Links: Home | swarblaw - law discussions

swarb.co.uk - law index


These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Employment - From: 1985 To: 1989

This page lists 161 cases, and was prepared on 02 April 2018.

 
Porcelli v Strathclyde Regional Council [1986] ICR 564; [1986] SC 137; [1985] ICR 1977
1985
EAT
Lord McDonald
Discrimination, Employment, Scotland
A woman school technician was subjected to a campaign of sexual harassment by two fellow male non-managerial technicians. She sought a transfer. Held: The real question was whether the sexual harassment was to the detriment of the applicant within section 6(2)(b). The claim of sex discrimination succeeded.
Lord McDonald said: "It was argued on behalf of the applicant that the words "subjecting her to any other detriment" were so universal that they covered acts of sexual harassment committed against her during her employment, without reference to any consequences thereof so far as her employment was concerned. The mere fact that they had been committed automatically placed her employers, perhaps vicariously, in breach of section 6(2)(b) and section 1(1) of the Act of 1975.
We do not think this interpretation is correct. The Act of 1975 does not outlaw sexual harassment in the field of -employment or elsewhere. That is left to the common law in an appropriate case. What it does outlaw in the field of employment is discrimination against a woman within the terms of her contract of employment on the ground of her sex. In certain cases sexual harassment may be relevant in this connection. An employer who dismisses a female employee because she has resisted or ceased to be interested in his advances would, in our view, be in breach of section 6(2)(b) and section 1(1) of the Act of 1975 for reasons arising from sexual harassment. Similarly if, for the same reason, he takes other disciplinary action against her short of dismissal, he would also be in breach. This action could be suspension, warning, enforced transfer, etc., all of which would be to the detriment of the female employee although open to an employer under her contract of service in a genuine case not associated with sexual harassment.
If this is a correct interpretation of the statute we ask ourselves what detriment, if any, within her contract of employment, the applicant suffered in the present case. The answer, we feel, is not far to seek. It lies in the fact that on 4 August 1983 she felt obliged to seek transfer from Bellahouston Academy to another school, and this was duly granted with effect from 19 September 1983. The campaign of harassment, including sexual harassment, with the objective of making the applicant apply for transfer had succeeded."
Sex Discrimination Act 1975 1(1)(a) 6(2)b)
1 Citers


 
General Council of British Shipping v Deria and Others [1985] 1 ICR 198
1985

Bristow J
Employment
Where an Industrial Tribunal's decision could not be reviewed because under the rules, the new evidence had been available, a review based on the new evidence should only be granted where there existed some mitigation causing the failure to bring the matter within the rules, rather than the nature of the dispute at large, making it such that the interests of justice required a review. "… in logic and in law this (that which is in the interests of justice) has to be geared to [the particular provisions at issue] and not to the nature of the dispute at large."
1 Cites

1 Citers


 
Crank v HMSO [1985] ICR 1
1985
EAT
Peter Gibson J
Employment
The tribunal considered whether the parties had initially agreed a date for the termination of the employment: "In the present case it is a striking feature that it was the employee who himself suggested and asked agreement for 2 September 1983 as being the date from which his resignation was to take effect, and the employer's agreed to that. We think it is clear therefore that both sides intended that the contract should be terminated as of 2 September. Why, in those circumstances, should one not treat the effective date of termination, for the purposes of the statute, as being 2 September? Of course it is right that on the 13 September (to select one date by way of example) the contract of employment was still subsisting, but the position that we have to consider is that which has arisen in the light of the agreement between the parties. We think that the common sense answer to the question "When was the effective date of termination?" is that which the industrial tribunal reached. Both parties were therefore bound and we can see no sufficient justification to give the wording of the statute a special meaning so as to treat the termination as not having taken effect until a date later than that which the employee and the employers had agreed was the date of termination."
1 Citers


 
Mirror Group Newspapers v Gunning [1986] ICR 145; [1986] 1 WLR 546; Times, 06 November 1985; [1986] IRLR 26
1985
CA
Oliver LJ, Balcombe LJ, Sir David Cairns
Discrimination, Employment
The claimant sought to have transferred to her, her father's agency for the wholesale distribution of Sunday newspapers. The claimant alleging sex discrimination after being refused. The company said that she was not an employee within the 1975 Act. Held: The statutory definition of employment went beyond the relationship of master and servant; "what is contemplated by the legislature in this extended definition is a contract the dominant purpose of which is the execution of personal work or labour." The parties anticipated that the claimant would carry out the work personally, but there was no obligation in the agreement to do that. There was no evidence that the agent was required personally to carry out the work though his personality was important and his personal involvement might be regarded as desirable. The dominant purpose of the contract was to ensure that newspapers were efficiently distributed. For a contract to fall within the Act, the claimant had to establish that the dominant purpose of the contract was to require the work to be carried out personally by the claimant. "However I do accept Mr. Irvine's alternative submission that the phrase in its context contemplates a contract whose dominant purpose is that the party contracting to provide services under the contract performs personally the work or labour which forms the subject matter of the contract."
Sex Discrimination Act 1975 82(1)
1 Citers


 
Kent County Council v Gilham [1985] ICR 233
1985
CA
Griffiths LJ
Employment
If on the face of it the reason given by the employer could justify the dismissal, then it is a substantial reason and the tribunal's enquiry should then move on to consider the fairness of the dismissal. Griffiths LJ said that at the stage of considering whether an employer has established some other substantial reason for dismissal: "The hurdle over which the employer had to jump at this stage of an enquiry into an unfair dismissal complaint is designed to deter employers from dismissing employees for some trivial or unworthy reason. If he does so, the dismissal is deemed unfair without the need to look further into its merits. But if on the face of it the reason could justify the dismissal, then it passes as a substantial reason, and the enquiry moves on to s.57(3) [the equivalent to what is now at s.98(4)], and the question of reasonableness."
1 Citers


 
Green v A and I Fraser (Wholesale Fish Merchants) Ltd [1985] IRLR 55
1985
EAT
Lord McDonald MC
Employment
EAT One of four drivers was to be made redundant. The claimant had the shortest service and was selected on this basis. He said that another employee, with occasional driving duties and shorter service should have been selected. Held: The appeal failed. The dismissal was not unfair. There was no general principle requiring an employer to consider employees with different positions, since the requirement to show that the employer had acted reasonably had now been removed.
Lord McDonald MC said: "In certain circumstances in making a selection for redundancy, an employer should not confine himself to employees holding similar positions in the same undertaking . . We do not consider that this case lays down any hard and fast principle which must be followed in every other case irrespective of the circumstances." He concluded: "In our view the proper approach to this matter is as follows. S.57(3) raises the question of reasonableness. As has been said in a number of recent cases this is a situation in which one employer may act in a certain way and act perfectly reasonably and another employer in identical circumstances may act in the opposite way and still act perfectly reasonably. There is in short what has been described as a band of reasonableness and the actions of an employer will only be unfair if it is shown that they fell outwith that band."
1 Citers


 
Lewis v Motorworld Garages Ltd [1986] ICR 157; [1985] IRLR 46
1985
CA
Glidewell LJ, Neill LJ
Employment
The court considered the circumstances under which an employee might resign and successfully claim constructive dismissal.
Glidewell LJ said: "This breach of this implied obligation of trust and confidence may consist of a series of action on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term? " This is the 'last straw' doctrine." and
"This case raises another issue of principle which, so far as I can ascertain, has not yet been considered by this court. If the employer is in breach of an express term of a contract, of such seriousness that the employee would be justified in leaving and claiming constructive dismissal, but the employee does not leave and accepts the altered terms of employment; and if subsequently a series of actions by the employer might constitute together a breach of the implied obligation of trust and confidence; is the employee then entitled to treat the original action by the employer which was a breach of the express terms of the contract as a part - the start - of a series of actions which, taken together with the employer's other actions, might cumulatively amount to a breach of the implied terms? In my judgment the answer to this question is clearly 'yes'.
It follows, in my judgment, then in the present case the industrial tribunal should have asked themselves the question whether the employer's treatment of the employee starting with the demotion in November 1981 including reduction in pay, the loss of the use of the use of an office and the various memoranda of complaint in 1982, culminating in that of 2 August 1987, cumulatively constituted a breach of the implied obligation of trust and confidence of sufficient gravity to justify the employee in leaving his employment in August 1982 and claiming that he had been dismissed. Did the Tribunal ask themselves this question, and if so how did they answer it? In so posing the question, I realise that I am, with respect, disagreeing with the approach of the appeal tribunal."
Neill LJ said: "Moreover where an employee complains that he has been constructively dismissed, it is necessary for him to prove that he terminated the contract in circumstances such that he was entitled to terminate it without notice by reason of the employer's conduct: see section 55(2) of the Act of 1978. The conduct must be repudiatory and sufficiently serious to enable the employee to leave at once. On the other hand it is now established that the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of the contract of employment that the employer will not, without reasonable and proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see Woods v W.M. Car Services (Peterborough) Ltd. [1981] ICR 666 in the Employment Appeal Tribunal."
1 Cites

1 Citers


 
Davidson v John Calder (Publishers) Ltd and Another [1985] ICR 143
1985


Employment

1 Citers


 
William Muir (Bond 9) Ltd v Lamb [1985] IRLR 95
1985
EAT

Employment, Scotland
The employee was found to have been unfairly dismissed, but he had not pursued his internal appeal rights. Held: A failure by a dismissed employee to appeal against his dismissal could not amount to a failure to mitigate his losses within section 74(4).
Lord McDonald MC said: "The appellants accept the finding of unfair dismissal. They argue however that, because she declined to follow the internal appeal procedure, she had therefore failed to mitigate her loss. The suggestion was made to us that we should take account of this and reduce the award of compensation by 50%.
We take it to be clearly established that there is no obligation upon an employee who is dismissed to follow up an internal appeal procedure before making application to an industrial tribunal. This in our opinion is clear from the case of Chrystie v. Rolls Royce (1971) Ltd [1976] IRLR 336 and Hoover Ltd v. Forde [1980] ICR 239. It is true that in the latter case an industrial tribunal had found that had the dismissed employee availed himself of the appeal procedure the decision to dismiss him might have been rescinded and on that ground apparently his compensation was reduced by 50%. We are bound to say that we have great difficulty in accepting the reasoning in that case. It seems to us to be purely speculative to attempt to assess what would have happened in the event of an appeal being taken. There are many imponderable factors. One is the manner in which the appeal is handled. Another is the person or persons to whom the appeal lies. In an industrial situation it may very often happen that an employee who has been dismissed considers that there is no point in him following up the internal appeal procedure because he does not have confidence in the persons who would hear that appeal. It would therefore be quite wrong in our view to penalise an employee who has been unfairly dismissed by reducing her compensation because she did not follow through whatever internal appeal procedure may have existed.
That is enough to decide the case in favour of the respondent and the appeal is therefore dismissed."
Employment Protection (Consolidation) Act 1978 74(4)
1 Citers


 
Berriman v Delabole Slate Ltd [1985] ICR 546; [1985] IRLR 305
1985
CA
Browne-Wilkinson LJ
Employment
Browne-Wilkinson LJ described the potential difficulty of fitting together the concept of fairness and a constructive dismissal, but said: "In our judgment, the only way in which the statutory requirements . . can be made to fit a case of constructive dismissal is to read . . as requiring the employer to show the reasons for their conduct which entitled the employee to terminate the contract thereby giving rise to a deemed dismissal by the employer. We can see nothing in the decision in Savoia . . which conflicts with this view." and
"Applying those provisions to the present case, the first question was whether Mr Berriman was constructively dismissed by the company’s attempt to impose on him a lower guaranteed wage. The Industrial Tribunal held that he was constructively dismissed and the company did not challenge this finding in the EAT. The next question was whether the company’s reason for dismissing Mr Berriman was the transfer of the undertaking to the company or a reason connected with it so as to bring the case within regulation 8(1). The Industrial Tribunal held that it was and that accordingly the dismissal was rendered unfair by regulation 8(1). The next question was whether the case was taken out of the automatic unfairness provided for by regulation 8(1) in that the company’s reason or principal reason for dismissing Mr Berriman was an ‘economic, technical or organisational reason entailing changes in the workforce’. The Industrial Tribunal held that the company’s reason for dismissal was such a reason, but the EAT reversed them on this point holding that, although the reason for dismissal was an economic, technical or organisational reason, such reason did not ‘entail changes in the workforce’. Finally, the Industrial Tribunal decided that the dismissal of Mr Berriman was fair within the meaning s57(3). That finding was challenged before the EAT who did not decide the point: there is no respondent’s notice raising the point before us."
1 Cites

