Tag: Employment

Socha and Others v Szpital Specjalistyczny im. A. Falkiewicza we Wroclawiu: ECJ 21 Sep 2017

Approximation of Laws Approximation of Laws Social Policy : Judgment – Reference for a preliminary ruling – Social policy – Collective redundancies – Directive 98/59/EC – Article 1(1) – Concept of ‘redundancies’ – Assimilation to redundancies of ‘terminations of an employment contract which occur on the employer’s initiative’ – Unilateral amendment by the employer of pay and working conditions

Citations:

C-149/16, [2017] EUECJ C-149/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 30 March 2022; Ref: scu.595417

Aziz v The Freemantle Trust (A Charity Limited By Guarantee) (Unfair Dismissal): EAT 25 Jul 2017

UNFAIR DISMISSAL – Reasonableness of dismissal
CONTRACT OF EMPLOYMENT – Wrongful dismissal
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Unfair dismissal – fairness of dismissal – wrongful dismissal – adequacy of reasons
The issue raised by the appeal concerned the ET’s approach to a contractual mobility clause; specifically, whether it had made adequate findings and/or had sufficiently engaged with the question whether the employer had exercised that clause lawfully – a question that was relevant to both the Claimant’s unfair and wrongful dismissal claims. In the alternative, the Claimant contended that the ET’s decision was inadequately reasoned.
Held: dismissing the appeal
Reading the ET’s reasoning as a whole, it was apparent that it had adequately engaged with the issues arising in relation to the mobility clause for the purposes of both claims and its explanation of its reasoning and conclusions was sufficient to the task required of it.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0027 – 17 – 2507

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 March 2022; Ref: scu.594999

Lynam and Another v Birmingham City Council: EAT 6 Sep 2017

EAT Contract of Employment – Implied term/variation/construction of term – In December 2013 the Council announced on their intranet in a notice headed ‘Voluntary Redundancy (VR) Information and guidance for employees’ that they had decided to undertake a process offering a generous VR package in 2014/15. The process was to cover ‘affected’ employees identified as such in a section 188 notice, which included the Claimants. The notice stated that all eligible employees would be contacted and invited to make an application for VR. In September 2014 the Claimants were told that VR would not be available to them and they were made compulsorily redundant with effect from 30 April 2015. They claimed damages for breach of contract based on the Council’s failure to allow them to apply for VR.
The Employment Judge decided that the Claimants had no contractual right to apply for VR because: (a) the Council had only offered an enhanced VR package in one previous year and it was unlikely to be repeated after 2014/15 so that there was no ‘policy’ such as to give rise to a contractual right; (b) only employees invited to apply for VR would be eligible and have a contractual right to do so and, anyway, those who did apply had no right to receive VR; and (c) employees within a pool whose role was being deleted had no right to apply for VR.
In so doing she erred in law in that:
(a) was irrelevant: there was no claim based on a ‘policy’ or ‘custom and practice’; the proper focus was on what the Council had communicated to its employees;
(b) was based on a misinterpretation of the notice: it was clear that ‘eligible’ and ‘affected’ employees were the same thing and the notice stated they would all be contacted and invited to apply for VR; the question whether VR would have been granted went to damages, not liability;
(c) there was no suggestion in any communication from the Council that there was such a restriction on the right to apply for VR and it was not possible to see the rationale for such a restriction or how it would have been framed.
The case would be remitted to the ET to decide whether, on a proper interpretation of the notice, there was a contractual right to apply for VR and, if so, what (if any) damages were suffered by the Claimants by not being afforded the opportunity to apply for VR.

Judges:

Shanks HHJ

Citations:

[2017] UKEAT 0072 – 17 – 0609

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 March 2022; Ref: scu.595009

Abbeyfield Wessex Society Ltd v Edwards (National Minimum Wage): EAT 28 Jul 2017

EAT NATIONAL MINIMUM WAGE
The Employment Judge erred in law in his approach to the question whether the Claimant was engaged in time work while she was employed overnight as a Sleep-in Assistant. In particular he (1) did not take the terms of the contract as his starting point – he did not make any satisfactory determination of what those terms were, or how they were operated in practice; and (2) proceeded largely by analogy with a decided case, rather than making findings of fact and assessing his findings as a whole. Focus Care Agency Ltd v Roberts [2017] IRLR 588 applied.

