Category: Employment

Russell v Rudd: HL 20 Mar 1923

Weekly payments of 35s. each were made for six months to a workman injured by an accident arising out of and in the course of his employment. Thereafter the workman and his employers entered into an agreement for the payment of a lump sum of pounds 75 in discharge of all claims in respect of the accident. The Registrar, on the ground of the inadequacy of the sum agreed on, refused to record the memorandum which had been forwarded to him. The employers having thereafter stopped the weekly payment, the workman, who had not accepted the pounds 75, commenced arbitration proceedings, in the course of which the decision of the County Court Judge refusing to record the memorandum as inadequate was reversed by the Court of Appeal. The workman appealed to the House of Lords. Held, ( diss. Lord Carson) that to enter into an agreement to discharge all claims under the Act for a lump sum except that to a weekly payment or the liability therefor is to contract out of the Act; that the agreement in question could be sustained as an agreement for the redemption of a weekly payment by a lump sum within the meaning of Schedule I (17) and Schedule II (9) and (10), it being reasonably capable of that construction, and that it might therefore be objected to by the Registrar.
The English decisions reviewed and overruled.
Burns v. William Baird and Company, Limited (1913 S.C. 358, 50 S.L.R. 280) and William Baird and Company, Limited v. Ancient Order of Foresters (1914 S.C. 965, 51 S.L.R. 819), approved.
Per Lord Shaw-‘There may be an agreement between an employer and workman for redemption of a weekly payment, not only in the case where there had first been an agreed-on weekly payment prior to the redemption, but also in the case where there was simply the liability under the statute to make a weekly payment.

Judges:

Lord Chancellor, Lord Dunedin, Lord Shaw, Lord Buckmaster, and Lord Carson

Citations:

[1923] UKHL 43 – 1, 61 SLR 43 – 1

Links:

Bailii

Statutes:

Workmen’s Compensation Act 1906

Jurisdiction:

England and Wales

Employment, Personal Injury

Updated: 26 March 2022; Ref: scu.633256

Hendry (Simpson’s Executrix) v The United Collieries Ltd: HL 24 Jun 1909

Where a workman meets his death through accident arising out of and in the course of his employment a right to compensation from his employer is by the Workmen’s Compensation Act 1906 conferred upon his dependants, which vests in them on his death, and is, subject of course always to the restrictions of the Act, transmitted on their death to their personal representatives, notwithstanding that during their lifetime they may have made no claim- diss. Lord Dunedin.
Observations on the scope of the maxim actio personalis moritur cum persona.

Judges:

Lord Chancellor (Loreburn), Lord Macnaghten, Lord James Of Hereford, Lord Dunedin, and Lord Shaw Of Dunfermline

Citations:

[1909] UKHL 780, 46 SLR 780

Links:

Bailii

Jurisdiction:

England and Wales

Personal Injury, Employment

Updated: 26 March 2022; Ref: scu.620582

Moore v Manchester Liners Ltd: HL 18 Jul 1910

A seaman was lawfully absent from his ship for the purposes of buying clothing and of recreation. On returning, he fell from the ladder on the ship’s side and was drowned.
Held that the accident arose out of and in the course of his employment, and that the shipowners were liable to pay compensation to his dependant under the Workmen’s Compensation Act.
Per Lord Chancellor-‘An accident befalls a man ‘in the course of’ his employment if it occurs while he is doing what a man so employed may reasonably do, within a time during which he is employed, and at a place where he may reasonably be during that time to do that thing.’

Judges:

Lord Chancellor (Loreburn), Lords Ashbourne, Macnaghten, James of Hereford, and Mersey

Citations:

[1910] UKHL 709

Links:

Bailii

Statutes:

Workmen’s Compensation Act 1906

Jurisdiction:

England and Wales

Personal Injury, Employment

Updated: 26 March 2022; Ref: scu.619799

Marshall v Owners of SS ‘Wild Rose’: HL 11 Jul 1910

While a ship was in harbour a seaman employed on board left his berth and went on deck during a hot night, saying that he was going up for fresh air. Next day his drowned body was found in the water just underneath a part of the ship’s rail where the crew habitually sat. There was no further evidence to explain the drowning.
Held ( diss. the Lord Chancellor and Lord James of Hereford) that, assuming the death had occurred by accident, there was not evidence to support the inference that the accident arose out of the employment.

Judges:

Lord Chancellor (Loreburn), Lords James of Hereford, Atkinson. Shaw, and Mersey.

Citations:

[1910] UKHL 701, 48 SLR 701

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Personal Injury

Updated: 26 March 2022; Ref: scu.619798

Mackison’s Trustees v Dundee Magistrates: HL 8 Mar 1910

In 1868 a burgh appointed a burgh surveyor who was to devote all his services to their business. He received a substantial but not a large salary. He held office till 1906, and during that period he did work not in the contemplation of parties at the time of his appointment, for which he received the outlays, and on three occasions small honoraria. He made no definite claim for special remuneration until 1906, when his claim was repudiated. It was proved he had himself worked in the belief or hope his claim would be recognised, and that the burgh had not treated his claim as one to be summarily and without investigation rejected. After his removal from office in 1906 he brought an action to recover a large sum as special remuneration.
Held that, after the lapse of so long a period and in the circumstances of himself and the defenders, the onus upon him to establish a contract for special remuneration was heavy, and as he had failed to discharge it, the defenders must be assoilzied.

Judges:

Lord Chancellor (Loreburn), Lord Ashbourne, Lord Kinnear, and Lord Shaw

Citations:

47 SLR 354, [1910] UKHL 354

Links:

Bailii

Jurisdiction:

Scotland

Employment

Updated: 26 March 2022; Ref: scu.619783

Arango Jaramillo And Others v EIB: ECJ 9 Jul 2013

ECJ Appeal – Civil service – Staff of the EIB – Review of the judgment of the General Court – Action at first instance dismissed as inadmissible – Pensions – Increase in the contribution to the pension scheme – Time-limit for bringing proceedings – Reasonable period

Citations:

[2013] EUECJ T-234/11

Links:

Bailii

Jurisdiction:

European

Citing:

Opinion – Arango Jaramillo And Others v EIB ECFI 19-Jun-2012
ECFI Appeal – Civil service – Staff of the EIB – Pensions – Contribution to the pension scheme – Rejection of the appeal in the first instance as manifestly inadmissible – Limitation of Actions – Delay – . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 26 March 2022; Ref: scu.584358

U C-420/15: ECJ 31 May 2017

(Judgment) Reference for a preliminary ruling – Article 45 TFEU – Freedom of movement for workers – Obligation to register a vehicle owned by a person resident in Belgium and intended for use in Italy

Citations:

C-420/15, [2017] EUECJ C-420/15, ECLI:EU:C:2017:408

Links:

Bailii

Jurisdiction:

European

Road Traffic, Employment

Updated: 26 March 2022; Ref: scu.584353

RW v Commission: ECFI 18 May 2017

ECJ Order – Reference for a preliminary ruling – Civil service – Officials – Release and retirement – Retirement age – Article 42c of the Staff Regulations – Application for suspension of operation – Fumus boni juris – Urgency – Balancing of interests

Citations:

T-170/17, [2017] EUECJ T-170/17 – CO, ECLI:EU:T:2017:351

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 26 March 2022; Ref: scu.584346

Piessevaux v Council T-519/16: ECFI 17 May 2017

Staff Regulations of Officials and Conditions of Employment of Other Servants : Judgment – Civil service – Officials – Pensions – Transfer of pension rights to the pension scheme of the Union – Proposal to increase annual installments – Article 11 (2) of Annex VIII to the Staff Regulations – New general implementing provisions – Equal treatment – Acquired rights – Legitimate expectations

Citations:

ECLI:EU:T:2017:343, [2017] EUECJ T-519/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 26 March 2022; Ref: scu.584338

United States of America v Nolan: ECJ 18 Oct 2012

Reference for a preliminary ruling – Directive 98/59/EC – Protection of workers – Collective redundancies – Scope – Closure of an American military base – Information and consultation of workers – Time at which the consultation obligation arises – Lack of jurisdiction of the Court

Judges:

R. Silva de Lapuerta P

Citations:

[2012] EUECJ C-583/10, [2013] 1 CMLR 32, [2012] IRLR 1020, [2012] WLR(D) 280, [2013] ICR 193

Links:

Bailii, WLRD

Statutes:

Directive 98/59/EC

Jurisdiction:

European

Citing:

Opinion – United States of America v Nolan ECJ 22-Mar-2012
ECJ (Opinion) Directive 98/59/EC – Admissibility – Protection of workers – Collective redundancies – Information and consultation of workers – Closure of a US military base – Scope – Time at which the obligation . .
At EAT – United States of America v Nolan EAT 15-May-2009
EAT REDUNDANCY: Collective consultation and information / Protective award
An Employment Tribunal held that the USA was in breach of Section 188 of the Trade Union and Labour Relations (Consolidation) Act . .
At CA (1) – United States of America v Nolan CA 9-Nov-2010
The claimant had sought a protective award under the 1992. She had been a civilian employee at a base operated by the appellant which it closed. She sought to sue as an employee representative, saying that the appellant had failed to consult its . .

Cited by:

At ECJ – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
At ECJ – The United States of America v Nolan CA 4-Feb-2014
The employee was made redundant from working at a US watercraft repair base. She complained that on the base closing the appellant had failed to consult with her as employee representative. The appellant denied that obligation. After a reference to . .
At ECJ – United States of America v Nolan ECJ 22-Mar-2012
ECJ (Opinion) Directive 98/59/EC – Admissibility – Protection of workers – Collective redundancies – Information and consultation of workers – Closure of a US military base – Scope – Time at which the obligation . .
At ECJ – United States of America v Nolan CA 24-Nov-2010
. .
Lists of cited by and citing cases may be incomplete.