1 Citers


 
Anderson v Dalkeith Engineering Ltd [1985] ICR 66
1985
EAT

Employment
The tribunal outlined the correct approach to article 8 of the regulations: "Regulation 8, however, is of significance in the present case. Regulation 8(1) provides for the case where an employee either of the transferor or the transferee is dismissed, whether before or after the date of transfer. If the reason or principal reason for the dismissal is the transfer or a reason connected with it the dismissal is deemed to be automatically unfair. Prima facie the applicants fall within this provision. It is necessary, however, to consider the terms of regulation 8(2)."
Transfer of Undertakings (Protection of Employment) Regulations 1981 8
1 Citers



 
 Richmond Precision Engineering Ltd v Pearce; EAT 1985 - [1985] IRLR179

 
 Regina v Secretary of State for Foreign and Commonwealth Affairs, ex parte Pirbhai; CA 1985 - (1985) 107 ILR 462

 
 Medallion Holidays Ltd v Birch; 1985 - [1985] ICR 578; [1985] IRLR 406
 
Harris' Patent [1985] RPC 19
1985

Falconer J
Intellectual Property, Employment
Harris was the manager of the Wey valve department of his employer. In August 1978 he was told he would be made redundant, and left in December. In the meantime he devised an improvement to the Wey valve and applied for a patent in January 1979. The employer claimed to be entitled to the invention and instituted the requisite proceedings. The Hearing Officer decided that the invention belonged to Harris. Held: The employer's appeal failed. The court did not decide the question of whether section 39 is declaratory of the pre-existing common law, but said that sections 39(1) and (2) and 42(1) and (2) showed that Parliament intended that rights to an employee's invention "are to be governed by, and only by, the provisions of s.39". He did not rule out considering the pre-existing case law for guidance but "it is the provisions of section 39 to which regard must be had for the law governing any employee's invention made after the appointed day".
The court asked what were his normal duties at the material time, and whether the invention in suit was made by him in carrying out those duties. As to the first issue the employee's duty of fidelity to his employer did not assist in the formulation of the actual duties which the employee is employed to carry out. As to the second requirement "that is to say, whether the circumstances were such that an invention might reasonably be expected to result from his carrying out those duties, Miss Vitoria submitted that the circumstances referred to in paragraph (a) must be the circumstances in which the invention was made; and it seems to me that submission must be right. Mr. Pumfrey, in the course of his argument, pointed out that the wording of the paragraph was "an invention might reasonably be expected to result" and not "the invention might" and so on. But plainly, the wording "an invention" cannot mean any invention whatsoever; it is governed by the qualification that it has to be an invention that "might reasonably be expected to result from the carrying out of his duties" by the employee. That wording applies equally to the second alternative in paragraph (a), that of "specifically assigned" duties falling outside the employee's normal duties; and, therefore, in my judgment the wording "an invention might reasonably be expected to result from the carrying out of his duties" must be referring to an invention which achieves, or contributes to achieving, whatever was the aim or object to which the employee's efforts in carrying out his duties were directed, in the case of alternative (i) of paragraph (a) his normal duties being performed at the time; in the case of alternative (ii) of paragraph (a) the specifically assigned duties, that is to say, such an invention as that made, though not necessarily the precise invention actually made and in question. The circumstances to be taken into account for the purposes of paragraph (a) of section 39(1) will, of course, depend on the particular case, but clearly a circumstance which must always loom large will be the nature of the employee's duties, either his normal duties or the specifically assigned duties, as the case may be. The nature of Mr. Harris's normal duties have to be examined, therefore, from this aspect also."
Patents Act 1977 39(1)(a)
1 Citers



 
 Westwood v Secretary of State for Employment; HL 1985 - [1985] AC 20; [1984] 1 All ER 874

 
 Royal Philanthropic Society v County; CA 1985 - (1985) 276 EG 1068; [1986] 18 HLR 83
 
Bliss v South East Thames Regional Health Authority [1985] IRLR 308; [1987] ICR 700
1985
CA
Dillon LJ
Damages, Employment
General damages cannot be awarded for frustration, mental distress or injured feelings arising from an employer’s breach of the implied term of confidence and trust. Dillon LJ said that damages for mental distress in contract are limited to certain classes of case including "where the contract which has been broken was itself a contract to provide peace of mind or freedom from distress."
Dillon LJ set out the position on constructive dismissal: "It follows that I agree with the judge that the authority was in breach of contract in requiring the plaintiff to submit himself to medical examination and in suspending him when he refused to do so. I have no doubt that the breach was a continuing breach, so long as the suspension lasted.
Was it then a repudiatory breach, which would entitle the plaintiff to treat the contract as at an end and claim damages on that footing?
It is common ground on the pleadings that it was an implied term of the plaintiff's contract that the authority would not without reasonable cause conduct itself in a manner likely to damage or destroy the relationship of confidence and trust between the parties as employer and employee. There is ample authority in employment cases to warrant the implication of such a term. The authority was in breach of that term, and the question is whether that breach was fundamental, or repudiatory, or not."
. . and: "There must be some breaches at least of such an implied term which are fundamental and repudiatory and go to the root of the contract, and if ever there was a breach of such a term going to the root of the contract, it was this. It would be difficult in this particular area of employment law to think of anything more calculated or likely to destroy the relationship of confidence and trust which ought to exist between employer and employee than, without reasonable cause, to require a consultant surgeon to undergo a medical, which was correctly understood to mean a psychiatric examination, and to suspend him from the hospital on his refusing to do so."
1 Citers


 
Birds Eye Walls Ltd v Harrison [1985] ICR 278; [1985] IRLR 47
1985
EAT

Employment
The employee sought to amend his pleadings to add an allegation that the employer had failed to disclose documents, allowing a misleading impression to be left. The rules prevailing in Employment Tribunals made no express provision for disclosure of documents. Held: " The omission from the Rules of any duty of disclosure in the absence of a formal discovery order must, we agree, be presumed to have been deliberate. Nevertheless, the freedom of a party to keep documents up his sleeve must be subject to some limitation to prevent it from being abused as an instrument of fraud or oppression . . We therefore accept the general proposition that no party is under any obligation, in the absence of an order from the [Employment Tribunal] to give discovery in the Tribunal proceedings. That is subject, however, to the important qualification that any party who chooses to make voluntary discovery of any document in his possession or power must not be unfairly selective in his disclosure. Once, that is to say, a party has disclosed certain documents (whether they appear to him to support his case or for any other reason) it becomes his duty not to withhold from disclosure any further documents in his possession or power (regardless of whether they support his case or not) if there is any risk that the effect of withholding them might be to convey to his opponent or to the Tribunal a false or misleading impression as to the true nature purport or effect of any disclosed document"

 
Morris v Secretary of State for Employment [1985] ICR 522
1985
EAT

Insolvency, Employment
The claimant's employer had become insolvent, and the claimant sought his unpaid salary amounting to £290. The respondent applied the statutory limit of £140.00, and then deducted tax and NI. Held: M's appeal failed. The statutory limit applied to the gross amount to be paid. The calculation was correct.
Employment Protection (Consolidation) Act 1978 122(5)
1 Citers


 
Saeed v Greater London Council (Inner London Education Authority) [1985] ICR 637
1985

Popplewell J
Criminal Practice, Employment
The plaintiff had been acquitted of assaulting a child at the school. His employers nevertheless brought disciplinary proceedings alleging misconduct identical to those which had formed the basis of the previous criminal proceedings. The plaintiff sought a declaration that the disciplinary proceedings were unlawful in contravening the rule against double jeopardy. Held: Double jeopardy in such a case means the peril of being convicted twice in a court of competent jurisdiction. The disciplinary body is not a court of competent jurisdiction; and it applies a different standard of proof.
1 Citers



 
 Birch and Humber v The University of Liverpool; CA 1985 - (1985) IRLR 87; [1985] ICR 470; [1985] EWCA Civ 8
 
Hellyer Bros Limited v McLeod [1986] ICR 122
1985
EAT
Waite J
Employment
Waite J said: "If we are satisfied that a conclusion reached as a result of a misdirection is plainly and unarguably wrong upon the facts found by the industrial tribunal and those facts do not require further amplification or reinvestigation, then we are entitled and bound to substitute our own conclusion as to what those findings require in law."
1 Cites

1 Citers


 
Jeetle v Elster [1985] ICR 389
1985
EAT
Beldam J
Employment
The EAT considered the decision in Mansi: "Looked at as a whole, paragraph 17(5) [that is the paragraph then in force] is quite clearly intended to be a comprehensive provision to cover changes in the composition of those who comprise an 'employer' in cases of partnership, personal representatives or trustees. We think there is no reason for taking the view that the legislature intended different considerations to apply to partners from those applying to personal representatives or trustees. It is only because the word 'partner' has the particular attribute of 'sharing with another' that the observations of Sir John Donaldson have point. It is permissible, where the context so allows, to construe words used in the plural as including the singular. The clear indication, we think, of sub-paragraph (5) is that any change in the partners (which might include, for example, the retirement of one of two partners) is not to break the continuity of the period of employment. Where the sub-paragraph says 'shall count as a period of employment with the partners' what is meant is 'with the partners or any one of them who was previously the employer in his capacity of partner in the organisation, trade or business, as the case may be'. So we would have declined to follow the observations in Harold Fielding Ltd v Mansi [1974] ICR 347." and "Where the sub-paragraph says 'shall count as a period of employment with the partners' what is meant is 'with the partners or any one of them who was previously the employer in his capacity of partner in the organisation, trade or business, as the case may be."
1 Cites

1 Citers


 
Arie Botzen And Others v Rotterdamsche Droogdok Maatschappij Bv C-186/83; R-186/83; [1985] EUECJ R-186/83; [1985] ECR 519
7 Feb 1985
ECJ

Employment
ECJ Article 3(1) covered the rights and obligations of the transferor arising from a contract of employment or an employment relationship existing on the date of the transfer and entered into with employees who, in order to carry out their duties, are assigned to the part of the undertaking or business transferred
Rotterdamsche . . claims that only employees working full-time or substantially full-time in the transferred part of the undertaking are covered by the transfer of employment relationships, to the exclusion of those engaged in partial tasks in various businesses or parts of businesses and those who, although working for several businesses or parts of businesses, form part of the remaining staff.
On the other hand, the Commission considers that the only decisive criterion regarding the transfer of employees' rights and obligations is whether or not a transfer takes place of the department to which they were assigned and which formed the organisational framework within which their employment relationship took effect.
The Commission's view must be upheld. An employment relationship is essentially characterised by the link existing between the employee and the part of the undertaking or business to which he is assigned to carry out his duties. In order to decide whether the rights and obligations under an employment relationship are transferred under Directive 77/187 by reason of a transfer within meaning of article 1(1) thereof, it is therefore sufficient to establish to which part of the undertaking or business the employee was assigned."
1 Citers

[ Bailii ]
 
Spencer and Another v Gloucestershire County Council [1985] EWCA Civ 14
19 Jun 1985
CA
Sir John Donaldson MR, Neill LJ, Balcombe LJ
Employment

[ Bailii ]
 
Foreningen Af Arbejdsledere I Danmark v A/S Danmols Inventar, In Liquidation C-105/84; R-105/84; [1985] EUECJ R-105/84; [1985] ECR 2639; [1985] ECR 2639
11 Jul 1985
ECJ

European, Employment
Europa Article 1(1) of Council Directive no 77/187 does not apply to the transfer of an undertaking, business or part of a business where the transferor has been adjudged insolvent and the undertaking or business in question forms part of the assets of the insolvent transferor, although the member states are at liberty to apply the principles of the directive to such a transfer on their own initiative. However, the mere fact that the transfer has occurred after the transferor has suspended payment of its debts is not sufficient to exclude the transfer from the scope of the directive.
Article 3(1) of council directive no 77/187 must be construed as not covering the transfer of the rights and obligations of persons who were employed by the transferor at the date of the transfer, but who, by their own decision , do not continue to work as employees of the transferee.
The expression 'employee' within the meaning of directive no. 77/187 must be interpreted as covering any person who , in the member state concerned, is protected as an employee under national employment law. It is for the national court to establish whether that is the case.
1 Citers

[ Bailii ]
 
De Souza v Automobile Association [1985] EWCA Civ 13; [1986] IRLR 103; [1986] ICR 514
19 Dec 1985
CA
May LJ
Employment, Discrimination
The claimant appealed against a finding that there had been no race discrimation in her case. She had overheard a manager refer to her as 'the wog'. She said that this was sufficient to mean that she suffered a detriment. The employer replied that the word detriment shouldbe looked at not by the effect on the employee, but by the objective difference in treatment by the employer. Held: The claim failed. May LJ said "Apart from the actual decisions in these cases I think that this necessarily follows upon a proper construction of section 4 and in particular Section 4(2)(c) of the Act. Racially to insult a coloured employee is not enough by itself, even if that insult caused him or her distress; before the employee can be said to have been subjected to some "other detriment" the Court or Tribunal must find that by reason of the acts or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work."
Race Relations Act 1976 4
1 Cites

