-Sep-1998, (1998) IRLR 499
Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794)
Updated: 09 April 2022; Ref: scu.83855
Compensation awarded for a pregnancy dismissal was to assume that the worker would ready to work again after six months. Review and guidelines of damages for unfair dismissal for pregnancy. The hypothetical question requires careful thought before it is answered. It is a difficult area of the law. It is not like an issue of primary fact, as when a court has to decide which of two differing recollections of past events is the more reliable. The question requires a forecast to be made about the course of future events. It has to be answered on the basis of the best assessment that can be made on the relevant material available to the court. That includes statistical material. Morison J said: ‘statistics are going to prove a good starting point’ in relation to the question of the length of service, which the applicant has hypothetically lost. Such chances ‘must be assessed sensibly having regard to what happens in real life.’
Morison J
Independent 15-Sep-1994, Times 02-Aug-1994, [1994] ICR 918
Cited – Vento v The Chief Constable of West Yorkshire Police (No 2) CA 20-Dec-2002
The claimant had been awarded damages for sex discrimination, including a sum of andpound;25,000 for injury to feelings. The respondent appealed.
Held: The Court of Appeal looked to see whether there had been an error of law in the employment . .
Cited – Chagger v Abbey National Plc and Another CA 13-Nov-2009
The claimant appealed against the limitation of 2% placed on the uplift of his award of damages for having failed to comply with relevant dispute procedures. The tribunal had found exceptional reasons for reducing the uplift given the size of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 April 2022; Ref: scu.83742
Damages based on 100% chance of completing rest of career were far too high.
Times 13-Feb-1996
Updated: 09 April 2022; Ref: scu.83745