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Conditional Benefits and Breaches of Undertakings

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] Can an employer withdraw a conditional benefit under a compromise agreement when the employee is in breach of his undertakings? Yes, says the Queen's...

Volunteers and Discrimination Protection

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[Thanks to  Sarah Fraser Butlin  of Cloisters for preparing this case summary] Do volunteers fall within "occupation" in the Framework Directive so they are entitled to discrimination protection?   No, says the Supreme Court...

Procedure Fairness and Disparity of Treatment

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[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] Is it perverse for an employment tribunal not to regard a dismissal as a reasonable response, if misconduct is committed by an employee in a safety critical role? ...

Equal Pay

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[Thanks to Sophia Berry, pupil barrister at Littleton Chambers, for preparing this case summary] Do pay protection policies breach the Equal Pay Act 1970?  Not necessarily, said the Court of Appeal in  Haq v The Audit Commission . The Court...

Trade Union Rights: Blacklisting

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] Can an employer refuse to be dictated to about whom to employ without breaking trade union membership discrimination laws? Yes, said the EAT, on the facts...

Time Limits: Acts Extending over a Period

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[Thanks to Sarah Russell, solicitor at Russell, Jones and Walker, part of Slater & Gordon Lawyers, for preparing this case summary] Is banning a contractor from site an "act extending over a period" for the purposes of calculating the...

TUPE settlements and credit against compensatory award

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[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] Should a compensatory award be reduced to take into consideration sums received through a settlement with another party? Yes, says the EAT in  Optimum Group Services v...

Dismissal involving accumulated warnings

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[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] When considering the fairness of a dismissal based on accumulated disciplinary warnings, may a tribunal look behind earlier warnings? No, says the EAT in  Wincanton...

Unfair Dismissal and Article 8

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] Does the 'band of reasonable responses' test in unfair dismissal have to be modified where an employee's rights under Article 8 of the European...

Right to Legal Representation at Internal Disciplinary

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[Thanks to Angharad Davies of Dere Street Barristers for preparing this case summary] Is it unfair for a Claimant to not be permitted legal representation during an internal appeal hearing? Not necessarily, says the EAT in  Ministry of...

Strike-outs and Core Factual Disputes

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[Thanks to Sian McKinley of Cloisters for preparing this case summary] Where there is a 'crucial core of disputed fact', can a case still be struck out? Yes - provided evidence is heard on the factual disputes - says the EAT in ...

Continuity of Employment

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[Thanks to  Naomi Cunningham  of Outer Temple Chambers for preparing this case summary] Are relations between employer and employee 'governed by a contract of employment' for the purposes of continuity after an offer of employment has been...

Facebook dismissal - court upholds traditional measure of damages

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[Thanks to Peter Taheri of 5 Essex Court for preparing this case summary] The High Court has handed down judgment awarding just £98 to the Claimant in Smith v Trafford Housing Trust; a breach of contract claim by a Claimant demoted for...

Statutory Dismissal Procedure

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[Thanks to James English of Samuel Phillips solicitors for preparing this case summary] Can a Claimant rely upon two letters, one sent before resignation and one after, as a grievance for the purposes of the now defunct statutory dispute...

ECJ - Age Discrimination and Retirement

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[Thanks to  Emma Price  of Temple Garden Chambers for preparing this case summary] Is lowering the compulsory retirement age for judges from 70 to 62 justified age discrimination?  No, says the CJEU in  EC v Hungary , because it is not...

Non Compliance with Unless Orders

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[Thanks to Simon McCrossan, squatter at New Walk Chambers, for preparing this case summary] When a party fails to comply with an 'Unless Order' does the employment tribunal possess any discretion to refuse to strike out a claim? No, says the...

Permanent Health Insurance

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] Can an employee dismissed for ill health sue for damages if he thereby loses benefits under a PHI policy? Not on the facts in  Lloyd v BCQ Ltd , said...

