constitutes, as regards british legislation, a 'worker' within the meaning of article 1(a)(ii) of regulation no 1408/71 for the purposes of the application of the first sentence of article 22(1)(ii) of that regulation.

 
Lesney Products Ltd v Nolan and others [1976] EWCA Civ 8; [1977] ICR 235; [1977] IRLR 77; (1976) 12 ITR 6
19 Oct 1976
CA

Employment

[ Bailii ]

 
 Capper Pass Ltd v Lawton; EAT 19-Oct-1976 - [1976] UKEAT 346_76_1076; [1977] 2 WLR 26; [1977] QB 852; [1976] IRLR 366; (1976) 11 ITR 316; [1977] 2 All ER 11
 
Dugdale v Kraft Foods Ltd [1976] UKEAT 277_76_1076; [1976] 1 WLR 1288; (1979) 11 ITR 309; [1977] 1 All ER 454; [1977] IRLR 160
28 Oct 1976
EAT

Employment, Discrimination

[ Bailii ]
 
102 Social Club and Institute Ltd v Bickerton [1977] ICR 911
1977

Phillips J
Employment
Philips J set out the consequences of the 1971 Act: 'Before 1971 there was perhaps a tendency to find in contracts of employment elements of a public character which would enable the court to extend to the employee the protection flowing from "the right to be heard" enjoyed by the holders of an office. Since the fundamental change of the law brought about by the Industrial Relations Act 1971, which for the first time created the right of an employee not to be unfairly dismissed, the problem has arisen, which previously was not of much importance, of defining the circumstances in which an office-holder was said to be employed. Previously, it was a case of defendants seeking to deny an office-holder a right of complaint on the ground that he was party to a "pure contract of service"; now it is a question of defendants seeking to deny employees the right not to be unfairly dismissed on the ground that in reality they are not employees but "pure office-holders".'
Industrial Relations Act 1971
1 Citers


 
Ahmad v Inner London Education Authority [1978] QB 36; [1977] ICR 490
1977
CA
Lord Denning MR, Scarman LJ (dissenting
Employment, Human Rights
The appellant said that his human rights were infringed when, as a moslem, he was refsued time off from his work as a primary school teacher to attend prayers at the mosque on Fridays. He had subsequentlly been re-instated part-time, but complained that this affected his pension rights. Held: Lord Denning MR said that whilst the European Convention on Human Rights was not part of English law, the courts would do their best to see that their decisions were in conformity with it. Nevertheless, care should be taken to avoid special privileges, with resultant discontent and even resentment, in the name of religious freedom, and: "The school time-table was well known to Mr Ahmad when he applied for the teaching post. It was for the usual teaching hours from Monday to Friday, inclusive. If he wished to have every Friday afternoon off for his prayers, either he ought not to have applied for this post: or he ought to have made it clear at the outset and entered into a 4.5 -day engagement only. This was the sensible thing for him to do. Instead he undertook full-time work without making any disclosure that he wanted Friday afternoon off for prayers. I think that section 30 can be applied to the situation perfectly well by reading it as subject to the qualification "if the school time-table so permits". So read, it means that he is entitled to attend for religious worship during the working week if it can be arranged consistently with performing his teaching duties under his contract of employment . . I have no doubt that all headmasters will try to arrange their time-table so as to accommodate devout Muslims like Mr Ahmad: but I do not think they should be compelled to do so, if it means disrupting the work of the school and the well-being of the pupils."
. . and "I see nothing in the European Convention to give Mr Ahmad any right to manifest his religion on Friday afternoons in derogation of his contract of employment: and certainly not on full pay."
Orr LJ: "Nor, in my judgment, can the answer to the question raised by this appeal be that a Muslim teacher has a right to absent himself for Friday prayers if his doing so will cause only a small inconvenience in the school. This solution would have some attraction because in the present case one of the headmasters concerned, Mr Foley, was able to accommodate Mr Ahmad's absence and it may be that others might have done so but for the policy adopted by the ILEA. But such a solution, quite apart from the grave practical disadvantage that it would involve detailed investigation in each case as to the degree of difficulty involved, is in my judgment unacceptable in principle since absence without leave in school hours would be a breach of contract even if the inconvenience were slight."
Scarman LJ (dissenting) observed that society had changed since 1944, as had the legal background in terms of the UK's international obligations and the acknowledged importance of eliminating discrimination of all kinds. He would therefore have been willing to give to section 30, which was admittedly incorporated into Mr Ahmad's contract, a broad construction designed to avoid discrimination on the ground of religious observance, so that timetabling arrangements would be required to enable attendance at religious worship consistent with the duty of full-time service: all that Mr Ahmad had needed, on the facts, was a leeway of 45 minutes, which could and should have been accommodated.
European Convention on Human Rights 9(1)
1 Cites

1 Citers



 
 Littlewoods Organisations Ltd v Harris; CA 1977 - [1977] 1 WLR 1472; [1978] 1 All ER 1026
 
Oxford v Department of Health and Social Security [1977] ICR 885
1977

Philips J
Employment
The tribunal had declined a submission of no case to answer.
Philips J said: "It seems to us that that the [decision] was a very proper course to have adopted, and we recommend it as being the course which is in most circumstances the right course to adopt. It further seems to us that, while the burden of proof lies upon the applicant, it would only be in exceptional or frivolous cases that it would be right for the Industrial Tribunal to find at the end of the applicant's case that there was no case to answer and that it was not necessary to hear what the respondent had to say about it."
1 Citers


 
National Union of Taylors and Garment Workers v Charles Ingram and Company Ltd [1977] ICR 530
1977
EAT
Phillips J
Employment
The Union said that it had been recognised by the employers even though there was no written agreement. Held: Phillips J said: "Recognition" plainly, we think, implies agreement - which, of course, involves consent. That is to say, it is a mutual process by which the employers recognise the union, which obviously agrees to be recognised and it may come about in a number of different ways. There may be a written agreement that the union should be recognised. There may be an express agreement not in writing. Or, as we think, it is sufficient if neither of those exists but the established facts are such that it can be said of them that they are clear and unequivocal and give rise to the clear inference that the employers have recognised the union. This will normally involve conduct over a period of time.
Of course, the longer that state of facts has existed, the easier it is in any given case to reach a conclusion that a proper interpretation of them inevitably leads to the conclusion that the employers have recognised the union. Against that test, it has not been suggested here that there is any formal document by which the employers recognised the union. It is necessary to look at the facts. As we said, they seem to us to lead inescapably to the conclusion that these employers treated this union at the material time as being recognised for the purposes in question."

 
Simmons v Hoover Ltd [1977] 1 All ER 775; [1976] 3 WLR 901; [1977] ICR 61; [1977] QB 284
1977
EAT
Phillips J
Employment
The claimant had been absent through sickness. When he recovered to be able to return, his co-employees were on strike. He joined the strike. All the strikers were dismissed. Held: At common law, by going on strike, employees commit repudiatory breaches of their contracts of employment. It is on the employer to decide whether to accept the breach as an end to the contract or to allow the contract to continue despite the breach.
Phillips J said: "One of the matters considered at length by the Donovan Commission was the effect of strikes on the contract of employment . . it was clearly the view of the commission that at common law a contract cannot be terminated unilaterally and that if an employee refuses to carry on working under his contract of employment, his employer has the option either to ignore the breach of contract and to insist upon performance of it, or alternatively to accept such a fundamental breach as a repudiation of the contract and to treat himself as no longer bound by it. In our judgment this view was in accordance with general principle and supported by authority. In short, refusal to work during a strike did not involve "self dismissal" by the strikers but left the parties to the contract hoping that the strike would one day be settled and the contract be alive unless and until the employer exercised his right to dismiss the employee."
1 Cites