Employment, International

Updated: 26 March 2022; Ref: scu.584194

Gomez-Limon v Instituto Nacional de la Seguridad Social (INSS): ECJ 16 Jul 2009

ECJ Social Policy – Directive 96/34/EC – Framework agreement on parental leave – Entitlements acquired or being acquired at the start of the leave – Continued receipt of social security benefits during the leave – Directive 79/7/EEC – Principle of equal treatment for men and women in matters of social security Acquisition of entitlements to permanent invalidity pension acquired during parental leave)#

Citations:

[2009] EUECJ C-537/07, ECLI:EU:C:2009:462

Links:

Bailii

Statutes:

Directive 79/7/EEC

Jurisdiction:

European

Citing:

Opinion – Gomez-Limon v Instituto Nacional de la Seguridad Social (INSS) ECJ 4-Dec-2008
ECJ Opinion – Principle of equality of treatment of men and women in matters of social security. Calculation of the amount of an invalidity pension – Parental leave. . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment, Benefits

Updated: 26 March 2022; Ref: scu.583980

Badara C Pulse Healthcare Ltd: EAT 27 Apr 2017

EAT Jurisdictional Points : Worker, Employee or Neither- Continuity of employment
Although the Employment Judge had referred himself to Cotswold Developments Construction Ltd v Williams [2006] IRLR 181 and seems likely to have had in mind the judgment of the Supreme Court in Autoclenz Ltd v Belcher and Others [2011] UKSC 41, [2011] ICR 1157, in concluding that the agreements were not ‘shams’ and that the Appellant had changed his status from employee to that of a self employed director of an independent contractor, the Tribunal had misdirected itself as to law, reached conclusions not supported by the evidence, reached conclusions that were perverse and had not given adequate reasons, but that answer was not so clear as to enable this Tribunal to come a conclusion and the issue was remitted to a differently constituted Employment Tribunal for reconsideration.
The second issue of continuity depended upon the Appellant’s immigration status and his right to work. It being conceded that the Employment Tribunal had erred in law in concluding that the Appellant had no right to work and that discrimination claims should not have been struck out, the appeal was allowed and that issue was remitted to be considered by the same Employment Tribunal to which the first issue had been remitted.

Judges:

Hand QC HHJ

Citations:

[2017] UKEAT 0303 – 16 – 2704

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 March 2022; Ref: scu.583999

Campbell v OCS Group UK Ltd and Another: EAT 11 Apr 2017

Practice and Procedure : Withdrawal – Where a claimant withdraws a claim, it comes to an end and cannot be revived (Rule 51 of the 2013 Rules). A tribunal must issue a dismissal Judgment following withdrawal unless either of the exceptions in Rule 52 apply. Tribunals are not under a mandatory obligation to invite representations from the parties before dismissing a withdrawn claim but depending on the facts and circumstances of the particular case, may in exercise of their power to manage proceedings fairly, and in accordance with the overriding objective, do so. Whether or not to do so is a matter of judgment falling squarely within the margin of a tribunal’s discretion.

Judges:

Simler DBE P J

Citations:

[2017] UKEAT 0188 – 16 – 1104

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 March 2022; Ref: scu.584000

Barnett v Acorn Care and Education Ltd and Another: EAT 4 May 2017

EAT Victimisation Discrimination : Protected Disclosure – Detriment – UNFAIR DISMISSAL – Constructive dismissal – UNFAIR DISMISSAL – Automatically unfair reasons – The findings of fact and a fair reading of their Decision fully supported the conclusion of the Employment Tribunal that the decision that disciplinary charges against the Claimant were established and that the dismissal of his appeal had nothing whatsoever to do with any protected disclosure. Appeal from dismissal of claims under Employment Rights Act 1996 sections 48 and 103A dismissed.

Judges:

Slade DBE J

Citations:

[2017] UKEAT 0009 – 17 – 0405

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 26 March 2022; Ref: scu.583965

Harlow v Artemis International Corporation Ltd: QBD 22 May 2008

Claim for damages – enhanced redundancy payment.

Citations:

[2008] EWHC 1126 (QB), [2008] IRLR 629

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Jones v Associated Tunnelling Co Ltd EAT 16-Oct-1981
The tribunal had been asked as to the circumstances under which the acceptance of new employment terms can be inferred from an employee’s continuing to work.
Browne-Wilkinson P said: ‘The starting point must be that a contract of employment . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 26 March 2022; Ref: scu.267992

Day v Health Education England and Others: CA 5 May 2017

This appeal concerns the proper construction of section 43K (whistleblowers) and the application of that section to a certain category of doctors operating in the health service.
Held: The appeal succeeded.

Judges:

Gloster VP CA, Elias LJJ, Moylan J

Citations:

[2017] EWCA Civ 329, [2017] WLR(D) 307, [2017] ICR 917, [2017] IRLR 623

Links:

Bailii, WLRD

Statutes:

Employment Rights Act 1996 47B 103A

Jurisdiction:

England and Wales

Citing:

Cited – BP Plc v Elstone and Another EAT 31-Mar-2010
EAT JURISDICTIONAL POINTS
VICTIMISATION DISCRIMINATION: Protected disclosure
The central question in this appeal was whether an employee/worker who complained of suffering a detriment from his current . .
Appeal from – Day v Lewisham and Greenwich NHS Trust and Another EAT 9-Mar-2016
EAT (Victimisation Discrimination: Protected Disclosure) A Specialist Registrar in Medical Training worked under a contract of employment with Lewisham NHS Trust. He made disclosures about patient safety, and . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 25 March 2022; Ref: scu.583651

Lidl Ltd v Central Arbitration Committee and Another: CA 4 May 2017

The company appealed against an order leading to recognition of the respondent as the trades union for the company’s staff at a regional distribution centre.

Judges:

Longmore, Underhill LJJ

Citations:

[2017] EWCA Civ 328

Links:

Bailii

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582108

The Secretary Oo State for Justice v Betts and Others: EAT 20 Apr 2017

Jurisdictional Points: Fraud and Illegality – The Claimants were engaged on sessional work in HMPS and their recruitment was not on merit on the basis of fair and open competition. The question that arose subsequently was whether contracts of employment found to have existed by the Employment Tribunal were ultra vires in the circumstances.
Held: The Employment Tribunal was wrong to draw a distinction between appointment and employment in the context of s.10(2) CRAGA 2010. The mandatory requirement for all appointments to the Civil Service extends to both and operates as a statutory limitation on selection for all appointments as civil servants. The contracts of employment are ultra vires, but the Claimants’ status as workers is unaffected. The appeal was therefore allowed.

Judges:

Simler DBE P J

Citations:

[2017] UKEAT 0284 – 16 – 2004

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582074

Pulman v Merthyr Tydfil College Ltd: EAT 28 Apr 2017

EAT Disability Discrimination: Disability Related Discrimination – DISABILITY DISCRIMINATION – Reasonable adjustments
DISABILITY DISCRIMINATION – Justification
UNFAIR DISMISSAL – Reasonableness of dismissal
The Tribunal had fallen into error and given inadequate reasons when deciding that the Claimant had been fairly dismissed and had not been unlawfully discriminated against on the ground of his disability. However, a perversity challenge to the Tribunal’s findings of fact was not plainly made out and it was not clear whether the errors and shortcomings in the reasoning were fatal to the validity of the decision. It was appropriate to stay the appeal and remit the matter back to the Tribunal under the Burns/Barke procedure, for the purpose of obtaining further and better reasons, before determining the remaining grounds of the appeal.

Judges:

Kerr J

Citations:

[2017] UKEAT 0309 – 16 – 2804

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 24 March 2022; Ref: scu.582072

Frudd and Another v The Partington Group Ltd: EAT 21 Apr 2017

EAT National Minimum Wage – The appeals consider the proper approach to the question whether employees who sleep-in in order to carry out duties if required engage in ‘time work’ for the full duration of the night shift or whether they are only entitled to the national minimum wage when they are awake and carrying out relevant duties.
A multifactorial evaluation is required. No single factor is determinative and the relevance and weight of particular factors will vary with and depend on the context and circumstances of the particular case.

Judges:

Simler DBE P J

Citations:

[2017] UKEAT 0244 – 16 – 2104

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582071

Sharfudeen v T J Morris Ltd T/A Home Bargains: EAT 3 Mar 2017

EAT Unfair Dismissal: Constructive Dismissal – RACE DISCRIMINATION – Direct
UNLAWFUL DEDUCTION FROM WAGES
Constructive dismissal – section 95(1)(c) Employment Rights Act 1996 – whether breach of the implied term – Malik and Anor v BCCI SA [1997] ICR 606 HL
Race discrimination – sections 13(1), 23 and 136(2) Equality Act 2010 – direct discrimination – less favourable treatment – burden of proof
Paternity pay – section 171ZC Social Security Contributions and Benefits Act 1992 – Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002
The Claimant (an Indian national) had sought a lateral transfer as a Manager from one of the Respondent’s stores to a new store it was due to open in Romford. There had, however, been four other applicants for the Romford position, including three external candidates, and the Respondent had applied a selection process, albeit (as the ET allowed) one that had been created for promotions rather than transfers. The Claimant performed badly and was unsuccessful. One of the external candidates, a British national, achieved the highest score and was offered the position. Shortly after this, the Claimant’s Assistant, who was also a British national, was offered a Relief Manager position at another store, without being subject to the same kind of assessment process used for the Claimant. The Claimant submitted a grievance about these matters, but this was rejected, and the Claimant resigned from his employment and brought ET proceedings, complaining that the rejection of his grievance had amounted to a fundamental breach of his contract, specifically it had destroyed the relationship of trust and confidence, thus entitling him to resign and claim constructive dismissal. He also relied on these matters as acts of race discrimination because of his Indian nationality. The Claimant further complained of an unauthorised deduction of wages in the failure to pay him paternity pay for the leave taken after the birth of his son.
The ET rejected the claims. Although agreeing that the process used by the Respondent should not have applied to lateral transfers, the Respondent had reasonable and proper cause for its conduct given that it had to apply some kind of selection process and had thus been entitled to refuse the Claimant’s grievance. Further rejecting certain allegations made by the Claimant, the ET did not consider the burden had shifted for the purpose of the complaint of race discrimination; the Claimant’s comparators were in different circumstances, and a difference in protected characteristic was insufficient to shift the burden. In any event, even if the burden had shifted, the ET accepted the Respondent’s non-discriminatory explanation for why it had treated the Claimant as it had; specifically, it had permissibly applied the selection process when having to choose the best of the five candidates for the new Manager position. As for paternity pay, the Claimant had failed to provide the requisite notification in writing at the relevant time and had, in any event, brought his claim out of time.
On the Claimant’s appeal
Held: dismissing the appeal
The ET had accepted the Claimant’s argument that the assessment used for the Romford Store Manager selection exercise had been created for promotions and not lateral transfers and it was further prepared to accept that his trust and confidence in his employer may have been destroyed by the decision not to offer him this position (and whilst his actual complaint before the ET relied on the rejection of his grievance, this was really a reiteration of the earlier decision not to offer him the Romford post). The question for the ET was – applying Malik unvarnished, as the Claimant submitted – whether the Respondent had conducted itself in the way that it had without reasonable and proper cause (Malik and Anor v BCCI SA [1997] ICR 606 HL). This was not – as the Claimant contended – the wrongful importation of the range of reasonable responses test; the ET was properly applying Malik, recognising that an employee’s loss of trust and confidence in their employer was not the only question: the ET also had to be satisfied this had happened as a result of conduct on the part of the employer that was without reasonable and proper cause, a question to be answered objectively, not by applying a range of reasonable responses test. The ET had not lost sight of this and had reached a permissible conclusion on the basis of its findings of fact.
Similarly, in respect of the race discrimination claim, the ET had been entitled to find the burden of proof had not shifted, not least as it rejected allegations made by the Claimant that might otherwise have corroborated his case and had found the circumstances of his comparators were materially different to his. In any event, the ET considered the Respondent’s explanation – on the basis that the burden had shifted – and found the conduct complained of was for reasons (see above) other than the protected characteristic (the Claimant’s nationality).
As for the paternity pay claim, this appeal was doomed to fail as the ET had found the claim had been brought out of time and no appeal against that finding had been permitted to proceed. In any event, the appeal focused on the wrong Regulations (those concerned with the entitlement to leave, not pay); the ET had been entitled to find the Claimant had failed to comply with the written notification requirements laid down by the paternity Pay Regulations.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0272 – 16 – 0303

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 24 March 2022; Ref: scu.582064

Ssekisonge v Barts Health NHS Trust: EAT 2 Mar 2017

EAT Unfair Dismissal: Reason for Dismissal Including Substantial Other Reason – Although the Employment Tribunal did not adopt the structured approach indicated by section 98(1) and (4) Employment Rights Act 1996, there was no error of law in its overall conclusion that dismissal was for some other substantial reason that justified dismissal of a nurse in the circumstances; and the dismissal fell within the band of reasonable responses in the circumstances of this case. The Employment Tribunal had sufficient regard to the balance of prejudice in coming to that conclusion. Absent any error of law or perversity, the Employment Appeal Tribunal cannot substitute its decision for that of the Employment Tribunal.

Judges:

Simpler DBE P J

Citations:

[2017] UKEAT 0133 – 16 – 0203

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582065

Royal Mencap Society v Tomlinson-Blake: EAT 21 Apr 2017

EAT National Minimum Wage – The appeals consider the proper approach to the question whether employees who sleep-in in order to carry out duties if required engage in ‘time work’ for the full duration of the night shift or whether they are only entitled to the national minimum wage when they are awake and carrying out relevant duties.
A multifactorial evaluation is required. No single factor is determinative and the relevance and weight of particular factors will vary with and depend on the context and circumstances of the particular case.

Judges:

Simler DBE P J

Citations:

[2017] UKEAT 0290 – 16 – 2104

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582073

Weatherilt v Cathay Pacific Airways Ltd: EAT 25 Apr 2017

EAT Unlawful Deduction From Wages – CONTRACT OF EMPLOYMENT – Implied term/variation/construction of term
For the purpose of resolving a dispute under Part II of the Employment Rights Act 1996 as to whether there has been an unlawful deduction from wages the ET is entitled to determine issues relating to the construction of the contract or the implication of any term of the contract. Delaney v Staples [1991] ICR 331 and Camden Primary Care Trust v Atchoe [2007] EWCA Civ 714 are binding authority to this effect. Agarwal v Cardiff University UKEAT/ 0210/16/RN (22 March 2017) not followed.

Citations:

[2017] UKEAT 0333 – 16 – 2504

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582075

Lyfar-Cisse v Brighton and Sussex University Hospitals NHS Trust and Another: EAT 2 Mar 2017

EAT Victimisation Discrimination : Detriment – – Other forms of victimisation
The Appellant had brought a successful race discrimination claim against her employer, the First Respondent, in 2007. In 2011 she raised a grievance against two colleagues. The Second Respondent (the First Respondent’s Human Resources Director) decided to intervene in the grievance in part because she had brought the previous claim, which was a protected act under section 27 Equality Act 2010. He approached the two colleagues without informing the Appellant and persuaded them to send her letters of apology which he had drafted and which were designed to look spontaneous. That was in breach of procedure and when she discovered what had happened the Appellant brought a grievance against the Second Respondent saying his actions were humiliating and insulting.
The Employment Tribunal found (on a remission from the Employment Appeal Tribunal) that although the Second Respondent’s decision to intervene was because of the protected act, the way in which he had intervened was not. The Employment Tribunal’s reasons for reaching that conclusion were not very clear and appeared inconsistent with express findings (at paragraph 38 in the Reasons) that the Second Respondent wished to avoid the matter escalating in part because of the earlier successful claim and that his actions were part of a plan designed to get the Appellant to decide to take her grievance no further.
The victimisation claim was remitted again to a fresh Employment Tribunal.

Judges:

Shanks J

Citations:

[2017] UKEAT 0263 – 16 – 0203

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 24 March 2022; Ref: scu.582063

Witts v Wyre Forest School: EAT 13 Mar 2017

EAT Unfair Dismissal: Reasonableness of Dismissal – Unfair dismissal – fairness of dismissal
The Appellant (the Claimant below) had been a Teaching Assistant for over 20 years, some 19.5 of which were at the First Respondent School – a state school for pupils with special needs – where he had an unblemished disciplinary record. On 12 March 2015, there had been an incident at the School involving a pupil, VB; initially the Appellant had intervened to pull VB away from a door into the School – conduct which the Respondents criticised but saw as warranting no more than a verbal warning – but as he walked away, VB attacked the Appellant from behind, causing the Appellant to suffer various injuries. As the Appellant responded to the attack, VB ended on the ground with what was described by others as ‘a thud’. After a disciplinary hearing, the Respondents determined this amounted to gross misconduct and the Appellant should be summarily dismissed. The ET rejected the Appellant’s complaint of unfair dismissal, holding he had been dismissed because of his ill-judged intervention with VB, contrary to the Respondents’ training (which encouraged de-escalation), which had caused VB to land on the ground; the Respondents had a reasonable belief in the misconduct and had carried out a reasonable investigation and process. Although the Appellant had asked to see various documents, he failed to respond to the Respondents’ request for better explanation as to what he was seeking, failed to ask to see the documentation made available at the disciplinary hearing and made no complaint about not seeing this in his subsequent appeal. The dismissal was for a reason relating to the Appellant’s conduct and was fair in all the circumstances.
Held: allowing the appeal in part
The ET’s reasoning had wrongly characterised the Appellant’s conduct as a physical ‘intervention’ both in the first part of the incident – his admitted intervention in pulling VB down the ramp – and at the end – when in fact the Appellant was responding to an attack from behind. That was not how the disciplinary panel had described the situation, allowing that the latter part of the incident had involved ‘physical action’ on the Appellant’s part, not a proactive intervention as such. Recognising the different nature of the Appellant’s conduct at the start of the incident and at the later stage was a relevant factor given that the Respondents had said he would not have been dismissed simply for the initial intervention – that was not the reason for his dismissal. In the circumstances, the ET had needed to assess whether it was fair to dismiss the Appellant for his physical action in responding to VB’s attack on him from behind. In assessing that question, an employer might reasonably consider that the context – including the Appellant’s earlier ill-judged intervention – was a relevant factor (although here the Respondents had taken the view that the earlier intervention itself would not have led to the dismissal) but the ET would also need to ask whether it was within the range of reasonable responses to consider this physical response an act of gross misconduct given that the employee was himself being attacked from behind at the time, which raised the issues of self-defence relied on by the Appellant. The appeal would be allowed on this basis.
As for the second basis of challenge, however, the ET had not lost sight of the issues raised in respect of the PHP but had expressly dismissed the point being made, both as a matter of substance and procedure. It had, moreover, noted that the Appellant had the opportunity to raise this as a matter on appeal but chose not to do so: if the Respondents had been at fault at the disciplinary hearing stage, the appeal allowed for this to be rectified but the Appellant did not pursue it as a point and the Respondents were reasonably entitled to take the view that it was not something that needed to be revisited. The second ground of appeal was dismissed.

Judges:

Ready QC J

Citations:

[2017] UKEAT 0160 – 16 – 1303

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582069

Focus Care Agency Ltd v Roberts: EAT 21 Apr 2017

EAT National Minimum Wage – The appeals consider the proper approach to the question whether employees who sleep-in in order to carry out duties if required engage in ‘time work’ for the full duration of the night shift or whether they are only entitled to the national minimum wage when they are awake and carrying out relevant duties.
A multifactorial evaluation is required. No single factor is determinative and the relevance and weight of particular factors will vary with and depend on the context and circumstances of the particular case.

