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Employment - From: 1980 To: 1984

This page lists 176 cases, and was prepared on 02 April 2018.

 
Brown v Southall and Knight [1980] ICR 617; [1980] IRLR 130
1980
EAT
Slynn J
Employment
The employee had gone on holiday at the time when the letter of dismissal arrived at his home and he did not actually see it until he had returned from his holiday. Held: The "effective date of termination" is a statutory concept which focuses on the actual dismissal. It is settled that this takes place when the decision to dismiss is communicated to the employee. Where dismissal is communicated to an employee in a letter, the contract of employment does not terminate until the employee has actually read the letter or has had a reasonable opportunity of reading it. It was not enough to establish that the employer had decided to dismiss a person or had posted a letter saying so. If, however, the employee deliberately did not open the letter or if he went away to avoid reading it, he might well be debarred from saying that notice of his dismissal had not been given to him.
Slynn J said: "It seems to us that it is not enough to establish that the employer has decided to dismiss a man or, indeed, has posted a letter saying so. That does not itself, in our view, terminate the contract. Nor, in our view, is it right, in looking at the matters as the industrial tribunal did in considering the reasonable steps taken by the employer, to look solely at what the employer does and to ask whether that constitutes the taking of reasonable steps. In our judgment, the employer who sends a letter terminating a man's employment summarily must show that the employee has actually read the letter or, at any rate, had a reasonable opportunity of reading it. If the addressee of the letter, the employee, deliberately does not open it or goes away to avoid reading it he might well be debarred from saying that notice of his dismissal had not been given to him. That, however, did not happen in this case. The industrial tribunal found that he had not received it by the first post; had he gone to work on Friday there would have been no obligation on him to go back home in the evening on the Friday or on the Saturday. It is clear that he did not come back until July 30; he did not read or, in our view, have a reasonable opportunity of reading it until that day; and it is not established either that he deliberately avoided reading it or that he had a reasonable opportunity of doing so. It seems to us in this case that even though he may have been in breach of some obligation to his employers in not being at work on the Friday, it is quite clear that he was not at home on that day and that he did not have the necessary notice of his dismissal. The first time he knew of this dismissal was on the 30th.
It is contended before us that the effective date of termination is not dependent upon receipt, although dismissal itself is dependent upon communication at some stage. Mr Malins, to whom we are indebted for a careful research and a most able argument, has submitted that the date on which the termination takes effect can be the date stated in the letter even though the letter is not received until subsequently. In other words, if the letter bearing the date July 20 says "You are dismissed today," dismissal takes effect on July 20 even though it is not received and not known about until July 30. We do not accept that submission. In our judgment, the termination does not take effect until the employee has either been told of, or has had a reasonable opportunity of reading, the notice of dismissal. The date on which the termination takes effect is the date when either he does read or the date when he reasonably had the opportunity of knowing about it. We do not consider that the fact that he knows on the 30th makes his dismissal retroactive."
1 Citers


 
Melon v Hector Powe Ltd 1980 SC 188
1980
SCS
Lord President Emslie
Employment, Scotland

1 Citers


 
Nelson v British Broadcasting Corporation (No 2 ) [1980] ICR 110
1980
CA
Brandon LJ
Employment
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: For a tribunal to find itself able to make a deduction from the award for contributory fault in the employee's misconduct, the conduct complained of must be perverse unreasonable or foolish in the circumstances, whether or not it was also a breach of the employment contract. "the conduct must be 'culpable or blameworthy' for it to be regarded as contributory conduct." Lord Brandon set out a three stage test for such a deduction.
Trade Union and Labour Relations Act 1974 SCh1 p19(3)
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Rosedale Ltd v Sibley [1980] ICR 816
1980
EAT
Talbot J
Employment
The tribunal had ruled that a document sent by a Union District Secretary to head office claiming dispute benefit for the Claimant and other employees of the Appellant employer; although admissible in evidence at common law, would not be received into evidence because its prejudicial effect on those employees it did not affect outweighed its probative value in other cases. The EAT was asked in the case to which the document was relevant, whether the Employment Tribunal's jurisdiction to hear claims of unfair dismissal was excluded under section 62 because the Claimants were dismissed while on strike. Held. The document should have been admitted. In the alternative, if the Employment Tribunal had a discretion to exclude the document, that discretion was wrongly exercised in law in these circumstances.
Talbot J said: "But that leaves a matter of some importance to be decided, whether that gives a discretion to an Industrial Tribunal to refuse to admit evidence which is otherwise admissible and prerogative. In our judgment there is no such discretion in an Industrial Tribunal to refuse to admit evidence which is admissible and prerogative of one or more of the issues before it. That opinion has sufficiently disposed of this appeal because in our judgment the Industrial Tribunal were wrong in law in holding that they have a discretion to refuse to admit such evidence and in so refusing to admit it."
Employment Protection (Consolidation) Act 1978 62
1 Citers



 
 House v Emmerson Electric Industrial Controls; EAT 1980 - [1980] ICR 795
 
AEI Cables Limited v McLay [1980] IRLR 84
1980
SCS

Scotland, Employment
It was found that the only remaining reason for supporting the decision that the dismissal was unfair, was identified as the employee's length of service -- the remaining reason given by the industrial tribunal for finding the dismissal unfair. Held. That is a relevant consideration in many cases, but it would not be reasonable to expect an employer who had been deceived by the employee, in the way in which the respondent deceived the appellants, to have any further confidence in him and to maintain the employment. The character of the employee's conduct was of so serious that the length of his prior service was not material.
1 Citers



 
 Gardiner v London Borough of Merton; 1980 - [1980] IRLR 472
 
Express Newspapers Ltd v McShane [1980] AC 672
1980
HL
Wilberforce, Diplock Scarman LL
Employment
There had been a dispute over pay between the proprietors of local newspapers and journalists employed by them, the majority of whom were members of a trade union, the NUJ. Strike action was taken against the local newspapers. Those newspapers received news copy from the Press Association, a London based news agency staffed by journalists. To make the strike more effective, the NUJ called the journalists in the Press Association out on strike, an action which would affect national newspapers, with whom there was no dispute, as well as local newspapers. When about half of the journalists on the Press Association remained at work, the NUJ called on its members working for national newspapers, including the plaintiffs' newspapers, to refuse to use copy which came from the Press Association. The NUJ defended an application for an interlocutory injunction on the basis that it was acting in 'furtherance of a trade dispute' within the meaning of the relevant statutory provision. The plaintiffs were successful both at first instance and in the Court of Appeal. Held: The House allowed the appeal, holding that the acts of the defendants were not actionable since they were done in furtherance of a trade dispute.
The expression "in . . furtherance of a trade dispute" in the section in issue "refers to the subjective state of mind of the person doing the act and means that he so acts with the purpose of helping parties to the dispute to achieve their objectives in the honest and reasonable belief that it will do so".
Lord Wilberforce, dissenting, held that the test was objective and to an extent was based on remoteness, but, as the head note indicates, his view was that the proper objective test is whether the act done, pursuant to the general intention, is reasonably capable of achieving its objective. The speeches of both Lord Diplock and Lord Scarman highlight the difficulties which a court would encounter in endeavouring to objectively assess what is in "furtherance" of a trade dispute having regard to the dynamics of industrial action in a particular context.
Lord Diplock explained the rationale behind the subjective test approach, saying: "Given the existence of a trade dispute (the test of which, though broad, is nevertheless objective . . ), this makes the test of whether an act was done ‘in . . furtherance of' it a purely subjective one. If the party who does the act honestly thinks at the time he does it that it may help one of the parties to the trade dispute to achieve their objectives and does it for that reason, he is protected by the section. I say 'may' rather than ‘will' help, for it is in the nature of industrial action that success in achieving its objectives cannot be confidently predicted. Also there is nothing in the section that requires that there should be any proportionality between on the one hand the extent to which the act is likely to, or be capable of, increasing the ‘industrial muscle' of one side to the dispute, and on the other hand the damage caused to the victim of the act which, but for the section, would have been tortious. The doer of the act may know full well that it cannot have more than a minor effect in bringing the trade dispute to the successful outcome that he favours, but nevertheless is bound to cause disastrous loss to the victim, who may be a stranger to the dispute and with no interest in its outcome. The act is none the less entitled to immunity under the section."
Lord Scarman stated: "The words, 'An act done by a person in contemplation or furtherance of a trade dispute' seem to me, in their natural and ordinary meaning, to refer to the person's purpose, his state of mind. The Court must satisfy itself that it was his purpose, and, before reaching its decision, will test his evidence by investigating all the circumstances and applying the usual tests of credibility: that is to say, it will ask itself whether a reasonable man could have thought that what he was doing would support his side of the dispute, or whether the link between his actions and his purpose was so tenuous that his evidence is not to be believed. But, at the end of the day, the question for the Court is simply: is the defendant to be believed when he says that he acted in contemplation or in furtherance of a trade dispute?" He wentto describe the test as subjective: "It follows, therefore, that once it is shown that a trade dispute exists, the person who acts, but not the court, is the judge of whether his acts will further the dispute. If he is acting honestly, Parliament leaves to him the choice of what to do. I confess that I am relieved to find that this is the law. It would be a strange and embarrassing task for a judge to be called upon to review the tactics of a party to a trade dispute and to determine whether in the view of the court the tactic employed was likely to further, or advance, that party's side of the dispute . . It would need very clear statutory language to persuade me that Parliament intended to allow the courts to act as some sort of a backseat driver in trade disputes."
1 Citers


 
Genower v Ealing, Hammersmith and Hounslow AHA [1980] IRLR 297
1980
EAT
Slynn P
Employment
EAT The EAT upheld an industrial tribunal's finding that by unilaterally varying the employee's job description the employer was in fundamental breach of contract, entitling the employee to resign in accordance with the Sharp contract test. However, in dismissing the employee's appeal the Tribunal also upheld the industrial tribunal's further findings that the employer had shown (a) some other substantial reason for dismissal and (b) that the (constructive) dismissal for that reason was fair in accordance with section 57(3) EPCA 1978.
Slynn J observed: "It is perfectly plain on the decision of the Court of Appeal in Hollister which is followed by this Tribunal in Bowater Containers Ltd v McCormack [1980] IRLR 50 that a re-organisation or re-structuring of a business may well be a reason which falls within section 57(1)(b) [the statutory predecessor of what is now section 98(1)]. Indeed, it may be that, if, to quote from the Court of Appeal Judgment, 'a sound good business reason is shown,' this may constitute 'a substantial reason' within the meaning of the section, even if the alternative to taking the course they propose is not that the business may come to a standstill, but is merely that there would be some serious effect upon the business."
Employment Protection (Consolidation) Act 1978 57(3)
1 Citers


 
Hoover Ltd v Forde [1980] ICR 239
1980


Employment
The employee was summarily dismissed by the night production foreman for missing a night shift immediately before taking his annual leave. The personnel officer told the employee about his right of appeal; but the employee decided not to appeal as he did not think there was any point in doing so. The following week the employers made another attempt to persuade the employee to appeal; he was told that there was nothing to lose; but eventually he decided not to do so. The Industrial Tribunal found him unfairly dismissed, but that he had contributed to the dismissal by his own fault in culpably absenting himself from work, making no attempt to explain or apologise before he went on his holiday, becoming excited and truculent at the dismissal hearing and failing to make use of the appeal procedure, which might well have secured a reversal of the decision to dismiss. The Tribunal would therefore have reduced both the basic and compensatory awards by 50%. Held: A failure to pursue an internal appeal does not affect the fairness of a dismissal. The employee's failure to use an appellate process is not a matter to be taken into account when the reasonableness of the employers' actions is being considered under section 57(3), nor can it be construed as any kind of acquiesence in the dismissal but that it can be taken into account when determining whether the employee has mitigated his loss.
"We have also to consider the submission that the employee failed in his duty to mitigate his loss; see section 74(4) of the Employment Protection (Consolidation) Act 1978. It does seem to us that where there is an appeal procedure which might result in the rescission of a dismissal decision, and where, as in this case, the industrial tribunal have found that his making use of the appeal procedure might well have secured a reversal of the decision, then it is open to argument, and in our view can properly be argued, that he has not taken all reasonable steps to mitigate the loss which must flow from his dismissal, should it shown to be unfair. We do not consider bearing in mind the matters that can properly be taken into account, whether it is on the question of contribution by reason of his own culpable or blameworthy fault, or whether it is by reason of his failure to mitigate his loss, that it can be said that his compensatory award should be reduced by 100%. Although the industrial tribunal in considering the question of contribution erred in taking into account his failure to use the appeal procedure, it does seem that this was a matter which could properly be considered when looking to see whether he had taken all necessary and reasonable steps to mitigate his loss. In all these circumstances we do not consider that it would be right to find that there was any error in the assessment of the industrial tribunal that his basic and compensatory awards should be reduced by 50%."
Employment Protection (Consolidation) Act 1978 74(4)
1 Citers