 
 Nash v Ryan Plant International Limited; 1977 - (1977) ICR 560
 
Lowndes v Specialist Heavy Engineering Ltd [1977] ICR 1
1977


Employment

1 Citers


 
British Broadcasting Corporation v Hearn [1977] 1 WLR 1004; [1977] ICR 685
1977
CA
Denning MR, Roskill LJ
Employment
Union members working for the BBC threatened to refuse to transmit its television signal to a satellite over the Indian Ocean during the Cup Final because the satellite broadcast would be receivable in South Africa. The refusal followed a union policy of opposing apartheid. Held: Roskill LJ: The use of a composite expression in a statute, in this case 'a trade dispute'; showed that it was to be interpreted with a broad meaning. Lord Denning MR: "Terms and conditions of employment may include not only the contractual terms and conditions but those terms which are understood and applied by the parties in practice, or habitually, or by common consent, without ever being incorporated into the contract." and "To become a trade dispute, there would have to be something of the kind which was discussed in the course of argument before us: 'We would like you to consider putting a clause in the contract by which our members are not bound to take part in any broadcast which may be viewed in South Africa because we feel that is obnoxious to their views and to the views of a great multitude of people. We would like that clause to be put in, or a condition of that kind to be understood.' If the BBC refused to put in such a condition, or refused to negotiate about it, that might be a trade dispute."
1 Citers


 
Watts v Rubery Owen Conveyancer Limited [1977] 2 All ER 1
1977
EAT
Kilner Brown J
Employment
The claimant sought a redundancy payment. The employer said that his employment had not yet finished. Held: Kilner Brown J said: "The effect of these cases is that where an application is made to an Industrial Tribunal before the act of dismissal has taken place it is a premature application and the Industrial Tribunal has no jurisdiction".
1 Citers


 
Nelson v British Broadcasting Corporation [1977] IRLR 148
1977
CA
Roskill LJ, bUxton LJ
Employment, Contract
Mr Nelson was employed as a producer but had in fact been engaged in the Caribbean Service of the BBC in terms of the work which he had actually been doing. The contract of employment expressly provided that he should serve wherever and however he might be required. Held: The closure of the BBC service in the Caribbean did not involve a redundancy since he was expressly not employed to perform his services there.
Roskill LJ said: "The corporation's case before the industrial tribunal was simplicity itself: 'This man was employed for the purpose of the Caribbean Service. The Caribbean Service was being shut down as a result of Treasury demands for economy. Therefore we could no longer keep him there; his services were not required; and therefore he became redundant; and because he became redundant he cannot claim to have been unfairly dismissed.' The industrial tribunal, as I said at the beginning of this judgment, accepted that argument and rejected the claim. They went into the matter with very great care. They held that Mr Nelson had become redundant. They reached that conclusion because of an argument that was apparently put forward that it was a term of Mr Nelson's employment that he should be employed for, and for all practical purposes only for, programmes for the Caribbean. That emerges very clearly from the industrial tribunal's reasons. It was said that, notwithstanding the very wide words of clause 8 of the agreement none the less: "We think it was a term of Mr Nelson's contract of employment, arising by necessary implication or inference from the primary facts, that he was employed for the purposes of broadcasts to the Caribbean." With great respect to the tribunal, that seems to me to be an impossible conclusion as a matter of law, for this reason: it is a basic principle of contract law that if a contract makes express provision (as clause 8 did) in almost unrestricted language, it is impossible in the same breath to imply into that contract a restriction of the kind that the industrial tribunal sought to do." The employers were not allowed to amend their pleadings to allege dismissal for some other reason, and they had failed to establish a potentially fair reason for dismissal, so that the employee was entitled to succeed.
1 Citers



 
 Amies v Inner London Education Authority; EAT 1977 - [1977] ICR 308
 
Turner v London Transport Executive [1977] ICR 952
1977
CA

Employment

1 Cites

1 Citers


 
David v New England College of Arundel [1977] 1 ICR 6
1977


Employment, Contract

1 Citers


 
Electrolux v Hudson [1977] FSR 31
1977


Employment, Intellectual Property
A clause in a storekeeper's contract giving inventions to employer was held invalid because it was in unreasonable restraint of trade.

 
Dorothy Perkins Ltd v Dance [1977] IRLR 226
1977

Kilner Brown J
Employment
The court considered the difficulties in categorising and comparing employments: "Having then identified the parties, having then acquainted themselves with the nature of the contractual employment, the next thing that has to be done is to look at the position in very broad general terms. The old saying that it is sometimes difficult to see the wood because of the trees is particularly applicable in this type of investigation . . look at the wood . . if it sees one tree which is outstandingly different from the rest . . see whether or not . . [they] . . are doing something which may be significantly different."
Equal Pay Act 1970
1 Citers


 
Chesham Shipping Ltd v Rowe [1977] IRLR 391
1977


Employment

1 Citers


 
Egg Stores (Stamford Hill) Limited v Leibovici [1977] ICR 260
1977
EAT
Phillips J
Employment
Referring to the test set out in Marshall: "That is helpful, but one needs to know in what kind of circumstances can it be said that further performance of his obligations in the future will be possible? It seems to us that an important question to be asked in cases such as the present - we are not suggesting that it is the only question - is: "has the time arrived when the employer can no longer reasonably be expected to keep the absent employee's post open for him?""
and "Among the matters to be taken into account in such a case in reaching a decision are these: (1) the length of the previous employment; (2) how long it had been expected that the employment would continue; (3) the nature of the job; (4) the nature, length and effect of the illness or disabling event; (5) the need of the employer for the work to be done, and the need for a replacement to do it; (6) the risk to the employer of acquiring obligations in respect of redundancy payments or compensation for unfair dismissal to the replacement employee; (7) whether wages have continued to be paid; (8) the acts including the dismissal of, or failure to dismiss, the employee; and (9) whether in all the circumstances a reasonable employer could be expected to wait any longer."
1 Cites

1 Citers


 
Industrial Rubber Products v Gillon [1977] IRLR 389
1977


Employment
The Government had imposed restrictions on employees' wages being raised. Held: The level of remuneration is a fundamental element in any contract of employment, and a reduction in payments may amount to a repudiation founding a constructive dismissal. Even so, a constructive dismissal is not necessarily an unfair one.

 
Peake v Automotive Products Ltd [1977] UKEAT 443_76_1702
17 Feb 1977
EAT

Employment, Discrimination

[ Bailii ]
 
East Lindsey District Council v Daubney [1977] UKEAT 7_77_2004; [1977] ICR 566; [1977] IRLR 181; (1977) 12 ITR 359
20 Apr 1977
EAT
Phillips P J
Employment
The claimant had been dismissed for ill health. He complained to the Tribunal that he had been unfairly dismissed. The grounds of his application amount to a complaint of constructive dismissal. In summary, he was saying that he was being treated by the District Council in a manner which he found degrading, demoralising and upsetting, and which had resulted in a detrimental effect upon his health to such an extent that his early retirement on the grounds of ill health had been approved. His complaint was that he was denied all responsibility and treated as a menial employee. Held: The Council's appeal failed.
Phillips P J Said: "Unless there are wholly exceptional circumstances, before an employee is dismissed on the ground of ill health it is necessary that he should be consulted and the matter discussed with him, and that in one way or another steps should be taken by the employer to discover the true medical position . . Discussions and consultations will often bring to light facts and circumstances of which the employers were unaware, and which will throw new light on the problem. Or the employee may wish to seek medical advice on his own account, which, brought to the notice of the employers' medical advisers, will cause them to change their opinion. There are many possibilities. Mr. Daubney complained to an Industrial Tribunal that he had been unfairly dismissed. The grounds of his application amount to a complaint of constructive dismissal. In summary, he was saying that he was being treated by the District Council in a manner which he found degrading, demoralising and upsetting, and which had resulted in a detrimental effect upon his health to such an extent that his early retirement on the grounds of ill health had been approved. His complaint was that he was denied all responsibility and treated as a menial employee."
1 Citers

[ Bailii ]
 