Judges:

Simler DBE J P

Citations:

[2017] UKEAT 0143 – 16 – 2104

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582070

Tolley v Scofield: EAT 15 Mar 2017

EAT Unfair Dismissal: Reasonableness of Dismissal – Contributory fault
Unfair dismissal – unfairness – section 98(4) Employment Rights Act 1996 (‘ERA’)
Unfair dismissal – contributory fault – section 123(6) ERA
The Claimant, who had worked in a team providing 24/7 care to the Respondent (a man in his mid-30s who has severe learning difficulties, physical disabilities and unpredictable epilepsy), was dismissed for some other substantial reason, namely an irretrievable breakdown in trust and confidence. The Respondent’s mother – a Court of Protection appointed Deputy for the Respondent, who manages his care – had received statements from other members of the care team raising concerns about the Claimant. The Claimant, however, contended these were fabricated and questioned whether the staff in question had colluded in making the statements. The Respondent’s mother obtained further, more detailed statements from two of the complainants but did not provide these to the Claimant. Considering the Claimant could no longer be trusted to work as part of the team providing the Respondent’s personal care, it was decided she should be dismissed on notice. Her subsequent appeal was dismissed.
The Claimant complained this was an unfair dismissal, and the ET agreed to the extent that the Respondent had failed to follow a fair procedure in not providing the supplemental statements to the Claimant for her response. That said, the Respondent had reasonable grounds for believing that trust and confidence had broken down and, had the statements been provided to the Claimant, her response would have made no difference to the Respondent’s view that she could not continue to work as part of the care team; addressing the unfairness of the procedure would have added an additional week to the process, and the Claimant’s compensatory award would therefore be limited to one week’s pay.
The Respondent appealed on two bases: (1) the ET should not have found the dismissal to have been unfair when the procedural failing it had identified would have made no difference to the decision, which was substantively fair; and (2) having found that the Claimant’s conduct – specifically in contending that other team members had colluded to fabricate statements against her – was potentially relevant to her dismissal, the ET ought to have considered reducing the compensatory award under section 123(6) ERA.
Held: allowing the appeal in part
The ET had not erred in finding that the flawed procedure had rendered the dismissal unfair; its approach was consistent with the House of Lords guidance in Polkey v A E Dayton Services Ltd [1998] 1 AC 344 HL and was not susceptible to challenge on appeal.
Having, however, found that the decision to dismiss the Claimant was founded upon the Respondent’s lack of trust in her – informed in part by her response to the statements from other members of staff – that potentially raised the question of contributory fault under section 123(6) ERA, and the ET was therefore obliged to consider this question, which it had failed to do (Swallow Security Services Ltd v Millicent UKEAT/0297/08 applied). This point would be remitted to the ET for reconsideration.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0324 – 16 – 1503

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582068

Tees Esk and Wear Valleys NHS Foundation Trust v Harland and Others: EAT 3 Mar 2017

Transfer of Undertakings : Service Provision Change – Preliminary issues
Transfer of Undertakings (Protection of Employment) Regulations 2006 regulation 3(3)(a)(i) – service provision change – organised grouping of employees – principal purpose
Preliminary Issues
The Claimants had been employed by the Tees Esk and Wear Valleys NHS Foundation Trust – the Second Respondent before the ET (the Appellant) – as part of an organised grouping of employees put together to look after CE, an individual in the care of the Second Respondent. Over time, CE had improved such that his need for assistance had reduced from seven-to-one to largely one-to-one care. The team put together by the Second Respondent had, however, been retained and had maintained its identity, albeit that the staff concerned were required to undertake work for other service users, also under the Second Respondent’s care, in the same location. That remained the position up to 5 January 2015, when the contract to provide care for CE was taken over by the Danshell Healthcare Ltd – the First Respondent in the ET proceedings. The Second Respondent contended this was a relevant transfer (a service provision change) for TUPE purposes and that the employees assigned to the team organised to provide care for CE would therefore transfer into the First Respondent’s employment. The First Respondent disagreed – as did the employees concerned (who preferred to remain in NHS employment) – but reluctantly agreed to employ those who the Second Respondent was refusing to treat as still in its employment. A number of the employees thus affected brought claims in the ET.
A Preliminary Hearing was listed before the ET to determine (1) whether there was a transfer for TUPE purposes, and (2) whether any of the Claimants had been assigned to the relevant organised grouping of employees prior to the transfer. The ET concluded that there was a change in the provision of the service – care for CE – from the Second to the First Respondent. Furthermore, there was an organised grouping of employees, put together to provide that service, that maintained its identity up to 5 January 2015, and 11 employees had been assigned to that grouping, including the Claimants. Given that the employees concerned undertook other work, however, the ET considered the principal purpose of the grouping had been diluted such that, by 5 January 2015, it was no longer the provision of care to CE. There was, therefore, no service provision change for the purpose of regulation 3(3) TUPE. There being no transfer for TUPE purposes, the ET further declared that the Claimants were at all times employed by the Second Respondent and not at any time by the First Respondent. The Second Respondent appealed.
Held: Dismissing the appeal on the question of principal purpose but allowing the appeal against the ET’s declaration as to the identity of the Claimants’ employer
The determination of principal purpose (regulation 3(3)(a)(i) TUPE) required the ET to answer the question: what did the organised grouping have as its principal purpose immediately before the service provision change? The activities actually performed might be relevant to the determination of purpose, as might the intention behind the organisation of the grouping; neither was necessarily determinative. In the present case, allowing that purpose may change over time, the ET had properly focused on the period immediately prior to the service provision change. By that stage, allowing that the principal purpose need not be the sole purpose, the ET found that the dominant purpose of the organised grouping was the provision of care to other service users; by then, care for CE was merely a subsidiary purpose of the group. Given its primary findings of fact, that was a permissible conclusion for the ET in this case.
As for ET’s declaration as to the Claimant’s employment by the Second Respondent, this was not an issue before it at the Preliminary Hearing and the parties had not addressed the point. The declaration could not stand.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0173 – 16 – 0303

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582067

Talbot v Costain Oil, Gas and Process Ltd and Others: EAT 14 Mar 2017

Sex Discrimination: Inferring Discrimination – The Claimant worked on an agency basis as an engineer at Sellafield Nuclear Power Plant; she was the only woman in a male dominated world. After only 12 weeks her contract was terminated and she was escorted from site.
She brought claims for sex discrimination and/or harassment based on 17 allegations, including the termination of her contract. The Employment Tribunal rejected all the claims on the basis either that she had not proved the allegation itself or not proved that any treatment or conduct involved was because of or related to her sex.
The Employment Tribunal did not approach its fact-finding task properly both in relation to finding ‘primary facts’ and in relation to the proper inferences to be drawn on discrimination. They failed to have regard to the overall picture presented by the evidence or the totality of the circumstances from which inferences could be drawn; they failed to make proper assessments of the parties and the witnesses; they failed to properly consider factors pointing towards discrimination; and they placed too ready a reliance on the burden of proof.
Overall, this was an error of law and the appeal had to be allowed and the whole matter remitted to a fresh Employment Tribunal for re-hearing.

Judges:

Shanks HHJ

Citations:

[2017] UKEAT 0283 – 16 – 1403

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582066

Green v London Borough of Barking and Dagenham: EAT 10 Mar 2017

EAT Unfair Dismissal: Reasonableness of Dismissal – Automatically unfair reasons
REDUNDANCY – Fairness
Automatic unfair dismissal – section 152 TULRCA 1992 – reason for dismissal – ET approach – adequacy of reasons
Unfair dismissal – section 98(4) ERA 1996 – fairness of dismissal by reason of redundancy – ET approach
The ET had dismissed the Claimant’s claims of automatic unfair dismissal and unfair dismissal for the purposes of section 98 ERA. The Claimant appealed.
Held: allowing the appeal in part
Although the ET had not made a clear finding as to the reason for the Claimant’s dismissal it could be implied that it accepted it was by reason of redundancy and it was apparent it had not found that it was related to her trade union activities; the appeal in this regard was dismissed.
When approaching the question of fairness, the ET had taken the view this was not a case in which it needed to follow the guidance laid down in Williams v Compair Maxam Ltd [1982] IRLR 83 EAT; those principles did not apply because the question was not why the Claimant had been selected for redundancy as much as why she had not been appointed to one of the remaining positions (see Morgan v Welsh Rugby Union [2011] IRLR 376 EAT). In adopting this approach, however, the ET had elevated Morgan to a proposition of law, which it expressly did not lay down. It had, further, adopted a blinkered approach to section 98(4) ERA and failed to demonstrate it had adopted a range of reasonable responses test, reviewing each stage of the Respondent’s decision making and process. That rendered the ET’s conclusions on unfair dismissal under section 98 ERA unsafe; the appeal would therefore be allowed.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0157 – 16 – 1003

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582059

HM Revenue and Customs v Garau: EAT 24 Mar 2017

EAT Practice and Procedure : Application/Claim – Preliminary issues
The early conciliation certificate provisions introduced from 6 April 2014 do not allow for more than one certificate of early conciliation per ‘matter’ to be issued by ACAS. If more than one such certificate is issued, a second or subsequent certificate is outside the statutory scheme and has no impact on the limitation period. The Employment Judge was wrong to hold otherwise.