 
Seide v Gillette Industries Ltd [1980] IRLR 427
1980


Employment, Discrimination
The claimant had been moved to a different department to escape anti-Semitic harassment. He fell out (for non-racial reasons) with his colleagues in his new department and was disciplined. Held: The fact that but for the earlier harassment he would not have been in the department where the problem arose did not mean that the action of which he complained was taken on racial grounds. Discrimination against a Jew might be directed at his religion rather than his race.
1 Citers


 
Saunders v Scottish National Camps [1980] IRLR 174
1980
EAT

Employment
The claimant was dismissed as the handyman at the Respondent's children's camp because he was homosexual. He appealed against rejection of his claim for unfair dismissal. Held: His appeal failed. If the employer can show that he had a fair reason in his mind at the time when he decided on dismissal and he genuinely believed it to be fair this would bring the case within the category of another substantial reason. Where the belief is one which is genuinely held, and particularly is one which most employers would be expected to adopt, it may be a substantial reason even where modern sophisticated opinion can be adduced to suggest that it has no scientific foundation
1 Citers



 
 Del Monte Foods Ltd v Mundon; EAT 1980 - [1980] IRLR 224; [1980] ICR 694
 
Savage v J Sainsbury Ltd [1980] IRLR 109; [1981] ICR 1
1980
CA
Brightman LJ
Employment
Brightman LJ discussed the effect on time requirements of an employee's appeal against the employers decision to dismiss him: "The matter came before the Employment Appeal Tribunal with commendable expedition on 4.10.78. Judgment was reserved until 6 October when the appeal was allowed. It is sufficient for my purpose to read one paragraph from the judgment which summarises the reasoning of the Tribunal. I read from page 8 of the transcript, between lines D and E. ‘'In our view, when a Notice of immediate dismissal is given, the dismissal takes immediate effect. The provisions of this contract as to the appeal procedure continue to apply. If an appeal is entered, then the dismissed employee is to be treated as being "suspended" without pay during the termination of his appeal, in the sense that if the appeal is successful then he is reinstated and he will receive full back-pay for the period of the suspension. If the appeal is not successful and it is decided that the original decision of instant dismissal was right and is affirmed, then the dismissal takes effect on the original date. In our view, that is the date on which the termination takes effect for the purposes of the Act.’'
1 Citers


 
Kirby v Manpower Services Commission [1980] 3 All ER 334; [1980] 1 WLR 725; [1980] ICR 420
1980
EAT
Slynn J
Discrimination, Employment
The applicant, an employee at a job centre was demoted because he had disclosed confidential information about possible contraventions of the race relations legislation. He complained of race discrimination, saying his disclosure was a protected act. Held: This was not victimisation within section 2. The relevant question was whether the employers had treated the complainant less favourably than they would have treated someone in their employment who gave away confidential information whatever its kind. The claim failed, because the Manpower Services Commission would have treated in the same way any employee who gave away confidential information whatever its nature.
Race Relations Act 1976 2
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1 Citers


 
Harper v National Coal Board [1980] IRLR 260[8]
1980

Lord McDonald
Employment
If a reason for dismissal is whimsical or capricious, it will be excluded from consideration as a reason supporting a dismissal.
1 Citers


 
Weddel and Company v Tepper [1980] IRLR 1996
1980
CA

Employment
Whether employer's belief in employee's misconduct was reasonable.
1 Cites

1 Citers



 
 Rasool and Others v Hepworth Pipe Co Ltd; EAT 1980 - [1980] ICR 494
 
White v Pressed Steel Fisher [1980] IRLR 176
1980


Employment, Health and Safety
The case tested whether the Industrial Tribunal had jurisdiction to hear a complaint under the regulations. The regulations applied the provisions of the section, but the section had been repealed. Held: The transitional provisions were sufficient to preserve the jurisdiction under the new Act.
Trade Union and Labour Relations Act 1974 - Safety Representatives and Safety Committees Regulations 1977 (1977 No 500) 4(2) 11(5) - Employment Protection (Consolidation) Act 1978 128
1 Citers


 
Post Office v Roberts [1980] IRLR 347
1980
EAT
Talbot J
Employment
When looking to see whether there had been a fundamental breach of an employer's or employee's obligations, the conduct of the parties has to be looked at as a whole and its cumulative impact assessed: "in each case, in our view, you have to look at the conduct of the party whose behaviour is challenged and determine whether it is such that its effect, judged reasonably and sensibly, is to disable the other party from properly carrying out his or her obligations. If it is so found that that is the result, then it may be that a Tribunal could find a repudiation of contract." There was however no implied obligation on an employer to treat an employee reasonably: "So expressed, in our view, such a term is too wide and too uncertain and we could not endorse any such implied term in those terms. It is, of course, plain that there are some obligations in a contract of employment which the employer must comply with reasonably and an employee must comply with reasonably. There are other terms, such as the payment of salaries or wages due, which do not admit of any reasonable compliance, there must be compliance."
1 Citers


 
Department of the Environment v Fox [1980] 1 All ER 58
1980

Slynn J
Employment
A rent officer, although holding a statutory office and not in employment, came within section 85(2)(b) because she performed services on behalf of the Crown for the purposes of a statutory body, namely a rent assessment committee.
Sex Discrimination Act 1975 85(2)(b)
1 Citers


 
Executors of J F Everest v Cox [1980] ICR 415
1980

Phillips J
Employment
The reasonableness of an employee's refusal of suitable alternative employment depends on factors personal to him and is a subjective matter to be considered from the employee's point of view: "The employee's behaviour and conduct must be judged, looking at it from her point of view, on the basis of the facts as they appeared, or ought reasonably to have appeared, to her at the time the decision had to be made."
1 Citers



 
 Express Newspapers v Keys; 1980 - [1980] IRLR 247

 
 Marley Tile Co Ltd v Shaw; CA 1980 - [1980] ICR 72
 
Walsall Borough Council v Sidhu [1980] ICR 519
1980
EAT
Slynn J
Employment, Costs
EAT The appellant Council had withdrawn its appeal at the last moment. The successful individual respondent in the Employment Appeal Tribunal, had been given assistance by the CRE, and had herself incurred no costs, whereas the CRE, on her behalf, had. As the jurisdiction under the Rule was only that a payor could be obliged to pay costs and expenses "incurred by that other party", it followed upon the respondent having incurred nothing, that she could be paid nothing.
An order for costs by an Industrial Tribunal can only be made in favour of a party, and not for a non-party, such as a solicitor representing one of the parties.
Slynn J said as to the rules: "As a matter of construction, the power to order costs or expenses to be paid to 'any other party' must be a party to the proceedings. That seems to us clear as a matter of construction of the rule; but in any event is put beyond doubt if one turns to paragraph 19 of Schedule 11 to the Employment Protection (Consolidation) Act 1978 which is repeating earlier legislation and which refers to the power of this Tribunal to order that costs may be paid to any other 'party to the proceedings'.
It seems to us here that before we can make an order the local authority shall pay any monies to the Applicant we must be satisfied that she has incurred costs or expenses. The important word is "incurred". Apparently, the position in this particular case is that the Applicant has not incurred any costs or expenses."
Employment Appeal Tribunal Rules 1976 2191) - Employment Protection (Consolidation) Act 1978
1 Citers


 
Ministry of Defence v Jeremiah [1980] QB 87; [1980] ICR 13
1980
CA
Brightman LJ, Brandon LJ, Denning LJ MR
Discrimination, Employment
The court considered the meaning of 'detriment' in discrimination law. Brightman LJ said: 'I think a detriment exists if a reasonable worker would or might take the view that the duty was in all the circumstances to his detriment.' Lord Justice Brandon said: "I do not regard the expression 'subjecting . . to any other detriment' as meaning anything more than 'putting under a disadvantage'."
Sex Discrimination Act 1975 4(2)(c)
1 Citers


 
Monie v Coral Racing Ltd [1980] IRLR 464
1980
CA

Employment
The employee appealed. He had been dismissed. The employer knew that there had been thefts but could not identify which of two employees was responsible. It dismissed them both. The claimant had been one of the two and now appealed against rejection of his claim for unfair dismissal. Held: The appeal failed. The employer had acted properly.

 
Allen and Son v Coventry [1980] ICR 9
1980
EAT
Lord McDonald
Employment

1 Cites

1 Citers


 
Nothman v Barnet London Borough County Council (No 2) [1980] IRLR 65
1980
CA
Ormorod LJ, Sir David Cairns
Employment
Ormrod, LJ discussed the making of an order for re-instatement after an unfair dismissal finding, saying: "Miss Nothman has mentioned in her proposed Notice of Appeal (and from time to time touched on it in this Court) what she believes to be the background of this case, that is her belief that there has been a long-standing conspiracy against her. We have made it clear in this Court that we cannot investigate that. It is only right to say that anyone who believes that they are a victim of conspiracy, and particularly by their employers, is not likely to be a satisfactory employee in any circumstances if reinstated or re-engaged. In my judgment the Employment Appeal Tribunal – and as my Lord in the course of argument has pointed out it is not just Mr Justice Slynn but he and two very experienced members of the Tribunal – came to the conclusion that it was in their words 'impossible to order reinstatement'. Then in the next sentence the judgment continues:
'We are not aware of any other vacancy which the authority would consider suitable for her. Her application for an order for reinstatement is refused.'
In my judgment there is no possible way in which that exercise of their discretion by the Employment Appeal Tribunal can be challenged in this case. It seems to me, speaking for myself, an absolutely inevitable conclusion. This legislation is not designed to enable complainants to re-establish their reputation or vindicate their reputation or anything of that kind. It is concerned with whether they were fairly or unfairly dismissed and once a conclusion is reached that they were unfairly dismissed, the question is how reasonably and most sensibly to compensate the unfairly dismissed employee."
Sir David Cairns said: "When Miss Nothman made her application for leave to appeal, it was dealt with by Mr Justice Slynn on behalf of the Employment Appeal Tribunal in this way. He refused Miss Nothman's application for leave to appeal to the Court of Appeal and said:
'Our decision not to order reinstatement is an exercise of our discretion based on our assessment of the facts of the case. We do not consider that her wish to appeal on the conspiracy issue raises a matter of law; it raises a question of fact.'
Those are observations with which I entirely agree . ."
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Nottinghamshire County Council v Lee [1980] ICR 635
1980
CA
Eveleigh LJ
Employment
In the case of a fixed term contract which expired and had not been renewed: "Why was not the employee's contract renewed?" If the answer was, in the case of a teacher, that there was no more work for him to do and the requirements of the school or college for teachers or lecturers had diminished and were expected to be diminished, there was a dismissal for redundancy. Eveleigh LJ said: "The fact that the failure to renew was foreseen right from the beginning in no way alters the conclusion in my view that the dismissal was attributable to the "redundancy situation".
Redundancy Payments Act 1965
1 Citers


 
Adams v GKN Sankey Ltd [1980] IRLR 416
1980
EAT
Slynn J
Employment
The employee had been given twelve weeks notice of redundancy dismissal, but then worked additional days. Held: Where an employee is dismissed with notice but given pay in lieu of working out the notice period this is a dismissal with notice which does not cut down the period of employment. There is a distinction between an immediate dismissal but with a payment equivalent to what would have been a later period of employment.
Where the employer relies on a notice of termination having a particular effect, he is required to demonstrate unambiguously that it has that effect. Ambiguities in the notice properly construed, must be resolved in favour of the employee, since otherwise an employee may be left in doubt as to where he stands and may lose his statutory rights.
1 Citers


 
House v Emerson Electric Industrial Control [1980] ICR 795
1980

Talbot J
Employment
The EAT may exceptionally hear a point not raised at the tribunal where no new facts were required to be pleaded.
1 Cites

1 Citers


 
Macarthys Ltd v Smith [1981] QB 180; [1980] 3 WLR 929; [1981] 1 All ER 111; [1980] ICR 672
1980
CA