W Devis and Sons Ltd v Atkins [1977] IRLR 314; [1977] AC 931; [1977] ICR 662; [1977] UKHL 6; [1977] 3 All ER 40; [1977] 3 WLR 214; (1978) 13 ITR 71; 8 BLR 57
6 Jul 1977
HL
Viscount Dilhorne, Lord Simon of Glaisdale
Employment
The 'just and equitable' test warranted the reduction or extinction of compensation for an employee who has been unfairly dismissed and then found to have been liable to summary dismissal. "The paragraph does not, nor did s. 116 of the Act of 1971, provide that regard should be had only to the loss resulting from the dismissal being unfair. Regard must be had to that, but the award must be just and equitable in all the circumstances, and it cannot be just and equitable that a sum should be awarded in compensation when in fact the employee has suffered no injustice by being dismissed."
Trade Union and Labour Relations Act 1971
1 Cites

1 Citers

[ Bailii ]
 
British United Shoe Machinery Co Ltd v Clarke [1977] UKEAT 64_77_1107; [1978] ICR 70; [1977] IRLR 297
11 Jul 1977
EAT

Employment
The respondent had been employed in a senior position by the appellant. He had complained that when being made redundant, the appellant had failed to make reasonable efforts to find him alternative employment.
1 Citers

[ Bailii ]
 
Price v Civil Service Commission and others [1977] UKEAT 1_77_1507
15 Jul 1977
EAT

Employment

[ Bailii ]

 
 Gouriet v Union of Post Office Workers; HL 26-Jul-1977 - [1978] AC 435; [1977] UKHL 5; [1977] 3 All ER 70

 
 Bluebell Apparel Ltd v Dickinson; SCS 14-Oct-1977 - [1977] ScotCS CSIH_4; 1978 SC 16; 1980 SLT 157

 
 Massey v Crown Life Insurance Company; CA 4-Nov-1977 - [1977] EWCA Civ 12; [1978] 1 WLR 676; [1978] ICR 590
 
Smith v Macarthys Ltd Unreported, 14 December 1977
14 Dec 1977
EAT

Discrimination, Employment
Mrs Smith was employed by the respondents, wholesale dealers in pharmaceutical products, as a warehouse manageress at a weekly salary of £50. She complained of discrimination in pay because her male predecessor whose post she took up after an interval of four months, received a salary of £60 per week. She brought proceedings before the industrial tribunal on the basis of the 1970 Act. The tribunal held that the applicant was employed on like work with her predecessor and ordered Macarthys to pay the applicant a salary equal to his salary. Held: The employer's appeal was dismissed.
Equal Pay Act 1970 - Council Directive 75/117/EEC
1 Cites

1 Citers


 
Blackpole Furniture Ltd v Sullivan [1978] ICR 559
1978
EAT

Employment
The EAT considered whether there was any impropriety in an Industrial Tribunal considering an application for review even though their decision was under appeal to the EAT. Held: There was no impropriety in so doing. In giving their reasons the EAT said: 'One of the reasons why it is not necessarily undesirable to carry on with the application for a review is that experience shows that very often we have appeals perhaps related to compensation or matters of that kind where the real complaint is that some trivial error has been made - perhaps in computation, calculation or something of that sort – and where all we can do, if we are satisfied that it has, is to remit the matter to be reheard on that particular point.'
1 Citers


 
D G Moncrieff (Farmers) v MacDonald [1978] IRLR 112
1978
EAT

Employment
The ability of a tribunal to revisit its own judgments, the review procedure, was only appropriate for use in exceptional circumstances.
1 Citers


 
Retarded Childrens Aid Society v Day [1978] 1 WLR 763; [1978] ICR 437
1978
CA
Lord Russell of Killowen, Lord Denning MR, Eveleigh LJ
Employment
Lord Russell of Killowen said: "The function of the Employment Appeal Tribunal is to correct errors of law where one is established and identified. I think care must be taken to avoid concluding that an experienced industrial tribunal by not expressly mentioning some point or breach has overlooked it." It should not examine the tribunal decision with a 'fine-tooth comb'.
Lord Denning MR said: "So reading between the lines, it seems to me that, although not explicitly stated in the Reasons, this Tribunal very probably did have all the considerations in mind which it is not suggested they may not have had."
1 Citers



 
 Bentley Engineering Co Ltd v Mistry; EAT 1978 - [1979] ICR 47; [1978] IRLR 436
 
Walker v Josiah Wedgwood and Sons Ltd [1978] ICR 744
1978

Arnold J
Employment
"The general approach, as we think, must be that in cases concerned with unfair dismissal, whether it be constructive dismissal or direct dismissal, the conception of submission of no case to answer is somewhat out of place."
1 Citers


 
Massey v Crown Life Insurance Co [1978] ICR 590
1978


Employment

1 Cites

1 Citers


 
Palmanor Ltd v Cedron [1978] ICR 1008
1978


Employment
The use of foul language can undermine a contract of employment and be a foundation for a claim for constructive dismissal.
1 Citers


 
Walls Meat Company Limited v Khan [1979] ICR 52; [1978] IRLR 499
1978
CA
Brandon LJ, Dennning L MR
Employment
Brandon LJ said: "With regard to ignorance operating as a similar impediment, I should have thought that, if in any particular case an employee was reasonably ignorant of either (a) his right to make a complaint of unfair dismissal at all, or (b) how to make it, or (c) that it was necessary for him to make it within a period of three months from the date of dismissal, an industrial tribunal could and should be satisfied that it was not reasonably practicable for his complaint to be presented within the period concerned.
For this purpose I do not see any difference, provided always that the ignorance in each case is reasonable, between ignorance of (a) the existence of the right, or (b) the proper way to exercise it, or (c) the proper time within which to exercise it. In particular, so far as (c), the proper time within which to exercise the right, is concerned, I do not see how it can justly be said to be reasonably practicable for a person to comply with a time limit of which he is reasonably ignorant.
While I do not, as I have said, see any difference in principle in the effect of reasonable ignorance as between the three cases to which I have referred, I do see a great deal of difference in practice in the ease or difficulty with which a finding that the relevant ignorance is reasonable may be made. But, where a person is reasonably ignorant of the existence of the right at all, he can hardly be found to have been acting unreasonably in not making enquiries as to how, and within what period, he should exercise it. By contrast, if he does not know of the existence of the right, it may in many cases at least, though not necessarily all, be difficult for him to satisfy an industrial tribunal that he behaved reasonably in not making such enquiries."
Dennning L MR said: "It is simply to ask this question:- Had the man just cause or excuse for not presenting his complaint within the prescribed time? Ignorance of his rights – or ignorance of the time limit – is not just cause or excuse, unless it appears that he or his advisers could not reasonably have been expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and they must take the consequences."

 
Association of Patternmakers and Allied Craftsmen v Kirvin Ltd [1978] IRLR 318
1978
EAT
Lord McDonald
Employment, Scotland
The court discussed the punitive nature of a protective award made where a company failed to consult on redundancies: "A Tribunal, however, is specifically enjoined to determine the [protected] period and so the amount of the award by paying regard to the seriousness of the employer's default. This introduces a punitive element into the jurisdiction of an Industrial Tribunal and in contrast with eg, the calculation of a compensatory award which is based upon what is just and equitable having regard to the loss sustained."
1 Citers


 
Talke Fashions Ltd v Society of Textile Workers [1978] 1 WLR 558
1978
EAT
Kilner Brown J, Brian Sirs
Employment
The employer announced the closure of two factories and the redundancy of the workforce, at one factory in 15 days' time and, at the other, in 63 days' time. There was no consultation. The employer appealed a 60 day protective award. Held: (Majority) Appeal allowed in part. The ET were misled into thinking that the statutory provisions were merely penal.