Judges:

Kerr J

Citations:

[2017] UKEAT 0348 – 16 – 2403, [2017] ICR D21

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Science Warehouse Ltd v Mills EAT 9-Oct-2015
EAT Practice and Procedure : Amendment – Amendment of an ET claim to add a new cause of action – ACAS Early Conciliation (Section 18A Employment Tribunals Act 1996 (as amended))
At a Preliminary Hearing, . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 24 March 2022; Ref: scu.582061

Born London Ltd v Spire Production Services Ltd: EAT 28 Mar 2017

EAT Transfer of undertaking – notification of employee liability information – regulation 11 TUPE
Born had taken over a contract from Spire in circumstances that amounted to a service provision change for TUPE purposes. In providing information to Born prior to the transfer, Spire had stated that a non-contractual Christmas bonus was in place. Born contended that this was wrong: in fact the bonus was contractual in nature and Spire had given incorrect employee liability information for the purposes of regulation 11 TUPE.
Determining Born’s complaint under regulation 12 TUPE, the ET concluded it had no reasonable prospect of success: even assuming the bonus was contractual, regulation 11 had required Spire to provide particulars as defined by section 1 Employment Rights Act 1996 (‘ERA’); that did not require it to state whether or not remuneration was contractual. EU law did not assist Born in this regard. Its complaint was dismissed.
On Born’s appeal.
Held: dismissing the appeal
The ET had correctly construed the obligation upon Spire: section 1 ERA set out the requirements upon an employer in respect of a statement of employment particulars; those particulars were not limited to contractual terms and conditions and there was no obligation to state whether the matters to be set out were contractual or not; specifically there was no such obligation in respect of remuneration (specifying the method by which it was to be calculated did not mean an employer had also to state whether any particular aspect of remuneration was contractual). The EU Directives relied on by Born did not assist: both Council Directive 91/533/EU and Council Directive 2001/23/EC were concerned with entitlements and rights and obligations, more broadly defined than simply those which were properly to be defined as contractual in nature.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0255 – 16 – 2803

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582056

Henderson v GMB: EAT 14 Mar 2017

EAT Certification Officer – The Certification Officer had not determined the true complaint made by the Appellant. The Certification Officer had wrongly focused on identifying the correct construction of a particular rule of the Respondent Trade Union, which the Union had misapplied in such a way as to repress unlawfully the Appellant’s attempts to become a candidate for the office of General Secretary and Treasurer of the Union.
The thrust of the Appellant’s complaint was not about what was the correct interpretation of the rule. That was common ground. It was that the Union had misapplied the rule and used its wrong interpretation of it as a vehicle for repressing the Appellant’s campaign and disciplining officials of his branch who proposed to support his nomination as a candidate. The Appellant was entitled to a finding that the Union had thereby acted in plain breach of section 47 of the Trade Union and Labour Relations (Consolidation) Act 1992.
An amendment to the grounds of complaint had not been necessary. If, however, the amendment were regarded as having been necessary, the Certification Officer had been wrong not to allow a late amendment that would have made the wording of the complaint reflect the true nature of the Appellant’s case. The amendment, though late, did not introduce any new facts or rely on any new cause of action of which the Union did not have prior notice.
The Certification Officer’s alternative reasoning and conclusion that the Appellant’s case was ‘disingenuous’ was perverse and could not stand. The Appellant was as much entitled to the protection of sections 47 and 108A of the 1992 Act as any other member of the Union and was not to be denied a remedy merely because he had failed to contact other branches before complaining to the Union about its rules; nor because he could be motivated by hostility to the Union’s leadership or a desire to cause difficulties for it. The Appellant’s application to the Certification Officer had not been an abuse of process.
The Appeal Tribunal would make a declaration of breach of section 47 and section 108A of the 1992 Act, but declined to order the election to be re-run, as the election results had been announced over 15 months before the hearing; the Appellant’s chances of becoming a candidate would have been slender even without the Union’s unlawful interference with his campaign.

Judges:

Kerr J

Citations:

[2017] UKEAT 0294 – 16 – 1403

Links:

Bailii

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992 47

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582060

Abaya v Leeds Teaching Hospital NHS Trust: EAT 1 Mar 2017

EAT Practice and Procedure : Costs
The Appellant brought claims in the Employment Tribunal for constructive unfair dismissal, racial discrimination and victimisation. The Employment Tribunal dismissed all the claims. The Respondent applied for its costs. The Employment Tribunal found that the unfair dismissal claim had not been one that had no reasonable prospect of success. However, it found that the other claims had had no reasonable prospect of success from the start. It proceeded to award the Respondent costs in the sum of 5,000 pounds.
Held, allowing the appeal:
(1) The Employment Tribunal erred in principle because it did not consider whether it should exercise a discretion to award costs at all under Rule 76(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Rather it had gone simply from finding that the claims had in part had no reasonable prospect of success to the conclusion that costs should be awarded and then proceeded to assess the quantum of those costs.
(2) The Employment Tribunal further erred in failing to give adequate reasons to explain how it had arrived at the figure of 5,000 pounds.
(3) It had also erred in taking into account the means of the Appellant’s wife without asking what, if any, impact those means had on the Appellant’s own ability to pay, which is what it had decided to take into account under Rule 84 of the ET Rules.

Judges:

Singh J

Citations:

[2017] UKEAT 0258 – 16 – 0103

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582054

Chief Constable of Kent Constabulary v Bowler: EAT 22 Mar 2017

EAT Race Discrimination – direct;
Race Discrimination – inferring discrimination;
Race Discrimination – burden of proof
The Respondent’s appeal argued that the Employment Tribunal had drawn inferences that were not open to it on the primary facts and that it erred in concluding that a prima facie case of discrimination had been made out to reverse the burden of proof. The appeal succeeded in relation to a small number of findings only in respect of which the Claimant did not establish a prima facie case or the primary facts did not support the inferences drawn.

Judges:

Simler DBE J

Citations:

[2017] UKEAT 0214 – 16 – 2203

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 24 March 2022; Ref: scu.582057

Agarwal v Cardiff University and Another: EAT 22 Mar 2017

EAT Contract of Employment: Implied Term/Variation/Construction of Term -m UNLAWFUL DEDUCTION FROM WAGES
The decision of the Court of Appeal in Southern Cross Healthcare Co Ltd v Perkins [2011] ICR 285 that the Employment Tribunal has no jurisdiction to construe a Statement of Written Particulars in a claim under Employment Rights Act 1996 (‘ERA’) section 11 applies equally where it is necessary to construe a contract in order to determine a claim under ERA section 13 not to suffer an unauthorised deduction from wages. For these purposes a decision on whether terms are to be implied into the contract also falls within the Southern Cross prohibition on construction. Marks and Spencer v BNP Paribas Securities Services Trust [2016] AC 742 considered.
As it was necessary in determining the Claimant’s claim under section 13 for wages referable to clinical duties to decide on the construction of her contract of employment with the First Respondent for academic work for them and clinical work for the Second Respondent including whether it contained implied terms regarding her ability to perform such duties the Employment Judge did not err in deciding that the Employment Tribunal had no jurisdiction to determine her claim. Such a claim would have to be pursued in the Civil Courts.

Judges:

Slade DBE J

Citations:

[2017] UKEAT 0210 – 16 – 2203

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582055

Interserve Fm Ltd v Tuleikyte: EAT 14 Mar 2017

EAT Sex Discrimination: Direct – Pregnancy and discrimination
In respect of a single finding of unfavourable treatment because of absence on maternity leave under section 18(4) Equality Act 2010, the Employment Tribunal did not apply the correct legal test, wrongly treating the case as a ‘criterion’ type case rather than a ‘reasons why’ type case: Taiwo and Anor v Olaigbe and Ors [2016] UKSC 31 applied. This approach is appropriate in a direct discrimination claim under section 18 just as under section 13 Equality Act 2010. The fact that indirect discrimination cannot be pursued on the basis of pregnancy or maternity leave under section 19 does not alter the position either.

Judges:

Simler DBE P J

Citations:

[2017] UKEAT 0267 – 16 – 1403

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 24 March 2022; Ref: scu.582062

HF v Parliament T-584/16: ECFI 24 Apr 2017

ECJ Civil service – auxiliary contract staff – Article 3b of the Conditions of employment – Succession of undertakings as an official – Fixed-term contracts – Decision not to renew – Misuse of powers – Request for assistance – Right to be heard – Non-contractual liability

Citations:

ECLI:EU:T:2017:282, [2017] EUECJ T-584/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 24 March 2022; Ref: scu.581771

HF v Parliament T-570/16: ECFI 24 Apr 2017

ECJ Staff Regulations of Officials and Conditions of Employment of Other Servants – Judgment – Civil service – Sub-contracting employee – Article 24 of the Staff Regulations – Request for assistance – Article 12a of the Staff Regulations – Moral harassment – Article 90 (1) of the Staff Regulations – Statutory time-limit for a response of four months – Decision of the – Failure to take a position within the statutory time-limit for reply to the allegation of the alleged harassment – Definition of an implied decision rejecting the request for assistance – Non-existent measure – Inadmissibility

Citations:

ECLI:EU:T:2017:283, [2017] EUECJ T-570/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 24 March 2022; Ref: scu.581770

Unionen v Almega Tjansteforbunden: ECJ 6 Apr 2017

ECJ Social Policy – Judgment – Reference for a preliminary ruling – Social policy – Directive 2001/23/EC – Article 3 – Safeguarding of employees’ rights in the event of transfers of undertakings – Collective agreements applicable to the transferee and the transferor – Additional periods of notice granted to dismissed workers – Account to be taken of the length of service with the transferor

Citations:

ECLI:EU:C:2017:276, [2017] EUECJ C-336/15, [2017] WLR(D) 252

Links:

Bailii, WLRD

Jurisdiction:

European

Employment

Updated: 24 March 2022; Ref: scu.581785

Z v A Government Department And The Board of Management of A Community School: ECJ 18 Mar 2014

ECJ Grand Chamber – Judgment – Reference for a preliminary ruling – Social policy – Directive 2006/54/EC – Equal treatment of male and female workers – Commissioning mother who has had a baby through a surrogacy arrangement – Refusal to grant her paid leave equivalent to maternity leave or adoptive leave – United Nations Convention on the Rights of Persons with Disabilities – Directive 2000/78/EC – Equal treatment in employment and occupation – Prohibition of any discrimination on the ground of disability – Commissioning mother unable to bear a child – Existence of a disability – Validity of Directives 2006/54 and 2000/78

Judges:

V. Skouris, P

Citations:

[2014] EUECJ C-363/12, [2014] IRLR 563, [2014] 3 CMLR 20, ECLI:EU:C:2014:159, [2014] Eq LR 316

Links:

Bailii

Statutes:

Directive 2006/54/EC, Directive 2000/78/EC

Jurisdiction:

European

Citing:

Opinion – Z v A Government Department And The Board of Management of A Community School ECJ 26-Sep-2013
ECJ Opinion – Social policy – Surrogacy – Right to leave of absence equivalent to maternity leave or adoption leave – Directive 2006/54/EC – Equal treatment of men and women – Scope – United Nations Convention on . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 24 March 2022; Ref: scu.581694

Hartmut Scharf v Commission: ECJ 21 Oct 1986

Citations:

[1986] EUECJ C-292/84

Links:

Bailii

Jurisdiction:

European

Citing:

See Also – Hartmut Scharf v Commission ECJ 13-Dec-1984
ECJ Application for interim measures – suspension of the operation of a measure – interim measures – conditions for granting (rules of procedure, art. 83 (2)). Suspension of operation and other interim measures . .