Discrimination, Employment
The employee had taken on a job substantially similar to that of a previous male employee, but had been paid less. She succeeded in a claim under the 1971 Act before the industrial tribunal and Employment Appeal Tribunal. The employer appealed again. The employer argued that usung the ordinary and natural meaning of the words in the Act, a former employee was not a possible comparator. Held: The CA framed four questions to be referred to the ECJ: '1. Is the principle of equal pay for equal work, contained in article 119 of the eec treaty and article 1 of the eec council directive of 10 february 1975 (75/117/eec), confined to situations in which men and women are contemporaneously doing equal work for their employer? 2. If the answer to question 1 is in the negative, does the said principle apply where a worker can show that she receives less pay in respect of her employment from her employer: (a) than she would have received if she were a man doing equal work for the employer ; or (b) than had been received by a male worker who had been employed prior to her period of employment and who had been doing equal work for the employer? 3. If the answer to question 2(a) or (b) is in the affirmative, is that answer dependent upon the provisions of article 1 of the said directive? 4. If the answer to question 3 is in the affirmative, is article 1 of the said directive directly applicable in member states?'
Council Directive 75/117/EEC
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Duport Steels Ltd v Sirs [1980] 1 All ER 529; [1980] 1 WLR 142; [1980] IRLR 116; [1980] ICR 161
1980
QBD

Employment

1 Citers


 
Gunton v Richmond-upon-Thames London Borough Council [1980] ICR 755; [1981] Ch 448
1980
CA
Buckley, Shaw, Brightman LJJ
Employment, Damages
The plaintiff college registrar had been the subject of disciplinary proceedings, but the defendant had not followed the contractual procedure. The judge had ordered an inquiry as to damages on the basis that the Plaintiff was entitled to remain in the council's employment until retirement age unless in the meantime liable to redundancy or dismissal under the disciplinary procedure, allowance being made for the plaintiff to mitigate his loss. Held: The employee was entitled to damages representing the salary he would have earned if the procedures had been followed and then during the one month's notice period on which the employment could have been terminated. (Shaw LJ dissenting)
Buckley LJ said that the adoption of the disciplinary regulations disenabled the council from dismissing the plaintiff on disciplinary grounds until the procedure prescribed by those regulations had been carried out. However, once that disciplinary process had been completed the council could have given notice and brought the contract of employment to an end.
Brightman LJ accepted that there was no right to sue for wages after the employer's repudiation: "An employee's remedy, if he is unlawfully dismissed by his employer, is damages. He cannot obtain an order for specific performance because it is not available to compel performance of a contract of service against an unwilling employer."
He rationalised the continued existence of the contract, by positing a distinction between Mr Gunton's status as an employee, which was terminated when he was excluded from work, and the contract of employment, which subsisted until it was lawfully terminated, saying: "It is clear beyond argument that a wrongfully dismissed employee cannot sue for his salary or wages as such, but only for damages. It is also, in my view, equally clear that such an employee cannot assert that he still retains his employment under the contract. If a servant is dismissed and excluded from his employment, it is absurd to suppose that he still occupies the status of a servant. Quite plainly he does not. The relationship of master and servant has been broken, albeit wrongfully by one side alone. The same would apply to a contract for services, such as an agency. If a two year agency contract is made between principal and agent, and the principal wrongfully repudiates the contract of agency after only one year, quite plainly the agent cannot hold himself out as still being the agent of the principal. He is not. The relationship of principal and agent has been broken. I do not think it follows, however, from the rupture of the status of master and servant, or principal and agent, that the contract of service, or the contract of agency, has been terminated by the wrongful act of the master or the principal. What has been determined is only the status or relationship. So in the result the servant cannot sue in debt for his wages, which he is wrongfully deprived of the opportunity to earn; or for his fringe benefit, such as the house which the carpenter in Ivory v Palmer [1975] ICR 340 had the right to occupy as part of his emoluments. As the relationship of master and servant is gone, the servant cannot claim the reward for services no longer rendered. But it does not follow that every right and obligation under the contract is extinguished. An obligation which is not of necessity dependent on the existence of the relationship of master and servant may well survive; such as the right of the master in Thomas Marshall (Exports) Ltd v Guinle [1979] Ch 227 that the servant should not during the term of the contract deal on his own account with customers of the plaintiff company."
Shaw LJ dissented, on the ground that the continued vestigial existence of an unperformable contract was an artificial fiction devoid of any connection with the true state of affairs: "I cannot see how the undertaking to employ on the one hand, and the undertaking to serve on the other can survive an out-and-out dismissal by the employer or a complete and intended withdrawal of his service by the employee. It has long been recognised that an order for specific performance will not be made in relation to a contract of service. Therefore, as it seems to me, there can be no logical justification for the proposition that a contract of service survives a total repudiation by one side or the other. If the only real redress is damages, how can its measure or scope be affected according to whether the contract is regarded as still subsisting or as at an end? To preserve the bare contractual relationship is an empty formality. The servant who is wrongfully dismissed cannot claim his wage for services he is not given the opportunity of rendering; and the master whose servant refuses to serve him cannot compel that servant to perform his contracted duties. In this context remedies and rights are inextricably bound together. It is meaningless to say that the contract of service differs from other contracts only in relation to the availability of remedies in the event of breach. The difference is fundamental, for there is no legal substitute for voluntary performance."
1 Cites

1 Citers


 
Duport Steels Ltd v Sirs [1980] 1 All ER 529
2 Jan 1980
CA

Employment

1 Cites

1 Citers


 
O'Brien v Sim-Chem Ltd [1980] 3 All ER 132; [1980] 1 WLR 1011; [1980] ICR 573; [1980] IRLR 373
2 Jan 1980
HL
Lord Russell of Killowen
Employment, Discrimination
The Respondent had carried out a job evaluation exercise in co-operation with the trade unions. The plaintiff and comparators had been rated as equivalent in the course of this exercise but the employer had failed to implement the scheme because of Government pay policy. The House was asked whether the claimant could regard herself for the purposes of the Act as rated as equivalent with her comparator when the scheme had not been implemented. Held: She could. once the job evaluation study had been agreed so that it was possible to use it as a basis for comparing jobs, then it could be relied upon even although it had not in fact been implemented. A job evaluation study may not be enforced until it has been completed: "It is not the stage of implementing the study by using it as the basis of the payment of remuneration which makes the study complete: it is the stage at which it is accepted as a study. It is perfectly possible to accept the validity of a study at a stage substantially before it is implemented."
Lord Russell stated: "In summary, therefore, I am of the opinion that the words in dispute cannot have the result extended for by the employers. We are offered a number of dictionary substitutes for 'determine' none of which appeal to me. The best that I can do is to take the phrase as an indication that the very outcome of the equivalent job rating is to show the term to be less favourable. The next best I can do is to echo the words of Lord Bramwell in Bank of England v Vagliano Bros [1981] AC 107 at 139: “This beats me”, and jettison the words in dispute as making no contribution to the manifest intention of Parliament."
1 Cites

1 Citers



 
 Duport Steels Ltd v Sirs; HL 3-Jan-1980 - [1980] 1 WLR 142; [1980] 1 All ER 529; [1980] ICR 161; [1980] IRLR 116

 
 Young and Woods Ltd v West; CA 11-Feb-1980 - [1980] IRLR 201; [1980] EWCA Civ 6
 
Macarthys Ltd v Smith C-129/79; [1981] QB 180; [1980] 3 WLR 929; [1980] ICR 672; [1981] 1 All ER 111; R-129/79; [1980] EUECJ R-129/79
27 Mar 1980
ECJ

European, Discrimination, Employment
The first paragraph of article 119 of the EEC Treaty applies directly, and without the need for more detailed implementing measures on the part of the community or the member states, to all forms of direct and overt discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by the article in question. Cases where men and women receive unequal pay for equal work carried out in the same establishment or service are among the forms of discrimination which may be thus judicially identified. In such a situation the decisive test lies in establishing whether there is a difference in treatment between a man and a woman performing 'equal work' within the meaning of article 119. That concept is entirely qualitative in character in that it is exclusively concerned with the nature of the services in question. Its scope may not therefore be restricted by its being confined to situations in which men and women are contemporaneously doing equal work for the same employer. It cannot, however, be ruled out that a difference in pay between two workers occupying the same post but at different periods in time may be explained by the operation of factors which are unconnected with any discrimination on grounds of sex. That is a question of fact which it is for the court or tribunal to decide. In cases of actual discrimination falling within the scope of the direct application of article 119 comparisons are confined to parallels which may be drawn on the basis of concrete appraisals of the work actually performed by employees of different sex within the same establishment or service. The principle of equal pay enshrined in article 119 therefore applies to the case where it is established that, having regard to the nature of her services, a woman has received less pay than a man who was employed prior to the woman ' s period of employment and who did equal work for the employer.
Council Directive 75/117/EEC
1 Cites

1 Citers

[ Bailii ]
 
Macarthys Ltd v Smith (No.2) [1980] EWCA Civ 7; [1981] QB 180
17 Apr 1980
CA
Lord Denning MR, Lawton, Cummin-Bruce LJJ
Employment, European, Costs
The parties had disputed a difference in payment between the woman applicant and men doing similar work. After a lengthy dispute the parties now disputed the costs. Held: The company had correctly been ordered to pay the costs.
1 Cites

[ Bailii ]
 
Schuerer v Commission C-107/79; [1980] EUECJ C-107/79
12 Jun 1980
ECJ

Employment
Judgment - Invalidity pension.
1 Citers

[ Bailii ]
 
Gorman v The Trustees of St Clare's Oxford Unreported, 23 October 1980
23 Oct 1980
EAT
Slynn J
Employment
The employee sought witness summonses for his employer's senior management to attend. The tribunal judged that they would be most unlikely to be able to add anything to the witness in middle management who was to be called in relation to deal with the issues on which the senior management could help. Held. The summons was refused. If during the course of the case it seemed that the original decision not to issue a witness summons might be wrong, then the Tribunal can always remedy the matter, adjourning if necessary.
1 Citers


 
Melon v Hector Powe Ltd [1981] ICR 43
6 Nov 1980
HL
Lord Fraser of Tullybelton
Employment
Appeals on the ground of perversity will only succeed where it is shown that no reasonable Tribunal, properly directed in law, could have reached the decision made. The court set out the duties and powers of appellate courts in employment law: "It is common ground that the appeal from the industrial tribunal to the Employment Appeal Tribunal and thence to the courts is open only on a question of law. The appellate tribunals are therefore only entitled to interfere with the decision of the industrial tribunal if the appellants can succeed in showing, as they seek to do, that it has either misdirected itself in law or reached a decision which no reasonable tribunal, directing itself properly on the law, could have reached (or that it has gone fundamentally wrong in certain other respects none of which is here alleged). The fact that the appellate tribunal would have reached a different conclusion on the facts is not a sufficient ground for allowing an appeal."
Lord Fraser of Tullybelton said: "My Lords, it is clear from the findings of the industrial tribunal that there were some factors pointing towards this transaction being a change of ownership of part of the appellants' business, and other factors pointing towards it being a mere change of ownership of particular assets. The decision between those two views was one of fact and degree for the industrial tribunal, as it must be in all, or almost all, such cases." and "It seems to me that the essential distinction between the transfer of a business, or part of a business, and a transfer of physical assets, is that in the former case the business is transferred as a going concern "so that the business remains the same business but in different hands" – if I may quote from Lord Denning MR in Lloyd v Brassey 2 QB 98, 107 in a passage quoted by the industrial tribunal – whereas in the latter case the assets are transferred to the new owner to be used in whatever business he chooses. Individual employees may continue to do the same work in the same environment and they may not appreciate that they are working in a different business, but that may be the true position on consideration of the whole circumstances."
1 Cites

1 Citers



 
 Anne-Marie Tiberghien, Nee Peuteman, v Commission of The European Communities; ECJ 18-Dec-1980 - C-797/79; C-797/79; [1980] EUECJ C-797/79

 
 Sothern v Frank Charlesly and Co; CA 1981 - [1981] IRLR 278
 
Staffordshire County Council v Donovan [1981] IRLR 108
1981


Employment
Mrs Donovan was an assistant principal planning officer who was subject to ongoing disciplinary proceedings which were themselves subject to a right of appeal on her part. Mrs Donovan was represented in those proceedings by her union organiser and the union solicitor. They negotiated terms on her behalf whereby she was allowed to resign at the end of six months on terms as to payment and the provision of an appropriate testimonial. Held: She had resigned. Where a person chooses to resign rather than to be the subject of disciplinary proceedings that will be held to be a resignation as the outcome of the disciplinary hearing would not be known.
1 Citers