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


 
Clarks of Hove Ltd v Bakers' Union [1978] 1 WLR 563
1978
EAT

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

1 Citers


 
TGWU v Gainsborough Distributors [1978] IRLR 460
1978
EAT

Employment
Redundancy consultation - protective award
1 Cites

1 Citers


 
Notts County Council v Bowley [1978] IRLR 252
1978


Employment
The public employee had been cautioned for gross indecency, and dismissed for a subsequent conviction. Held: The dismissal was fair.
1 Citers


 
Parsons (C A ) and Co Ltd v McLoughlin [1978] IRLR 65 EAT
1978
EAT

Employment

1 Citers


 
Cartiers Superfoods Ltd v Laws [1978] IRLR 315
1978
EAT
Philips J
Employment
The EAT considered whether the claimant had acted frivolously under the Rules which referred to awarding costs where a party had acted frivolously or vexatiously, and the Employment Appeal Tribunal took account of pre-proceedings conduct. Held: For a costs order to be made against a party in an employment claim, it would seem that the party must at least know or to be taken to have known that his case is unmeritorious. Claimants had a responsibility to ascertain whether or not their claims were properly based and justifiable.
1 Citers


 
National Union of Gold, Silver and Allied Trades v Albury Brothers Ltd [1978] IRLR 504; [1978] ICR 62
1978
EAT
Phillips J
Employment
The tribunal was asked whether the employer had recognised the Trades Union even though there was nothing formal in place. Held: Phillips J said: "First, the question of recognition is a mixed question of fact and law. Secondly, recognition requires mutuality, that is to say that the employer acknowledges the role of the union for the relevant purposes and the union assents to that acknowledgment. Thirdly, such a process requires agreement, which may be express or implied. Fourthly, if it is said to be implied, the acts relied upon must be clear and unequivocal, and (usually) involve a course of conduct over a period of time. Fifthly, the words "to any extent" in section 11(2) ["see now section 178(3) of the Act of 1992"] do not refer to the strength or conviction of the recognition but to the subject or areas to which it relates. In other words there may be partial recognition; that is, recognition in certain respects but not in others."
1 Citers


 
Gorman v London Computer Training Centre [1978] IRLR 22
1978
EAT

Employment
It was not necessary for an employer to 'plead' some other substantial reason in the full technical sense of the word to defend an allegation of unfair dismissal.
1 Citers


 
Adams v Charles Zub Associates Ltd [1978] IRLR 551
1978


Employment

1 Citers



 
 British Home Stores Ltd v Burchell; EAT 1978 - [1980] ICR 303; (1978) IRLR 379; [1978] UKEAT 108_78_2007; (1978) 13 ITR 560
 
Ridley v GEC Machines Ltd [1978] 13 ITR 195
1978

Philips J
Employment
The claimant asserted constructive dismissal. Held: "The argument has revolved around the fact that because of the invitation to the respondent employers to call no evidence their side of the story was never given and so the case was never fully investigated. At first sight that might sound odd because, of course, the onus of proof lay upon Mr Ridley as claimant to show that he was dismissed, and it may be asked, why was it necessary for him in order to do that to be able to pray in aid evidence other than himself and any witnesses he chose to call? But in reality the position is somewhat different in this class of case, where what is being alleged is constructive dismissal. In effect the claimant is saying that he was driven out by the conduct of the employer. The test varied from time to time, but is now firmly established. However it is put, in order to understand the whole position it is very often necessary to see what is said on the employer's side. Only then can the whole picture be seen. Furthermore, as the Appeal Tribunal has said more than once in different classes of case, the cases which are heard by Industrial Tribunals, are very different from the ordinary case heard by regular courts, and the litigation of necessity takes – or certainly at all events ought to take – something of the form of an inquiry: so that ordinary customary legal procedures need to be applied with that requirement in mind. It is really essential that at the end of the day the parties should feel that the whole of the facts have been investigated. Particularly of course is that so in a case such as this where the complaint is one of constructive dismissal. ... It seems to us that in all the circumstances of this case [stopping the case at the end of Mr Ridley's evidence] was not a satisfactory approach, and they would have been wiser to have heard what the employers had to say."
1 Citers


 
Priddle v Dibble [1978] ICR 149
1978
EAT

Employment
The reasons available to an employer under section 98(1)(b) are not limited to reasons of the same kind as those spelt out in section 98(2), nor do they require consideration of the fairness of the dismissal, which falls to be considered under section 98(4) rather than at the prior stage of identifying the reason for dismissal.
Employment Rights Act 1996 98(1)(b) 98(2) 98(4)
1 Citers


 
Joshua Wilson and Bros Ltd v USDAW [1978] ICR 614
1978


Employment
Redundancy consultation - protective award
1 Cites

1 Citers



 
 Barley v Amey Roadstone Corporation Ltd (No.2); EAT 1978 - [1978] ICR 190
 
Barratt Developments (Bradford) Ltd v UCATT [1978] ICR 319
1978
EAT

Employment
The Industrial Tribunal had been entitled to conclude that 14 separate construction sites linked by telephone to the Company's headquarters constituted one establishment for the purpose of redundancy consultation with the trade union under Part IV of the 19754 Act, as opposed to each site constituting a separate establishment.
Employment Protection Act 1975 Part IV
1 Citers



 
 Kumchyk v Derby County Council; EAT 1978 - [1978] ICR 1116
 
Wells v Derwent Plastics Limited [1978] ICR 424
1978
EAT
Bristow J
Employment, Constitutional
Bristow J said: "Where the legal right or obligation with which you are concerned is not a common law right or obligation but is created by statute, what the statute says, and nothing else, is the law. The judges cannot add to or subtract from the law as you find it expressed in the statute, the instrument by which the will of the people through the ordinary constitutional method of Parliamentary process becomes the law. If what the statute says is intelligible and unambiguous it is for the judges to apply it, not to refine it or add to it frills of their own."
1 Citers


 
Nothman v Barnet London Borough County Council [1978] 1 WLR 220; [1979] 1 All ER 142; [1978] ICR 336
1978
HL
Lord Salmon
Employment
The normal retiring age for an employee is to be found by looking exclusively at the conditions of employment applicable to the group of employees holding his position.
Lord Salmon said: "If a woman’s conditions of employment provide that her retiring age shall be 65, I can find no sensible or just excuse nor any words in paragraph 10(b) to deprive her of her rights to compensation should she be unfairly dismissed by her employers after she reaches the age of 60 but before she attains the age of 65. Before the unfair dismissal she would probably have planned and arranged her life on the basis that she would continue in her employment until she retired. To be unfairly dismissed before that time, say when she was 61 years old, must surely be a cruel blow. Her plans for her future would be overturned. The chance of finding fresh employment would be minimal and her pension would probably be diminished."
1 Cites

1 Citers



 
 Western Excavating (ECC) Ltd v Sharp; CA 1978 - [1978] QB 761; [1978] ICR 221; [1977] EWCA Civ 2; [1978] 1 All ER 713; [1978] IRLR 27; [1978] 13 ITR 132; [1978] 2 WLR 344
 
Naqvi v Stephens Jewellers Ltd [1978] ICR 631
1978
EAT

Employment
The parties had reached an agreement not to continue unfair dismissal proceedings, but the defendant now complained of the claimant's attempt to do so. Held: The section renders void an agreement to withdraw a claim already made to the Tribunal: "We find ourselves constrained by those considerations to regard the phrase 'bringing any proceedings before an industrial tribunal' as being intended to be wide enough to comprehend proceeding with a complaint which has been presented [under paragraph 17]…"
Employment Protection (Consolidation) Act 1978 140(1)
1 Citers



 
 Wilson v Maynard Shipbuilding Consultants AB; CA 1978 - [1978] ICR 376; [1978] QB 665
 