Cited by:

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

Employment

Updated: 23 March 2022; Ref: scu.580684

F Bolognese and others v H Scharf and Commission of the European Communities: ECJ 22 Sep 1987

1. Procedure – third-party proceedings – conditions of admissibility – prejudice to the rights of the third party.
(statute of the court of justice of the EEC Art 39; rules of procedure, art 97 (1))
2. Officials – staff regulations – interpretation – grounds of a judgment annulling a promotion – effect of res judicata only as regards the parties.

Citations:

[1987] EUECJ C-292/84T

Links:

Bailii

Jurisdiction:

European

Citing:

See Also – Hartmut Scharf v Commission ECJ 13-Dec-1984
ECJ Application for interim measures – suspension of the operation of a measure – interim measures – conditions for granting (rules of procedure, art. 83 (2)). Suspension of operation and other interim measures . .
Cited – Hartmut Scharf v Commission ECJ 21-Oct-1986
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 23 March 2022; Ref: scu.580685

Sahkoalojen Ammattiliitto ry v Elektrobudowa Spolka Akcyjna: ECJ 12 Feb 2015

ECJ Reference for a preliminary ruling – Articles 56 TFEU and 57 TFEU – Directive 96/71/EC – Articles 3, 5 and 6 – Workers of a company with its seat in Member State A, posted to carry out works in Member State B – Minimum wage provided for by the collective agreements of Member State B – Locus standi of a trade union with its seat in Member State B – Legislation of Member State A prohibiting the assignment to a third party of claims relating to pay

Citations:

[2015] EUECJ C-396/13, ECLI:EU:C:2015:86, [2015] IRLR 407

Links:

Bailii

Jurisdiction:

European

Citing:

Opinion – Sahkoalojen Ammattiliitto ry v Elektrobudowa Spolka Akcyjna ECJ 18-Sep-2014
ECJ Advocate General’s Opinion – Freedom of movement for workers – Posted workers – Pay claims deriving from an employment relationship – Regulation (EC) No 593/2008 (Rome I Regulation) – Choice of law – Article . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 23 March 2022; Ref: scu.580688

Chapman v Goonvean and Rostowrack China Clay Co Ltd: CA 16 Apr 1973

Several of the company’s employees had been given transport to work as part of their contract. After redundancies, the remaining number of employees so entitled made the service uneconomic, and the company withdrew it. The seven appellants had to leave being unable to get to work. They were replaced by the equal number of men living nearer the works. The court was asked whether these dismissals were also for redundancy.
Held: Changes in terms and conditions are relevant to the fairness of a dismissal but they do not create a redundancy situation
Buckley, LJ in dealing with the question of redundancy said: ‘There seems to me however, to be nothing in the language of the section to suggest that the employer should be treated as bound or likely to carry on his business in all, or indeed in any, respects in precisely the way in which he was carrying it on, at the time when the facts have to be considered.’
Lord Denning said: ”I come back, therefore, to section 1(2)(b): and I am afraid that I cannot read into it the words ‘on the existing terms and conditions of employment.’ I think the two cases were wrongly decided. I have less hesitation in overruling them because I notice that Lord Parker CJ himself decided as he did with reluctance: and I can see why. It is very desirable, in the interest of efficiency, that employers should be able to propose changes in the terms of a man’s employment for such reasons as these: so as to get rid of restrictive practices: or to induce higher output by piece work: or to cease to provide free transport at an excessive cost.’
Later Lord Denning said: ‘The employers can properly say to the men: ‘You have not lost your jobs because you are redundant. You have lost your jobs because you live so far away that it is not worth our while paying the cost of bringing you here – when we can get all the men we need nearby.” and ‘I would, however, remark that if an employer sought to reduce the wages of his men on the plea that otherwise he could not keep the business going – or if he employed women in the place of men to save expenses – with the result that some men lost their jobs, then I think the employer would have difficulty in resisting a claim.’

Judges:

Lord Denning MR, Buckley, Orr LJJ

Citations:

(1973) ICR 310, [1973] EWCA Civ 1, [1973] 2 All ER 1063, [1973] ICR 310, [1973] 1 WLR 678, (1974) 9 ITR 379

Links:

Bailii

Statutes:

Redundancy Payments Act 1965 1(2)(b)

Jurisdiction:

England and Wales

Citing:

Appeal from – Chapman v Goonvean and Rostowrack China Clay Co Ltd NIRC 9-Nov-1972
The claimants appealed against rejection of their claims for redundancy. It had been part of their employment contract that they were collected and transported to work. After other employees were dismissed for redundancy, the transport service . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 23 March 2022; Ref: scu.262737

Piggott Brothers and Co Ltd v Jackson: CA 1992

The court asked under what circumstances an appellate court could interfere with the decision of a lower court in employment cases: ‘What matters is whether the decision under appeal was a permissible option. To answer that question in the negative in the context of employment law, the appeal tribunal will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the industrial tribunal. If it cannot do this, it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option and has to be characterised as ‘perverse’.’

Judges:

Lord Donaldson of Lymington MR

Citations:

[1992] ICR 85

Jurisdiction:

England and Wales

Cited by:

Cited – Reuters Ltd v H Williams EAT 15-Nov-2001
The respondent company appealed a finding of sex discrimination by a staff member engaging in sexual harassment. A young female worker complained that her manager had persisted in making advances to her. It was said that the Tribunal had failed to . .
Cited – Cheapside (SSL) Ltd (Formerly Schroder Securities Ltd) v Bower EAT 19-Mar-2002
An appeal was pending against a decision following a substantial claim for unfair dismissal and sex discrimination. The respondent company sought the chairman’s notes of evidence. The only acceptable grounds for such an order would be an allegation . .
Cited – Warner v Adnet Limited CA 26-Feb-1998
A dismissal of employees by administrative receivers just before the sale of a company as going concern was a redundancy outside the protection given by the TUPE provisions. ‘in view of the facts found by the tribunal about the appointment of the . .
Cited – Symonds (T/A Symonds Solicitors) v Redmond-Ord EAT 10-Jun-2011
EAT UNFAIR DISMISSAL – Constructive dismissal
PRACTICE AND PROCEDURE – Perversity
Finding of fact contrary to agreed evidence leading to Employment Tribunal preferring Claimant’s evidence to that of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 23 March 2022; Ref: scu.182853

Smith and another v Blandford Gee Cementation Co Ltd: 1970

The court considered a finding by a tribunal that a contract of services had been transferred. Bridge J said: ‘To my mind, it runs counter to a fundamental principle that a man’s contractual position, particularly in such a vital matter as the identity of the master whom he is to serve, shall be crucially affected by an agreement between two other parties, the terms of which are never communicated to him.’
Otherwise: Smith v Blandford Gee Cementation Co Ltd

Judges:

Bridge J

Citations:

[1970] 3 All ER 154

Jurisdiction:

England and Wales

Cited by:

Cited – Biffa Waste Services Ltd and Another v Maschinenfabrik Ernst Hese Gmbh and others CA 12-Nov-2008
The defendant contracted to build a plant for the claimant. The plant was damaged by a fire caused by the defendant’s independent sub-contractor. The defendant appealed against the finding that it was responsible for the sub-contractor’s failure. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 23 March 2022; Ref: scu.282629

Brennan and others v Sunderland City Council Unison GMB: EAT 16 Dec 2008

No Waiver for disclosure of Advice

EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and therefore privilege was waived. The Tribunal rejected the application and the EAT held that they were right to do so.
Consideration of the operation of waiver principles.
Elias J P discussed the question fundamental to whether there had been a waiver: The fundamental question is whether, in the light of what has been disclosed and the context in which disclosure has occurred, it would be unfair to allow the party making disclosure not to reveal the whole of the relevant information because it would risk the court and the other party only having a partial and potentially misleading understanding of the material. The court must not allow cherry picking, but the question is: when has a cherry been relevantly placed before the court?
Typically, as we have seen, the cases attempt to determine the question whether waiver has occurred by focusing on two related matters. The first is the nature of what has been revealed; is it the substance, the gist, content or merely the effect of the advice? The second is the circumstances in which it is revealed; has it simply been referred to, used, deployed or relied upon in order to advance the parties’ case? As Waller LJ observed in the Dunlop Slazenger case [2003] EWCA Civ 901. The principles are not altogether easy to discern, partly perhaps because of the vagueness of the language adopted – for example, sometimes reliance and deployment are used as separate terms and sometimes they appear to mean much the same thing – and partly because the cases are necessarily fact sensitive . .
66. Having said that, we do accept that the authorities hold fast to the principle that legal advice privilege is an extremely important protection and that waiver is not easily established. In that context something more than the effect of the advice must be disclosed before any question of waiver can arise.
However, in our view, the answer to the question whether waiver has occurred or not depends upon considering together both what has been disclosed and the circumstances in which disclosure has occurred. As to the latter the authorities in England strongly support the view that a degree of reliance is required before waiver arises, but there may be issues as to the extent of the reliance . .’