1 Citers

[ Bailii ]
 
Derrybaa Ltd v Castro Blanco [1986] ICR 546
1986
EAT
Popplewell J
Employment
The rules required a notice to be sent not less than 14 days before a date fixed for a hearing. Held: The word "send" in Rule 5 refers to the date when the notice is received or deemed to have been received under the Interpretation Act. In so concluding, it relied upon section 7 of that Act. Popplewell J said: "In the present case the Regulations provide an authorised service by post. In our judgment, that therefore requires this appeal tribunal and the industrial tribunal to have regard to the Interpretation Act 1978. If regard is had to the Interpretation Act 1978, it is the date of deemed receipt or actual receipt (it matters not in this case) to be applied and not the date on which it is sent and we see nothing in the Regulations to lead us to a contrary view. There is nothing to suggest that there is anything in the Regulations where the contrary intention appears."
Interpretation Act 1978 7
1 Citers


 
Hennessy v Craigmyle and Co Ltd [1986] ICR 461
1986
CA
Sir John Donaldson MR
Employment
Sir John Donaldson MR said: "It is too often forgotten that, in the context of appeals from the Employment Appeal Tribunal, the Court of Appeal is a second tier of the appellate court . . second tier appellate courts are primarily concerned with the correctness of the trial court's decision."
1 Citers



 
 SH Muffett Ltd v Head; EAT 1986 - [1986] IRLR 488; [1987] ICR 1
 
Nikitas v Solihull Metropolitan Borough Council [1986] ICR 291
1986
EAT
Waterhouse J
Employment
An interlocutory order once made may be revisited by the Employment Tribunal. Waterhouse J said: "It is abundantly clear, therefore, that interlocutory orders do not constitute a decision within the meaning of the Industrial Tribunal (Rules of Procedure) Regulations 1980. Moreover, the power of review provided by rule 10(1) applies only to a decision within the meaning of the Rules. It follows that neither the full tribunal not the chairman sitting alone has power to review interlocutory orders previously made or the refusal of such orders within the provisions of rule 10. When a party to proceedings before a tribunal is dissatisfied with an interlocutory order that has been made, or by the refusal of an interlocutory order, it is clear that his remedy is to apply again to the tribunal for directions in accordance with the provisions of rule 13(2). Accordingly, the chairman of the tribunal in this case was entitled to deal with the applications made by the employee following the hearing on 3 June 1981, as applications for further directions within the terms of rule 13(2), and to adjudicate upon them in the way that he did."
Industrial Tribunal (Rules of Procedure) Regulations 1980
1 Citers


 
Neale v Hereford and Worcester County Council [1986] ICR 471
1986
CA
May LJ, Ralph Gibson LJ, Stocker LJ
Employment
May LJ said that the decision of an employer's disciplinary hearing: "neither the EAT nor this Court could disturb their decision unless one could say in effect 'My goodness, that is certainly wrong'." He discussed the test for an apellate court finding perversity in a tribunal's judgment, saying that:"is that an appellate court can very easily persuade itself that, as it certainly would not have reached the same conclusion, the Tribunal that did so was `certainly wrong'. The more dogmatic the temperament of the judges, the more likely they are to take that view. That is a classic non sequitur. It does not matter whether, with whatever degree of certainty, the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal was a permissible option. To answer that question in the negative in the context of employment law the EAT will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self misdirection in law by the industrial tribunal. If it cannot do this it should re-examine with the greatest care its preliminary conclusion that the decision under appeal is not a permissible option and has to be characterised as perverse."
1 Citers



 
 Haughton v Olau Line (UK) Ltd; CA 1986 - [1986] ICR 357
 
Barretts and Baird (Wholesale) Ltd v Institution of Professional Civil Servants (IPCS) [1986] IRLR 331
1986

Henry J
Torts - Other, Employment
A strike by civil servants in the Ministry of Agriculture in support of a pay claim was not intended to cause damage to an abattoir which was unable to obtain the certificates necessary for exporting meat and claiming subsidies. The damage to the abattoir was neither the purpose of the strike nor the means of achieving that purpose, which was to put pressure on the government.
1 Cites

1 Citers


 
Miller v Hamworthy Engineering Ltd [1986] ICR 846
1986
CA

Employment

1 Citers



 
 Davies v Presbyterian Church of Wales; HL 1986 - [1986] ICR 280; [1986] 1 WLR 323; [1986] IRLR 194

 
 Faccenda Chicken Ltd v Fowler; CA 1986 - [1987] Ch 117; [1986] 1 All ER 625
 
West Midlands Co-operative Society v Tipton [1986] ICR 192; [1986] 1 All ER 513
1986
HL
Lord Bridge of Harwich
Employment
All information available to an employer at the date of the termination of the employment relationship is relevant when considering the fairness of dismissal, and also any information becoming available during the course of, for example, an internal appeal, even post-termination, is relevant.
Lord Bridge of Harwich said: "Both the original and the appellate decision by the employer, in any case where the contract of employment provides for an appeal and the right of appeal is invoked by the employee, are necessary elements in the overall process of terminating the contract of employment. To separate them and consider only one half of the process . . is to introduce an unnecessary artificiality." After considering the Savage case, Lord Bridge said: "Adopting the analysis which found favour in J Sainsbury Ltd v Savage, [1981] ICR I, if the domestic appeal succeeds the employee is reinstated with retrospective effect; if it fails the summary dismissal takes effect from the original date. Thus, in so far as the original dismissal and the decision on the domestic appeal are governed by the same consideration, sc the real reason for dismissal, there is no reason to treat the effective date of termination as a watershed which separates the one process from the other."
1 Cites

1 Citers



 
 Secretary of State for Employment v Spence; CA 1986 - [1986] ICR 651; [1987] QB 179

 
 Polkey v A E Dayton Services Limited; CA 1986 - [1987] 1 All ER 984; [1987] 1 WLR 1147; [1987] IRLR 503
 
Hannan v TNT-IPEC (UK) Ltd [1986] IRLR 165
1986


Employment
Even where an Employment Tribunal upholds a dismissal as fair, on a reason not pleaded or argued, there may be no error if, in reality, the matter is one of mere relabeling


 
 RSPCA v Cruden; EAT 1986 - [1986] ICR 205; [1986] IRLR 83
 
National Coal Board v National Union of Mineworkers [1986] IRLR 439; [1986] ICR 736
1986

Scott J
Employment
A collective agreement between employer and the recognised trades union was 'inapt to become enforceable terms of an individual's contract of employment.' Such collective agreements may deal with the appropriate mechanisms for dealing with industrial disputes or for collective bargaining, matters patently not intended to be legally enforceable by the individual employee.
1 Citers



 
 Jacques v Amalgamated Union of Engineering Workers; 1986 - [1986] ICR 683
 
Roberts v Tate and Lyle (Judgment) C-151/84
26 Feb 1986
ECJ

European, Employment, Discrimination
Europa The term ' dismissal ' contained in article 5(1) of directive no 76/207 must be given a wide meaning ; an age limit for the compulsory redundancy of workers as part of a mass redundancy falls within the term ' dismissal ' construed in that manner, even if the redundancy involves the grant of an early retirement pension.
In view of the fundamental importance of the principle of equality of treatment for men and women, article 1 (2) of directive no 76/207 on the implementation of that principle as regards access to employment and working conditions, which excludes social security matters from the scope of the directive, must be interpreted strictly. It follows that the exception to the prohibition of discrimination on grounds of sex provided for in article 7 (1)(a) of directive no 79/7 on the progressive implementation of the principle of equal treatment in matters of social security applies only to the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits.
Article 5 (1) of directive no 76/207 must be interpreted as meaning that a contractual provision which lays down a single age for the dismissal of men and women under a mass redundancy involving the grant of an early retirement pension, whereas the normal retirement age is different for men and women, does not constitute discrimination on grounds of sex, contrary to community law.


 
 Spijkers v Gebroeders Benedik Abattoir; ECJ 18-Mar-1986 - [1986] 2 CMLR 296; C-24/85; [1986] ECR 1119; R-24/85; [1986] EUECJ R-24/85

 
 Bilka-Kaufhaus v Webers Von Hartz; ECJ 13-May-1986 - [1986] ECR 1607; [1987] ICR 110; C-170/84; R-170/84; [1986] EUECJ R-170/84; [1984] IRLR 317
 
McDermid v Nash Dredging and Reclamation Co Ltd [1986] 3 WLR 45; [1986] 2 All ER 676 CA; [1986] QB 965; [1986] UKHL 5
2 Jul 1986
HL
Lord Brandon
Employment, Health and Safety
The Court explained the duty of an employer towards his employees as regards their safety: "an employer owes to his employee a duty to exercise reasonable care to ensure that the system of work provided for him is a safe one. Secondly, a provision of a safe system of work has two aspects: (a) the devising of such a system and (b) the operation of it. Thirdly, the duty concerned has been described alternatively as either personal or non-delegable. The meaning of these expressions is not self-evident and needs explaining. The essential characteristic of the duty is that if it is not performed it is no defence for the employer to show that he delegated his performance to a person, whether his servant or not his servant, whom he reasonably believed to be competent to perform it. Despite such delegation the employer is liable for the non-performance of the duty."
1 Citers

[ Bailii ]
 
Hartmut Scharf v Commission [1986] EUECJ C-292/84
21 Oct 1986
ECJ

Employment

1 Cites

1 Citers

[ Bailii ]
 
Evening Standard Co Ltd v Henderson [1986] EWCA Civ 9; [1987] IRLR 64; [1987] ICR 588
7 Nov 1986
CA
Lawton LJ
Employment
The plaintiffs sought to restrain their production manager from taking up employment with another company in breach of a one year notice provision. The other company was a rival of the plaintiffs. The plaintiffs undertook to continue paying the defendant's salary, and were ready and willing for him to continue working for them. Held: The injunction was granted.
Lawton LJ said: "the injunction must not force the defendant to work for the Plaintiffs and it must not reduce him, certainly, to a condition of starvation or to a condition of idleness, whatever that may mean on the authorities on this topic. But all that, in my judgement, is overcome by the fact that the Plaintiffs have made the offer they have. The Defendant can go back to work for them. If he elects not to go back (and it will be a matter entirely for his election: there will be nothing in the judgment which forces an election on him) he can receive his salary and full contractual benefits under his contract until such time as his notice would have expired had it been for the proper period."
1 Citers

[ Bailii ]
 
National Coal Board v Ridgway [1987] ICR 641
1987
CA
Nicholls and Bingham LJJ, May LJ dissenting
Employment
The Board employed miners belonging to two rival unions, the National Union of Mineworkers ("the NUM") and the Union of Democratic Mineworkers ("the UDM"), at the same colliery. The Board agreed to pay increased wages to members of the UDM but not to members of the NUM. On application by members of the NUM, the industrial tribunal had held that withholding the increase from the applicants was an "omission" amounting to "action (short of dismissal) taken against" them for the purpose of penalising them for being members of the NUM and thus was a contravention of section 23(1)(a). Held: The application of the definition "'act' and 'action' each includes omission and references to doing an act or taking action shall be construed accordingly;" to section 23(1) has the effect that, if an employer confers a benefit on employee A which he withholds from employee B, the omission to confer the benefit on B may. if the circumstances warrant such a finding, amount to 'action (short of dismissal) taken against" B for one of the purposes prohibited by section 23(1) irrespective of the question whether B had any reasonable expectation of receiving that benefit.
May LJ: "There must, at the least, have been some obligation to pay or some expectation of receipt to enable one to categorise the non-payment of U.D.M. rates to these applicants as an 'omission' on the part of the board to make such payments."
Nicholls LJ: "For an act to constitute 'action' within section 23 there does not need to be any reasonable expectation by the employee that the employer would not so behave. This being so, I see no justification for adding this requirement as a gloss on the language of the statute in the case of an 'omission'. To be within section 23 the conduct complained of has to have been done 'for the purpose of.' If it is for one of the requisite purposes that an employer omits to do something vis-à-vis the complainant employee as an individual then, whatever is the nature of the omission, it is impermissible."
Employment Protection (Consolidation) Act 1978 23(1)(a)
1 Citers