Gale Ltd v Gilbert [1978] ICR 1149
1978
EAT
Arnold J
Employment
The claimant had worked for the employer for many years. There was a disagreement, and the employee said "I am leaving, I want my cards". He claimed unfair dismissal. Held: The EAT upheld the employer's appeal against a finding of unfair dismissal. although it was undesirable for an employer to accept a resignation of long serving employee without giving him a chance to reconsider his decision nevertheless where the words were clear and unambiguous the employer was entitled to accept the resignation. Arnold J: "But we do not think there is anything in industrial law which could be employed to reverse the conclusion that there was here a resignation merely by reason of the reservation which we have about the desirability from the point of view of general industrial relations of accepting finally without any invitation to reconsider a resignation which comes out in this way."
1 Citers


 
Tanner v D T Kean Ltd [1978] IRLR 110
1978
EAT
Phillips P
Employment
The court was asked whether the words used by the claimant were an unambiguous statemet of an intent to resign.
1 Citers


 
Dixon v BBC [1978] QB 438
1978
CA
Lord Denning
Employment
The fact that a term of employment is determinable by notice does not preclude the term being a fixed term.
1 Cites

1 Citers


 
Redbridge London Borough Council v Fishman [1978] ICR 569
1978
EAT
Phillips J
Employment
Unfair and wrongful dismissal are separate and distinct causes of action. Phillips J said: "The jurisdiction based on paragraph 6 (8) of Schedule 1 to the Trade Union and Labour Relations Act 1974 has not got much to do with contractual rights and duties. Many dismissals are unfair although the employer is contractually entitled to dismiss the employee. Contrariwise, some dismissals are not unfair although the employer was not contractually entitled to dismiss the employee. Although the contractual rights and duties are not irrelevant to the question posed by paragraph 6(8), they are not of the first importance."
1 Citers


 
Robinson v British Island Airways Ltd [1978] ICR 304
1978
EAT
Phillips J
Employment
The claimant was a flight operations manager answerable to a general manager, operations and traffic. The employer re-organised abolishing both posts to one job of operations manager, with different tasks, new responsibilities and enhanced status for the occupant. Both post holders were dismissed. The employer paid appropriate redundancy pay but the employee complained he had been unfairly dismissed. Held: The case was not a case of unfair dismissal but of redundancy. It could not be right that, if a dismissal had been caused by re-organisation, the reason could not be redundancy. Phillips J: "In truth a re-organisation may or may not end in redundancy; it all depends on the nature and effect of the re-organisation." The work of the new post was different in kind from that done by either of the two previous employees: "Thus in our judgment it can truly be said that the dismissal of the employee was attributable to the fact that the requirements of the business for employees to carry out work of a particular kind had ceased or diminished and that each was redundant."
1 Citers


 
Open University v Triesman [1978] ICR 524
1978
EAT
Phillips J
Employment
An employee was employed under a contract for a fixed term of 18 months. 3 months before that period expired she was offered and accepted further employment for 7 months subject to a waiver clause. Held: The judgments in BBC -v- Ioannou were applied "not only because they are of high persuasive authority, but because . . we respectfully agree with them". There were three considerations: the validity or otherwise of exclusions of that character should so far as possible be easy to determine, and it would not be if it was necessary to distinguish between reengagement under a new contract and renewal and extension of an existing contract; it did not necessarily follow that because a second or subsequent contract of employment was a renewal of an earlier one, it was correct to say that together they constituted a fixed term of a length equivalent to their cumulative length, though Phillips J. acknowledged that one could so describe it; and because the contract referred to a fixed term of two years or more which was renewed, the renewal must also be of two years or more
1 Cites

1 Citers


 
Nottinghamshire County Council v Bowly [1978] IRLR 252
1978


Employment

1 Citers


 
Wetherall (Bond Street W1) Ltd v Lynn [1978] 1 WLR 200
1978


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


 
Smith v Hayle Town Council [1978] IRLR 413; [1978] ICR 996
1978
CA
Eveleigh LJ, Sir David Cairns, Lord Denning MR dissenting
Employment
In a case on the issue of sufficiency of qualifying service for bringing an ordinary case of unfair dismissal, the court considered the allocation of the burden of proof in employment cases. Held: The burden is upon he who is seeking to rely upon the exception to bring himself within it. The court also considered the weight to be given to notes of a disciplinary meeting.
Eveleigh LJ said: "So one comes to consider whether the facts in this case did entitle the industrial tribunal to come to the conclusion that it did, I would have been inclined to think that, when one asks for the reason for corporate action, the action of all concerned in arriving at that decision should be considered and the court should make up its mind, from all the material available, what the corporate mind was thinking. In this particular case certainly one voter voted because of an anti-union prejudice. But can it be said that that should be regarded as the principal reason, or must one be driven to the conclusion – for that is the kind of test we have to apply – that that was the principal reason? It seems to me that, as emphasis is laid in various parts of this Act upon the words 'principal reason', the schedule contemplates that there can be other reasons that operate, but they may not be the principal one. From that it follows that there may be some form of anti-union prejudice that could exist, but nonetheless that would not so cloud the issue as to make an anti-union sentiment the principal reason. In my view, bearing in mind the right of appeal is in law only, it is not possible here to say there are no grounds on which an industrial tribunal could come to the conclusion that it did."
Sir David Cairns said: "I think it would be permissible to look at what was said at the meeting in order to see what actuated the minds of those who voted in favour of the resolution. That was done here by the tribunal, and it appears to me that, upon the evidence they had before them, not only was there no compelling evidence that the principal reason for the dismissal was an inadmissible reason but, indeed, the evidence showed that that was not the principal reason. It cannot be that the reason in the mind of one particular man was the principal reason even though his vote may have been decisive."
Lord Denning MR (minority) said that that the burden lay on the employer.
Trades Union and Labour Relations Act 1974
1 Citers


 
British Midland Airways Limited v Lewis [1978] ICR 782
1978
EAT
Phillips J
Employment
An airline pilot complained that he had been unfairly dismissed and the Industrial Tribunal, without considering whether or not they had jurisdiction to hear the complaint on the ground that the employee might ordinarily work abroad, found that the dismissal was unfair. The case had been listed before the Industrial Tribunal upon the jurisdictional question but in the event nobody adverted to it. Paragraph 9(2) provided that paragraph 4 of the Schedule did not apply to any employment where under the contract of employment the employee ordinarily worked outside Britain. Paragraph 4(1) provided that: "in every employment to which this paragraph applies every employee shall have the right not to be unfairly dismissed by his employer and the remedy of an employee so dismissed for breach of that right shall be by way of complaint to an Industrial Tribunal under part three of this Schedule and not otherwise". Held: Phillips J stated:- "This being a question as to jurisdiction, the Industrial Tribunal should have taken the point themselves even if the parties did not; and they cannot merely by silence confer upon themselves a jurisdiction which they do not have".
"It seems to us that in a case like this where, as the law then was, a mistake may have been made and the matter has come to light, it is desirable for the Industrial Tribunal, if there is an application for review, to correct the matter even if it involves overturning the original decision of the Industrial Tribunal. From time to time we have appeals sometimes in relation to small matters of compensation, sometimes in relation to matters where there has been a slip or an error of law of some sort or another and the mistakes have come to light quite soon after the hearing of the Industrial Tribunal. It seems to us that the convenient course is for such mistakes, when they occur and are recognised, to be corrected by review rather than by appeal because the appeal takes much longer and is much more expensive."
Trade Union and Labour Relations Act 1974 1 Sch 1
1 Citers


 
Robert Whiting Designs Ltd v Lamb [1978] ICR 89
1978
EAT
Kilnour-Brown J
Employment
Alleged contributory conduct towards his dismissal on the part of an employee may be considered by a Tribunal even if the employer had put up a bogus reason for the dismissal.
Kilnour-Brown J said: "In our view the proper approach is to decide first what was the real reason for dismissal and then to see whether the employee's conduct played any part at all in the history of events leading to dismissal. In some cases, set against the real reason, it may be apparent that the employee's conduct, even if reprehensible, was of no relevance whatsoever and made no impact on the situation. In the present case the employers made great use of the employee's conduct in the process of dismissal. They had every justification for so doing, for the conduct was extremely reprehensible. The employee's conduct certainly contributed to his dismissal in the sense that it was a factor in the minds of the employers. Put another way, the real reason for dismissal was not exclusive of all other matters and a bogus reason does not necessarily shut out the employer completely if there was material to support the reason relied upon. We conclude, therefore, that the employee's conduct ought to be considered not only with reference to incompetence but also with reference to misconduct. In our view the weight to be given to the employee's conduct ought to be decided in a broad common sense manner."
1 Citers