ECJ - Age Discrimination and Retirement

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[Thanks to  Emma Price  of Temple Garden Chambers for preparing this case summary] Is lowering the compulsory retirement age for judges from 70 to 62 justified age discrimination?  No, says the CJEU in  EC v Hungary , because it is not...

TUPE Service Provision Changes

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] Under TUPE, what is the interpretation of a contract for a 'single specific event or task of short term duration' for the purposes of determining...

Fixed Term Contracts

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[Thanks to  Michael Reed  Employment Legal Officer at the Free Representation Unit for preparing this case summary] Does time worked under a training scheme count towards the four years a fixed-term employee needs to become permanent? No, held...

Discrimination on grounds of Political Opinion

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[Thanks to  Sarah Russell , solicitor at Russell, Jones and Walker, part of Slater & Gordon Lawyers, for preparing this case summary] Does the UK provide adequate protection from dismissal on the grounds of political party membership? No, said the...

Deductions from wages

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[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] Can individual clauses in an employment contract be construed in line with the principles of Autoclenz to establish the validity of a clause? No, says the EAT...

Apparent Bias

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[Thanks to  Laurie Anstis  of Boyes Turner who is standing in for Daniel Barnett.  Thanks also to Simon McCrossan Squatter, New Walk Chambers for preparing this case summary] Can an employment tribunal remain effective and lawfully...

Restrictive Covenants and Fiduciary Duties

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[Thanks to  Laurie Anstis  of Boyes Turner who is standing in for Daniel Barnett. Thanks also to  Caroline Field  of Fox for preparing this case summary] Was there a breach of a non-solicitation clause and fiduciary duty, in a case where...

TUPE - settlements

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] In a TUPE transfer, does a settlement agreement with one employer automatically bar off claims against other actual or potential  Respondents? No, says...

Definition of Disability

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[Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett. Thanks also to Peter Taheri of 5 Essex Court for preparing this case summary] To establish that a person has a disability under the Equality Act 2010, is...

TUPE Service Provision Changes

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[Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett. Thanks also to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] On a service provision change under TUPE does the...

Equal Pay Claims in the Civil Courts

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[Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett. Thanks also to  Neil Addison  of Palmyra Chambers for preparing this case summary] Can an employee bring an equal pay claim in the civil courts rather...

Post-termination restrictions

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[Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett. Thanks also to Kathleen Donnelly of Henderson Chambers for preparing this case summary] Can an employee be bound by post termination restrictions...

Adjournments on medical grounds

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[Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett. Thanks also to Angharad Davies of Dere Street Barristers for preparing this case summary] How should tribunals approach an application for a postponement...

Illegality

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[Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett. Thanks also to  Fatim Kurji  of No 5 Chambers for preparing this case summary] Does a tribunal have to tell parties that it might find that the contract...

Redundancy - USA v Nolan

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] Can the European Court give a preliminary ruling on the effect of the Collective Redundancies Directive, when the dispute concerns an establishment governed...

Redundancy: Single Establishment

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[Thanks to James English of Samuel Phillips solicitors for preparing this case summary] Can a local authority's education department be an establishment for the purposes of collective consultation?  No, says the EAT in ...

Equal Pay

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[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] Does the dissolution of an NHS Trust end employment for the purposes of an Equal Pay claim time limit?  Yes, says the EAT in  Foley v NHS Greater Glasgow &...

Calculating Pilots' Holiday Pay

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[Thanks to Katarina Sydow, Pupil Barrister at Outer Temple Chambers for preparing this case summary] Does the employment tribunal have jurisdiction to determine what sums should properly be included in a pilot's holiday pay?  Yes, says the...

High Court adjourns case for employment tribunal to hear allegations of sexual assault

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[Thanks to David Campion of Garden Court North Chambers, for preparing this case summary] Can High Court proceedings be adjourned pending relevant employment tribunal claims?  Yes, says the High Court (QBD) in  BUQ v HRE . The Claimant...

Transfer of Undertakings - Service Provision Change

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] When solicitors for administrators took over activities previously carried out in-house by a company in administration, was there a service provision change...