 
 Babcock FATA Ltd v Addison; CA 1987 - [1987] ICR 805; [1987] IRLR 173
 
Sim v Rotherham Metropolitan Borough Council [1987] Ch 216
1987

Scott J
Employment, Education
The 1870 Act applied where an employee’s contract was terminated in the course of a period at the end of which payment would be made. Scott J said: "Mr Goudie submitted that the real question was whether a teacher was entitled to be paid for the period of 35 minutes that he or she had not worked. Pay for that period, he said, had not been earned. In my judgment, this approach is fallacious. It involves regarding the teachers’ salaries as accruing minute by minute. There is no legal or factual justification for that view of the salaries. Under the contracts, the salaries are based on a yearly scale but are paid by monthly payments. Each month a contractual right to a salary payment vests in the teacher. By reason of section 2 of the Apportionment Act 1870, the salaries are deemed to accrue day by day. If a teacher’s contract were, in the middle of a month, to come to an end, by death, dismissal or some other event, section 2 would entitle the teacher, or his estate, to an apportioned part of the month’s salary payment,. So the salaries may be regarded as accruing day by day. But they do not accrue minute by minute."
Though the contract was silent on the issue, there was and implied obligation on the part of teachers to cover for absent colleagues during non-teaching periods if requested to do so.
Apportionment Act 1870 2
1 Citers


 
Wheeler v Patel [1987] ICR 631
1987
EAT
Scott J
Employment
The tribunal reviewed cases under the TUPE regulations. Having found: "There is no doubt that the transfer of the business from Mr Golding to Mr Patel was the reason, or was connected with the reason, for the employee's dismissal. So the case prima facie falls within regulation 8(1)." Held: "The ´economic' reasons apt to bring the case within paragraph (2) must, in our view, be reasons which relate to the conduct of the business. If the economic reasons were no more than a desire to obtain an enhanced price, or no more than a desire to achieve a sale, it would not be a reason which related to the conduct of the business. It would not in our judgment be an ´economic' reason for the purposes of paragraph (2)." On the facts, the case fell within Regulation 8(1), because it had not been shown that there was an economic reason within Regulation 8(2). The reason put forward did not relate to the conduct of the business. It simply related to the desire of the transferor to sell the undertaking.
1 Citers



 
 Hayward v Cammell Laird Shipbuilders Ltd (No. 2); CA 1987 - [1987] 2 All ER 344; [1987] ICR 682; [1987] 3 WLR 20; [1988] QB 12

 
 Heasmans v Clarity Cleaning Co; CA 1987 - [1987] ICR 949
 
Hellyer Bros Limited v McLeod [1987] ICR 526
1987
CA
Slade LJ
Employment
The employer appealed saying that the EAT had wrongly substituted its own opinion for that of the Tribunal. Held: The appeal was rejected. Looking at the totality of the facts found or otherwise referred to in the decision of the Industrial Tribunal, Slade LJ said: "They were such that no person acting judicially and properly instructed as to the law could have inferred that, at times when there was no subsisting crew agreement, the parties were still subject to mutual contractual obligations sufficient to found a global or umbrella contract of employment."
1 Cites

1 Citers



 
 Miles v Wakefield Metropolitan District Council; HL 1987 - [1987] ICR 368; [1987] 2 WLR 795; [1987] 1 AC 539; [1987] UKHL 15; [1987] IRLR 193; [1987] 1 All ER 1089; [1987] 1 FTLR 533

 
 Jacques v AUEW; 1987 - [1987] 1 All ER 621
 
Dowuona v John Lewis Plc [1987] ICR 788
1987


Employment

1 Citers



 
 Woodcock and others v Committee for the Time Being of the Friends School, Wigton; CA 1987 - [1987] IRLR 98

 
 Campion v Hamworthy Engineering; CA 1987 - [1987] ICR 966
 
Aldred v Nacanco [1987] IRLR 292
1987
CA

Employment, Vicarious Liability, Negligence
The claimant sought damages. At the end of the day, a co-employee tried to startle her by pushing an insecure washbasin against her, but caused her actual injury. Held: The plaintiff's appeal was dismissed. It was an independent act not sufficiently connected with the employment. An employer would be liable for acts actually authorised and for the way the employee carries out those acts. It was not foreseeable that the washbasin would cause injury, or that it would be used in this way.
1 Citers


 
T and D Transport (Portsmouth) Limited v Limburn [1987] ICR 696
1987
EAT
Popplewell J
Employment
The Respondent employers had not attended a hearing before the Industrial Tribunal. The hearing went ahead. The Respondents applied for a review of the decision (that the employee had been unfairly dismissed and should be compensated) on the ground that they had not received notice of the proceedings leading to the decision. The Tribunal, having heard evidence, concluded with regard to Section 7 of the 1978 Act that the employers had not displaced the presumption that notice of the hearing before the Industrial Tribunal had duly been served on them. Held: Popplewell, J rejected a submission that the section 7 had no application. He concluded: "We are all of the view that Section 7 does apply because Section 7 is not dealing merely with the question of the sending of a document, but also with the receipt. Although the word "receipt" is not used and the word is "serve" or "give" or "send", the phrase "the service is deemed to be effective" and "the service is deemed . . to have been effective" are words which indicate that the receipt of the document is inevitably bound up with the sending of it."
Interpretation Act 1978 7

 
Paul v NALGO [1987] IRLR 43
1987


Employment
The Certification Officer considered a challenged Union election, and said: "I take 'election' in this context to mean a process involving choice by nomination and, where there is more than one nomination, by vote."
Trade Union Act 1984
1 Citers


 
Snowball v Gardner Merchant [1987] IRLR 397
1987
EAT
Kilner Brown J
Employment
The employee claimed that she had been sexually harassed by her manager. In the course of her evidence the employers sought to cross-examine her as to her general attitude towards sexual matters, based on events which had occurred during the course of her employment. She denied the allegations put to her. The employers then sought to call evidence to establish the truth of those allegations; the employee objected. The Tribunal decided in the employers' favour. Held: The tribunal's decision was upheld. The evidence ought to be called, save insofar as it went only to establish an atmosphere of prejudice, was relevant both to the issue of credibility and to the issue of the extent of the alleged detriment and injury to feelings sustained by the employee.
The EAT doubted (obiter) the validity of the proposition in Rosedale that an Employment Tribunal has no power to exclude evidence which is admissible: "We have doubts about the validity of this proposition, because as we have said earlier in this judgment, our opinion is that the power extends in some cases to the exclusion of evidence which strictly may be admissible. In Rosedale Mouldings [1980] IRLR 387 the wrongly excluded evidence was highly probative and there was no room for balancing prejudice against probative value."
Industrial Tribunals (Rules of Procedure) Regulations 1985 Sch 1 8(1)
1 Cites

1 Citers


 
Bridgen v Lancashire County Council [1987] IRLR 58
1987
CA
Sir John Donaldson MR
Employment
The court considered a claim for constructive dismissal where the parties made a genuine mistake as to the test for anticipatory breach. Held: Sir John Donaldson MR said: "But, for my part, I would not have thought it necessary to give any particular time to this point because the essential features of a claim for constructive [dismissal] are two-fold; first, that the conduct of the employer relied upon must be such as to amount to a repudiation by him of the contract of service: it has to be, in popular language, expulsive conduct - to the lawyer repudiatory conduct; and, second, that the employee has left because of that conduct. The mere fact that a party to a contract takes a view of its construction which is ultimately shown to be wrong, does not of itself constitute repudiatory conduct. It has to be shown that he did not intend to be bound by the contract as properly construed. There is no finding by the Industrial Tribunal that that was the case here."
1 Cites

1 Citers


 
Balston Ltd v Headline Filters Ltd and Another [1987] FSR 330
1987

Scott J
Employment, Litigation Practice
The second defendant, whilst still during his notice period to leave employment by the plaintiff, began to make arrangements to start his own competing business, and solicited future business from a customer of the plaintiff. The plaintiff sought an interlocutory injunction. Held: The second defendant was free to set up such a business even whilst employed by the plaintiff. Though he might be in breach of contract by soliciting customers in the way he had, this was not an issue suitable for the interlocutary relief sought. A court should be careful to find a balance between the plaintiff's rights over its own confidential material, and the defendant's right to make use of his technical knowledge and experience to make his living.
Scott J discussed the enforcement of restrictive covenants in employment contracts: "The use of confidential information restrictions in order to fetter the ability of these employees to use their skills and experience after determination of their employment to compete with their ex-employer is, in my view, potentially harmful. It would be capable of imposing a new form of servitude or serfdom, to use Cumming-Bruce LJ's words [in G D Searle & Co Ltd v Celltech Ltd [1982] FSR 92], on technologically qualified employees. It would render them unable in practice to leave their employment for want of an ability to use their skills and experience after leaving. Employers who want to impose fetters of this sort on their employees ought in my view to be expected to do so by express covenant. The reasonableness of the covenant can then be subjected to the rigorous attention to which all employee covenants in restraint of trade are subject."
As to the use of injunctions: "These past breaches of duty . . cannot, in my judgment, sustain an interlocutory injunction on their own account. Whether an injunction, interlocutory or otherwise, can ever be justified on the ground that the grant is necessary in order to deprive a contract breaker of the fruits of his breach of contract, I regard as highly questionable."
1 Cites

1 Citers


 
Campion v Hanworthy Engineering Ltd [1987] ICR 966
1987
CA

Employment
The Court discussed the scope of the hearing in the Court of Appeal in an employment case.
1 Citers


 
Institute of Professional Civil Servants (IPCS) v Secretary of State for Defence [1987] IRLR 373
1987
ChD
Millet J
Employment
The legislative purpose of the provision of information as to a proposed transfer of an undertaking is to facilitate proper and effective consultation, though the transferor need only inform of those measures which he actually envisages will be implemented. Millett J said: 'The consultations referred to in the opening words of subsection (6) are voluntary consultations, which the unions may seek on any topic once they have the requisite information,, but which the transferring employer is not compelled to grant if he chooses not to do so.'
Transfer of Undertakings (Protection of Employment) Regulations 1981 - EC Directive 77/8187
1 Citers



 
 Hellyer Bros Limited v McLeod; CA 1987 - [1987] ICR 526

 
 Murco Petroleum Ltd v Forge; EAT 1987 - [1987] ICR 282
 
Institute of Civil Servants v Secretary of State for Defence [1987] IRLR 373
1987

Millett J
Employment
The Union complained on the proposed transfer of dockyards as to the consultation offered. Held: The transferor of a business entity need only inform its employees of those measures which he actually envisages will be implemented. It is open to either employer to consult voluntarily. The legislative purpose of the provision of information is to facilitate proper and effective consultation.
1 Citers



 
 Dietmann v Brent London Borough Council; CA 1987 - [1987] IRLR 146
 
Bristow v City Petroleum [1987] 1 WLR 529; [1987] 2 All ER 45; [1988] ICR 165; [1987] IRLR 340
1987
HL
Lord Ackner
Employment
Lord Ackner set out the history of the legialation restricting deductions by employers from wages.
Truck Act 1896
1 Citers


 
Association of University Teachers v University of Newcastle-upon-Tyne [1987] ICR 317
1987
EAT

Employment
The Employment Appeal Tribunal held that the definition of 'being redundant' in the 1992 Act covered the lack of further funding for the post of a lecturer employed under an Limited Term Contract and so the consultation duty should have been observed when the contract was not renewed.
Trade Union and Labour Relations (Consolidation) Act 1992
1 Citers


 
Thomas v University of Bradford [1987] 1 AC 795; [1987] 1 All ER 834; [1987] ICR 245; [1987] 2 WLR 677
1987
HL
Lord Griffiths
Administrative, Education, Employment
The lecturer sought an order for the University to comply with what he understood were its own rules. The House considered the availability of a remedy of certiorari in challenging a decision of the University visitors. Held: A university is not a public body and its decisions are not subject to judicial review. Where an applicant's Convention Rights, in particular Art 6, are not engaged then the matters in dispute would presently fall exclusively within the visitorial jurisdiction of the university - subject only to the possibility that any ultimate decision of the Board of Visitors might itself be judicially reviewable. Someone such as a professor may be both office holder and employee.
Lord Griffiths said: "the exclusivity of the jurisdiction of the visitor is in English law beyond doubt and established by an unbroken line of authority spanning the last three centuries from Philips v Bury (1694) Skin 447 to Hines v Birkbeck College (1985) 3 All ER 15L." and "I now turn to consider the scope of the visitatorial jurisdiction. The jurisdiction stems from the power recognised by the common law in the founder of an eleemosynary corporation to provide the laws under which the object of his charity was to be governed and to be sole judge of the interpretation and application of these laws either by himself or by such person as he should appoint as a visitor."
1 Cites



 
 Hamlet v General Municipal Boilermakers and Allied Trades Union; 1987 - [1987] ICR 150

 
 Roger Bullivant Ltd v Ellis; CA 1987 - [1987] ICR 464; [1987] IRLR 491; [1987] FSR 172

 
 Dietmann v London Borough of Brent; Wahlstron v Same; EAT 2-Jan-1987 - [1987] IRLR 259; [1987] ICR 387

 
 Council of Civil Service Unions v The United Kingdom; ECHR 20-Jan-1987 - 11603/85; [1987] ECHR 34; (1988) 10 EHRR CD269