 
 London Transport Executive v Clarke; CA 1981 - [1981] ICR 355; [1981] IRLR 166

 
 Page v Freight Hire (Tank Haulage) Ltd; EAT 1981 - [1981] ICR 299

 
 Hurley v Mustoe; EAT 1981 - [1981] ICR 490

 
 Shanon v Michelin (Belfast) Limited; CANI 1981 - [1981] IRLR 505

 
 Owen and Briggs v James; CA 1981 - [1982] ICR 618; [1982] IRLR 502

 
 Tradewinds Airways v Fletcher; EAT 1981 - [1981] IRLR 272
 
Wilson v National Coal Board 1981 SC (HL) 9; 1981 SLT 67
1981
HL
Lord Keith of Kinkel
Damages, Employment
A entire colliery closed down and all employees other than the pursuer were offered and accepted alternative employment, thus disqualifying them from receiving redundancy payments. The pursuer, who had been injured by the accident for which the defendants were responsible, was declared redundant and received such a payment. Held: A redundancy payment is not compensation for a loss of future earnings but rather for the loss of a settled job. In calculating damages for his injuries, credit should be given for the redundancy payment on the application of the principles laid down in Parry v Cleaver [1969] UKHL 2; [1970] AC 1 and, in particular, the public policy consideration that otherwise employers would be tempted to dismiss workers on grounds of incapacity rather than redundancy, where those alternatives were open.
1 Cites

1 Citers



 
 Harrod v Minister of Defence; EAT 1981 - [1981] ICR 8

 
 Tarnesby v Kensington and Chelsea Health Authority (Teaching); HL 1981 - [1981] ICR 615

 
 Woods v WM Car Services (Peterborough) Ltd; EAT 1981 - [1981] ICR 666; [1981] IRLR 347

 
 Wiseman v Salford City Council; 1981 - [1981] IRLR 202
 
Webb v Anglian Water Authority [1981] ICR 811
1981
EAT
Browne-Wilkinson J P
Employment
If reference needs to be made to the evidence for the purposes of a statutory appeal, the ordinary resort is to as much of the documentation and notes of evidence as will help to determine what material basis there was for the impugned part of the decision. Amongst the cases in which Chairman's Notes can properly be ordered is a case where it is said that evidence was given but where no findings as to that evidence are to be found in the decision of the Employment Tribunal in question. Where there is an allegation of perversity in the sense that no Industrial Tribunal properly directed could have reached the conclusion which the tribunal did, that that was a permissible ground on the basis of which an order for the production of the Chairman's Notes might be made. They will not be ordered where a party is on a "fishing expedition", casting around for possible grounds of appeal, or so that a party can check the reasoning of the Tribunal.
1 Citers



 
 Tanna v Post Office; EAT 1981 - [1981] ICR 374

 
 Coral Leisure Group Ltd v Barnett; EAT 1981 - [1981] ICR 503

 
 Newland v Simons and Willer (Hairdressers) Ltd; 1981 - [1981] IRLR 359; [1981] ICR 521
 
Union of Construction, Allied Trades and Technicians (UCATT) v Brain [1981] IRLR 225; [1981] ICR 542
1981
CA
Donaldson LJ
Employment
The Court discussed how to evaluate whether the employers acted reasonably: "Whether someone acted reasonably is always a pure question of fact. Where parliament has directed a tribunal to have regard to equity - and that, of course, means common fairness and not a particular branch of the law - and to the substantial merits of the case, the tribunal's duty is really very plain. It has to look at the question in the round and without regard to a lawyer's technicalities. It has to look at it in an employment and industrial relations context and not in the context of the Temple and Chancery Lane."
The purpose of the tribunal's decision was to tell the parties why they have won or lost.
Donaldson LJ discussed the standard of reasons to be given: "Industrial Tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law . . their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given."
1 Citers



 
 Pederson v London Borough of Camden; CA 1981 - [1981] ICR 674
 
Townson v Northgate Group [1981] IRLR 382
1981


Employment

1 Citers



 
 Pedersen v Camden London Borough Council; CA 1981 - [1981] ICR 674; [1981] IRLR 173

 
 Woods v W M Car Services (Peterborough) Ltd; EAT 1981 - [1981] IRLR 347; [1982] ICR 693

 
 Robert Cort and Son Ltd v Charman; EAT 1981 - [1981] ICR 816

 
 British Leyland v Swift; CA 1981 - [1981] IRLR 91

 
 Daley v AW Dorsett (Almar Dolls Ltd); EAT 1981 - [1981] IRLR 385; [1982] ICR 1

 
 Rowan v Machinery Installations (South Wales) Ltd; EAT 1981 - [1981] IRLR 122; [1981] ICR 386

 
 Skyrail Oceanic Ltd v Coleman; CA 1981 - [1981] ICR 864; [1981] IRLR 398
 
Chattopadhyay v Headmaster of Holloway School [1981] IRLR 487; [1982] ICR 132
1981
EAT
Browne-Wilkinson P
Discrimination, Employment
The appellant, an Indian teacher had applied unsuccessfully for the post of head of history at Holloway School. He complained of race discrimination. Held: Browne-Wilkinson P said: "As has been pointed out many times, a person complaining that he has been unlawfully discriminated against faces great difficulties. There is normally not available to him any evidence of overtly racial discriminatory words or actions used by the respondent. All that the applicant can do is to point to certain facts which, if unexplained, are consistent with his having been treated less favourably than others on racial grounds. In the majority of cases it is only the respondents and their witnesses who are able to say whether in fact the allegedly discriminatory act was motivated by racial discrimination or by other, perfectly innocent, motivations. It is for this reason that the law has been established that if an applicant [claimant] shows that he has been treated less favourably than others in circumstances which are consistent with that treatment being based on racial grounds the industrial tribunal [ET] should draw an inference that such treatment was on racial grounds, unless the respondent can satisfy the industrial tribunal that there is an innocent explanation" and
"we are very conscious of the great dangers of opening too widely the ambit of an inquiry under the Race Relations Act 1976. If this is done and not controlled, industrial tribunals will be faced with numerous issues on matters only indirectly relevant to the main issue. This in turn would lead to long and complicated hearings and great expense and inconvenience to the respondents. It is not in the best interests of those who are being racially discriminated against that the protection of their rights before tribunals should become a matter of great expense and complication. The end result of so doing would be to render the legal redress they have difficult and expensive to obtain. In the circumstances there is a very heavy burden on legal advisers, the Commission for Racial Equality and the Equal Opportunities Commission to ensure that matters of the kind that we have had to consider in this case are not introduced into a case, except where they are satisfied that there is a real probability that they will affect the outcome. This judgment should not be treated as a charter for wholesale allegation of subsequent events."
Race Relations Act 1976
1 Citers



 
 Financial Techniques (Planning Services) Ltd v Hughes; CA 1981 - [1981] IRLR 32
 
Millbrook Furnishing Industries Ltd v McIntosh [1981] IRLR 309
1981
EAT
Browne-Wilkinson P J
Employment
The employees were sewing machinists employed in the employers' upholstery factory. Because of a downturn in work, the employers decided to transfer them to their bedding factory, which was very nearby. The work at the bedding factory would be less skilled but was essentially of the same character. The intention was that the transfer would be temporary only, and on terms which protected the employees' earnings. The employees refused to transfer and resigned and claimed (constructive) unfair dismissal. The Industrial Tribunal held that the employers had not been entitled to require the employees to transfer and that they had accordingly indeed been constructively dismissed. Held: The appeal failed. Removing a member of staff from a position of responsibility against his or her will is likely to lead to dissatisfaction and low moral, and might even amount to construct dismissal.
Browne-Wilkinson P said: "The first question must be whether the requirement to transfer to the bedding department does constitute a breach of contract. We can accept that if an employer, under the stresses of the requirements of his business, directs an employee to transfer to other suitable work on a purely temporary basis and at no diminution in wages, that may, in the ordinary case, not constitute a breach of contract. But in saying that, we think it must be clear that the word 'temporary' means a period which is either defined as being a short fixed period, or which, as in the Aveling Barford [1977] IRLR 419 case, is in its nature one of limited duration. Similarly, when dealing with no diminution in wages, we think it is clear that it is on the employers to bring home to the employee, that the order to transfer is on the basis that there will be no diminution in wages. When one refers to this case, first of all, although the transfer was temporary, it was of unlimited and very uncertain duration, because it was to last until the work in the upholstery department picked up again. Secondly, as to the wages, although the Industrial Tribunal found that it was Mr Kroll's intention to make it clear that he was guaranteeing that their wages would not be decreased, the ladies certainly did not understand that. The statement that there would be no drop in money is ambiguous. It could either mean 'I forecast that with your skills you will make enough or at least as much money in the bedding department', or it might mean a guarantee 'Whatever happens, we will see that you get the same amount of money'. It is inherent in the decision of the Industrial Tribunal that it was not made clear to the employees that they would suffer no diminution of wages in any event."
1 Citers


 
Bowater Containers Ltd v Blake EAT/552/81
1981
EAT
Neill J
Employment
EAT The employee who had an unresolved bonus query refused to work in a section of the employer’s plant different from where he normally worked until the query was sorted out. He was then dismissed. The employer took the point that the tribunal had no jurisdiction because the employee was taking part in industrial action. Held: That submission was rejected. Neill J presiding said: “We do not consider that Mr. Blake's refusal to go to the rotary section constituted "taking part in . . industrial action". The words "taking part in" suggest some participation with other people or some concerted action and the provisions of Section 62(2) indicate that the action contemplated by the previous sub-section is action by at least two persons. Moreover in our view the ordinary meaning of the words "industrial action" does not include action by one person alone.”
1 Citers



 
 Khanna v Ministry of Defence; EAT 1981 - [1981] ICR 653

 
 Owen and Briggs v James; EAT 1981 - [1981] ICR 377; [1981] IRLR 133

 
 Mears v Safecar Security Ltd; EAT 1981 - [1981] IRLR 99

 
 Robert Court and Son Ltd v Charman; EAT 1981 - [1981] IRLR 437
 
Timex Corporation v Thomson [1981] IRLR 522
1981
EAT
Browne-Wilkinson J
Employment
The tribunal had found the employee claimant to have been unfairly dismissed when the employer dismissed for redundancy or reorganisation. Although there was a redundancy situation they were not satisfied that the employee was dismissed for that reason rather than that being a pretext for dismissing for another reason, namely his performance.
Browne-Wilkinson J said: "First, it is submitted that since the Industrial Tribunal had found that there was a redundancy situation (or alternatively that there had been a re-organisation of the managerial structure) they should have found that the reason for dismissal was either redundancy or some other substantial reason of a kind such as to justify dismissal. The submission was that the evidence of redundancy being clear, in the absence of compelling proof or some other reason, the Industrial Tribunal ought to have found that the redundancy or re-organisation was the reason. It was urged that since the employers had tendered the evidence as to Mr Thomson's alleged unsatisfactory performance in his job as evidence of the reason why he, rather than others, was selected for redundancy, it was not open to the Industrial Tribunal to look at such evidence as suggesting that it was the incapacity not the redundancy that was the reason for dismissal. We reject this submission. In our view, there is no such presumption as it is suggested. Even where there is a redundancy situation, it is possible for an employer to use such situation as a pretext for getting rid of an employer he wishes to dismiss. In such circumstances the reason for the dismissal will not necessarily be redundancy. It is for the Industrial Tribunal in each case to see whether, on all the evidence, the employer has shown them what the reason for the dismissal, that being the burden cast on the employer by s.57(1) of the Act. The evidence in this case, even though possibly tendered for some other purpose, certainly raised the possibility that redundancy was used as a pretext for getting rid of Mr Thomson. The Industrial Tribunal was entitled to hold that they were not satisfied as to the reason for dismissal. On that basis the employers' defence to the claim failed at the first hurdle and a finding of unfair dismissal followed as of course."
1 Citers



 
 UCATT v Brain; CA 1981 - [1981] IRLR 225

 
 Hadjioannou v Coral Casinos Ltd; EAT 1981 - [1981] IRLR 352

 
 W E Cox Toner (International) Ltd v Crook; EAT 1981 - [1981] IRLR 443; [1981] ICR 823