Reinstatement - timing of practicability

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[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] Should a tribunal consider the practicability of a re-engagement order for an unfairly dismissed Claimant based on the situation when the order takes effect?  Yes,...

Guarantee Payments

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[Thanks to Peter Taheri of 5 Essex Court for preparing this case summary] Where a temporary variation of employees' working hours is agreed (e.g. to avoid job losses), are the employees entitled to receive guarantee payments in place of wages...

Recognition of Trade Union - Territorial Jurisdiction

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[Thanks to Sarah Russell, solicitor at Russell, Jones and Walker, part of Slater & Gordon Lawyers, for preparing this case summary] Could a group of pilots, the majority of whom were based outside the UK, still use the statutory system of trade...

Injury to Feelings

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[Thanks to  Jahad Rahman  of Rahman Lowe Solicitors for preparing this case summary] Should compensation for general damages be increased by 10%?  Yes, says the Court of Appeal in the case of  Simmons v Castle , revising its earlier...

Au pairs & migrant domestic workers - minimum wage entitlement

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[Thanks to James English of Samuel Phillips solicitors for preparing this case summary] Is an au pair entitled to the national minimum wage if certain tasks are not shared with the family?  No, says the Court of Appeal, in  Nambalat v...

New Employment Contracts announced by George Osborne

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The Chancellor of the Exchequer, George Osborne, has announced the introduction of a new type of employment contract, known as an 'owner-employee' contract. Under this new type of contract, employees give up their UK rights on unfair dismissal,...

Discrimination: Striking Out after Claimant's evidence

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[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] Should an employment tribunal strike out a discrimination case after hearing only the Claimant's evidence?  No, says the EAT in  Timbo v Greenwich Council for...

LLP Members are not Workers

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[Thanks to  Dean Fuller  of Fox for writing this case summary] Can an LLP member be a worker? No, says the Court of Appeal in Clyde & Co LLP v Van Winkelhof. Ms Bates Van Winklehof brought a whistleblowing complaint against Clyde &...

Preserving Continuity Between Associated Employers

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[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] Is continuity of employment preserved when an employee is absent from work at one employer due to a temporary cessation of work, and then starts different work for an...

List of Issues

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[Thanks to  Jahad Rahman  of Rahman Lowe Solicitors for preparing this case summary] Can a tribunal refuse to allow the late calling of further witnesses in the absence of a proper explanation?  Yes, says the EAT in  North Bristol NHS...

Conduct Dismissals and Previous Warnings

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[Thanks to Rad Kohanzad of Atlantic Chambers for preparing this case summary] When deciding whether a dismissal is within the range of reasonable responses, can an employment tribunal take into account matters which the employer did not take into...

Inadequate Explanations and Burdens of Proof

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[Thanks to Rosa Dickinson of St Philips Chambers for preparing this case summary] Can a tribunal take into account inadequate explanations, falling short of dishonest explanations, in determining whether the burden of proof has shifted?  ...

Government Response to Consultation on TUPE

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The Department for Business, Innovation and Skills has published its  response to its call for evidence  on the effectiveness of TUPE.  It's very bland - quite extraordinarily so. It identifies the concerns expressed by employers, points...

Vince Cable's Employment Law Consutlations

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BLOGPOST substantially rewritten at 12pm 14/9/2012 following publication of consultation document Vince Cable has announced  various consultations  on employment law this morning. The consultation papers are here.   Here are my...

Costs

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[Thanks to  Michael Reed  Employment Legal Officer at the Free Representation Unit for preparing this case summary] Can a tribunal hear a costs application if they have expressed an opinion demonstrating that they have already reached a conclusion...

Without Prejudice discussions

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[Thanks to  Jahad Rahman  of Rahman Lowe Solicitors for preparing this case summary]  Is evidence of without prejudice negotiations revealed during testimony admissible?  No, says the EAT in  Gallop v Newport City Council .  ...

TUPE: Harmonisation of Terms

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] In what circumstances is a dismissal to effect contractual changes automatically unfair under TUPE, and what is the appropriate remedy?  These...