 
 Meek v City of Birmingham District Council; CA 18-Feb-1987 - [1987] EWCA Civ 9; [1987] IRLR 250
 
J W Teuling v Bestuur Van De Bedrijfsvereniging Voor De Chemische Industrie. (Social Policy ) R-79/7; [1987] EUECJ R-79/7
11 Jun 1987
ECJ

European, Employment
Europa 1. Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 is to be interpreted as meaning that a system of benefits in respect of incapacity for work under which the amount of the benefit is determined in part by marital status and by the income earned from or in connection with work of a spouse is consistent with that provision if the system seeks to ensure an adequate minimum subsistence income for beneficiaries who have a dependent spouse or children, by means of a supplement to the social security benefit which compensates for the greater burdens they bear in comparison with single persons.
2. Article 4(1) of directive 79/7/eec is to be interpreted as meaning that legislation under which the guarantee previously applicable to all workers suffering from an incapacity for work whose income was approximately equal to the statutory minimum wage that their (net) benefits would be at least equal to the (net) statutory minimum wage is restricted to persons having a dependent spouse or child or whose spouse has a very small income is compatible with that provision.
[ Bailii ]
 
Fletcher v St Leonard's School [1987] UKEAT 25_87_1606
16 Jun 1987
EAT
Lord Mayfield
Employment
The appellant challenge rejection of his claim for unfair dismissal. Held: The appeal failed. "it is clear that the industrial tribunal were entitled to conclude that from an early date there were doubts about the appellant's performance, and his lack of communication with the rest of the staff."
[ Bailii ]
 
Bromley v H and J Quick Ltd [1987] UKEAT 97_87_2807
28 Jul 1987
EAT

Employment

[ Bailii ]
 
F Bolognese and others v H Scharf and Commission of the European Communities [1987] EUECJ C-292/84T
22 Sep 1987
ECJ

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

[ Bailii ]
 
MC v The United Kingdom [1987] ECHR 33; 11882/85
7 Oct 1987
ECHR
Norgaard P
Human Rights, Employment, Crime
(Commission - Admissibility)
[ Bailii ]

 
 Polkey v A E Dayton Services Limited; HL 19-Nov-1987 - [1988] ICR 142; [1987] 3 WLR 1153; [1988] AC 344; [1987] IRLR 503; [1987] UKHL 8; [1987] 3 All ER 974

 
 Commission of the European Communities v Grand Duchy of Luxembourg; ECJ 17-Dec-1987 - C-315/85; [1987] EUECJ C-315/85
 
Hooper v British Railways Board [1988] IRLR 517
1988
CA
Ralph Gibson LJ
Employment
Lord Justice Ralph Gibson said: "Before dealing with Mr Marr-Johnson's submissions reference must be made to what are, in my judgment, certain basic principles of the law of contract. (i) An offer which, upon acceptance, is relied upon as altering the legal relationship between the parties, must be construed objectively. Evidence to show what the offeror intended to be the meaning of the term is not admissible for that purpose: see Prenn v Simmonds (1971) 1 WLR 1381."
1 Citers


 
Duke v Prospect Training Services Ltd [1988] ICR 521
1988
EAT
Popplewell J.(President)
Employment
Use of tribunal's discretion to extend time for appeal.
1 Citers


 
Regina v Civil Service Appeal Board Ex Parte Bruce [1988] ICR 649
1988

May LJ, Roch J
Employment, Judicial Review
The court recognised that there could be terms of the appointment of a civil servant which could have legal effect. May LJ said: "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 (now of course an employment tribunal). The Courts should not be astute to hold that any particular dispute is appropriate for consideration under the judicial review procedure."
1 Citers


 
Octavius Atkinson and Sons Ltd v Morris [1988] ICR 880
1988
EAT

Employment
The employee, a steel erector, was summarily dismissed at 2:00. He arrived home at 4:00pm by which time the employer had discovered that alternate work was available which it would have been obliged to offer to him as an employee. Held: An employee's contractual entitlements and obligations under a contract of employment may continue after the date of termination by summary dismissal without indicating that the contract was intended to continue after the time when it was expressly terminated by summary dismissal. The employee remained employed until the time at which he reached home, and therefore at the precise time the employers became aware of the alternative, they remained obliged to make the offer.
1 Citers


 
Pename v Paterson [1989] ICR 12
1988
EAT

Employment
The employee had been taken on on a trial, and was told that he must give one week's notice or forfeit a week's wage. He left without notice, and the employer withheld his wage. Held: The deduction was unlawful unless the employee had agreed in writing beforehand.
Wages Act 1986 1(1)

 
General Medical Council v Goba [1988] ICR 885
1988
EAT

Employment, Discrimination

1 Citers


 
Mining Supplies (Longwall) Limited v Baker [1988] ICR 676
1988
EAT
Wood P
Employment, Damages
The unfairness of the Claimant's dismissal lay in the employer's failure to consult with him over his impending redundancy before dismissing him. Had they done so, the result would have been the same but dismissal would have been deferred for a short time. Held: If a proper procedure would have taken some time to go through and the result would have been the same, it would be just and equitable to award compensation during the period of employment up to the date of the putative dismissal. The loss during the notional consultation period was recoverable as a Head of Loss within the compensatory award.
1 Citers


 
Hayward v Cammell Laird Shipbuilders Ltd (No. 2) [1988] 2 All ER 257; [1988] ICR 464; [1988] 2 WLR 1134; [1988] AC 894
1988
HL
Lord Mackay of Clashfern LC, Lord Bridge, Lord Brandon and Lord Griffiths
Employment, Discrimination, European
A woman complained that she was not being paid as much as male colleagues who were doing work of equal value. An Act of Parliament had made certain provisions in that regard. Later, that Act had been amended for the purpose of complying with Community law and this had been done by regulations made under section 2(2) of the European Communities Act 1972. If the applicant has terms in her contract which are more favourable than equivalent terms in the comparator's contract the applicant keeps the benefit of those terms and in addition is entitled to have any less favourable term in her contract modified so as to be not less favourable than the equivalent term in the comparator's contract or, if the comparator has in his contract a beneficial term which does not appear in the applicant's contract, to have such a term included in her contract. It is not open to an employer to say "I have not modified that clause in the applicant's contract because although it is less favourable than the similar clause in the comparator's contract, looked at overall the applicant's contract is as favourable to her as the comparator's contract is favourable to him." Lord Mackay "Generally speaking primary legislation in the United Kingdom could confer a greater [employment] benefit on the appellant than she would be entitled to under the community legislation. The present case is special since the particular provisions on which the appellant relies for her case were inserted by regulations made under the European Communities Act 1972 and accordingly it might be questioned whether, if higher rights than those conferred under community law were provided in this way under domestic law, the making of the regulations was a proper exercise of the statutory power conferred by the European Communities Act 1972."
European Communities Act 1972 2(2)
1 Cites

1 Citers


 
General Engineering Services v Kingston and Saint Andrew Corporation [1988] 3 All ER 867
1988
PC

Employment, Vicarious Liability
There was a fire at the petitioner's premises. The firemen, employed by the respondent, were in an industrial dispute and drove to the fire slowly. The company claimed damages. Held: The respondent was not vicariously liable. The actions of the firemen were not a way of perfoming an authorised act.


 
 McAndrew v Prestwick Circuits Ltd; EAT 1988 - [1988] IRLR 514
 
Courtaulds Northern Spinning Ltd v Sibson [1988] ICR 451
1988
CA
Slade LJ
Employment
The employee driver had complained of a change in the base from which he was employed. The contract of employment was silent as to whether the employer had any right to transfer the employee from one depot to another, and the employer asked that a term could be implied. Held: The employer's appeal succeeded. An employee in this particular context could not reasonably have objected to an express term that he should be employed within daily travelling distance of his home or, if you please, within a reasonable distance of his home. Slade LJ said: "The court merely has to be satisfied that the implied term is one which the parties would probably have agreed if they were being reasonable."
1 Cites

1 Citers


 
West Midlands Passenger Transport Executive v Jaquand Singh [1988] 1 WLR 730; [1988] ICR 614
1988
CA
Balcombe LJ
Discrimination, Employment
The court identified 'a conscious or unconscious racial attitude which involves stereotyped assumptions' underlying discrimination. Statistical evidence may be used to establish a discernible pattern in the treatment of a particular group such as to give rise to an inference of discrimination.
1 Citers



 
 Dietmann v Brent London Borough Council; CA 1988 - [1988] ICR 842; [1988] IRLR 299

 
 Whitbread West Pennines Ltd v Reedy; CA 1988 - [1988] 20 HLR 642; [1988] ICR 807; Times, 23 July 1988
 
Kelly v Liverpool Maritime Terminals Limited [1988] IRLR 310
1988
CA
Taylor LJ, Glidewell LJ
Discrimination, Employment
An employee had no valid claim for unfair dismissal if illness prevented her from returning to work before the end of the twenty-nine week period after her confinement, allowing for only one statutory extension of 4 weeks. The applicant's maternity leave entitlement had come to an end and so had her contract of employment on the date at the end of the four week extension to her maternity leave on medical grounds. "The statutory scheme in relation to maternity leave entitles the employee to return to work within 29 weeks after the birth if appropriate notice is given. That period can be extended by four weeks once, but only once." and "I conclude that the contract terminated when the four-week extension of the maternity leave expired." and "In the event it was the problems with the pain in her back which prevented her from returning to work within the 29 week period after her confinement"
1 Citers


 
Ironmonger v Movefield Ltd t/a Deering Appointments [1988] IRLR 461
1988
EAT

Employment
A court should not infer that a person is an employee not an independent contractor only because he or she does not appear to be running a business. The tribunal should have applied the definition from the 1976 Regulations which defined a self employed person as some employed 'otherwise than under a contract of services or apprenticeship.'
Employment Protection (Consolidation) Act 1978 55 81(2)(b) 91(2) - Conduct of Emp[loyment Agencies and Employment Buisnesses Regulations 1976 (1976 No 715) 1 9(4) 9(6)(a)(I)
1 Citers


 
Whitbread and Co plc v Mills [1988] ICR 776; [1988] IRLR 501
1988
EAT

Employment
Where there had been defects in the procedure adopted at a disciplinary hearing, an appeal which was restricted to a review and was not a rehearing could not remedy the defects of the original hearing.
As to the case of Calvin v Carr: "Ultimately, an industrial tribunal has to answer the question whether the dismissal is fair, bearing in mind the wording of section 57(3) of the Employment Protection (Consolidation) Act 1978 and all the circumstances of the case including the equity and substantial merits. The issue is often posed in the form - has the employer, on the facts of the case as found by the Tribunal, and in all the circumstances, reached a decision which an employer could reasonably have reached? … It follows that the fairness issue must be decided after the appeal process has been completed."
As to the principles to be applied in deciding whether a hearing had been fair: "It would follow therefore that not every formality of legal or quasi-legal process is required during the disciplinary and appeal procedures. Each set of circumstances must be examined to see whether the act or omission has brought about an unfair hearing.
If it has, then whether or not an appeal procedure has rectified the situation must depend upon the degree of unfairness at the initial hearing. If there is a rehearing de novo at first instance, the omission may be corrected, but it seems to us that if there is to be a correction by the appeal then such an appeal must be of a comprehensive nature, in essence a rehearing and not a mere review. . . . This was not a rehearing in any sense of the word. It was simply a review of what had already occurred with further opportunity to making representations. It follows therefore, in our judgment, that the errors at the earlier hearing were not rectified."
Employment Protection (Consolidation) Act 1978 57(3)
1 Cites