Judges:

David Richardson HHJ

Citations:

[2017] UKEAT 0256 – 16 – 2807

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 March 2022; Ref: scu.594998

Xerox Business Services Philippines Inc Ltd v Zeb (Transfer of Undertakings): EAT 24 Jul 2017

EAT TRANSFER OF UNDERTAKINGS – Varying terms of employment
TRANSFER OF UNDERTAKINGS – Dismissal/automatically unfair dismissal
REDUNDANCY – Definition
Within the Xerox group of companies the work of a Finance Accounting Team was transferred from a UK company in Wakefield to a Philippines company and then taken offshore to Manila. It was agreed that there was a TUPE transfer. The Claimant stated that he wished to relocate to the Philippines on UK terms and conditions. The Respondent dismissed him for redundancy, stating that he was employed to work in Wakefield and that it was prepared to transfer him only on local terms and conditions. The Employment Judge found that there was a variation of his contract of employment by which he was entitled to work in the Philippines on UK terms and conditions; and that he was not redundant.
Appeal allowed. On the Employment Judge’s own findings there had been no variation of the contract; and her reasons for finding that the Claimant was not redundant had failed to apply the statutory wording in section 139(1)(b)(ii) of the Employment Rights Act 1996. Comments also on the importance of addressing regulation 7 of TUPE 2006 in a case of this kind.

Judges:

Richardson HHJ

Citations:

[2017] UKEAT 0121 – 16 – 2407

Links:

Bailii

Statutes:

Employment Rights Act 1996 139(1)(b)(ii), Transfer of Undertakings (Protection of Employment) Regulations 2006

Jurisdiction:

England and Wales

Employment

Updated: 30 March 2022; Ref: scu.595002

Kwele-Siakam v The Co-Operative Group Ltd (Practice and Procedure): EAT 27 Jul 2017

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
The Employment Judge erred in striking out claims of direct race discrimination by conducting more than a mini-trial into the main issue in the case, the reason for the acts of which complaint was made. The Claimant gave evidence and was extensively cross-examined in a two-day hearing. The Employment Judge failed to apply the principles in Ezsias v North Glamorgan NHS Trust [2007] IRLR 603. Observations on the dangers of conducting a strike out hearing at which findings on the credibility of the Claimant are made which are central to the main issue in the claim. Qdos Consulting Ltd v Swanson UKEAT/0495/11 and Chandhok v Tirkey [2015] IRLR 195 considered.

Judges:

Slade DBE J

Citations:

[2017] UKEAT 0039 – 17 – 2707

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 30 March 2022; Ref: scu.595001

Ifere v North Cumbria University Teachings Hospitals Trust: EAT 3 Aug 2017

EAT RACE DISCRIMINATION – Other losses
In the course of assessing the Claimant’s compensation for unlawful victimisation by the Respondent, the Employment Tribunal was required to consider whether it should award legal costs which the Claimant had incurred in defending proceedings before the Interim Orders Panel of the Medical Practitioners Tribunal Service. In its Liability Judgment and Reasons it had made findings which effectively precluded such an award. In its Remedy Judgment and Reasons it effectively reconsidered those findings and awarded compensation which reflected those legal costs. But, accepting that the Respondent had not understood it intended to take this course and had not made submissions upon it, the Employment Tribunal reconsidered the Liability Judgment; and revoked that part of the award. The Claimant appealed.
Held. The Employment Tribunal did not err in law in revoking that part of the award which required the Respondent to pay a sum to reflect the legal costs which the Claimant had incurred in defending proceedings before the Interim Orders Panel of the Medical Practitioners Tribunal Service.

Judges:

Richardson HHJ

Citations:

[2017] UKEAT 0073 – 17 – 0308

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination, Damages

Updated: 30 March 2022; Ref: scu.595005

Asda Stores Ltd v Brierley and Others (Equal Pay Act): EAT 31 Aug 2017

EQUAL PAY ACT – Article 141/European law
EQUAL PAY ACT – Equal value
EQUAL PAY ACT – Other establishments
1. Although the point is not acte clair, the better view is that article 157 of the Treaty on the Functioning of the European Union is directly effective in a claim founded on equal pay for work of equal value. The Appeal Tribunal declines to make a reference to the Court of Justice of the European Union seeking a determination of this (or any) point.
2. Where there is a ‘single source’ of pay and conditions for both claimant and comparator, a comparison between them is permitted independently of whether unequal treatment arises from legislation or collective agreements and whether or not the employment is in the same establishment or service.
3. Where no comparator works at the establishment where the claimant is employed, comparison is permitted applying the North hypothetical test. The better view is that the North hypothetical test remains good law and has survived the replacement of section 1(6) of the Equal Pay Act 1970 by section 79 of the Equality Act 2010.
4. The Employment Judge did not err in law in deciding that the law is as stated above. He did not misapply the law. Nor were any of his findings of fact perverse. He reached conclusions that were open to him on the facts. There is no basis for interfering with his decision that the Claimants can compare themselves with their chosen comparators.