Listing hearings without asking for non-available dates

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[Thanks to  Fatim Kurji  of No 5 Chambers for preparing this case summary] Where there are other witnesses available, is the tribunal entitled to refuse an application for an adjournment?  Not always, says the EAT in  University of East...

Employment status - minicab driver

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] Was a minicab driver an employee where, under his contract, he could work as and when he liked?  No, says the EAT in  Knight v Fairway &...

Constructive Dismissal

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[Thanks to John Cook of SAS Daniels LLP for preparing this case summary] In order for an employee to succeed in a claim of unfair constructive dismissal does the principal reason for the resignation need to be a fundamental breach of the contract...

Adjournments - Tribunal and Criminal Proceedings

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[Thanks to  Sarah Russell , solicitor at Russell, Jones and Walker, part of Slater & Gordon Lawyers, for preparing this case summary.] Will a pre-hearing review be postponed where the Claimant suffers from depression, and a criminal trial is...

Costs - Assessment of Wasted Costs Orders

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[Thanks to Rad Kohanzad of Atlantic Chambers for preparing this case summary.]  Can an employment tribunal refer a wasted costs order to the County Court to be assessed?  No, says the EAT in Casquerio v Barclays Bank.  In...

Uplifts for Failure to Comply with Acas Code

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary.] Can uplifts for failure to comply with the Acas Code be made in favour of workers as well as employees?  No, says the EAT in  Local Government...

Medical Evidence and 'Unless' Orders

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[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary.]  Should a Tribunal strike out or stay a disability discrimination case if a Claimant fails to co-operate with an order to obtain medical evidence?  Yes, says...

Compensatory Award and Entitlement to Work

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] Was an employment tribunal right to award unfair dismissal compensation beyond the period an employee was entitled to work in the UK? No, says the EAT...

'Pool of One' in Redundancy Selection

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[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] Does the 'range of reasonable responses' test apply to the decision to use a 'pool' of one in a redundancy selection exercise? Yes, says the EAT in ...

Mitigation of Loss

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[Thanks to  Sarah Russell , solicitor at Russell, Jones and Walker, part of Slater & Gordon Lawyer, for preparing this case summary] Had there been a failure to mitigate loss where an employee declined to accept re-employment in the same role on...

Managing Redundancy for Pregnant Women

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Acas, in association with the Equality and Human Rights Commission, has published a Good Practice Guide on  Managing Redundancy for Pregnant Employees or those on Maternity Leave . Acas has also updated its guidance on  Handling Redundancy , which...

Intention to Underpay Wages

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[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] Can an employer commit a fundamental breach of contract by intentionally failing to pay an employee the full amount of pay properly due, even if making an honest mistake as...

Umbrella Contracts/Continuity of Employment

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] When carers employed by a contractor were engaged under a zero hours contract, was it open to a tribunal to find they were employed under a global contract...

Unpaid Work Scheme Does Not Breach Human Rights

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[Thanks to John Cook of SAS Daniels LLP for preparing this case summary] Is it slave labour and therefore unlawful to force an individual in receipt of Job Seekers Allowance to participate in a 'work for your benefit' scheme? No,...

Death in Service Benefit

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[Thanks to  Sian McKinley , Pupil Barrister at Cloisters, for preparing this case summary] Can the estate of an employee who was unlawfully dismissed, and died shortly after, bring a claim for loss of a death in service benefit? Yes, said the EAT...

Constructive Dismissal

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[Thanks to John Cook of SAS Daniels LLP for preparing this case summary] If an employer upholds an employee's grievance about treatment by his immediate manager, can this prevent the employee relying on the treatment to show a breach of the...

Employment Status

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[Thanks to  Laurie Anstis  of Boyes Turner who is standing in for Daniel Barnett during holiday absence, and to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary ] Was a GP carrying out hair restoration...

Holiday Pay Carry Over

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[Thanks to  Laurie Anstis  of Boyes Turner who is standing in for Daniel Barnett during holiday absence, and to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] Can a worker, who has not taken paid annual...