1 Citers



 
 Isleworth Studios v Rickard; EAT 1988 - [1988] ICR 432

 
 Wileman v Minilec Engineering Ltd; 1988 - [1988] ICR 318
 
Strathclyde Regional Council v Wallace [1988] IRLR 146
1988
HL
Lord Browne-Wilkinson
Discrimination, Employment
Female teachers carried out the work of principal teachers but had not been appointed to the promoted post and were paid less than they would have received had they been so appointed. They claimed equal pay with male comparators who were appointed principal teachers. Like work was established and it was agreed that disparity in pay between the women and their male comparators was not based on sex. The tribunal had said that there was insufficient evidence to found a material factor defence in circumstances where there were a variety of reasons including financial restraints, administrative practices advanced by way of explanation for the failure to appoint, none of which were sex based. Held: There was no need for objective justification which only arose when the employer was relying on a factor that was gender discriminatory – something that was not an issue in that case. The Equal Pay Act was not concerned with fair wages but only with sex related pay discrimination whereas the objective sought by the applicants had been to achieve equal pay for like work regardless of sex and not to eliminate any inequalities due to sex discrimination. Lord Browne-Wilkinson: “To my mind it would be very surprising if a differential pay structure which had no disparate effect or impact as between the sexes should prove to be unlawful under the Equal Pay Act 1970. The long title to that act describes its purpose as being:
‘An Act to prevent discrimination, as regards terms and conditions of employment, between men and women.’” and
“The cases establish that the Equal Pay Act 1970 has to be construed so far as possible to work harmoniously both with the Sex Discrimination Act 1975 and article 119. All three sources of law are part of a code dealing with unlawful sex discrimination: see Shields v. E. Coomes (Holdings) Ltd. [1978] I.C.R. 1159 and Garland v. British Rail Engineering Ltd. [1982] I.C.R. 420. It follows that the words "not the difference of sex" where they appear in section 1(3) of the Equal Pay Act 1970 must be construed so as to accord with the Sex Discrimination Act 1975 and article 119 of the E.C. Treaty, i.e. an employer will not be able to demonstrate that a factor is "not the difference of sex" if the factor relied upon is sexually discriminatory whether directly or indirectly. Further a sexually discriminatory practice will not be fatal to a subsection (3) defence if the employer can "justify" it applying the test in the Bilka­Kauj7/C/us case [1987] I.C.R. 11O.
In North Yorkshire County Council v. Ratcliffe [1995] I.C.R. 833, 839, this House expressed the view, obiter, that the Equal Pay Act 1970 has to be interpreted without introducing the distinction between direct and indirect discrimination drawn by section I of the Sex Discrimination Act 1975. That dictum must not be carried too far.
Whilst there is no need to apply to the Equal Pay Act 1970 the hard and fast statutory distinction between the two types of discrimination drawn in the Sex Discrimination Act 1975, this House did not intend, and had no power, to sweep away all the law on equal pay under article 119 laid down by the European Court of Justice, including the concept of justifying, on Bilka grounds, practices which have a discriminatory effect on pay and conditions of service. The law on article 119, whilst recognising that in many cases there is a de facto distinction between direct and indirect discrimination, does not draw the same firm legal demarcation between the two as does the Sex Discrimination Act 1975 which permits justification of indirect discrimination but not of direct discrimination. The correct position under section l(3) of the Equal Pay Act 1970 is that, even where the variation is genuinely due to a factor which involves the difference of sex, the employer can still establish a valid defence under subsection (3) if he can justify such differentiation on the grounds of sex, whether the differentiation is direct or indirect. I am not aware as yet of any case in which the European Court of Justice has held that a directly discriminatory practice can be justified in the Bilka sense. However, such a position cannot be ruled out since, in the United States, experience has shown that the hard and fast demarcation between direct and indirect discrimination is difficult to maintain.
From what I have said, it is apparent that, in considering section 1(3) of the Equal Pay Act 1970, the only circumstances in which questions of "justification" can arise are those in which the employer is relying on a factor which is sexually discriminatory. There is no question 'of the employer having to "justify" (in the Bilka sense) all disparities of pay. Provided that there is no element of sexual discrimination, the employer establishes a subsection (3) defence by identifying the factors which he alleges have caused the disparity, proving that those factors are genuine and proving further that they were causally relevant to the' disparity in pay complained of.”

and: “In my judgment the law was correctly stated by Mummery J. giving the judgment of the Employment Appeal Tribunal in Tyldesley v. T. M. L. Plastics Ltd. [1996] I.C.R. 356, in which he followed and applied the earlier appeal tribunal decisions in Calder v. Rowntree Mackintosh Confectionery Ltd. [1992] I.C.R. 372 and Yorkshire Blood Transfusion Service v. Plaskitt [1994] I.C.R. 74. The purpose of section I of the Equal Pay Act 1970 is to eliminate sex discrimination in pay not to achieve fair wages. Therefore, if a difference in pay is explained by genuine factors not tainted by discrimination that is sufficient to raise a valid defence under subsection (3): in such a case there is no further burden on the employer to "justify" anything. However if the factor explaining the disparity in pay is tainted by sex discrimination (whether direct or indirect) that will be fatal to a defence under subsection (3) unless such discrimination can be objectively justified in accordance with the tests laid down in the Bilka [1987] I.C.R. 110 and Rainey [1987] I.C.R. 129 cases.”
1 Citers


 
Morris v London Iron and Steel Co Ltd [1988] QB 493; [1987] 2 All ER 496; [1987] 3 WLR 836
1988
CA
May LJ, Sir Denys Buckley
Employment, Litigation Practice
The applicant claimed before an industrial tribunal that he had been unfairly dismissed. His former employer alleged that, instead of being dismissed, he had resigned. The tribunal rehearsed the rival evidence of dismissal and resignation, found that the probabilities were equally balanced and dismissed the application on the basis that the applicant had not discharged the burden of proof. Held: The tribunal was correct: "in the exceptional case" a judge confronted with an issue of fact might be in breach of his judicial duty to do other than to resort to the burden of proof. He rejected a submission that the tribunal "should have set out in much greater detail than it did its findings on other facts, its reasoning, its analysis of those facts, where that analysis had led it, and why in the end it found that it was unable to reach a conclusion one way or the other."
The purpose of the reasons was to tell the parties in broad terms why they had lost and won and to provide them with the materials which would enable them to know that it had made no error of law in reaching its findings of fact. There was no reason why, in the simple circumstances of that claim, the tribunal was obliged to provide any more detailed analysis of its reasoning than it had given.


 
 Inner London Education Authority v Gravit; EAT 1988 - [1988] IRLR 497
 
Rigby v Ferodo Ltd [1988] ICR 29
1988
HL
Lord Oliver
Employment
The House considered a claim for constructive dismissal where the employer had changed the terms of the employment contract by unilaterally imposing a pay cut. Held: It was possible for an employee to continue to work under protest as to the changes without being deemed to have accepted a unilateral alteration in the terms of his contract.
Lord Oliver said: "It has been submitted that there was some sort of implied acceptance on the part of Mr Rigby of the appellant's repudiation by working on. At the trial this was put on the basis of estoppel, waiver and acquiescence. All three were rejected by the trial judge and, in my judgment, he was, on the facts which he found, quite plainly right to reject them. I can, for my part, see no other basis upon which it can be argued that the continued working by Mr Rigby and his acceptance for the time being and under protest of the wage that the appellant, with full knowledge of his lack of agreement, chose to pay him is to be construed as an acceptance by him either of the repudiation by the appellant of the original continuing contract or of the new terms which the appellant was seeking to impose."
and "For my part I see no reason in law or logic why, leaving aside for the moment the extreme case of outright dismissal or walk- out, a contract of employment should be on any different footing from any other contract as regards the principle that "an unaccepted repudiation is a thing writ in water and of no value to anybody"; per Asquith LJ in Howard v Pickford Truck Co."
1 Cites

1 Citers


 
Litster and Others v Forth Dry Dock and Engineering Co Ltd [1988] IRLR 289
1988
SCS

Employment, Scotland, European
(Second Division of the Inner House of the Court of Session) Twelve applicants worked for an employer who went into insolvent receivership. The receivers agreed to sell the business assets. An hour before completion the workers were dismissed and handed letters stating that no payments would be made for holiday pay or damages for failure to give the statutory period of notice. None were taken on by the new owners of the undertaking. The Industrial Tribunal had held that the dismissal was unfair, that the applicants were employed immediately before the transfer and were dismissed by reason of the transfer. Their dismissal was therefore unfair under Regulation 8 of TUPE and the liability of their former employers was transferred to the transferee. Held; The employer's appeal was allowed.
Transfer of Undertakings (Protection of Employment) Regulations 1981
1 Citers



 
 Brook Lane Finance Co Ltd v Bradley; EAT 1988 - [1988] IRLR 283; [1988] ICR 423

 
 Duke v GEC Reliance Systems Limited; HL 2-Jan-1988 - [1988] ICR 447; [1988] AC 618; [1988] 2 WLR 359; [1988] 1 All ER 626; [1988] IRLR 118; [1987] UKHL 10
 
Foreningen Af Arbejdsledere I Danmark v Daddy's Dance Hall A/S [1989] 2 CMLR 517; C-324/86; R-324/86; [1988] EUECJ R-324/86; [1988] ECR 739; [1989] ICR 330; [1988] IRLR 315
10 Feb 1988
ECJ

European, Employment
The claimant, Mr Tellerup, was employed as a restaurant manager by the transferor, Irma Catering A/S. When its lease was terminated it dismissed all staff. Mr Tellerup's statutory period of notice expired on 30 April 1983. But it continued to run the business with the same staff until 25 February 1983, from when a new lease was concluded between the landlord and Daddy's Dance Hall A/S. Daddy's Dance Hall immediately re-employed the the staff including Mr Tellerup in the same jobs. The new contract with Mr Tellerup stated his remuneration, formerly of commission, would become a fixed salary. A trial period of three months was agreed on, during which either side could give 14 days' notice. This was a shorter period of notice than that to which Mr Tellerup was entitled if his employment with the transferor was taken into account. He was dismissed on 26 April 1983 with 14 days' notice. Held: One question was whether an employee may waive rights conferred on him by the Directive if the disadvantages resulting from his waiver are offset by such benefits that, taking the matter as a whole, he is not placed in a worse position. The court gave a qualified answer saying that the purpose of the Directive is to ensure that the rights of employees affected by the transfer of an undertaking are safeguarded, adding that: "Since this protection is a matter of public policy, and therefore independent of the will of the parties to the contract of employment, the rules of the Directive, in particular those concerning the protection of workers against dismissal by reason of the transfer, must be considered to be mandatory, so that it is not possible to derogate from them in a manner unfavourable to employees. The court said that it followed that employees are not entitled to waive the rights conferred on them by the Directive, and that those rights cannot be restricted even with their consent. But the Directive could be relied on only to ensure that the employee is protected in his relations with the transferee to the same extent as he was in his relations with the transferor under the legal rules of the Member State. "Consequently, in so far as national law allows the employment relationship to be altered in a manner unfavourable to employees in situations other than the transfer of an undertaking, in particular as regards their protection against dismissal, such an alternative is not precluded merely because the undertaking has been transferred in the meantime and the agreement has therefore been made with the new employer."
1 Citers

[ Bailii ]
 
Berg And Busschers v Besselsen C-144/87; R-145/87; [1988] EUECJ R-145/87; [1988] ECR 2559
5 May 1988
ECJ

European, Employment
Europa Social Policy - Article 3(1) of Directive 77/187/EEC which concerns the safeguarding of employees' rights in the event of transfers of undertakings must be interpreted as meaning that after the date of transfer, and by virtue of the transfer alone, the transferor is discharged from all obligations arising under the contract or the employment relationship, even if the workers employed in the undertaking do not consent or if they object, subject however to the power of the Member States to provide for joint liability of the transferor and the transferee after the date of transfer.
Article 1(1) of Directive 77/187/EEC of 14 February 1977 must be interpreted as meaning that the directive applies both to the transfer of an undertaking pursuant to a lease-purchase agreement of the kind available under Netherlands law and to the retransfer of the undertaking upon the termination of the lease-purchase agreement by judicial decision.
The Acquired Rights Directive is "intended to safeguard the rights of workers in the event of a change of employer by making it possible for them to continue to work for the transferee under the same conditions as those agreed with the transferor. Its purpose is not, however, to ensure that the contract of employment or the employment relationship with the transferor is continued where the undertaking's employees do not wish to remain in the transferee's employ."
Directive 77/187/EEC 3(1)
1 Citers

[ Bailii ]
 
Meer v London Borough of Tower Hamlets [1988] EWCA Civ 10; [1988] IRLR 399
26 May 1988
CA
Dillon, Balcombe, Staunton LJJ
Employment, Discrimination
The Court discussed the nature of "a requirement or condition" for the purposes of the 1976 Act. Held: Dillon LJ said: "The case of Perera decided that there can only be a requirement or condition within s.1(1)(b) of the Race Relations Act 1976 if the requirement or condition, or whatever other word may be used to describe it, is mandatory and an absolute bar to selection."
Balcombe LJ, who delivered the leading judgment, said that "a requirement or condition under (the section) is a must - something which has to be complied with".
Race Relations Act 1976 1(1)(b)
1 Cites

1 Citers

[ Bailii ]

 
 P Bork International A/S, in liquidation v Foreningen af Arbejdsledere I Danmark; ECJ 15-Jun-1988 - C-101/87; R-101/87; [1988] EUECJ R-101/87; [1989] IRLR 41

 
 Pickstone v Freemans Plc; HL 30-Jun-1988 - [1989] AC 66; [1988] 2 All ER 803; [1988] 3 WLR 265; [1988] UKHL 2; [1988] 3 CMLR 221; [1988] ICR 697; [1988] IRLR 357
 
Regina v Director of GCHQ ex parte Hodges Unreported, 20 July 1988
20 Jul 1988
QBD