Judges:

Kerr J

Citations:

[2017] UKEAT 0011 – 17 – 3108

Links:

Bailii

Statutes:

Equality Act 2010

Jurisdiction:

England and Wales

Employment, European, Discrimination

Updated: 30 March 2022; Ref: scu.595003

British Airways v Pinaud (Part Time Workers): EAT 1 Aug 2017

EAT PART TIME WORKERS
The Employment Tribunal correctly approached the question whether the Claimant was treated by the Respondent less favourably than it treated a full-time comparator as regards a term of the contract concerned with pattern of availability for work (regulation 5(1)(a) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000).
The Employment Tribunal erred in law by holding, in effect, that statistical evidence produced by the parties was irrelevant to the question of justification (regulation 5(2)(b)).

Judges:

Richardson HHJ

Citations:

[2017] UKEAT 0291 – 16 – 0108

Links:

Bailii

Statutes:

Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000

Jurisdiction:

England and Wales

Employment

Updated: 30 March 2022; Ref: scu.595004

Kansal v Tullett Prebon Plc and Others (Race Discrimination): EAT 20 Jul 2017

RACE DISCRIMINATION – Direct
VICTIMISATION DISCRIMINATION
RACE DISCRIMINATION – Detriment
JURISDICTIONAL POINTS – Claim in time and effective date of termination
The ET rejected claims of direct discrimination (race) in circumstances where it had found the alleged discriminator to have subjected the Claimant to harassment related to his race, and victimised him for having complained about it. It did so in respect of two allegations by concluding that although the acts complained of had occurred, the employer and its Head of Alternative Investments had not done them for any reason of race. The logic was that the employer had engaged two employees of the same race on similar work, and therefore could not have been motivated by race. This was a misdirection. Further, the ET had not identified that the treatment was less favourable than that which had or would have been given to another not of the Claimant’s race, nor had it identified a comparator for the purposes of any such comparison, nor had it found what the reason was for the treatment (it purported to find what it had not been, but had done so on a false basis), nor did it seek to see whether the burden of proof may have passed to the Respondents to provide such an explanation given the context of the claims and the other findings in respect of the behaviour of the alleged discriminator, to which other conduct it had made no reference when reaching its conclusion that there was no direct discrimination. Appeal in respect of the dismissal of two allegations of direct discrimination allowed.
An appeal against findings that there had been no victimisation by paying the Claimant a bonus ‘only’ of a certain amount was rejected: the ET had been entitled to determine that there had been no detriment, even if, had it done so, its additional reason that there would still have been no finding of victimisation could not have been supported. A cross-appeal seeking to reargue the question whether a finding that the employer had conducted a disciplinary hearing in respect of the employee’s conduct was in revenge for his having complained that the Respondents’ conduct was discriminatory, was dismissed as raising in truth no point of law, but one in respect of the ET concluding that time should be extended on the just and equitable footing for the late bringing of a claim was allowed: the ET should have identified why it was the Claimant was late, and did not appear to have done so, nor clearly evaluate his actual reasons for being late (whatever they were).
The issues in question on the successful appeals to be reheard before the same ET, on the same evidence as adduced previously, though leaving it open to either party to ask the ET if it would consider further evidence, and for the ET to permit them to do so should it consider that appropriate.

Judges:

Langstaff J

Citations:

[2017] UKEAT 0147 – 16 – 2007

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 30 March 2022; Ref: scu.595000

Thomas Cook Airlines Ltd v British Airline Pilots Association: QBD 6 Sep 2017

The claimant company seeks an injunction to restrain the defendant trade union from calling a strike. The context is a dispute between the parties over the pay and conditions of pilots employed by the claimant.

Judges:

Lavender J

Citations:

[2017] EWHC 2253 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 March 2022; Ref: scu.593631

Hassan v Barts Health NHS Trust and Others (Practice and Procedure): EAT 11 Jul 2017

PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
On a Rule 26 ‘initial consideration’ on 26 August 2015 before presentation of the ET3 response, the London Central Employment Tribunal directed a Preliminary Hearing on a jurisdictional issue, to be heard on 2 October 2015. Before receipt of notice of that hearing, the Appellant applied for transfer of the case to another region on grounds of alleged bias. The Tribunal responded with a direction on 9 September 2015 that the issue of transfer would be considered at a Preliminary Hearing on 20 October. At the Preliminary Hearing on 2 October the Tribunal struck out parts of the claim on the grounds of res judicata / Henderson v Henderson / abuse of process; and noted that the application to transfer would be considered on 20 October.
Appeal allowed against the directions and Orders of 26 August, 9 September and 2 October on grounds that (i) the effect of Rules 26 and 54 is that the Tribunal’s jurisdiction for ‘initial consideration’ and any consequent direction for a Preliminary Hearing is dependent on receipt of the ET3 response; and/or (ii) that the transfer application should have been listed for Preliminary Hearing before, not after, the Preliminary Hearing on the jurisdictional issues. The application for transfer was remitted to London Central. The Appellant’s applications under EAT Rules Rule 27(1) / EAT Practice Direction 2013 paragraph 10.3 for Orders for disclosure and for the admission of other evidence were refused.