Implication / Variation of Terms

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[Thanks to  Naomi Cunningham  of Outer Temple Chambers for preparing this case summary] Was an agreement to award a pay increase calculated in one of two alternative ways unenforceable because uncertain? No, says the EAT (Slade J presiding)...

Extending Time For Appeal

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[Thanks to  Michael Reed , Employment Legal Officer at the Free Representation Unit, for preparing this case summary] Is the EAT deadline too harsh? Can a disabled claimant use his disability to excuse a delay? Not in  Greg O'Cathail v...

EAT Observations on Employment Judges Sitting Alone

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] Is it a good idea for employment judges sitting alone to hear unfair dismissal cases? The EAT (Lady Smith) expressed some reservations about this in ...

'Breakdown of Trust' Dismissals

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[Thanks to Jibin Philip, assistant solicitor at  Police Federation of England and Wales , for preparing this case summary] Can 'breakdown of trust' always be a substantial and sufficient reason for dismissal? No, says the Court of Appeal...

Unfair Dismissal - Redundancy Scoring

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[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] Should an employment tribunal find a redundancy dismissal unfair by examining the scoring in a selection process? No, says the EAT (HHJ David Richardson presiding)...

Vicarous Liability of Catholic Church (civil case)

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[Thanks to  Michael Reed , Employment Legal Officer at the Free Representation Unit for preparing this case summary] Can the Catholic Church be vicariously liable for a Priest's actions? It could in  JGE v The Trustees of the Portsmouth...

Fees in Employment Tribunals

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The Ministry of Justice has published the results of its consultation on the introduction of fees in employment tribunals. You can read the  press release , but I recommend reading the Conclusion at pages 60 and 61 of the  full response .  ...

Amending Claims

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[Thanks to Claire Darwin of Matrix Chambers for preparing this case summary] We all know what factors an ET should consider when deciding whether to permit a party to amend his or her statement of case, but what factors can an employment...

Employment Tribunal Rules

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Mr Justice Underhill, who has been carrying out a fundamental review of employment tribunal rules and procedures, has reported today. His report to the government is  here  and the new draft rules are here. Here are a few of the key points:-...

Striking Out ET3 - Effect

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[Thanks to  Jack Feeny  of No5 Chambers for preparing this case summary] Can a respondent be permitted to take part in a remedy hearing after its ET3 has been struck out for non-compliance? Yes, said the EAT in  EPEM Ltd v Huggins ,...

Costs in Employment Tribunals

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[Thanks to  Michael Reed , Employment Legal Officer at the Free Representation Unit, for preparing this case summary] In  Topic v Hollyland Pitta Bakery , the EAT upheld a decision to award costs against the Claimant because her claim was...

CJEU Upholds Swedish Retirement Age of 67

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] Can a national law provide for retirement of employees at the age of 67 without taking into account the level of the retirement pension available to the...

Preparing to Compete

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[Thanks to  Naomi Cunningham  of Outer Temple Chambers for preparing this case summary] Is it gross misconduct for an employee to take preliminary steps towards setting up in competition with his employer? Not necessarily. The judgment of the...

Employment Appeal Tribunal: Familiar Authorities

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[Thanks to Michael Reed, Employment Legal Officer at the Free Representation Unit, for telling me about this]  The Employment Appeal Tribunal has published its list of ' Familiar Authorities ' - copies of which should no longer be included in...

Annual Employment Tribunal Statistics

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The annual  employment tribunal statistics  have been published. The highlights:- total number of claims continues to decrease (from 236k in 2009/10, to 218k in 2010/11 and decreasing again to 186k in 2011/12) unfair dismissal claims fallen...

Disability Discrimination

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[Thanks to  Michael Reed , Employment Legal Officer at the Free Representation Unit, for preparing this case summary] Does the duty to make reasonable adjustments end when an employee goes on sick leave? Sometimes, but in  Olenloa v North West...

Fiduciary Duties

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[Thanks to  Michael Reed , Employment Legal Officer at the Free Representation Unit, for preparing this case summary] Does an employee owe his employer a fiduciary duty? He did not in  Ranson v Customer Systems Plc . Mr Ranson resigned and set...