 
 Mulvaney v London Transport Executive; 1981 - [1981] ICR 351
 
Mears v Safecar Security Ltd [1983] 2 QB 54; [1981] ICR 409; [1982] IRLR 183
2 Jan 1981
CA
Stephenson LJ
Employment
There is generally a presumption that sick pay will be paid. A term would be implied if the contract was silent on the point. In implying terms into a contract of employment (the terms in that case relating to sick pay) courts and tribunals were not bound by the traditional tests relating to commercial contracts, but should consider all the facts and evidence in each case, including the way in which the particular contract of employment had worked in practice, and the way the parties had behaved, since it was made.
Employment Protection (Consolidation) Act 1978 11
1 Cites

1 Citers


 
Susan Jane Worringham and Margaret Humphreys v Lloyds Bank Limited C-69/80; [1981] 1 WLR 950; [1981] ICR 558; [1981] 2 All ER 434; R-69/80; [1981] EUECJ R-69/80
11 Mar 1981
ECJ

European, Discrimination, Employment
Europa A contribution to a retirement benefits scheme which is paid by an employer on behalf of employees by means of an addition to the gross salary and which therefore helps to determine the amount of that salary constitutes 'pay' within the meaning of the second paragraph of article 119 of the EEC treaty. Directive 75/117/EEC is based on the concept of 'pay' as defined in the second paragraph of article 119 of the EEC Treaty. Although article 1 of the directive explains that the concept of 'same work' contained in the first paragraph of article 119 of the treaty includes cases of 'work to which equal value is attributed', it in no way affects the concept of 'pay' contained in the second paragraph of article 119 but refers by implication to that concept. Article 119 of the EEC treaty applies directly to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by the article in question, without national or community measures being required to define them with greater precision in order to permit of their application. The forms of discrimination which may be thus judicially identified include cases where men and women receive unequal pay for equal work carried out in the same establishment or service, public or private. This is the case where the requirement to pay contributions to a retirement benefits scheme applies only to men and not to women and the contributions payable by men are paid by the employer on their behalf by means of an addition to the gross salary the effect of which is to give men higher pay within the meaning of the second paragraph of article 119 than that received by women engaged in the same work or work of equal value.
1 Citers

[ Bailii ]
 
J P Jenkins v Kingsgate (Clothing Productions) Ltd C-96/80; [1981] 1 WLR 972; [1981] ICR 592; R-96/80; [1981] EUECJ R-96/80; [1981] IRLR 228 (ECJ); [1981] ECR 911
31 Mar 1981
ECJ
Advocate-General Warner
European, Employment, Discrimination
ECJ The fact that work paid at time rates is remunerated at an hourly rate which varies according to the number of hours worked per week does not offend against the principle of equal pay laid down in article 119 of the Treaty in so far as the difference in pay between part-time work and full-time work is attributable to factors which are objectively justified and are in no way related to any discrimination based on sex. It is for the national courts to decide in each individual case whether, regard being had to the facts of the case, its history and the employer's intention, a pay policy represented as a difference based on weekly working hours is or is not in reality discrimination based on the sex of the worker. Therefore a difference in pay between full-time workers and part-time workers does not amount to discrimination prohibited by article 119 of the Treaty unless it is in reality merely an indirect way of reducing the level of pay of part-time workers on the ground that that group of workers is composed exclusively or predominantly of women. Article 119 of the treaty applies directly to all forms of discrimination which may be identified solely with the aid of criteria of equal work and equal pay referred to by the article in question, without national or community measures being required to define them with greater precision in order to permit of their application. The forms of discrimination which may be thus judicially identified include cases where men and women receive unequal pay for equal work carried out in the same establishment or service, public or private. Where the national court is able, using the criteria of equal work and equal pay, without the operation of community or national measures, to establish that the payment of lower hourly rates of remuneration for part-time work than for full-time work represents discrimination based on difference of sex the provisions of article 119 of the treaty apply directly to such a situation. Article 1 of Council Directive 75/117/EEC which is principally designed to facilitate the practical application of the principle of equal pay outlined in article 119 of the treaty in no way alters the content or scope of that principle as defined in the Treaty.
Council Directive 75/117/EEC
1 Cites

1 Citers

[ Bailii ]

 
 Universe Tankships Inc of Monrovia v International Transport Workers Federation; HL 1-Apr-1981 - [1983] 1 AC 366; [1981] UKHL 9; [1982] 2 WLR 803; [1982] 2 All ER 67; [1982] 1 Lloyds Rep 537; [1982] IRLR 200; [1982] ICR 262

 
 J P Jenkins v Kingsgate (Clothing Productions) Ltd; EAT 19-Jun-1981 - [1981] 1 WLR 1485; [1981] ICR 715; [1981] UKEAT 145_79_1906; [1981] 2 CMLR 24; [1981] IRLR 228; [1981] ECR 911
 
Gordon Craigie Bowden and others v Commission of the European Communities C-153/79; [1981] EUECJ C-153/79
16 Jul 1981
ECJ

European, Employment
Europa Officials - applications to the court - application directed against a regulation - absence of act adversely affecting the official -inadmissibility (EEC treaty, art. 173; staff regulations of officials, arts 90 and 91; council regulations nos 3085 and 3086/78 amending the staff regulations of officials) regulations nos 3085 and 3086/78 are of general application and hence officials may not claim that they constitute decisions which are of direct and individual concern to them in order to call their validity in question in proceedings under article 173 of the treaty. The mere submission of a complaint pursuant to article 90 of the staff regulations is not sufficient to create a judicial remedy against a measure which is in the nature of a regulation. The procedure provided for in article 90 (2) applies only where the appointing authority has taken a decision or has refrained from adopting a measure prescribed by the staff regulations and where such conduct constitutes an act adversely affecting the official.
[ Bailii ]
 
The Post Office v Strange [1981] UKEAT 247_81_0910; [1982] IRLR 515
9 Oct 1981
EAT
Bristow J
Employment
EAT Constructive Dismissal : Disciplinary Procedures : Unfair Dismissal
[ Bailii ]
 
System Floors (UK) Ltd v Daniel [1981] UKEAT 321_81_1410; [1982] ICR 54
14 Oct 1981
EAT
Browne-Wilkinson J
Employment
Browne-Wilkinson J discussed the status of the statement of main terms of employment: "It provides very strong prima facie evidence of what were the terms of the contract between the parties but does not constitute a written contract between the parties. Nor are the statements of the terms finally conclusive: at most they place a heavy burden on the employer to show that the actual terms of contract are different from those he has set out in the statutory statement."
1 Citers

[ Bailii ]
 
Jones v Associated Tunnelling Co Ltd [1981] UKEAT 523_80_1610; [1981] IRLR 477
16 Oct 1981
EAT
Browne-Wilkinson J P
Employment
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 cannot simply be silent on the place of work; if there is no express term, there must be either some rule of law that in all contracts of employment the employer is (or alternatively is not) entitled to transfer the employee from his original place of work or some term regulating the matter must be implied into each contract."
Browne-Wilkinson J said: "In our view, to imply an agreement to vary or to raise an estoppel against the employee on the grounds that he has not objected to a false record by the employers of the terms actually agreed is a course which should be adopted with great caution. If the variation relates to a matter which has immediate practical application (e.g. the rate of pay) and the employee continues to work without objection after effect has been given to the variation (e.g. his pay packet has been reduced) then obviously he may well be taken to have impliedly agreed. But where, as in the present case, the variation has no immediate practical effect the position is not the same. It is the view of both members of this Tribunal with experience in industrial relations (with which the Chairman, without such experience, agrees) that it is asking too much of the ordinary employee to require him either to object to an erroneous statement of his terms of employment having no immediate practical impact on him or be taken to have assented to the variation. So to hold would involve an unrealistic view of the inclination and ability of the ordinary employee to read and fully understand such statements.
Even if he does read the statement and can understand it, it would be unrealistic of the law to require him to risk a confrontation with his employer on a matter which has no immediate practical impact on the employee. For those reasons, as at present advised, we would not be inclined to imply any assent to a variation from mere failure by the employee to object to the unilateral alteration by the employer of the terms of employment contained in a statutory statement."
Employment Protection (Consolidation) Act 1978 81
1 Citers

[ Bailii ]
 
Webb (Judgment) C-279/80
17 Dec 1981
ECJ

European, Employment
Where an undertaking hires out, for remuneration, staff who remain in the employ of that undertaking, no contract of employment being entered into with the user, its activities constitute an occupation which satisfies the conditions laid down in the first paragraph of article 60 of the eec treaty. Accordingly they must be considered a ' ' service ' ' within the meaning of that provision.
The essential requirements of article 59 of the treaty became directly and unconditionally applicable on the expiry of the transitional period. Those essential requirements abolish all discrimination against the person providing the service by reason of his nationality or the fact that he is established in a member state other than that in which the service is to be provided. The freedom to provide services is one of the fundamental principles of the treaty and may be restricted only by provisions which are justified by the general good and which are imposed on all persons or undertakings operating in the member state in which the service is to be provided in so far as that interest is not safeguarded by the provisions to which the provider of the service is subject in the member state of his establishment.
Article 59 of the treaty does not preclude a member state which requires agencies for the provision of manpower to hold a licence from requiring a provider of services established in another member state and pursuing such activities on the territory of the first member state to comply with that condition even if he holds a licence issued by the state in which he is established, provided, however, that in the first place when considering applications for licences and in granting them the member state in which the service is provided makes no distinction based on the nationality of the provider of the services or his place of establishment, and in the second place that it takes into account the evidence and guarantees already produced by the provider of the services for the pursuit of his activities in the member state in which he is established.


 
 W and J Wass Ltd v Binns; CA 1982 - [1982] ICR 486

 
 Duke v Reliance Systems Limited; EAT 1982 - [1982] ICR 449

 
 Kolfor Plant Ltd v Wright; CA 1982 - [1982] IRLR 311
 
G D Searle and Co Ltd v Celltech Ltd [1982] FSR 92
1982
CA
Cumming-Bruce LJ
Intellectual Property, Employment
The court was asked as to an employee's covenant now said to be in restraint of trade. Held: In disputes between employers and ex-employees courts will usually seek to protect the rights of employees to advance their chosen trade and profession, to promote their own private interests by changing their employment and also to promote the public interest by better use of his personal aptitudes, experience and skill.
Cumming-Bruce LJ said: "The court seeks to uphold the obligation of free contracting parties to a contract of service to honour their contractual obligations. On the other hand, the court seeks to respect the rights of servants to advance in their chosen trade and profession, and in this connection to promote their own private interest by changing their employment, and also to promote the public interest by better use of the servants' personal aptitudes, experience and skill . . The picture that emerges is the market for labour in operation for the benefit of the employees and of the public, but in the short term, naturally to the disadvantage of the employer who loses in the competitive bargaining process. The usual procedure by which a business protects itself from competition for its employees is a restrictive covenant; that is conspicuous by its absence in the relevant contracts. If there were such covenants, the employee could invite the court to avoid them if on accepted principles of law they were unreasonable in their width or their duration . . The law has always looked with favour upon the efforts of employees to advance themselves, provided that they do not steal or use the secrets of their former employer. In the absence of restrictive covenants, there is nothing in the general law to prevent a number of employees in concert deciding to leave their employer and set themselves up in competition with him."
1 Cites

1 Citers


 
Savoia v Chiltern Herb Farms Ltd [1982] IRLR 166
1982
CA
Waller LJ
Employment
The employee submitted that a constructive dismissal cannot be fair. Held: The submission failed. Waller LJ said: "He has cited to us a number of authorities, nearly all of which are against him but which he says are wrong." In considering cases of constructive dismissal, notwithstanding the somewhat artificial approach to language which is involved, the two-stage test for unfair dismissal (whether there was a breach and what was the reason for it) must still be conducted.
1 Cites

1 Citers



 
 Stein v Associated Dairies Ltd; EAT 1982 - [1982] IRLR 447

 
 Bodha (Vishnudut) v Hampshire Area Health Authority; EAT 1982 - [1982] ICR 200

 
 Rowe v Radio Rentals Ltd; 1982 - [1982] IRLR 177

 
 Hadmor Productions Ltd v Hamilton; HL 1982 - [1983] 1 AC 191; [1982] ICR 114

 
 Trimble v Supertravel Ltd; EAT 1982 - [1982] IRLR 451; [1982] ICR 440

 
 Kelly v Ingersoll-Rand Co Ltd; 1982 - [1982] ICR 476
 
The Marley Tile Co Ltd v Johnson [1982] IRLR 75
1982


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


 
Stapp v The Shaftesbury Society [1982] IRLR 326
1982
CA
Stephenson LJ, Sir David Cairns
Employment
In a common law action for wrongful dismissal, the dismissed employee could recover damages for the loss of his right to allege unfair dismissal "particularly if the summary dismissal had been effected for the specific purpose of depriving him of his right".
1 Cites