Judges:

Soole J

Citations:

[2017] UKEAT 0042 – 16 – 1107

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 March 2022; Ref: scu.593135

The Guinness Partnership v Szymoniak (Disability Discrimination): EAT 10 Jul 2017

EAT DISABILITY DISCRIMINATION – Disability
Disability discrimination – definition of disability – section 6 Equality Act 2010 (‘EqA’)
The Claimant, who was pursuing a complaint of disability discrimination, claimed that he met the definition of a disabled person for the purposes of section 6 EqA by reason of what he contended were the long-term substantial effects of a mental impairment. The ET had not given any directions for expert medical evidence but relied on the Claimant’s own evidence and contemporaneous medical documentation in reaching its conclusion that he had established he had suffered from the condition of which he complained for more than 12 months.
The Respondent appealed on two bases, contending: (1) that the ET had failed to follow relevant authority, in particular RBS v Morris and Royal Borough of Greenwich v Syed in proceeding to determine the question of disability without proper expert medical evidence; and (2) that the ET had misapplied section 6 EqA, finding that the Claimant was disabled on the basis merely that he had suffered from a mental impairment for a period of 12 to 18 months, failing to consider whether the mental impairment had had an effect on the Claimant’s ability to carry out normal day-to-day activities which was both substantial and long-term.
Held: allowing the appeal
The focus of the ET’s reasoning had been on the length of time the Claimant’s condition had lasted; it had failed to demonstrate that it had addressed the question of the effect of his condition, apparently falling into the error of assuming that, if a medical condition has existed for over 12 months, it did not need to further assess the effects of that condition. That was an error of law and the appeal would be allowed on this basis. In the circumstances, it was not possible to determine whether the ET might have been able to reach a permissible conclusion as to whether the Claimant was disabled for the purposes of section 6 EqA on the material before it (i.e. absent expert medical evidence). The issue of disability would be remitted to a different ET for consideration afresh, including as to whether directions should be given for the obtaining of an expert medical report.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0065 – 17 – 1007

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 March 2022; Ref: scu.593134

Bowden v Ministry of Justice and Another: EAT 25 Aug 2017

EAT PART TIME WORKERS
JURISDICTIONAL POINTS – Extension of time: just and equitable
The Employment Judge did not apply correct principles of law when deciding whether it was just and equitable to consider the Claimant’s claim out of time. He placed impermissible reliance on his decision in Miller and Others v Ministry of Justice and did not consider whether, in the Claimant’s case, he was reasonably ignorant of his right to bring the claim, and how the prejudice to both parties should be balanced.

Judges:

David Richardson HHJ

Citations:

[2017] UKEAT 0018 – 17 – 2508

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 March 2022; Ref: scu.593139

Islam v HSBC Bank Plc (Practice and Procedure: Review): EAT 26 Jun 2017

PRACTICE AND PROCEDURE – Review
PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
Reconsideration – Fair Hearing
The Claimant’s case had been dismissed upon his having applied to withdraw during the course of the Full Merits Hearing. Subsequently, he had applied for a reconsideration of that decision significantly out of time. The ET refused that application. The Claimant appealed.
Held: dismissing the appeal
The ET had permissibly exercised its discretion to refuse to extend time for the reconsideration application; in particular, it had been entitled to take the view that the Claimant had failed to provide adequate medical evidence to explain the delay (over six months) before making his application. It had also been entitled to conclude it would not be in the interests of justice to re-open the original decision. On the material before it, the ET had permissibly concluded that the Claimant had not been denied a fair hearing and it was thus not open to him to seek to go behind his earlier withdrawal of his claim. Assessing the question of fair hearing as an appellate Tribunal (applying R (on the application of Osborn) v Parole Board [2014] AC 1115 SC; Galo v Bombardier Aerospace UK [2016] NICA 25, [2016] IRLR 703), it was apparent that the ET had made appropriate adjustments at the Full Merits Hearing (and before), thus affording the Claimant a fair hearing. There was nothing that should have alerted the ET to consider the withdrawal of his claim was other than for the reasons he had provided at the time.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0264 – 16 – 2606

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 March 2022; Ref: scu.593133

Luton Borough Council v Haque (Jurisdictional Points): EAT 31 Jul 2017

EAT JURISDICTIONAL POINTS – Claim in time and effective date of termination
Claim in time – construction of extension of time provisions under early conciliation regime – appeal permitted to proceed because need for clarity provided compelling reason for it to be heard (along with any other appeals raising the same point).

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0260 – 17 – 3107

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 March 2022; Ref: scu.593136