 
Wynne v Hair Control [1978] ICR 870
1978


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

1 Citers



 
 Todd v British Midland Airways; CA 2-Jan-1978 - [1978] ICR 959
 
Greer v Sketchley Ltd [1979] IRLR 445; [1978] EWCA Civ 8
22 Feb 1978
CA
Lord Denning MR, Shaw, Waller LJJ
Employment
The plaintiff, a former senior employee of the company had requested the court to say whether a post employment clause restraining him working from a competitor was valid. The employer now appealed. Held: The appeal failed. The clause was too wide, restraining the former employee working for a competitor anywhere in the UK.
Lord Denning MR said: on that short ground (but it is a decisive ground) of geographical area it seems to me that this covenant is too wide and is on that account invalid, and I would support the judge's judgment on the simple ground on which he made a declaration that the covenant is invalid."
[ Bailii ]

 
 Australian Mutal Provident Society v Allan and Chaplin; PC 14-Mar-1978 - [1978] UKPC 7

 
 Maria Frangiamore v Office National De L'Emploi.; ECJ 15-Mar-1978 - R-126/77; [1978] EUECJ R-126/77
 
Mulcahy v Commission C-110/77; [1978] EUECJ C-110/77
1 Jun 1978
ECJ

European, Employment
Europa Officials - recruitment - consideration of applications - professional experience - equivalence to university degree - appraisal (staff regulations, article 5) in the matter of promotion it is for the appointing authority to appraise whether professional experience is equivalent to university education evidenced by a degree.
[ Bailii ]
 
Defrenne v Sabena Airlines [1979] ECR 1365; C-149/77; R-149/77; [1978] EUECJ R-149/77
15 Jun 1978
ECJ

European, Employment, Discrimination
LMA Ms Defrenne was an air hostess employed by SABENA, a Belgian airline company. She brought an action against the airline based on Art.119 [now141] EC. Ms Defrenne claimed that in paying their male stewards more than their air hostesses, when they performed identical tasks, Sabena were in breach of Art.119EC. The question to the ECJ was whether, and in what context, Art.199EC was directly effective. The ECJ held "the prohibition on discrimination between men and women applies not only to the action of public authorities but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals"
Europa Article 119 of the EEC Treaty, which is limited to the question of pay discrimination between men and women workers, constitutes a special rule, whose application is linked to precise factors. It cannot be interpreted as prescribing, in addition to equal pay, equality in respect of the other working conditions applicable to men and women. The fact that the fixing of certain conditions of employment - such as a special age-limit - may have pecuniary consequences is not sufficient to bring such conditions within the field of application of article 119, which is based on the close connection which exists between the nature of the services provided and the amount of remuneration.
Fundamental personal human rights form part of the general principles of community law, the observance of which the court has a duty to ensure. The elimination of discrimination based on sex forms part of those fundamental rights. However, it is not for the court to enforce the observance of that rule of non-discrimination in respect of relationships between employer and employee which are a matter exclusively for national law.
1 Cites

[ Bailii ]
 
Taplin v C Shippam Ltd [1978] UKEAT 117_78_0707; [1978] ICR 1068; [1978] IRLR 450; (1978) 13 ITR 532
7 Jul 1978
EAT
Slynn J
Employment
The employee appealed against refusal of interim relief under section 78.
Employment Protection Act 1975 78
[ Bailii ]
 
Kumchyk v Derby City Council [1978] UKEAT 122_78_2407; [1978] ICR 1116; FA 8
24 Jul 1978
EAT
Arnold J
Employment
Appeal from a decision of an industrial tribunal which decided that Mr. Kumchyk, the employee, had not been unfairly dismissed by Derby City council. He had been directed to work at a particular car park, but had refused. On appeal he now sought to argue a new point, that the order had been unlawful, since the new car park had not been in existence at the time of his contract when had had agreed to work at any on the list. Held: A point not taken below should not in general be heard by the EAT. This would apply where for example the decision had been a deliberate one made for tactical reasons, but save perhaps in cases where a party had been prevented from arguing the point because of some deception or unfair conduct by the other side. A lack of skill or experience on the part of the appellant or his advocate would not be a sufficient reason.
Trade Union and Labour Relations Act 1974 6(1) - Contracts of Employment Act 1972
[ Bailii ]
 
Dixon v British Broadcasting Corporation [1978] EWCA Civ 4; [1979] ICR 281; [1979] QB 546; [1979] 2 WLR 647; [1979] 2 All ER 112
5 Oct 1978
CA

Employment

[ Bailii ]
 
Sheffield v Oxford Controls Co Ltd [1979] ICR 396; [1979] IRLR 133
18 Dec 1978
EAT
Arnold J
Employment
The company had been owned equally by Mr. Sheffield and Mr. Raison. The Raisons gained effective control of the company on the issue of shares. Mr. and Mrs. Sheffield had been employed, but after a row, she was told she would have to go. This prompted Mr Sheffield to say: "Well, if she goes, I go." The same day, Mr Raison asked Mr Sheffield how much he wanted in order to go, and was told £10,000. The company could not pay all at once. Mr Raison prepared draft heads of agreement, which they discussed further, before the heads were initialed to show agreement. Mrs Sheffield then signed her 'resignation letter'. The tribunal was asked whether Mr Sheffield's resignation in the agreement was something which terminated the contract of employment on the initiative of Mr Sheffield, or whether, it was made from a threat that he would be dismissed if he did not resign with a result that that was a dismissal by the company notwithstanding the intermediate negotiation. Held: He had resigned.
Arnold J said: "It is plain, we think, that there must exist a principle, exemplified by the four cases to which we have referred, that where an employee resigns and that resignation is determined upon by him because he prefers to resign rather than be dismissed (the alternative having been expressed to him by the employer in terms of the threat that if he does not resign he will be dismissed), the mechanics of the resignation do not cause that to be other than a dismissal. The cases do not in terms go further than that. We find the principle to be one of causation. In cases such as that we have just hypothesised, and those reported, the causation is the threat. It is the existence of the threat which causes the employee to be willing to sign, and to sign, a resignation letter or to be willing to give and to give the oral resignation. But where that willingness is brought about by other considerations and the actual causation of the resignation is no longer the threat which has been made but is the state of mind of the resigning employee, that he is willing and content to resign on the terms which he has negotiated and which are satisfactory to him, then we think there is no room for the principle to be derived from the decided cases. In such a case he resigns because he is willing to resign as a result of being offered terms which are to him satisfactory terms on which to resign. He is no longer impelled or compelled by the threat of dismissal to resign, but a new matter has come into the history, namely that he has been brought into a condition of mind in which the threat is no longer the operative factor of his decision; it has been replaced by the emergence of terms which are satisfactory. Therefore we think that the finding that Mr Sheffield had agreed to terms upon which he was prepared to agree to terminate his employment with the company — terms which were satisfactory to him — means that there is no room for the principle and that it is impossible to upset the conclusion of the Tribunal that he was not dismissed."
1 Citers