1 Citers



 
 Freud v Bentalls Ltd; EAT 1982 - [1982] IRLR 443

 
 Williams and Others v Compair Maxam Ltd; EAT 22-Jan-1982 - [1982] ICR 156; [1982] UKEAT 372_81_2201; [1982] IRLR 83

 
 Burton v British Railways Board; ECJ 16-Feb-1982 - C-19/81; R-19/81; [1982] EUECJ R-19/81; [1982] Q B 1080
 
DM Levin v Staatssecretaris Van Justitie C-53/81; R-53/81; [1982] EUECJ R-53/81; [1982] ECR 1035
23 Mar 1982
ECJ

European, Employment
ECJ The concepts of "worker" and "activity as an employed person" define the field of application of one of the fundamental freedoms guaranteed by the Treaty and, as such, may not be interpreted restrictively.
The provisions of community law relating to freedom of movement for workers also cover a national of a member state who pursues, within the territory of another member state, an activity as an employed person which yields an income lower than that which, in the latter state, is considered as the minimum required for subsistence, whether that person supplements the income from his activity as an employed person with other income so as to arrive at that minimum or is satisfied with means of support lower than the said minimum , provided that he pursues an activity as an employed person which is effective and genuine.
The motives which may have prompted a worker of a member state to seek employment in another member state are of no account as regards his right to enter and reside in the territory of the latter state provided that he there pursues or wishes to pursue an effective and genuine activity.
1 Citers

[ Bailii ]
 
Garland v British Rail Engineering Ltd (No 2) [1982] UKHL 2; [1982] 2 WLR 918; [1981] 2 CMLR; [1983] 2 AC 751; [1982] ICR 420
22 Apr 1982
HL
Lord Diplock, Lord Edmund-Davies, Lord Fraser of Tullybelton, Lord Russell of Killowen, Lord Scarman
Employment, Discrimination
Under English law and under Community law, the national court should construe a regulation adopted to give effect to a Directive as intended to carry out the obligations of the Directive and as not being inconsistent with it if it is reasonably capable of bearing such a meaning.
Lord Diplock said that: "it is a principle of construction of United Kingdom statutes . . that the words of a statute passed after the Treaty has been signed and dealing with the subject matter of the international obligation of the United Kingdom, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation, and not to be inconsistent with it."
EEC Treaty 177 - Sex Discrimination Act 1975
1 Cites

1 Citers

[ Bailii ]

 
 Iceland Frozen Foods Ltd v Jones; EAT 29-Jul-1982 - [1982] UKEAT 62_82_2907; [1983] ICR 17; [1982] IRLR 439
 
Martin v MBS Fastenings (Glynwed) Distribution Ltd [1983] ICR 511; [1983] IRLR 198
1983
CA
Sir John Donaldson, MR
Employment
Sir John Donaldson, MR said: 'Whatever the respective actions of the employer and employee at the time when the contract of employment is terminated, at the end of the day the question always remains the same, "Who really terminated the contract of employment?" '
1 Citers



 
 Lavery v Plessey Telecommunications Ltd; 1983 - [1983] ICR 533
 
Swainston v Hetton Victory Club Ltd [1983] 1 All ER 1179
1983
CA
Waller, Watkins, Fox LJJ
Litigation Practice, Employment
The claimant was dismissed on 7 September 1981. The time limit of three months, expired at midnight on 6 December. Other departments shared the building entrance with the Tribunal. The front door was closed over the weekend, but there was a letterbox, allowing posting. They would be cleared by a security officer when the offices re-opened and, supposedly, delivered to the appropriate intended recipient. Thus there was a communal letterbox receiving letters for all occupants, including the Employment Tribunal. The Originating Application was not presented until the Monday morning of 7 December 1981; and the question arose as to whether it could have been delivered and effectively presented on the previous day. The court considered the delivery of copy documents and what constituted "delivery... to the proper quarter". The Court considered that the complaint could have been properly served through the communal letterbox. An application would be presented if placed through a letterbox or dealt within some other way held out by the regional office as a means whereby it will receive communications.
1 Cites

1 Citers


 
Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91
1983
CA
Browne-Wilkinson J
Employment
The court explained the principle on 'British Labour Pump' as follows: 'even if, judged in the light of the circumstances known at the time of dismissal, the employer's decision was not reasonable because of some failure to follow a fair procedure yet the dismissal can be held to 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.' and 'There is no need for an "all or nothing" decision. If the industrial tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment. '
1 Cites

1 Citers


 
Martin v Glynwed Distribution Ltd [1983] ICR 511
1983
CA
Donaldson LJ
Employment
Donaldson LJ said: "The duty of an industrial tribunal is to give reasons for its decision. This involves making findings of fact and answering a question or questions of law. So far as the findings of fact are concerned, it is helpful to the parties to give some explanation of them, but it is not obligatory. So far as the questions of law are concerned, the reasons should show expressly or by implication what were the questions to which the industrial tribunal addressed its mind and why it reached the conclusions which it did, but the way in which it does so is entirely a matter for the industrial tribunal."
1 Citers


 
Regina v British Broadcasting Corporation ex parte Lavelle [1983] 1 WLR 23; [1983] 1 All ER 241; [1983] ICR 99
1983

Woolf J
Media, Judicial Review, Employment
Prerogative remedies are only available to impugn a decision of a tribunal which is performing a public duty. Judicial review is not applicable in a strict master and servant relationship based on private contract of employment as there is no element of public law involved. Woolf J stressed that there should be no automatic intervention by a civil court to stay other proceedings, and there is no general inhibition upon an employer dismissing an employee in relation to conduct which is also the subject of incomplete criminal proceedings. While the court must have jurisdiction to intervene to prevent serious injustice occurring, it will only do so in very clear cases in which the applicant can show that there is a real danger and not merely notional danger that there would be a miscarriage of justice in criminal proceedings if the court did not intervene.
An employer may by his contract of employment fetter his right to determine the contract by notice or summarily. There ought not be be and there is no longer a fixed rule against specific performance of an employment contract.
1 Citers


 
Age Concern Scotland v Hines [1983] IRLR 477
1983
EAT
Lord McDonald
Employment
An employee in a unique position within a company could not have a normal retirement age. "For [Miss Hines] it was argued that she fell into a category of one, being the only counselling organiser employed by the appellants, and that there were therefore no employees holding the position which she held within the meaning of s.64(1)(b). If this were so, then plainly, in the necessary absence of comparisons with other employees holding the same position, a normal retiring age could not be established and the statutory alternative of 60 would apply."
1 Citers



 
 Buchanan v Tilcon Engineerng Ltd; SCS 1983 - [1983] IRLR 417
 
Ford v Warwickshire County Council [1983] ICR 273; [1983] IRLR 126
1983
HL
Lord Diplock
Employment
In deciding whether in the case of employment under a series of short contracts the intervals between the contracts amount to temporary cessation of work, one must look back from the date of termination of the employment over the whole period during which the employee has been employed. There is a material difference in law between the calculation of continuity for the purposes of redundancy, and the right to apply under Part X in relation to unfair dismissal.
Lord Diplock said: "There are many employments, of which teaching is one of the largest and most obvious, in which it is perfectly possible to predict with accuracy the periods in which the educational institution at which a teacher is employed to conduct courses in particular subjects will have no work available for that teacher to do ie, during the three annual school holidays or during vacations at universities and other institutions of further education. As the evidence in the instant case discloses, it is common practice to employ part-time teachers of courses at institutions of further education under successive fixed term contracts the length of which is fixed according to the duration of the particular course and expires at the end of it. In the interval between successive courses which may coincide with the end of one academic year at an institution of further education and the beginning of the next but may be considerably longer, there is no work available at the institution for the teacher to do, and he remains without any contract of employment until the course is resumed, when he again becomes employed under a fresh fixed term contract.
A somewhat similar practice is followed in relation to what are known as "supply teachers" in schools, although in their case each fixed term contract is for a single term only. During each of the three annual school holidays between school terms the supply teacher has no contract of employment." and
"So the continuity of employment for the purposes of the Act in relation to unfair dismissal and redundancy payments is not broken unless and until, looking backwards from the date of the expiry of the fixed term contract on which the employee's claim is based, there is to be found between one fixed term contract and its immediate predecessor an interval that cannot be characterised as short relatively to the combined duration of the two fixed term contracts. Whether it can be so characterised is a question of fact and degree and so is for the decision of an Industrial Tribunal rather by the Employment Appeal Tribunal or an appellate court of law."
1 Citers


 
Spook Erection v Thackray 1983 SLT 630
1983


Employment

1 Citers


 
Watts v Seven Kings Motor Co Ltd [1983] ICR 135
1983
EAT

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


 
Martin v Yeoman Aggregates Ltd [1983] ICR 314
1983
EAT

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


 
British Broadcasting Corporation v Beckett [1983] IRLR 43
1983
EAT
Neill J
Employment
The claimant had committed an act of serious negligence, jeopardising the safety of his colleagues. He was removed from his post as a scenic carpenter but offered an alternative post of maintenance carpenter on a trial basis, which was unacceptable to him. He resigned and successfully claimed constructive dismissal. Held: The imposition of a punishment which is "grossly out of proportion to the offence" can amount to the repudiation of a contract of service. It was for the Tribunal to decide whether the penalty of demotion to maintenance carpenter was within the band of reasonable penalties which a reasonable employer might impose on a man with Mr Beckett's service with the BBC.
1 Cites

1 Citers



 
 Varndell v Kearney and Trecker Marwin Ltd; CA 1983 - [1983] ICR 683

 
 Robertson v British Gas Corporation; CA 1983 - [1983] ICR 351

 
 Chubb Fire Security Ltd v Harper; EAT 1983 - [1983] IRLR 311
 
Hollier v Plysu [1983] IRLR 260
1983
CA
Stephenson LJ
Employment, Damages
The Tribunal may reduce any compensatory award by such proportion as it considers just and equitable. A Tribunal's decision on this question is "so obviously a matter of impression, opinion, and discretion, that there must be a plain error of law or perversity before an appellate court can intervene". The tribunal must consider: "what, if any, part the employee's own conduct played in causing or contributing to his or her dismissal and then, in the light of that finding, decide what, if any, reduction should be made in assessment of his or her loss."
1 Citers


 
Sengupta v Republic of India [1983] ICR 221
1983

Justice Browne-Wilkinson
Jurisdiction, Employment, International
India did not appear at court to take a point on jurisdiction under the 1978 Act. The Court asked for the appointment of an amicus to assist it. Held: The court has a duty under statute to give the effect to the immunity conferred, even though the state does not appear to claim it. As to the issue of state immunity: "If we have asked ourselves the right questions, then in our judgment the necessary result must be that there is no jurisdiction to entertain the applicant's claim. It is true that any private individual can employ another, i.e. can enter into a contract of employment. Therefore in that sense the entry into a contract of employment is a private act. But when one looks to see what is involved int he performance of the applicant's contract, it is clear that the performance of the contract is part of the discharge by the foreign state of its sovereign functions in which the applicant himself, at however lowly a level, is under the terms of his contract of employment necessarily engaged. One of the classic forms of sovereign acts by a foreign state is the representation of that state in a receiving state. From the doctrine of sovereign immunity were derived the concepts that the embassy premises were part of the soil of the foreign sovereign state, and that diplomatic staff are personally immune from local jurisdiction. A contract to work at a diplomatic mission in the work of that mission is a contract to participate in the public acts of the foreign sovereign. The dismissal of the applicant was an act done in pursuance of that public function, i.e. the running of the mission. As a consequence, the fairness of any dismissal from such employment is very likely to involve an investigation by the industrial tribunal into the internal management of the diplomatic representation in the United Kingdom of the Republic of India, an investigation wholly inconsistent with the dignity of the foreign state and an interference with its sovereign functions." The tribunal could not hear the claim even though the employment had been at a low grade.
State Immunity Act 1978 1(2)
1 Citers