Reduction in Headcount not required for Redundancy

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary.]  Can there be a redundancy where the headcount remains the same? Yes, says the EAT in  Packman v Fauchon .  The claimant was employed as a...

Sickness and Annual Leave

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[Thanks to Angharad Davies of Dere Street Barristers for preparing this case summary] If a worker is sick during annual leave can they take their annual leave at a later date? Yes, says the CJEU in  ANGED V FASGA , they can regardless of...

Protected Conversations

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[This is a blogpost, published this morning, from  Laurie Anstis  of Boyes Turner, who has kindly given me permission to reproduce it] The  Enterprise and Regulatory Reform Bill  was expected to be the vehicle for the government's...

Union Withdrawing Legal Support - Victimisation?

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[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] Is it unlawful victimisation for a Trade Union to refuse to fund litigation by a member against her employer for disability discrimination, if that employee also brings (or...

Update on Enterprise and Regulatory Reform Bill

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The  Enterprise and Regulatory Reform Bill  received its second reading in the House of Commons yesterday. During the debate, the Secretary of State for Business, Innovation and Skills (Vince Cable) announced that the government would not be...

Unfair Selection For Redundancy

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[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] Are subjective redundancy selection criteria bad? No, says the EAT (the Master of the Rolls presiding) in  Mitchells of Lancaster (Brewers) Ltd v Tattersall , noting...

TUPE - Assignment of a Pub Lease

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] Can the assignment of a lease of commercial premises amount to a TUPE transfer? Not unless it can be shown that there was concomitantly a transfer of an...

Effective Date of Termination

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[Thanks to Angharad Davies of Dere Street Barristers for preparing this case summary] Is a tribunal entitled to take into account an otherwise unsuccessful internal appeal that purports to change the effective date of termination (EDT)? ...

Can Employers Re-discipline for the Same Offence?

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Can an employer put an employee through a second disciplinary procedure, for the same offence, on the grounds that the original disciplinary procedure didn't impose a serious enough sanction? Yes, in exceptional circumstances, says the Employment Appeal...

PILONs, Notice Pay and After-Discovered Conduct

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[Thanks to  Catriona Stirling  of Cloisters for preparing this case summary] Is an employer entitled to withhold a payment in lieu of notice if it dismisses an employee under an express term in his service agreement which provides for summary...

Enterprise and Regulatory Reform Bill

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The Enterprise and Regulatory Reform Bill has, this afternoon, been laid before parliament. Quite separate from the Adrian Beecroft proposals which have been in the news this week, this new Bill provides for:- a mandatory period of Acas conciliation...

Dismissal Hearings and Article 6

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[Thanks to  Naomi Cunningham  of Outer Temple Chambers for preparing this case summary] Is Article 6 engaged when an NHS employer dismisses a consultant for misconduct? No, says the Court of Appeal in  Mattu v University Hospitals of...

TUPE - Pension Liabilities

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for providing this case summary] Do entitlements to an early retirement pension transfer under TUPE, and if so, what is the scope of the transferee's obligations? The High Court...

Illegality and Discrimination

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[Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett. Thanks also to  Neil Addison  of Palmyra Chambers for preparing this case summary] Can someone who is knowingly working illegally in the UK still put...

TUPE - Organized Grouping of Employees

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[Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett. Thanks also to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] If an employee works 100% of his time for a single client,...

Whistleblowing - Can an LLP Member be a Worker?

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[Thanks to Dean Fuller of Fox for preparing this case summary] Can an LLP member be a worker? Yes, says the EAT (HHJ Peter Clark) in  Van Winkelhof v Clyde & Co LLP  reversing an employment tribunal's decision that it did not...

Consultation On Discrimination Law Reform

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[Thanks to  Laurie Anstis  of Boyes Turner for preparing this summary] The government has today announced consultation on the abolition of: The rules on third-party harassment in section 40(2)-(4) of the Equality Act 2010 (here), The...