Employment, Administrative
The Court accepted evidence that the positive vetting procedure operated at GCHQ was required in the interests of national security. Held: The withdrawal of the applicant's positive vetting clearance was not justiciable. As to the Civil Service Union Case: "I apprehend for myself that the majority of their lordships were of the view that once it had been established by evidence that a decision had been made on behalf of Government in the interests of national security the whole ambit of that decision was one which the courts can neither enquire nor intervene."
1 Cites

1 Citers


 
Slater v Leicestershire Health Authority [1989] IRLR 16
1989
CA
Parker LJ
Employment
The appellant had been employed as a Staff Nurse. He was dismissed after being found to have slapped an elderly patient twice across the buttocks. That incident had been report to the Director of Nursing Services by another Nurse. He was suspended pending an investigation and as part of his investigation th edirector had gone straight in to look at the patient and he had seen a red mark on the body and concluded that was consistent with a blow having been struck by an open hand, a doctor also present reached that same conclusion. In a later disciplinary hearing it was the same Director who presided. He was informed of the charges against him and he made his case, but the director decided on the evidence that Mr Slater had lost his temper with the patient and struck two gratuitous blows, that was gross misconduct and he dismissed him. The Industrial Tribunal dismissed the complaint of unfair dismissal, they found that the disciplinary hearing was fair. Held. Merely because a person conducting a disciplinary hearing has carried out a preliminary investigation does not mean that that person is unable to conduct a fair hearing or inquiry into events.
Parker LJ said: '[Counsel] for the appellant relies principally on the general principle that a person who holds an inquiry must be seen to be impartial, that justice must not only be done but be seen to be done, and that if an observer with full knowledge of the facts would conclude that the hearing might not be impartial that is enough. . .
I accept both the general rule and the exceptions [the example given was a one man firm]. The rules of natural justice in this field do not in my view form an independent ground upon which a decision may be attacked, although a breach will clearly be an important matter when the [ET] consider the question raised in s [98(4)] of the Act.'
1 Citers



 
 First Castle Electronics Ltd v West; EAT 1989 - [1989] ICR 72

 
 Warnock v Scarborough Football Club; EAT 1989 - [1989] ICR 489
 
Sheikh v Chief Constable [1989] ICR 373
1989


Employment

1 Citers


 
Cowell v Quilter Goodison Co Ltd and QG Management Services Ltd [1989] IRLR 392
1989


Employment
It is not possible for an individual to be an employee of himself and his of co-partners.
1 Citers


 
Lock v Beswick [1989] 1 WLR 1268
1989

Hoffmann J
Employment, Litigation Practice
The court examined the remedies available to an employer who wished to recover confidential and other material allegedly taken by an employee. Held: Hoffmann J said: "Even in cases in which the plaintiff has strong evidence that an employee has taken what is undoubtedly specific confidential information, such as a list of customers, the court must employ a graduated response. To borrow a useful concept from the jurisprudence of the European Community, there must be proportionality between the perceived threat to the plaintiff's rights and the remedy granted. The fact that there is overwhelming evidence that the defendant has behaved wrongfully in his commercial relationships does not necessarily justify an Anton Piller order. People whose commercial morality allows them to take a list of the customers with whom they were in contact while employed will not necessarily disobey an order of the court requiring them to deliver it up. Not everyone who is misusing confidential information will destroy documents in the face of a court order requiring him to preserve them."
1 Citers


 
Wiluszynski v Tower Hamlets LBC [1989] ICR 493
1989


Employment, Contract
Where a contract expressly provides for fixed remuneration on specified events, the court cannot award any other remuneration on those events, nor can it awarded any remuneration if they do not occur.
1 Citers


 
United Bank Ltd v Akhtar [1989] IRLR 507
1989


Employment
An employer's express right to transfer an employee may be qualified by the obligation of mutual trust and confidence.
1 Citers


 
Russell v Elmdon Freight Terminal Limited [1989] ICR 629
1989
EAT
Knox J
Employment
The claimant faced a finding that the Industrial Tribunal did not have jurisdiction. He sought leave to appeal to establish by another route under Schedule 13, the necessary continuity of employment under Section 64(1)(a). Held: Continuity of employment, and therefore the qualifying period for a claim, is a question of jurisdiction. Knox J said: "We have come to the conclusion that the statement to be found in House is not to be construed as meaning that any and every point on jurisdiction, whether or not it may involve the adducing of further evidence, can be taken at any stage in the proceedings. For that in our view would be much too wide a principle. In each case in our view, the Court has to decide on balance whether justice requires that the new point should be allowed to be taken".
The case of House was not one where the Industrial Tribunal had accepted jurisdiction when they had no jurisdiction to do so, and "As to that there can, in our view, be no doubt at all, but that the point can be argued before the Appeal Tribunal".
Trade Union and Labour Relations Act 1974
1 Cites

1 Citers


 
Arthur Guinness Son and Co (GB) Ltd v Green [1989] IRLR 288; [1989] ICR 241
1989
EAT
Garland J
Employment, Damages
The employee claimed unfair dismissal. On the tribunal indicating support, the employers asked for the period after which he could fairly have been dismissed so that that could calculate how much might be due. The tribunal indicated orally six months, but later gave judgment for a longer period. Held. The tribunal had exceeded its jurisdiction in seeking to correct its oral judgment in this way. Evidence had been called upon which the decision was based that the cut-off point was six months after the date of dismissal; and there had been submissions from both sides; so neither party was taken by surprise, and the decision was reached after evidence called, and asked after submissions.
Industrial Tribunals (Rules of Procedure) regulations 1985 (SI 1985 No 16) Sch 1 9
1 Citers


 
Mihlenstedt v Barclays Bank International Times, 18 August 1989; [1989] IRLR 522
1989
CA
Nicholls LJ
Employment
The company's pension scheme provided that the trustees were to form an opinion as to the employee's ability or otherwise to work. The plaintiff sought payment of an ill-health pension under the Bank Pension Scheme. Held: A pension scheme trust is quite different from other trusts. Pension benefits are part of the consideration which an employee receives in return for the rendering of his services. If the basis of the decision was in error, the employee had the right to ask a court to review the decision
Nicholls LJ: "I do not think it is necessary to pursue these points of trust law. It is unnecessary to consider what might be the position under the law of trusts if the trust deed stood alone, and the plaintiff's rights were to be found only within the four corners of the trust deed and the rules. It is unnecessary, because this is a case in which the plaintiff's status as a member springs from her contract of employment with the bank. The bank holds out this pension scheme to its staff as a valuable part of the staff's overall remuneration package. That being so, when one finds that under the rules of the pension scheme certain functions are entrusted to the bank, it is, in my view, necessarily implicit in the contract of employment that the bank agrees with the employee that it will duly discharge those functions in good faith. In particular, if a member of the bank staff will become entitled to payment of an ill-health pension if the bank is of the relevant opinion concerning the state of health of the employee, it is an implied term of the contract that the bank will properly consider a genuine claim by an employee that her health qualifies her for an ill-health pension. To my mind it is unthinkable that the position might be otherwise. ..."
1 Citers



 
 Salton v Durham County Council; EAT 1989 - [1989] IRLR 99

 
 Provident Group plc v Hayward; 1989 - [1989] ICR 160
 
Linfood Cash and Carry v Thomson [1989] IRLR 235; [1989] ICR 518
1989
EAT
Wood P
Limitation, Employment
One employee had informed his employer that a fellow employee had stolen two books of credit notes. He refused to allow his identity to be disclosed for fear of reprisals. The Tribunal had held that the dismissal was unfair because although the employers had a genuine belief in the employee's guilt they had no reasonable ground for that belief and had not carried out as much investigation into the matter as was reasonable in all the circumstances; and in particular considered that in the absence of any corroborative evidence, a most stringent enquiry should have been made by management to ascertain that the informant was not actuated by improper motives. Held. The employer's appeal was dismissed. Wood P said that when assessing credibility: "the tribunal must not substitute their own view for the view of the employer, and thus they should be putting to themselves the question – could this employer acting reasonably and fairly in these circumstances properly accept the facts and opinions which it did? The evidence given is that given during the disciplinary procedures and not that which is given before the Tribunal. If a Tribunal is to say that this employer could not reasonably have accepted a witness as truthful, it seems to us that this decision must be based on logical and substantial grounds – good reasons."
The court set out a checklist to be used in assessing the reliability of an anonymous informant witness. "We have been told by both sides that there seems to be no decision of this court giving guidance upon appropriate procedures for an employer to adopt where informants are involved. It is obvious that from whichever side of industry one looks it is important that dishonesty and lack of trust should, where possible, be eliminated, but a careful balance must be maintained between the desirability to protect informants who are genuinely in fear, and providing a fair hearing of issues for employees who are accused of misconduct. We are told that there is no clear guidance to be found from ACAS publications, and the lay members of this court have given me the benefit of their wide experience.
Every case must depend upon its own facts, and circumstances may vary widely – indeed with further experience other aspects may demonstrate themselves – but we hope that the following comments may prove to be of assistance:

    1. The information given by the informant should be reduced into writing in one or more statements. Initially these statements should be taken without regard to the fact that in those cases where anonymity is to be preserved, it may subsequently prove to be necessary to omit or erase certain parts of the statements before submission to others – in order to prevent identification.
    2. In taking statements the following seem important:

      (a) date, time and place of each or any observation or incident;
      (b) the opportunity and ability to observe clearly and with accuracy;
      (c) the circumstantial evidence such as knowledge of a system, or the reason for the presence of the informer and why certain small details are memorable;
      (d) whether the informant has suffered at the hands of the accused or has any other reason to fabricate, whether from personal grudge or any other reason or principle.

    3. Further investigation can then take place either to confirm or undermine the information given. Corroboration is clearly desirable.
    4. Tactful inquiries may well be thought suitable and advisable into the character and background of the informant or any other information which may tend to add or detract from the value of the information.
    5. If the informant is prepared to attend a disciplinary hearing, no problem with arise, but if, as in the present case, the employer is satisfied that the fear is genuine then a decision will need to be made whether or not to continue with the disciplinary process.
    6. If it is to continue, then it seems to us desirable that at each stage of those procedures the member of management responsible for that hearing should himself interview the informant and satisfy himself that weight is to be given to the information.
    7. The written statement of the informant – if necessary with omissions to avoid identification – should be made available to the employee and his representatives.
    8. If the employee or his representative raises any particular and relevant issue which should be put to the informant, then it may be desirable to adjourn for the chairman to make further inquiries of that informant.
    9. Although it is always desirable for notes to be taken during disciplinary procedures, it seems to us to be particularly important that full and careful notes should be taken in these cases.
    10. Although not peculiar to cases where informants have been the cause for the initiation of an investigation, it seems to us important that if evidence from an investigating officer is to be taken at a hearing it should, where possible, be prepared in a written form.

"This case also appears to highlight the problems facing a Tribunal when considering credibility. As Mr O'Hara confirmed to us, the tribunal must not substitute their own view for the view of the employer, and thus they should be putting to themselves the question – could this employer acting reasonably and fairly in these circumstances properly accept the facts and opinions which it did? The evidence is that given during the disciplinary procedures and not that which is given before the Tribunal.
If a Tribunal is to say that this employer could not reasonably have accepted a witness as truthful, it seems to us that that decision must be based upon logical and substantial grounds – good reasons. Instances might be – that the witness was a bare faced liar, who must have given that impression to the employer at the relevant time; that the witness was clearly biased – provided that such a bias should have been clear at the relevant time; that documents available at the relevant time clearly showed the witness to be inaccurate and that such documentary evidence was ignored by the employer.
However, there could be other less obvious situations where mere vagueness and uncertainty would not be sufficient, and it should never be forgotten that cross-examination by experienced advocates may produce a picture not made evident during the disciplinary procedures. For the Tribunal merely to prefer one witness to another might well not be sufficient as this could be to substitute their own view. The employers have the peculiar advantage over the Tribunal of having an intimate knowledge of the geography, the nature and workings of the business and the various members of the staff."
1 Cites

1 Citers


 
Hampson v Department of Education and Science [1989] ICR 179; [1989] IRLR 69
1989
CA
Balcombe, Nourse and Parker LJJ
Discrimination, Employment
Balcombe LJ said: "In my judgment 'justifiable' requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition." The task of the Tribunal hearing such a complaint is to strike an objective balance between the discriminatory effect of the requirement or condition and the reasonable needs of the person who applies it.
1 Citers