 
 Barclay v Glasgow District Council; 1983 - [1983] IRLR 313

 
 Sybron Corporation v Rochem; CA 1983 - [1983] 2 All ER 706; [1984] Ch 112

 
 J and J Stern v Simpson; 1983 - [1983] IRLR 52
 
BP Oil Ltd v Richards Unreported, 12 April 1983
12 Apr 1983
EAT
Browne-Wilkinson J
Employment
The tribunal considered how to treat a succession of fixed term contracts. Held: The crucial question was whether one looks at the whole term of the original contract plus extensions as one contract or concentrates solely on the last contractual arrangement made between the parties. He could see no ground for distinguishing Triesman on that point and said: "As a matter of comity and in the interests of orderly industrial relations, it is undesirable for us to depart from that decision and therefore we follow it."
1 Cites

1 Citers



 
 Waite v Government Communications Headquarters; HL 21-Jul-1983 - [1983] 2 AC 714; [1983] UKHL 7

 
 President of the Methodist Conference v Parfitt; CA 1-Oct-1983 - [1984] ICR 176; [1984] QB 368; [1983] 3 All ER 747; [1984] IRLR 141; [1984] 2 WLR 84
 
Showboat Entertainment Centre v Owens [1984] IRLR 7; [1983] UKEAT 29_83_2810; [1984] ICR 65
28 Oct 1983
EAT
Browne-Wilkinson P
Employment, Discrimination
The employer had dismissed an employee who had refused to comply with a discriminatory instruction by the employer to exclude blacks from the employer’s amusement centre. The tribunal at first instance had found that that was a dismissal "on racial grounds", notwithstanding that the dismissed employee was white. Held: The employer's appeal failed. The Appeal Tribunal considered the meaning of the phrase 'on racial grounds.' Browne-Wilkinson P: “Therefore the only question is whether Mr Owens was treated less favourably ‘on racial grounds’. Certainly the main thrust of the legislation is to give protection to those discriminated against on the grounds of their own racial characteristics. But the words ‘on racial grounds’ are perfectly capable in their ordinary sense of covering any reason for an action based on race, whether it be the race of the person affected by the action or of others.” and “We can, therefore see nothing in the wording of the Act which makes it clear that the words ‘on racial grounds’ cover only the race of the complainant.”
Race Relations Act 1976
1 Cites

1 Citers

[ Bailii ]

 
 Brooks v National Westminster Bank Ltd; CA 8-Nov-1983 - Unreported, 8 November 1983
 
Schuerer v Commission C-107/79; [1983] EUECJ C-107/79
24 Nov 1983
ECJ

Employment
(Judgment) Invalidity pension - Revision of a judgment.
1 Cites

1 Citers

[ Bailii ]
 
Shove v Downs Surgical plc [1984] IRLR 17; [1984] ICR 532
1984


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



 
 Maund v Penwith District Council; CA 1984 - [1984] ICR 143; [1984] IRLR 129
 
Burdett Coutts v Hertfordshire County Council [1984] IRLR 91
1984


Employment
An employee who continues to work under protest after a unilateral variation by the employer will not be prevented from bringing a claim for damages for breach of contract.
1 Citers


 
Hayward v Cammell Laird Shipbuilders Ltd [1984] IRLR 463
1984
HL
Lord Chancellor, Lord Thankerton, Lord Russell of Killowen, Lord Macmillan, Lord Wright, Lord Porter, Lord Clauson
Employment
The system of job evaluation when selecting for redundancies, for which there is uniquely by statue the designation of an expert, is one which is susceptible to different methodologies.
1 Citers


 
E Green and Sons (Castings) Ltd v ASTMS [1984] IRLR 135; [1984] ICR 352
1984
EAT
Nolan J
Employment
Nolan J considered the sub-section and the disclosure requirements on a consultation: "Flexibility in the course of consultation is obviously desirable, but the consultation envisaged by s. 99 cannot begin until the employer has provided the information set out in subsection (5)."
Employment Protection Act 1975 99(5)
1 Citers


 
Quinnen v Hovells [1984] ICR 525
1984

Waite J
Employment, Discrimination
Waite J said: "The concept of a contract for the engagement of personal work or labour lying outside the scope of a master-servant relationship is a wide and flexible one, intended by Parliament in our judgment to be interpreted as such." The concept could include somebody who was self-employed providing personal services.
Sex Discrimination Act 1975 - Equal Pay Act 1970
1 Citers


 
Strathclyde Regional Council v Neil [1984] IRLR 14
1984
SC
(The Sherriff Principal)
Employment
The claimant was taken on as a trainee social worker, on condition that she obtain a place on a social work course. She was to receive paid leave to attend. Her contract provided that she was to work for the Council for two years after completing the course and to repay a proportionate part of the sums outlaid if she left within that period. So leaving, she argued that the recoupment clause was a penalty and not an attempt to estimate damages, since it disregarded sums which the Council would receive by way of contribution from central government. Held: The clause was not a penalty. It did not cease to be a genuine attempt to estimate losses because of the other receipts.
1 Cites


 
Hotson v Wisbech Conservative Club [1984] IRLR 422
1984
EAT
Waite J
Employment
As long as the employer did not change the facts upon which he relied at the date of dismissal, it was open to him to change the label he attached to the reasons for the dismissal where that led to no procedural or evidential disadvantage to the other side: "The position, according to authority, appears to be as follows. In satisfying the Industrial Tribunal as to the reason for the dismissal under s.57(1) of the 1978 Act, the employer is not tied to the label he happens to put upon the particular facts relied on. Thus he may say 'I made the employee redundant'. But he will not be prevented from saying later 'No I have changed my mind. It was really a case of incapability.' Nor will he be prevented from running the two as alternatives: either redundancy or lack of capability. By the same token, the Industrial Tribunal may (it appears) of its own motion declare that the reasons relied upon by the employer was not the real reason; for the real reason may be something that he shrank from mentioning, either through ignorance of the technicalities involved or perhaps through sheer kindness of heart or natural delicacy. In the same way, some other substantial reason under section 57(1)(b) may be advanced by the employer or found by the Tribunal to be the real reason for dismissal, differing from the sole or principal reason, such as redundancy or incapability, that my have been advanced by the employer himself.
That appears to us to the effect of the decisions of the Court of Appeal in Abernethy v Mott, Hay & Anderson [1974] IRLR 213 and of this Appeal Tribunal in Gorman v London Computer Training Centre [1978] IRLR 22. What the employer may not do, however, is to change after the date of dismissal the facts upon which he relied at the time as the basis for dismissal. That is made plain by the decision of the Court of Appeal in Monie v Coral Racing Ltd [1980] IRLR 464.
Finally, even in those cases where what is referred to in the authorities as no more than a change of label is involved - in the cases we have mentioned, for example, where lack of capability is treated as an alternative label for redundancy - great care must always be taken to ensure that the employee is not placed, as a result of the change in the label given to the reason for his dismissal, at a procedural or evidential disadvantage. That is made plain by the decision of the Appeal Tribunal in Murphy v Epsom College [1983] IRLR 395."
Allegations of dishonesty and/or deliberate misconduct must be squarely raised and put: "We are very well aware that the proceedings before an Industrial Tribunal are informal - and long may they remain so. That was the Parliamentary intention. But, when once dishonesty is introduced into a case, the relevant allegation has to be put with sufficient formality and at an early enough stage to provide a full opportunity for answer. One of the hazards of the Tribunal system, and part of the price necessarily paid for informality, is that misadventures are bound to occur from time to time, as result of which that necessary formality of expression and that opportunity of answering are denied."
1 Cites



 
 Royal Society for the Protection of Birds v Croucher; EAT 1984 - [1984] IRLR 425
 
Mercury Communications Ltd v Scott-Garner [1984] Ch 37
1984
CA
Dillon LJ
Employment
To count as a trade dispute, the dispute must "relate wholly or mainly" to terms and conditions of employment and must not merely be "connected" with them. The application of this test requires the court: "to consider not merely the occasion which caused the dispute to break out but also the reason why there was a dispute". Whether there is a trade dispute is a mixed question of fact and law, but primarily one of fact.
1 Citers


 
McKnight v Addlestones (Jewellers) [1984] IRLR 453
1984
CANI

Employment

1 Citers


 
Murphy v Epsom College [1985] ICR 80; [1984] IRLR 271
1984
CA
Sir Denys Buckley
Employment
The College replaced a plumber who could do the work of a heating engineer with a heating engineer who could do plumbing work. The number of employees and the work remained the same. Held: The dismissal was by reason of redundancy because the business needed fewer plumbers; a plumber (one specialist skill) had been replaced by a heating engineer (different specialist skill).
Sir Denys Buckley: "Every case of re-organisation must, I think, depend ultimately on its particular facts. In each case it must be for the individual tribunal to decide whether the re-organisation and re-allocation of functions within the staff is such as to change the particular kind of work which a particular employee, or successive employees, is or are required to carry out, and whether such change has had any, and if so what, effect on the employer's requirement for employees to carry out a particular kind of work."
1 Citers


 
Nethermere (St Neots) Ltd v Taverna and Gardiner [1984] IRLR 240; [1984] ICR 612
1984
CA
Stephenson LJ, Kerr LJ, Dillon LJ
Employment
The court considered what elements must be present to create a contract of employment. Held: Stephenson LJ said: "There must . . be an irreducible minimum of obligation on each side to create a contract of service."
Kerr LJ said: "The inescapable requirement concerning the alleged employees however . . is that they must be subject to an obligation to accept and perform some minimum, or at least reasonable, amount of work, for the alleged employer. If not, then no question of any ‘umbrella’ contract can arise at all, let alone its possible classification as a contract of employment or of service. The issue is therefore whether the tribunal’s findings and conclusions show that they took account of this essential requirement."
Dillon LJ said: "an arrangement under which there was never any obligation on the outworkers to do work or on the company to provide work could not be a contract of service”.
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Regina v Commission for Racial Equality (ex parte Westminster City Council) [1985] ICR 827; [1984] IRLR 230
1984
QBD
Woolf J
Discrimination, Employment
The council had dismissed a black road sweeper to whose appointment the trade union objected on racial grounds. Held: The council's motive for doing so, to avert industrial action, could not avail them. Woolf J said: "In this case although the employer's motives are wholly unobjectionable, he is clearly treating the black employee less favourably on racial grounds and is clearly guilty of unlawful discrimination under the Act."
Race Relations Act 1976 1
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Wickens v Champion Employment [1984] ICR 365
1984
EAT
Nolan J
Employment
The claimant was an employee of the defendant employment agency. She was dismissed, but in order to succeed, she had to show that the agency had more than 20 employees. To do so she had bring the agency workers in as employees. The tribunal dismissed her claim saying that in the circumstances the agency did not exercise sufficient control over the workers for them to be counted as employees. Held: The appeal failed. The applicant was basing her claim on the status of the agency's temporary workers generally. A tribunal must resist the temptation to conclude that an individual is an employee simply because he is not a self employed person carrying on a business of his own.
1 Citers


 
Faccenda Chicken v Fowler [1984] ICR 589; [1985] 1 All ER 724; [1985] FSR 105
1984
ChD
Goulding J
Information, Employment, Intellectual Property
The court was asked to restrain the plaintiff's a former sales manager making use of information acquired during his employment which information the employer claimed to be confidential. F had set up a business in a similar field, the marketing of fresh chicken. The employment contract contained no express provision for such restraint. Held: Goulding J identified three classes of information which an employee may have as he leaves an employment, and his duties to a former employer as regards each: "(1) Information which is trivial, or accessible from public sources :
There is no prohibition against use of such information by the employee, whether during or after employment.
(2) Information which is confidential, either because the employee was expressly told so, or because of its character, but which once learned necessarily remains in the employee’s head and becomes part of his own skill and knowledge applied in the course of his employer’s business.
So long as the employment continues, the employee cannot otherwise use or disclose such information without infidelity or breach of contract; but when he is no longer in the same service, he can use his full skill and knowledge for his own benefit in competition with his former employer. If the employer wants to protect information of this kind, he can do so by an express stipulation restraining the employee from competing with him (within reasonable limits of space and time) after the termination of the employment.
(3) Specific trade secrets
Even though they may necessarily have been learned by heart and even though the employee may have left the service, they cannot lawfully be used for anyone’s benefit but the employer’s."
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 Levy v Marrable; EAT 1984 - [1984] ICR 583
 
Dimbleby and Sons v National Union of Journalists [1984] 1 WLR 427
1984
HL

Torts - Other, Employment
The Trades Union caused its members to withdraw their labour from the plaintiff, so preventing the plaintiff from performing a contract with a firm of printers. The conduct was aimed, primarily, not at the plaintiff but at the printers, with whom the union was in dispute. Held: The plaintiff's claim for an injunction was upheld.
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Department of Health and Social Security v Coy [1984] ICR 309
1984

Browne-Wilkinson J
Employment

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O'Kelly v Trusthouse Forte plc [1984] QB 90; [1983] 3 All ER 456; [1983] IRLR 369
1984
CA

Litigation Practice, Employment
Workers claimed to be employees. Held: They were not such. Their contract reserved the right to choose whether or not to work and for the employer not to give them work. The question of whether the facts which are found or admitted, fall one side or the other of some conceptual line drawn by the law is a question of fact - whether an employee was continuously employed. Whether he was employed under a contract of employment was a mixed question of fact and law.
Employment Protection (Consolidation) Act 1978
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 Palmer and Saunders v Southend-on-Sea Borough Council; CA 1984 - [1984] IRLR 119; [1984] ICR 372
 
Regina v Secretary of State for the Home Department, ex parte Benwell [1985] IRLR 6; [1985] QB 554; [1984] 3 All ER 854; [1984] ICR 723; [1984] 3 WLR 843; (1984) 81 LSG 2544
1984
QBD
Hodgson J
Employment
Disciplinary proceedings against a prison officer were flawed for a variety of reasons. The court found that the Home Office in making a disciplinary award of dismissal was performing the duties imposed upon it as part of the statutory terms under which it was to exercise its powers. Held: The disciplinary proceedings against him were flawed for a variety of reasons. The court found that the Home Office in making a disciplinary award of dismissal was performing the duties imposed upon it as part of the statutory terms under which it was to exercise its powers. The court noted that whereas nurses entered into contracts of employment with health authorities, prison officers were "appointed" by the Home Secretary.
Hodgson J said: "Clearly, the Court of Appeal in Ex parte Walsh did not consider the purported dismissal on disciplinary grounds of Mr. Walsh to be the performance of any duty imposed upon the authority as part of the statutory terms under which it exercised its powers."