Judicial Diversity Consultation Response

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[Thanks to  Paul Housego  of Beers Solicitors for preparing this summary] The Ministry of Justice response to the consultation document on diversity in the judiciary was published on Friday. There are several changes to procedures, perhaps...

Vacancy: Executive assistant

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Executive Assistant to Daniel Barnett Part time role – 4 or 5 hours per day Central London based The Role Daniel Barnett is a practising  employment law barriste r at Outer Temple Chambers.  He also runs the ...

Settlement Offers and Breaking the 'Chain of Causation'

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[Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett. Thanks also to Rad Kohanzad of Atlantic Chambers for preparing this case summary] Can an employee's refusal to accept an offer of settlement amount...

Apportionment of Liability in Discrimination Cases

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[Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett. Thanks also to  Robert Dickason  of Outer Temple Chambers for preparing this case summary] Can the employment tribunal determine claims for contribution...

Statutory Dispute Resolution: Collective Grievances

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[Thanks to Saul Margo of Outer Temple Chambers for preparing this case summary.]  Does regulation 9 (collective grievances) of the now defunct Employment Act 2002 ( Dispute Resolution ) Regulations 2004  have to be expressly or...

Employment Status: Stringfellows' Lapdance

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[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] Is a lap dancer an employee? Yes, says the EAT (HHJ McMullen QC) in  Quashie v Stringfellows Restaurants Limited  reversing an employment tribunal's decision...

Staying Tribunal Proceedings

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[Thanks to Rad Kohanzad of Atlantic Chambers for preparing this case summary] Should a tribunal claim be stayed where the Claimant sent the Respondent a pre-action letter and draft particulars in relation to a prospective High Court claim, where...

Age Discrimination

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] The Supreme Court has handed down its decision in Homer v Chief Constable of West Yorkshire Police on the scope of indirect discrimination on the...

Mandatory Retirement Age

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[Thanks to  Claire McCann  of Cloisters Chambers for preparing this case summary] The Supreme Court has held in Seldon v Clarkson Wright and Jakes (a Partnership) that the test for justifying direct age discrimination is different and...

Supreme Court Judgments on Age Discrimination

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The Supreme Court has handed down its judgments in  Seldon and Homer , both dealing with different aspects of age discrimination. A fuller summary will follow, but for now, here are the links to the press summary and the full judgments. ...

Addendum - EAT Practice Statement - 17th April 2012

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The editor of the IRLRs, Michael Rubenstein, has asked me to forward on this comment, which I am happy to do:-  "The EAT's new Practice Statement does not draw a distinction between "official" law reports and others. The distinction...

EAT Practice Statement - 17th April 2012

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The President of the Employment Appeal Tribunal, Mr Justice Langstaff, has issued a Practice Statement dated 17th April 2012.  All practitioners who appear in the EAT should read the full document; the summary below is not a suitable...

Discrimination: Unsuccessful Job Applicants

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] Can a worker, who claims plausibly that she met the requirements listed in a job advertisement, and who did not get the job, get disclosure of information...

Costs

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[Thanks to David Campion, Pupil Barrister at  Garden Court North Chambers , for preparing this case summary] Before making a costs order, should an Employment Tribunal raise the issue of the potential paying party's ability to pay costs, even if...

Costs Warnings

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[Thanks to Jahad Rahman of Kervin & Barnes Solicitors for preparing this case summary] Does the failure to give a costs warning make it harder to seek an order for costs?  Yes, says the EAT (Recorder Luba QC) in  Rogers v Dorothy...

Employment Transfers

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] In the absence of a relevant TUPE transfer, can an individual's employment transfer from one employer to another without the employee's consent? ...

Costs Warnings

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[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] Can it be unreasonable conduct for a party to fail to engage with a Costs warning letter?  Yes, says the EAT (Supperstone J presiding) in  Peat & ors v...

Effective Date of Termination

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[Thanks to  Louise Jones  of Temple Garden Chambers for preparing this case summary] When is the effective date of termination when an employee unequivocally resigns on one date, with immediate effect, and her employer subsequently informs her...