 
 Martin v British Railways Board; EAT 1989 - [1989] ICR 24

 
 Walls Meat Company Limited v Selby; CA 1989 - [1989] ICR 601
 
Ulsterbus v Henderson [1989] IRLR 251
1989
CANI
O'Donnell LJ
Northern Ireland, Employment
O'Donnell LJ said: "It is quite clear in this case that a careful investigation was carried out by Mr Campbell, an appeal was heard by Mr Wilson, and a most meticulous review of all the evidence was carried out as evidenced by Mr Heubeck's letter of 31.12.85. As I have indicated, in that letter Mr Heubeck meticulously reviewed all the evidence and considered whether there was any reasonable possibility, indeed any possibility, that a mistake had been made. What the Tribunal appears to be suggesting is that in certain circumstances it is incumbent on a reasonable employer to carry out a quasi-judicial investigation with a confrontation of witnesses, and cross-examination of witnesses. While some employers might consider this to be necessary or desirable, to suggest as the Tribunal did, that an employer who failed to do so in a case such as this was acting unreasonably, or in the words of Lord Denning, acting outside 'a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view', is in my view insupportable."
1 Citers


 
British Railways Board v National Union of Railwaymen [1989] ICR 678
1989
CA
Lord Donaldson of Lymington MR
Employment
The court discussed section 11(2) of the 1984 Act: "Simplifying that a little bit and reading it with section 11(1), which defines who is qualified and entitled to vote, section 11(2) is saying 'If you do not allow somebody to vote, if you say "You are not entitled to vote," then you cannot call him out on strike. He has not had an opportunity to express his view, and, if you do call him out on strike, then the whole ballot fails and the strike or other industrial action cannot be justified.' Nobody has suggested that anybody entitled to vote has been disqualified from voting. What Mr Carr says is that if they were not given an opportunity of voting they were denied their entitlement to vote. I disagree. There is a profound difference, as I think, between denying someone's entitlement to vote and inadvertently failing to give him an opportunity to vote".
Trade Union Act 1984 11(2)
1 Citers



 
 Associated British Ports v TGWU; CA 1989 - [1989] 1 WLR 939

 
 British Newspaper Printing Corporation v Kelly; CA 1989 - [1989] IRLR 222
 
Munir v Jang [1989] ICR 1
1989


Employment
The doctrine of issue estoppel applies also in Industrial Tribunal cases.
1 Cites

1 Citers


 
Sovereign House Security Services Ltd v Savage [1989] IRLR 115
1989
CA
May LJ
Employment
S was employed as a Security Officer. After discovering a cash shortage, his superior, P, rang him and suspended him forthwith pending police investigations. S responded by saying "I am not having any of that, you can stuff it, I am not taking the rap for that". He then rang his immediate superior Mr Scroggie and told him that he would not be in to relieve him the following morning as arranged. S subsequently complained to the Industrial Tribunal of unfair dismissal. The Tribunal found for him. The employer's appeal was dismissed, and they appealed again. Held: The employer's appeal was dismissed.
May LJ said: "In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view Tribunals should not be astute to find otherwise." But he then continues: "However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight." and
"There was that evidence from those two witnesses on which in my judgment it was possible for the Industrial Tribunal, were they so minded, having seen and assessed the witnesses giving evidence in the witness-box, to conclude that the words actually used by the employee to Scoggie were used in the heat of the moment and should not have been accepted at full face value by the employers. There was thus, in my opinion, evidence entitling the Industrial Tribunal to make the findings which they did in paragraph 7 of their decision, which was, as I think, just as much one of fact as their findings of fact set out in paragraph 4 of the decision, that "the applicant was not tendering his resignation to Mr Scroggie"."
1 Citers


 
Lock International plc v Beswick [1989] 1 WLR 1268; (1989) 16 IPR 497; [1989] 3 All ER 373
1989
ChD
Hoffmann J
Intellectual Property, Employment
Where the claimant seeks to prevent a former employee using some but not all information obtained during his employment, the employer must be specific as to the range of what is to be protected.
Hoffmann J said: "Some employers seem to regard competition from former employees as presumptive evidence of dishonesty. Many have great difficulty in understanding the distinction between genuine trade secrets and skill and knowledge which the employee may take away with him. In cases in which the plaintiff alleges misuse of trade secrets or confidential information concerning a manufacturing process, a lack of particularity about the precise nature of the trade secrets is usually a symptom of an attempt to prevent the employee from making legitimate use of the knowledge and skills gained in the plaintiff's service. That symptom is particularly evident in this case. Judges dealing with ex parte applications are usually also at a disadvantage in dealing with alleged confidential knowledge of technical processes described in technical language, such as the electric circuitry in this case. It may look like magic but turn out merely to embody a principle discovered by Faraday or Ampere." and
"The employee may not, after leaving his employment, make use of, in the words of Neil LJ [in Faccenda Chicken Ltd v Fowler [1987] 1 Ch 117 at 136]: ‘secret processes of manufacture such as chemical formulae . . or designs or special methods of construction . . and other information which is of a sufficiently high degree of confidentiality as to amount to a trade secret.’ On the other hand, there will be a good deal of other information which an employee could not without breach of duty disclose while he was employed but which he is free to use as part of his own skill and knowledge after his employment has ceased. It is therefore of the essence of a claim against an employee for misuse of confidential information that the employer should be able to identify with particularity the trade secret or similar confidential information to which he lays claim. The terms of any injunction must also be capable of being framed in sufficient detail to enable the defendant to know exactly what information he is not free to use on behalf of his new employer."
In the context of any application to vary or discharge a search order it is permissible for the Court to refer to the fruits of the search: "I agree that in deciding whether the defendants have suffered injustice as a result of the order, I should not ignore evidence which the order itself has brought to light." and
"Even in cases in which the plaintiff has strong evidence that an employee has taken what is undoubtedly specific confidential information, such as a list of customers, the court must employ a graduated response. To borrow a useful concept from the jurisprudence of the European Community, there must be proportionality between the perceived threat to the plaintiff's rights and the remedy granted. The fact that there is overwhelming evidence that the defendant has behaved wrongfully in his commercial relationships does not necessarily justify an Anton Piller order. People whose commercial morality allows them to take a list of customers with whom they were in contact when employed will not necessarily disobey an order of the court requiring them to deliver it up. Not everyone who is misusing confidential information will destroy documents in the face of a court order requiring him to preserve them."
1 Citers


 
Leverton v Clwyd County Council [1989] ICR 33; [1989] IRLR 28
1989
HL
Lord Bridge of Harwich
Employment, Discrimination
The claimant, employed as a nursery nurse by the respondent in an infant school sought to compare herself with clerical staff employed by the respondent, but not in schools. Held: The employee's appeal succeeded. The majority of the Employment Tribunal, the Employment Appeal Tribunal, and the majority of the Court of Appeal were wrong to apply a narrower test as to whether the terms of the claimant and the comparator were broadly similar. It was sufficient to establish common terms and conditions to show that the claimant and her comparators were employed on terms and conditions derived from the same collective agreement.
1 Citers


 
Dairy Crest Ltd v Piggott [1989] ICR 92
1989
CA

Employment
When considering restrictive covenants in employment cases, courts must not seek to uphold a clause as reasonable only because the same clause was upheld in a different case. It is an error of law. There is no 'tariff' of what is reasonable. In this case the post-employment non-solicitation restriction extended to two years, but was upheld.
1 Cites

1 Citers


 
Brown v Stockton-on-Tees Borough Council [1989] AC 20; [1988] 2 WLR 935; [1988] ICR 410; [1988] 2 All ER 129
1989
HL
Lord Griffiths
Employment
The House construed the statutory provisions relating to the return of a female employee after maternity leave. Held: The legislation provided "special protection for the security of employment of pregnant women". "It was the Employment Protection Act 1975 that for the first time extended the law to provide protection for the employment of women during pregnancy and after giving birth. In Part II of that Act which is headed " Rights of Employees", there is a sub-heading " Maternity". The 1975 Act confers "upon a woman a right to return to work after her pregnancy or confinement and a payment to her of maternity pay during her absence, all of which are reenacted in the present Act [1978 Act]. These sections came into effect on the same day as the Sex Discrimination Act 1975 which also extended the protection of the law to women and outlawed many practices which had hitherto placed women at a disadvantage in a society dominated by men. Section 34 (now Section 60) must be seen as part of social legislation passed for the specific protection of women and to put them on an equal footing with men. I have no doubt that it is often a considerable inconvenience for an employer to have to make the necessary arrangements to keep a woman's job open for her whilst she is absent from work in order to have a baby, but this is a price that has to be paid as part of the social and legal recognition of the equal status of women in the work place."
1 Citers



 
 Re Vauxhall Motor Pension Fund; 1989 - [1989] 1 PLR 31
 
Octavius Atkinson and Sons Ltd v Morris [1989] ICR 431
1989
CA
Browne-Wilkinson VC
Employment
The employee claimed unfair dismissal. He had been dismissed without notice at 2:00pm. Later the employer discovered that it might have offered alternate employment. The Tribunal had found that the opportunity emerged before the employee got home, and that until then he remained employed. Held. The employer's appeal succeeded. The summary dismissal took effect instantly, and by the time of the discovery the claimant was no longer an employee. At that point the employer's contractual duty to make the alternate offer to an employee was no longer binding on it.
1 Cites

1 Citers


 
Greater Glasgow Health Board v Mackay [1989] SLT 729
1989
SCS
Lord Wylie
Employment
The Court was asked to consider whether an employee, who wrote out a letter of resignation, had actually resigned in the light of the special state of anxiety of the employee when he wrote that letter. Held: Lord Wylie said: "where possible exceptions to a general rule are suggested in obiter dicta such as that used in the case of Sothern, there may be a tendency for tribunals to apply the exception to the rule rather than the rule itself and I wish to emphasise that only in highly exceptional circumstances will this be justified."
1 Cites

1 Citers


 
Aldridge v Telecommunications Plc [1989] ICR 790; [1989] UKEAT 99_88_2609; [1990] IRLR 10
1989
EAT
Wood P
Employment, Discrimination

Equal Pay Act 1970
1 Citers

[ Bailii ]
 
Securicor Ltd v Smith [1989] IRLR 356
1989
CA

Employment
When the tribunal looks at the decision by the employer to dismiss, it should ask not what its own opinion was but whether the employers response was within the band of reasonable responses open to in acting on its findings. Where two employees are dismissed for the same incident and one is successful on appeal but the other is not, in determining the fairness of the latter's dismissal, the proper question is whether the employer had consciously sought to distinguish between the two cases and, if he had, whether he had done so on rational grounds.
1 Citers


 
Six Constructions Ltd v Paul Humbert R-32/88; [1989] EUECJ R-32/88
15 Feb 1989
ECJ

European, International, Employment
Europa Article 5(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters must be interpreted as meaning that, as regards contracts of employment, the obligation to be taken into consideration is that which characterizes such contracts, in particular the obligation to carry out the agreed work . Where the obligation of the employee to carry out the agreed work was performed and had to be performed outside the territory of the Contracting States, Article 5(1) of the Convention is not applicable; in such a case jurisdiction is to be determined on the basis of the place of the defendant's domicile in accordance with Article 2 of the Convention.
[ Bailii ]

 
 Litster and Others v Forth Dry Dock and Engineering Co Ltd; HL 16-Mar-1989 - [1989] 2 WLR 634; [1989] 1 All ER 1134; [1989] ICR 341; [1990] 1 AC 546; 1989 SC (HL) 96; [1982] IRLR 161; [1988] UKHL 10
 
Ladbroke Racing v King Daily Telegraph, 21 April 1989
21 Apr 1989
EAT

Employment
The employee was dismissed after failing to tell the employer of breaches by a fellow employee of company rules. Held: An employer seeking to rely upon such a failure as gross misconduct must show that the obligation had been clearly spelled out.

 
Van De Bijl v Staatssecretaris Van Economische Zaken C-130/88; [1989] ECR 3039[26]
27 Sep 1989
ECJ

European, Employment
When looking at certificates of professional competence issued by other member states, the host Member State cannot be obliged to overlook matters which occurred within its own territory and which are of direct relevance to the real and genuine character of the period of professional activity completed in the Member State from which the beneficiary comes. Here a certificate was manifestly inaccurate.
1 Citers


 
United Bank Ltd v Akhtar [1989] UKEAT 230_88_1210; [1989] IRLR 50
12 Oct 1989
EAT

Employment
Appeal against finding of unfair dismissal. Held. An express mobility clause can be subject to an implied restriction as to reasonable notice.
Employment Protection (Consolidation) Act 1978 55(2)(e)
1 Cites

1 Citers

[ Bailii ]
 
William Hill Organisation v A Gavas EAT/645/88; [1989] UKEAT 645_88_0911
9 Nov 1989
EAT
The Honourable Mr Justice Knox
Employment
EAT Procedural Issues - Employment Appeal Tribunal
[ Bailii ]
 
William Hill Organisation v A Gavas EAT/645/88
9 Nov 1989
EAT
The Honourable Mr Justice Knox
Employment
EAT Procedural Issues - Employment Appeal Tribunal.
[ EATn ]
 
Copyright 2014 David Swarbrick, 10 Halifax Road, Brighouse, West Yorkshire HD6 2AG.