 
TBA Industrial Products Ltd v Locke [1984] ICR 228; [1984] IRLR 48
1984
EAT
Browne Wilkinson J P
Employment
The employee had been unfairly dismissed with 12 weeks pay in lieu of notice. Held: The court re-affirmed the narrow principle of Norton Tool v Tewson. Browne Wilkinson J P said: "It seems to us that the decision in the Tradewinds [1981] IRLR 272 case is quite inconsistent with the earlier cases. We have to decide which authority to follow. In the realm of industrial relations (where settlement by negotiation must be the prime objective) it is even more undesirable than usual that there should be conflicting decisions. If we were satisfied that the decision in Norton [1972] IRLR 86 line of cases was wrong in principle or, due to changes in industrial relations practice, had ceased to be appropriate, we would say so but suggest that the parties should correct the matter in the Court of Appeal rather than produce conflicting authority in this Tribunal. But in our judgment the line of authorities stemming from the Norton [1972] IRLR 86 case is not unsound in principle and there has been no change in law or practice which merits departure from it.
There is no doubt that in assessing compensation under section 74 of the 1978 Act the Industrial Tribunal in deciding what compensation is just and equitable has to have regard to the loss sustained by the employee in consequence of the dismissal. In order to ascertain the loss, one has to discover what the employee would have received if had not been unfairly dismissed. The Appeal Tribunal in the Tradewinds [1981] IRLR 272 case had regard to what, as a matter of contract and the common law remedy for breach of contract, the employee would have got. At common law there is no doubt that the employee is bound to mitigate his loss seeking alternative employment during the notice period and, if successful, his damages for breach of contract are reduced by the amount of his earnings during the notice period from his new employment. The Tradewinds [1981] IRLR 272 case therefore identifies this as his loss.
In making exactly the same assessment (ie the loss suffered by the employee) the Norton [1972] IRLR 86 line of cases starts from a different premise, i.e. that the employer would act not only in accordance with his contractual duties but also in accordance with good industrial practice which would require (in the absence of gross misconduct) that an employee who is summarily dismissed should at the time of his dismissal be paid a payment in lieu of notice covering the notice period. If such good industrial practice is adopted, there is no right for the employer to recover any part of it from the ex-employee if, during the notice period given, he obtains alternative employment. Therefore on this basis the loss suffered by the employee is the full amount of his wages during the notice period without any deductions for wages from the alternative employment.
We can see no flaw in the reasoning of the authorities stemming from the Norton [1972] IRLR 86 case, unless it can be said that the loss referred to in s.74(1) must be limited to the loss which can be recoverable in an action for wrongful dismissal. We can see no reason why such limit should be placed on the wide words of s.74.
We note that the important decisions in the Everwear case and the Blackwell [1976] IRLR 144 case were not cited to this Appeal Tribunal in the Tradewinds [1981] IRLR 272 case. Moreover, in our judgment the suggestion that the introduction of the basic award by the 1975 Act has altered the position is not well founded. The basic award was introduced to compensate an employee for the loss of his accrued rights to a redundancy payment; it has no connection with loss of wages during the notice period."
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O'Kelly v Trust House Forte [1984] QB 90
1984


Employment
Remission of a case to the industrial tribunal would be inappropriate only if it was clear what the result would be on such remission.
1 Citers


 
General of Salvation Army v Dewsbury [1984] ICR 498
1984
EAT

Employment
An employment contract made on or about 1st April 1982, under which a teaching post was offered to and accepted by the respondent to commence on 1st May 1982. The 1st May was a Saturday and 3rd May was a Bank Holiday, so that the respondent only undertook her duties as from Tuesday, 4th May. This governed the calculation of the period of continuous employment. The issue was whether she had "started work" on the Saturday or only on the Tuesday. Held: This referred to the Saturday: "The phrase "starts work" in section 151(3) is not intended to refer to the undertaking of the full time duties of the employment: it is intended to refer to the beginning of the employee's employment under the relevant contract of employment."
Employment Protection (Consolidation) Act 1978 151(3)
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 von Colson and Kamann v Land Nordrhein-Westfalen; ECJ 10-Apr-1984 - (1986) 2 CMLR 430; C-14/83; [1984] ECR 1891; R-14/83; [1984] EUECJ R-14/83

 
 Murphy v Epsom College; CA 8-May-1984 - [1984] EWCA Civ 12; [1984] IRLR 271; [1985] ICR 80
 
Regina v East Berkshire Health Authority, ex Parte Walsh [1984] EWCA Civ 6; [1985] QB 152
14 May 1984
CA
Sir John Donaldson MR, May, Purchas LJJ
Employment, Judicial Review, Natural Justice
A district nursing officer had been dismissed for misconduct. He applied for judicial review. He sought judicial review to quash the decision on the ground that there had been a breach of natural justice and that the district nursing officer had no power to dismiss him. Held: A claim for judicial review cannot be used to enforce merely private law rights against a public body. An applicant for judicial review has to show that a public law right enjoyed by him had been infringed and that where the terms of employment by a public body were controlled by statute its employees might have rights both in public and private law to enforce those rights, but that a distinction had to be made between an infringement of statutory provisions giving rise to public law rights and those that arose solely from a breach of the contract of employment.
Purchas LJ described the basic question as being whether the remedies sought by the applicant arose solely out of a private right in contract between him and the authority or upon some breach of the public duty placed upon that authority which related to the exercise of the powers granted by statute to it to engage and dismiss him in the course of providing a national service to the public.
Discussing the case law cited to him, Sir John Donaldson MR said: "None of these three decisions of the House of Lords . . was directly concerned with the scope of judicial review under RSC, Ord 53 . . In all three cases there was a special statutory provision bearing directly upon the right of a public authority to dismiss the plaintiff … As Lord Wilberforce said [in Malloch, at pages 1595-1596], it is the existence of these statutory provisions which injects the element of public law necessary in this context to attract the remedies of administrative law. Employment by a public authority does not per se inject any element of public law. Nor does the fact that the employee is in a 'higher grade' or is an 'officer'. This only makes it more likely that there will be necessary statutory restrictions upon dismissal, or other underpinning of his employment . . It will be this underpinning and not the seniority which injects the element of public law."
May LJ referred to "ordinary" master and servant cases with no element of public law involved and considered that earlier decisions "must now be read in the light of the employment protection legislation": "The concept of natural justice involved in many of the cases is clearly now subsumed in that of an 'unfair dismissal'. To the extent that such cases laid down any principle of law, then of course they must be followed. As always, however, to the extent that they were really decided upon their own facts they provide no precedent for later cases.
Further, I think that at the present time in at least the great majority of cases involving disputes about the dismissal of an employee by his employer, the most appropriate forum for their resolution is an industrial tribunal. In my opinion the courts should not be astute to hold that any particular dispute is appropriate for consideration under the judicial review procedure . . "
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 Dobie v Burns International Security Services (UK) Ltd; CA 14-May-1984 - [1984] ICR 812; [1984] ICR 812; [1985] 1 WLR 42; [1984] IRLR 329; [1984] EWCA Civ 11
 
Picciolo v Parliament C-111/83; [1984] EUECJ C-111/83
30 May 1984
ECJ

Employment
ECJ (Judgment) Officials - Recruitment - Application of Article 29(2) of the Staff Regulations.
[ Bailii ]
 
Hans Moser v Land Baden-Wuerttemberg R-180/83; [1984] EUECJ R-180/83
28 Jun 1984
ECJ

Employment, European
ECJ Free movement of workers - Concept of worker. 1. As regards the division of jurisdiction between national courts and the court of justice under article 177 of the treaty, it is for the national court, which is alone in having direct knowledge of the facts of the case and of the arguments put forward by the parties and which must assume the responsibility of giving judgment in the case, to assess, with full knowledge of the matter before it, the relevance of the questions of law raised by the dispute before it and the need for a preliminary ruling so as to enable it to give judgment.
2. Article 48 of the eec treaty does not apply to situations which are wholly internal to a member state, such as that of a national of a member state who has never resided or worked in another member state. Such a person may not rely on article 48 to prevent the application to him of legislation of his own country, denying him access to a particular kind of vocational training.
[ Bailii ]
 
Whitehart v Raymond Thomson Ltd Unreported, 11 September 1984
11 Sep 1984
EAT
Popplewell J
Employment
A member of the tribunal was said to have dozed off once if not twice during the hearing. Popplewell J said: 'It is axiomatic that all members of a tribunal must hear all the evidence and to have a trial in which one member of the tribunal is asleep even for a short part of the time, cannot be categorised as a proper trial. Justice does not appear to have been done.'
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Adam And Others v Commission of The European Communities C-83/81; [1984] EUECJ C-83/81
9 Oct 1984
ECJ

Employment
Officials - Promotions
[ Bailii ]
 
Charles Lux v Court of Auditors of the European Communities C-129/82
13 Dec 1984
ECJ

European, Discrimination, Employment
Europa 1. Officials - recruitment - appointment to the starting grade - exception authorized by the staff regulations - application by means of a general decision - discretionary power of the administration - limits - no discretion allowed (staff regulations of officials, arts. 5 (3) and 31 (2) (b)) 2.Measures adopted by the institutions - internal directive - rule of conduct indicating the practice to be followed - legal force as regards the administration (staff regulations of officials, art. 5 (3))
  1. Where an exception, authorized by the staff regulations, to the general rule governing appointments is introduced in the form of a general decision adopted within an institution, the principle that there should be no discrimination between officials in any one category at the time of their recruitment, laid down by the staff regulations, would be deprived of any legal significance if in such a case the appointing authority still had the same discretion as is conferred upon it to lay down exceptions to the aforementioned general rule.
  2. The court has held on numerous occasions that the principle of equality of treatment laid down by the staff regulations is of fundamental importance in the law relating to the employment of community officials. Thus, although an internal directive does not have the character of a rule of law which the administration is bound to observe, it nevertheless lays down a rule of conduct indicating the practice to be followed, from which the administration may not depart without giving the reasons which have led it to do so, since otherwise the aforesaid principle would be infringed.


 
Hartmut Scharf v Commission C-292/84; [1984] EUECJ C-292/84R
13 Dec 1984
ECJ

Employment
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 may be granted by the judge ruling on the application for interim measures if it is shown that there are factual and legal grounds establishing a prima facie case for them (fumus boni juris); if they are urgent, in the sense that it is necessary, in order to avoid serious and irreparable damage, for them to be adopted and produce their effects before the decision on the application for annulment; and finally, if they are provisional, that is, if they are without prejudice to the decision on the substance of the case and if they do not already decide the issues of law or of fact in dispute, or neutralize in advance the consequences of the decision to be given later in the main proceedings.
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