Judges:

Elias J P

Citations:

[2008] UKEAT 0349 – 08 – 1612, [2009] ICR 479

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Wilson v Northampton and Banbury Junction Railway Co 1872
Lord Selborne LC said: ‘It is of the highest importance . . that all communications between a solicitor and a client upon a subject which may lead to litigation should be privileged, and I think the court is bound to consider that . . almost any . .
Cited – Unison GMB v Brennan and others EAT 19-Mar-2008
EAT Jurisdictional Points
Sex discrimination
Can an employment tribunal make a declaration that the term of a collective agreement is void, pursuant to section 77 of the Sex Discrimination Act, at the . .
Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – Great Atlantic Insurance v Home Insurance CA 1981
The defendants sought to enter into evidence one part of a document, but the plaintiffs sought to have the remainder protected through legal professional privilege.
Held: The entirety of the document was privileged, but by disclosing part, the . .
Cited – Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corporation (No 2) 11-Dec-1978
The court considered disclosure of a legally privileged note of an interview: ‘I believe that the principle underlying the rule of practice exemplified by Burnell v British Transport Commission is that, where a party is deploying in court material . .
Cited – Dunlop Slazenger International Ltd v Joe Bloggs Sports Ltd CA 11-Jun-2003
Waller LJ said: ‘To answer the question whether waiver of parts of a privileged communication waives the complete information, it is that dictum of Mustill J., as he then was, which applies. A party is not entitled to cherry pick and a party to whom . .
Cited – Bennett v Chief Executive Officer of the Australian Customs Service 25-Aug-2004
Austlii (Federal Court of Australia) EVIDENCE – Privilege – Legal professional privilege – Waiver – Letter conveying substance and effect of legal advice to third party – Inconsistency between disclosure and . .
Cited – Expandable Ltd and Another v Rubin CA 11-Feb-2008
The defendant’s witness statement referred to a letter written to him by the defendant’s solicitor. The claimant appealed refusal of an order for its disclosure.
Held: The appeal failed. The letter was protected by legal professional . .
Cited – Mann v Carnell 21-Dec-1999
Austlii (High Court of Australia) Practice and procedure – Preliminary discovery – Legal professional privilege – Loss of privilege – Waiver by disclosure to third party.
Australian Capital Territory – . .
Cited – GE Capital Corporate Finance Group v Bankers Trust Co and Others CA 3-Aug-1994
Irrelevant parts of documents required to be disclosed may be blanked out on discovery by the party giving discovery. Hoffmann LJ: ‘It has long been the practice that a party is entitled to seal up or cover up parts of a document which he claims to . .
Cited – Infields Ltd v P Rosen and Son CA 1938
Sir Wilfred Greene MR said that reliance on a document was not of itself sufficient to displace legal professional privilege: ‘In my judgment, the same principle applies here. All that the deponent was doing was saying: ‘Well, I am asking the court . .
Cited – Government Trading Corporation v Tate and Lyle Industries Ltd CA 24-Oct-1984
Reference was made to information derived from Iranian lawyers. The solicitor in an affirmation had set out his understanding of Iranian law on the incorporation of a Government Trading Corporation in Iran and stated that his information had been . .
Cited – Regina v Secretary of State for Transport ex-parte Factortame and Others CA 1988
The Secretary of State was willing to make legal advice given to him available on the grounds that privilege had been waived, but not advice after a particular cut off date. The claimants were dubious as to whether the privilege had been properly . .
Cited – University of Southampton v Dr C K Kelly EAT 14-Nov-2005
EAT The respondent had stated in its response to the complaint of unfair dismissal that it had realised that it would be unlawful to continue to employ the claimant after having taken legal advice. The claimant . .

Cited by:

Cited – Re D (a child) CA 14-Jun-2011
In the course of care proceedings, the mother had revised her version of events, and then explained why. The father sought disclosure of the attendance notes of her solicitor, saying that she had waived any privilege in the advice given. She now . .
Applied – The National Crime Agency v Perry and Others QBD 12-Nov-2014
The agency had taken proceedings against the defendant to reciver what it said were theproceeds of crime. That claim was dicontinued. The defendant sought to recover his costs on an indemnity basis, and relying upon a witness statement from an . .
Appeal from – Council of The City of Sunderland v Brennan and Others CA 3-Apr-2012
Equal pay claim – Whether difference in pay due to material factor other than sex . .
See Also – Sunderland City Council v Brennan and Others EAT 2-May-2012
EAT PRACTICE AND PROCEDURE – Contribution
PRACTICE AND PROCEDURE – Disclosure
(1) An employment tribunal has no jurisdiction to determine claims for contribution under the Civil Liability . .
See Also – Sunderland City Council v Brennan and Others EAT 2-May-2012
EAT PRACTICE AND PROCEDURE – Contribution
PRACTICE AND PROCEDURE – Disclosure
(1) An employment tribunal has no jurisdiction to determine claims for contribution under the Civil Liability . .
Cited – Kyla Shipping Co Ltd and Another v Freight Trading Ltd and Others ComC 22-Feb-2022
Litigation Privilege
Defendants challenged the claimants assertion of litigation privilege and contended for a waiver of any privilege which entitles them to disclosure of additional materials referred to in a witness statement.
Held: ‘I dismiss the waiver of . .
Lists of cited by and citing cases may be incomplete.

Employment, Legal Professions, Litigation Practice

Leading Case

Updated: 23 March 2022; Ref: scu.278812

Ashmore v British Coal Corporation: CA 1990

The plaintiff was one of many female employees who complained to the industrial tribunal that she was paid less by the defendant than her male counterparts. Sample cases were selected for trial and the others stayed pending a decision. It was an express term that the other cases were not bound by the test cases. She did not seek to put her case forward as one of the test cases, so it was stayed. The test cases had been decided adversely, and she sought to have the stay lifted to enable her to continue her claim.
Held: Although the decision in the test cases was not binding upon her as a matter of law, it would be an abuse of process for her to relitigate the same issues since that would defeat the whole purpose of having test claims.
Stuart-Smith LJ said: ‘The expression `frivolous or vexatious’ in rule 12(2)(e) [which seems to be the predecessor of the current regulation 13(2)(d)] includes applications which are an abuse of process: see E T Marler Ltd v Robertson [1974] ICR 72, 76, per Sir Hugh Griffiths. Whether or not an application should be struck out on this ground is a matter for the discretion of the tribunal, which can only be challenged on the basis that the tribunal has misdirected itself in law or reached a decision to which no reasonable tribunal could come: see Medallion Holidays Ltd v Birch [1985] ICR 578.’

Judges:

Stuart-Smith LJ

Citations:

[1990] 2 QB 338, [1990] 2 All ER 981, [1990] IRLR 283, [1990] ICR 485, [1990] 2 WLR 1437

Jurisdiction:

England and Wales

Citing:

Approved – Bragg v Oceanus Mutual Underwriting Association (Bermuda) Ltd CA 1982
The court considered the ability to prevent relitigation of issues already decided. The Court identified some of the limits of the abuse jurisdiction. Kerr LJ said: ‘To take the authorities first, it is clear that an attempt to relitigate in another . .
Cited – E T Marler Limited v Robertson NIRC 1974
A frivolous claim is one that has no substance in it and is bound to fail or on the face of it is so manifestly misconceived that it has no prospect of success: ‘If the employee knows that there is no substance in his claim and that it is bound to . .

Cited by:

Cited – Simms v Conlon and Another CA 20-Dec-2006
Solicitors within a practice sued each other, and one wished to plead the fact of a finding of professional misconduct.
Held: The defendant’s appeal succeeded. It was not an abuse for the appellant to continue to assert his innocence, and the . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – C (A Minor) v Hackney London Borough Council CA 10-Nov-1995
The mother had claimed in damages for the injuries to her health from the landlord authority’s failure to repair. Her child then brought a subsequent action in respect of his own injuries. The authority claimed the action should be stopped as res . .
Cited – In re Norris, Application by Norris HL 28-Jun-2001
The applicant’s husband had been made the subject of a drugs confiscation order. Part of this was an order against the house. She had failed in asserting that the house was hers. Her appeal to a civil court had been disallowed as an abuse. It was . .
Approved – 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 . .
Cited – British Aerospace plc v Green and Others CA 18-Apr-1995
The employer was to make 530 members of its staff redundant. Each staff member was assessed and scored. The claimants said that the method of selection was unfair, and sought disclosure of the scores of all employees.
Held: It was wrong to . .
Cited – The Secretary of State for Business, Innovation and Skills v Weston and Another ChD 5-Sep-2014
The Secretary of State sought company director disqualification orders against the defendants saying they had been convicted of making false instruments. The Insolvency service had decided against such proceedings, and the Crown Court judge, when . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Employment

Updated: 23 March 2022; Ref: scu.248046

Spring v Guardian Assurance Plc and Others: HL 7 Jul 1994

The plaintiff, who worked in financial services, complained of the terms of the reference given by his former employer. Having spoken of his behaviour towards members of the team, it went on: ‘his former superior has further stated he is a man of little or no integrity and could not be regarded as honest . . Since 1 January 1989, Messrs Spring and Parker shared all their commission earnings on a 50:50 basis and left owing the company some 12,000 pounds in funding which to date has not been repaid. This matter is now in the hands of solicitors. The current lapse ratio is running at 18 per cent and this is only for policies written since March of this year. Since their departure, we have found a serious case of mis-selling where the concept of ‘best advice’ was ignored and the policies sold yielded the highest commissions.’ The judge at trial had found these allegation ill founded, and the reference: ‘motivated by leaping to a conclusion – of dishonesty and lack of integrity – careless of the true facts of the case.’
Held: An employer was liable for a negligently given and damaging reference given on behalf of an employee. A duty of care was owed to a former employee. The notion of a ‘master and servant’ relationship has become obsolete. The changes which have taken place in the employment and employee relationship, impose greater duties on the employer than in the past, whether by statute or judicial decision, to care for the physical, financial and even psychological welfare of the employee. A duty of care in providing a reference continues even though the relation of employer and employee may have finished. The principle in Hedley Byrne rested ‘upon an assumption or undertaking of responsibility by the defendant towards the plaintiff, coupled with reliance by the plaintiff on the exercise by the defendant of due care and skill.’ The burden of proving malice is a heavy one and it may be extremely difficult to establish.
As to whether damages should be payable for a negligent mis-statement, Lord Lowry said: ‘The defendants’ second argument (which, in order that it may prevail, must be made to stand independently on its own feet) is that, even if one concedes foreseeability and proximity and even if it would otherwise be just and reasonable for the plaintiff to recover under the head of negligence, public policy dictates that the person who has been the subject of a negligent misstatement shall not recover. The argument is grounded on the proposition that the maker of the misstatement, provided he has acted in good faith, must, even if he has been negligent, be free to express his views in the kind of situation (including the giving of any reference) which is contemplated by the doctrine of qualified privilege which is part of the law of defamation.
This argument falls to be considered on the assumption that, but for the overriding effect of public policy, a plaintiff who is in the necessary proximate relation to a defendant will be entitled to succeed in negligence if he proves his case. To assess the validity of the argument entails not the resolution of a point of law but a balancing of moral and practical arguments. This exercise could no doubt produce different answers but, for my own part, I come down decisively on the side of the plaintiff.
On the one hand looms the probability, often amounting to a certainty, of damage to the individual, which in some cases will be serious and may indeed be irreparable. The entire future prosperity and happiness of someone who is the subject of a damaging reference which is given carelessly but in perfectly good faith may be irretrievably blighted. Against this prospect is set the possibility that some referees will be deterred from giving frank references or indeed any references. Placing full reliance here on the penetrating observations of my noble and learned friend, Lord Woolf, I am inclined to view this possibility as a spectre conjured up by the defendants to frighten your Lordships into submission. I also believe that the courts in general and your Lordships’ House in particular ought to think very carefully before resorting to public policy considerations which will defeat a claim that ex hypothesi is a perfectly good cause of action. It has been said that the public policy should be invoked only in clear cases in which the potential harm to the public is incontestable, that whether the anticipated harm to the public will be likely to occur must be determined on tangible grounds instead of on mere generalities and that the burden of proof lies on those who assert that the court should not enforce a liability which prima facie exists. Even if one should put the matter in a more neutral way, I would say that public policy ought not to be invoked if the arguments are evenly balanced: in such a situation the ordinary rule of law, once established, should prevail.’