 
Hollister v National Farmers Union (NFU) [1979] IRLR 238; [1979] ICR 542
1979
CA
Lord Denning MR
Employment
The correct approach for the Industrial Tribunal looking at a company re-organisation is to make a finding as to the advantages to the employers of a proposed re-organisation and whether it was reasonable for them to implement it by terminating existing contracts and offering employees new ones. If there is a sound good business reason for the particular reorganisation the unreasonableness or reasonableness of the employer's conduct has to be looked at in the context of that re-organisation.
It is not right to go through the reasoning of Tribunals with a toothcomb to see if some error can be found. The findings of a Tribunal should be looked at by the EAT "broadly". If it appeared that they had applied the right test and that their conclusion was broadly reasonable it should not be interfered with.
Lord Denning MR said: "The question which is being discussed in this case is whether the reorganisation of the business, which the National Farmers' Union felt they had to undertake in 1976, coupled with Mr Hollister's refusal to accept the new agreement, was a substantial reason of such a kind as to justify the dismissal of the employee. Upon that there have only been one or two cases. One we were particularly referred to was the case of Ellis v Brighton Co operative Society Ltd [1976] IRLR 419, where it was recognised by the Court that reorganisation of business may on occasion be a sufficient reason justifying the dismissal of an employee. They went on to say: 'Where there has been a properly consulted-upon reorganisation which, if it is not done, is going to bring the whole business to a standstill, a failure to go along with the new arrangements may well -it is not bound to but it may well constitute "some other substantial reason".' Certainly, I think, everyone would agree with that. But in the present case Mr Justice Arnold expanded it a little so as not to limit it to where it came absolutely to a standstill but to where there was some sound, good business reason for the reorganisation. I must say I see no reason to differ from Mr Justice Arnold's view on that It must depend in all the circumstances whether the reorganisation was such that the only sensible thing to do was to terminate the employee's contract unless he would agree to a new arrangement. It seems to me that that paragraph may well be satisfied, and indeed was satisfied, in this case, having regard to the commercial necessity of rearrangements being made and the termination of the relationship with the Cornish Mutual, and the setting up of a new relationship via the National Farmers' Union Mutual Insurance Limited."
1 Citers


 
Green v Hampshire County Council [1979] ICR 954
1979


Employment
A decision of an Employment Tribunal on a particular issue is capable of establishing an issue estoppel between the parties as to that issue.
1 Citers


 
Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84
1979
EAT
Mr Justice Arnold
Employment
There is implied into a contract of employment a term that the employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee. When considering a breach of an employment contract, the court must look at whether the breach is with respect to a fundamental term of the contract, or a fundamental breach of the contract itself. If the likely consequences of the breach will damage or destroy the relationship of trust and confidence between employer and employee, it must be something which goes to a fundamental breach of the contract, which is really fundamental in its effect on the contractual relationship. Any conduct by an employer which was likely to destroy or to damage seriously the relationship of confidence and trust between employer and employee was conduct going to the root of the contract so as to justify the employee terminating the contract on the grounds of the employer’s repudiation.
Arnold J said: "Now it is of course true, applying the Court of Appeal's test, that in order to decide that the conduct is sufficiently repudiatory to justify a conclusion of constructive dismissal one has to consider whether the conduct complained of constitutes either a fundamental breach of the contract or a breach of a fundamental term of the contract: two somewhat elusive conceptions which figure in our modern contract law. But there is not much room, as we think, for that inquiry in a case in which the test, within the terms of the contractual obligation, is one which involves considering whether the consequences, or the likely consequences, are to destroy or seriously damage the relationship of confidence and trust between employer and employee; because it does seem to us that any conduct which is likely to destroy or seriously to damage that relationship must be something which goes to the root of the contract, which is really fundamental in its effect upon the contractual relationship."
1 Cites

1 Citers


 
Barthope v Exeter Diocesan Board of Finance [1979] ICR 900
1979
EAT
Slynn J
Employment
A stipendiary lay reader claimed for unfair dismissal. The respondent denied there was any contract of service. Held: The Tribunal rejected a submission that the claimant was an office holder and, as such, that it followed he was not employed under a contract of service: "Merely to say that someone holds an office does not seem to us to decide the question which has to be decided under [the 1974 Act]. Some office holders may well not be employed under a contract of service. It does not follow that an office holder cannot be employed under a contract of service. The question . . is whether the office he holds is one the appointment to which is made by, or is co-existent with, a contract of service. If it is, then he is entitled to the protection of the Act of 1974." and "It may be difficult to establish who is the other contracting party, but we are not satisfied that clergy when working within the framework of the Church cannot be engaged under a contract. It may well be that the contract, if it exists, is for services rather than of service."
Trade Union and Labour Relations Act 1974
1 Citers


 
Hugh-Jones v St John's College, Cambridge [1979] ICR 848
1979

Slynn J
Employment
An office holder can agree to execute work or labour without becoming an employee.
1 Citers


 
Migwain Limited (In Liquidation) v Transport and General Workers Union [1979] ICR 597
1979

Slynn J
Employment
Section 26 of the Interpretation Act 1889 applied to the receipt of notice of the proceedings leading to a decision of the Industrial Tribunal. The presumption as to receipt only arose where it was first established that the correspondence in question had been properly addressed.
Interpretation Act 1889 26
1 Citers


 
Pritchard-Rhodes Limited v Boon and Milton [1979] IRLR 19
1979
EAT

Employment
An application to the Industrial Tribunal for a redundancy payment was not effective because it failed to comply with the statutory requirements which, on their true construction, provided that an application could not be effectively made to an Industrial Tribunal for redundancy payment earlier than the date of termination of the contract. The application was not made in proper time because they were made before the date of termination.
1 Cites

1 Citers


 
National Union of Gold, Silver and Allied Trades v Albury Brothers Ltd [1979] ICR 84
1979
CA

Employment
The appeal failed.

 
Bastick v James Lane (Turf Accountants) Ltd [1979] ICR 778
1979

Crane J
Employment, Litigation Practice
The court considered an appeal against a refusal of an adjournment of proceedings before the industrial tribunal when criminal proceedings on the same issues were pending. Held: The court refused to interfere with the exercise of his dicretion by the industrial tribunal chairman. Crane J said: "Now we think that when we, in this appellate tribunal, approach a consideration of the validity of a decision by an industrial tribunal, or by the appropriate officer of an industrial tribunal, upon a matter of discretion, we must look for two things, the discovery of either of which would be sufficient to entitle us to overturn the exercise of that discretion. Either we must find, in order so to do, that the tribunal, or its chairman, has taken some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised; or, alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion, was so far beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse."
1 Citers


 
Sun and Sand Ltd v Fitzjohn [1979] IRLR 154
1979

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



 
 Spillers French (Holdings) Ltd v Union of Shop, Distributive and Allied Workers (USDAW); EAT 1979 - [1980] ICR 31; [1979] IRLR 339
 
Knight v Attorney General [1979] ICR 194
1979


Employment, Legal Professions
A judge's status does not bring her within the scope of the 1975 Act as an 'employee'.
Sex Discrimination Act 1975
1 Citers



 
 Fisher v York Trade Leco Ltd; 1979 - [1979] IRLR 386
 
Wigan Borough Council v Davies [1979] ICR 411
1979
EAT
Arnold J
Employment, Contract
The court considered that an employer owed a duty of care and under the contract of employment to employees to protect them against ill treatment or bullying. The plaintiff sued for breach of contract.
Arnold J said: "We do not think that it is an outrageous or inconvenient conclusion that where a party has an obligation to take reasonable steps to achieve something, and is found to have taken no step or no significant step at all, towards that end, the obligation of demonstrating that there was no reasonable step which could have been taken should be found to lie upon that party. And we do not think that in the circumstances of a case such as this it is possible to say that this industrial tribunal were wrong in the conclusion reached upon that topic: or to put it another way, that the absence of evidence would justify us in overturning the decision of the industrial tribunal."
1 Citers



 
 British Railways Board v Natarajan; EAT 1979 - [1979] ICR 326
 
Hamish Armour (Receiver of Barry Staines Ltd) v ASTMS [1979] IRLR 24; [1979] IRLR 24
1979