Judges:

Lord Slynn of Hadley, Gough, Lord Woolf

Citations:

Independent 12-Jul-1994, Times 08-Jul-1994, Gazette 02-Nov-1994, [1995] 2 AC 296, [1994] IRLR 460, [1994] ICR 596, [1994] UKHL 7, [1994] 3 All ER 129, [1994] CLC 766, [1994] 3 WLR 354

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Appeal from – Spring v Guardian Assurance Plc and Others CA 1993
The test for malice is the same whether it arises in the context of libel or of injurious falsehood. Glidewell LJ said that ‘Maliciously’ in this context means either knowing that the words were false or being reckless as to whether they were false . .

Cited by:

Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – Johnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
Cited – TSB Bank Plc v L M Harris EAT 1-Dec-1999
EAT Unfair Dismissal – Reason for Dismissal
The employer appealed a finding against them. An employee, when applying for another job, discovered that the reference given revealed many complaints against her . .
Cited – Commissioner of Police of the Metropolis v Lennon CA 20-Feb-2004
The claimant police officer considered being transferred to Northern Ireland. He asked and was incorrectly told that his housing allowance would not be affected by taking time off work.
Held: The break between employments had affected his . .
Cited – Crossley v Faithfull and Gould Holdings Ltd CA 16-Mar-2004
The employee claimant was to retire. On his employer’s negligent advice he resigned and opted for discretionary benefits.
Held: The employer owed no general duty of care to an employee’s financial interests. Nor could a term requiring such a . .
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 . .
Cited – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Cited – Polanski v Conde Nast Publications Ltd HL 10-Feb-2005
The claimant wished to pursue his claim for defamation against the defendant, but was reluctant to return to the UK to give evidence, fearing arrest and extradition to the US. He appealed refusal of permission to be interviewed on video tape. Held . .
Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Cited – West Bromwich Albion Football Club Ltd v El-Safty QBD 14-Dec-2005
The claimant sought damages from the defendant surgeon alleging negligent care of a footballer. The defendant argued that he had no duty to the club as employer of his patient who was being treated through his BUPA membership. It would have created . .
Cited – Waters v Commissioner of Police for the Metropolis HL 27-Jul-2000
A policewoman, having made a complaint of serious sexual assault against a fellow officer complained again that the Commissioner had failed to protect her against retaliatory assaults. Her claim was struck out, but restored on appeal.
Held: . .
Cited – HM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
Cited – Welton, Welton v North Cornwall District Council CA 17-Jul-1996
The defendant authority appealed a finding that it was liable in negligence from the conduct of one of its environmental health officers. The plaintiff had set out to refurbish and open a restaurant. He said the officer gave him a list of things he . .
Cited – Clift v Slough Borough Council and Another QBD 6-Jul-2009
The claimant sought damages for defamation. The council had decided that she had threatened a member of staff and notified various people, and entered her name on a violent persons register. She alleged malice, the council pleaded justification and . .
Cited – McKie v Swindon College QBD 11-Feb-2011
The claimant sought damages after having moved jobs, his former employer wrote to his new one saying that he would not be welcome back on the campus, which would be a substantial part, giving reasons.
Held: The claimant succeeded on liability. . .
Cited – Bartholomew v London Borough of Hackney and Yeboah CA 23-Oct-1998
An employee was suspended, but complained of race discrimination. A settlement was reached. When applying for another job, the reference given mentioned only one side of the dispute.
Held: A reference had to be viewed as a whole, and to be . .
Cited – Jackson v Liverpool City Council CA 15-Jun-2011
Having left the defendant with a satisfactory reference, on moving jobs again a further reference was requested, but given this time in terms which the claimant said was defamatory, as to his record-keeping.
Held: The Council’s appeal was . .
Cited – Michael and Others v The Chief Constable of South Wales Police and Another SC 28-Jan-2015
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .
Cited – Steel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .
Cited – Banca Nazionale Del Lavoro Spa v Playboy Club London Ltd and Others SC 26-Jul-2018
The Playboy casino required a reference for a customer, but asked for this through a third party. The bank was not aware of the agency but gave a good reference for a customer who had never deposited any money with them and nor to whom it had issued . .
Cited – Poole Borough Council v GN and Another SC 6-Jun-2019
This appeal is concerned with the liability of a local authority for what is alleged to have been a negligent failure to exercise its social services functions so as to protect children from harm caused by third parties. The principal question of . .
Lists of cited by and citing cases may be incomplete.

Employment, Negligence

Leading Case

Updated: 11 February 2022; Ref: scu.89460

Skinners Hastings Ltd v Wilkin: EAT 11 Dec 2001

whether the Employment Tribunal has jurisdiction at the hearing of an IT1 to entertain a second or subsequent application for an extension of time for a respondent’s notice of appearance despite one or more previous refusals of such an extension, by way of a Chairman’s letter, refusing earlier written ex parte applications.

Citations:

[2001] UKEAT 1023 – 00 – 1112

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 February 2022; Ref: scu.204667

Lucy and others v British Airways Plc: EAT 13 Jan 2009

EAT UNLAWFUL DEDUCTION FROM WAGES
The 78 Claimants were cabin crew employed by BA at their Manchester base. In October 2006 BA closed that base; they did not dismiss the Claimants; but they did not roster them for flying duties. If they had flown, the Claimants could have become entitled, depending on differing criteria, to payment of one or more of a number of allowances. They claimed payment of the allowances they would, but for the closure, have earned as wages under Part II of ERA 1996. Held that the Tribunal had correctly concluded that there was no jurisdiction to hear the claims; albeit for reasons which were not entirely the same as the Tribunal’s. The absence of jurisdiction arose not because the claims were not quantifiable but because they were not claims for wages as defined by section 27 of ERA; they were claims for damages for loss of a chance and would not be brought before the Tribunal while employment continued.

Citations:

[2009] UKEAT 0033 – 08 – 1301

Links:

Bailii

Statutes:

Employment Rights Act 1996 27

Jurisdiction:

England and Wales

Citing:

Cited – Secretary of State for Health v Rance EAT 4-May-2007
EAT Equal Pay Act – Part time pensions
Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke
The EAT exercised its discretion to allow a point conceded at the Employment Tribunal to be . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 February 2022; Ref: scu.280161

DI v EASO: ECFI 2 Mar 2017

ECJ (Judgment) Appeal – Civil service – EASO staff – Member of the contract staff – Fixed-term contract – Probationary period – Dismissal decision – Action for annulment and for damages – Dismissal of the action as inadmissible at first instance – Rule of correspondence between the application and the complaint – Article 91(2) of the Staff Regulations

Citations:

ECLI:EU:T:2017:138, [2017] EUECJ T-730/15

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 09 February 2022; Ref: scu.579671

Eschenbrenner v Bundesagentur fur Arbeit: ECJ 2 Mar 2017

ECJ (Judgment) Reference for a preliminary ruling – Freedom of movement for workers – Article 45 TFEU – Regulation (EU) No 492/2011 – Article 7 – Equal treatment – Frontier worker subject to income tax in the Member State of residence – Benefit paid by the Member State of employment in the event of the employer’s insolvency – Detailed rules for the calculation of the insolvency benefit – Notional taking into account of the income tax of the Member State of employment – Insolvency benefit lower than the previous net remuneration – Bilateral convention for the avoidance of double taxation

Citations:

ECLI:EU:C:2017:152, [2017] EUECJ C-496/15

Links:

Bailii

Jurisdiction:

European

Employment, Immigration

Updated: 09 February 2022; Ref: scu.579674

Walton v Commission T-594/16: ECFI 16 Feb 2017

ECJ (Order) Action for annulment – Civil service – Temporary staff – Departure allowance – Revision of the calculation – Authority of res judicata – Action in part inadmissible and in part clearly unfounded in law

Citations:

ECLI:EU:T:2017:110, [2017] EUECJ T-594/16 – CO

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 09 February 2022; Ref: scu.579666

Lindorfer v Council (Staff Regulations) C-227/04: ECJ 11 Sep 2007

Appeal Officials Transfer of pension rights – Professional activities prior to entering the service of the Communities – Calculation of the years of pensionable service Article 11(2) of Annex VIII to the Staff Regulations General implementing provisions Principle of non’discrimination Principle of equal treatment

Citations:

[2007] EUECJ C-227/04, [2007] ECR I-6767

Links:

Bailii

Jurisdiction:

European

Citing:

Opinion – Lindorfer v Council (Staff Regulations) ECJ 30-Nov-2006
EU Appeal – Community official – Transfer of pension rights – Calculation of additional pensionable service – Equality of treatment. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 February 2022; Ref: scu.579643