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


 
British Labour Pump Co Ltd v Byrne [1979] ICR 347; [1979] IRLR 94
1979
EAT
Slynn J
Employment
The respondent had been dismissed for misconduct on the morning of the day on which he was dismissed. There had been previous misbehaviour but the industrial tribunal held that the case had to be determined on the basis of what had happened on that morning and that the employers had acted reasonably and had fairly dismissed the employee even though they had not warned him about his previous misbehaviour or given him an opportunity to explain his conduct on that morning. It decided that even had there been an investigation the employee would still have been dismissed because on the balance of probabilities the employers would not have accepted his explanation and the dismissal was therefore fair. Held: Even though in the then context the employer's decision to dsmiss the employee was not reasonable because of a failure to follow a fair procedure, the dismissal may still be fair if, on the facts proved before the industrial tribunal, the industrial tribunal comes to the conclusion that the employer could reasonably have decided to dismiss if he had followed a fair procedure.
1 Citers


 
Zarczynska v Levy [1979] ICR 184; [1978] IRLR 532
1979


Discrimination, Employment
A white barmaid was dismissed for refusing to turn away black customers. She claimed in race discrimination. Held: Treating people less favourably not because of their race but because of the race of others is also discrimination on grounds of race. The black customers were not in fact treated less favourably, as the white employee refused to carry out the unlawful order to treat them less favourably. It was the white employee who was treated less favourably "on racial grounds" because he was dismissed for refusing to carry out his employer's racially discriminatory policy or practice to discriminate against others on racial grounds.
1 Citers


 
Coral Squash Clubs Ltd v Matthews [1979] IRLR 390; [1979] ICR 607
1979

Slynn J
Employment
Slynn J said: "We do not think there is a rigid rule of the kind which Mr Brooke first contended for [viz, that a submission of no case should never be allowed except perhaps if there was an error of law]. It is clear that in many cases it is of great importance to hear both sides. We think that would be the normal position. This tribunal has already said in cases alleging race or sex discrimination that it is right normally to hear both sides. It has been said also that where constructive dismissal is alleged, in the ordinary case it is important to call upon both sides to give evidence . . But as we understand it, this tribunal has never said that the Industrial Tribunal cannot stop a hearing at the end of the case of the party whose evidence and submissions come first. It is clearly a power which must be exercised with caution but if the tribunal is satisfied that the party upon whom the onus lies and who goes first has clearly failed either in law or fact to establish what he set out to establish, then it seems to us that the tribunal is entitled to decide the case at that stage."
1 Citers


 
Pillinger v Manchester Area Health Authority [1979] IRLR 430
1979


Employment
The claimanat said his dismissal had not been a redundancy, since the person who replaced him did the same work. Held: The dismissal must have been for some other reason. It was not a redundancy. The court discussed the meaning of the phrase 'work of a particular kind' in redundancies. Qualifications are not relevant the relevance except in so far as they imply special skills, attributes or knowledge.
1 Citers


 
Riley v Tesco Stores Ltd [1979] ICR 223
1979


Employment

1 Citers


 
Pirelli General Cable v Murray [1979] IRLR 19
1979


Employment

1 Citers



 
 Khanum v Mid Glamorgan Area Health Authority; EAT 1979 - [1979] ICR 40
 
NWL Ltd v Woods [1979] 1 WLR 1294; [1979] ICR 867; [1979] 3 All ER 614
1979
HL
Lord Scarman, Lord Diplock
Employment, Litigation Practice
The phrase "trade dispute" was defined by reference to (i) the parties to it and (ii) the subject matter. Lord Scarman referred to the legislative history of attempts to regulate strike actions by trades unions: "It is wrong to attempt to construe any section or subsection of these Acts without reference to their legislative purpose. And it is also necessary to have regard to the history of the statute law and the case law since 1906 for a full understanding of them. This history I would summarise as a shifting pattern of Parliamentary assertions and judicial responses—a legal point counter-point which has been more productive of excitement than of harmony."
Lord Fraser considered the basis for granting interlocutory injunctions. The strength of the prima facie case is one a factor of which to take account in weighing the competing considerations.
Lord Diplock spoke of the basis for granting interlocutory injunctions: ". . . when properly understood, there is in my view nothing in the decision of this House in American Cyanamid Company v. Ethicon Limited to suggest that in considering whether or not to grant an interlocutory injunction the judge ought not to give full weight to all the practical realities of the situation to which the injunction will apply. American Cyanamid Company v. Ethicon Limited, which enjoins the judge on an application for an interlocutory injunction to direct his attention to the balance of convenience as soon as he has satisfied himself that there is a serious question to be tried, was not dealing with a case in which the grant or refusal of an injunction at that stage would, in effect, dispose of the action finally in favour of which ever party was successful in the application, because there would be nothing left on which it was in the unsuccessful party's interest to proceed to trial. . ."

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

1 Citers


 
Secretary of State for Employment v Globe Elastic Thread Co Ltd [1980] AC 506; [1979] IRLR 327
1979
HL
Lord Wilberforce
Employment
The employee worked for Company A from 1948 to 1970. In 1970 he accepted employment with a related Company B, on the understanding that his employment with A would be treated as continuous. Upon his dismissal by B in 1975 on grounds of redundancy, he claimed a redundancy payment on the basis of continuous service since 1948. Held: He could only count service with B from 1970 for the purposes of his redundancy entitlement. The reason was that under the statute A and B were not associated employers. Accordingly there was no continuity of service following the change of employer. A personal estoppel cannot extend the statutory jurisdiction of the Indistrial Tribunal or create a jurisdiction which the statute did not in fact confer
1 Citers


 
Syed v Ford Motor Co [1979] IRLR 335
1979


Employment
The actions and failures of a trade union representative can be attributed to the claimant.
1 Cites

1 Citers


 
Carter v Credit Change Ltd [1979] IRLR 361; [1979] ICR 908
2 Jan 1979
CA
Stephenson LJ
Employment
There are restricted circumstances in which the tribunal can interfere on appeal with the tribunal's exercise of its discretion. Stephenson LJ said: "All the reasons which he gave seem to me to be good reasons for the decision to which he came; many important issues are indeed the same in both proceedings; and if it were necessary for me to express my agreement with his exercise of discretion I do not think I would find any difficulty in doing it; but I do not regard it as the function of this court, or the function of the appeal tribunal, to approve the exercise of the industrial tribunal's discretion to postpone. All the appeal tribunal has to do is to see whether there is any error in law, and they can only do that, it seems to me, in accordance with the guidance given by the precedents of the appeal tribunal in other cases: they must look to see whether there is anything wrong in law with the decision, and whether it is so surprising that something must have gone wrong with it and that it could be characterised as perverse or a decision which no reasonable tribunal could have come to."
1 Cites

1 Citers



 
 Calvin v Carr; PC 15-Jan-1979 - [1979] UKPC 1; [1979] 2 All ER 440; [1980] AC 574; [1979] 2 WLR 755
 
Claudino Rossi v Caisse de compensation pour allocations familiales des regions de Charleroi et Namur C-100/78
6 Mar 1979
ECJ

European, Employment



 
 Crowley v Ashland (UK) Chemicals Ltd; EAT 20-Apr-1979 - [1979] EAT 31/79; Unreported, 20 April 1979
 
Gozdzik and Scopigno v Chlidema Carpet Co Ltd [1979] UKEAT 598_78_2604
26 Apr 1979
EAT
Talbot J
Employment
The claimants appealed against rejection of their claims for unfair dismissal. Held: The appeals failed. The ET was entitled on the evidence to find that the two appellants had not met the standard of work required by the employer.
Trade Union and Labour Relations Act 1974
[ Bailii ]

 
 Science Research Council v Nasse; BL Cars Ltd (formerly Leyland Cars) v Voias; HL 1-Nov-1979 - [1979] ICR 921; [1979] 3 All ER 673; [1980] AC 1028; [1979] 3 WLR 762; [1979] UKHL 9
 
Deverd v Commission C-257/78; [1979] EUECJ C-257/78
14 Dec 1979
ECJ

Employment
ECJ Expatriation allowance - Nationality.
[ Bailii ]