TUPE

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[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] What is the right approach to Regulations 3 and 4 of TUPE 2006 when considering if there has been a service provision change? TUPE enthusiasts should look to  Argyll...

Are Pupillages Indirect Dicriminatory?

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[Thanks to  Neil Addison  of Palmyra Chambers for preparing this case summary] Is the requirement by the Bar Council that pupils should be paid a "provision, criteria or practice" that is racially discriminatory to Black Africans? ...

Right to Request Not To Retire

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When informing an employee of his/her right to request to work beyond retirement, how much does an employer have to say? The Court of Appeal has answered this question in the test case of  R&R Plant (Peterborough) Ltd v Bailey , upholding the ...

TUPE - Service Provision Change

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] Is there a service provision change under Reg 3(1)(b) of TUPE when the service is conducted in a fundamentally or essentially different manner following...

Abandoning Claims at the Tribunal

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[Thanks to Caroline Jennings of No 5 Chambers for preparing this case summary] How should a tribunal approach a situation where a party appears to be seeking to concede, abandon or withdraw part of their case? With great care, according to the...

Employment Law Reform

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Laurie Anstis  of Boyes Turner has trawled the small print in the latest documents from the government on employment law reform, including the  BIS Employment Law Reform Annual Update 2012  and the  Call for Evidence on Dismissal and...

Collective Redundancies - AG's Opinion

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] What is the trigger point for the duty to inform and consult about collective redundancies? This must be determined by the national court in the light of...

Can saving cost be a 'legitimate aim'?

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[Thanks to  William Young  of Outer Temple Chambersfor providing this case summary] The Court of Appeal today gave judgment in  Woodcock v Cumbria Primary Care Trust . In dismissing Mr Woodcock's appeal, it rejected the argument that...

London (East) Tribunal

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For those practitioners with cases due to be heard at London (East) Tribunal in the next couple of weeks, be aware you may experience difficulties. The tribunal is sending out letters cancelling hearings on the basis that it has "reached the...

Dual Contract Arrangements

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HMRC has published  guidance  on Dual Contract Arrangements. Dual Contract Arrangements are most commonly seen where a foreign domiciled worker works both inside and outside the UK. S/he may claim to have two employment contracts, usually...

Marital Discrimination

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[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] Is it unlawful discrimination on the grounds of marital status if a spouse is dismissed (or suffers some other detriment) on the grounds of being married to a particular...

Call for Evidence on Dismissal Rules

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The government has launched a Call for Evidence as to whether dismissal rules and the Acas Code of Practice are too complex or misunderstood. It has also launched the call for evidence, as leaked last week, on whether to introduce a system of no-fault...

Redundancy: Pool of One

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[Thanks to  Nicholas Hill  of Outer Temple Chambers for preparing this case summary] When should an employment tribunal interfere with the pool for selection chosen by the Employer?  Rarely, says the EAT (HHJ McMullen QC) in  Halpin v...

TUPE: Substantial Change in Working Conditions

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] Can a change of location on a TUPE transfer give rise to a claim for constructive, automatically unfair, dismissal?  Yes, says the EAT (Langstaff P)...

Redundancy and Suitable Alternative Employment

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] When, after a re-organisation, a redundant employee is invited to apply for a newly created role, can the employer appoint "the best person for the...

Are Employment Judges 'Workers'

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[Thanks to  Rachel Chambers  of Cloisters for preparing this case summary] The Court of Justice of the European Union in Luxembourg (CJEU) has handed down its decision today in  O'Brien v Ministry of Defence . Mr O'Brien - a part...

Tupe: ETO Reason for Dismissal

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[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] Can a transferee establish an ETO defence to an otherwise automatically unfair transfer-related dismissal if it provides the services rendered by transferring employees...

Fraudulent/ Illegal Contracts

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] Can a worker enforce employment rights dependent on a contract of employment if the contract was illegal from the outset? No, says the EAT (Langstaff J)...

Restrictive Covenants and Confidential Information

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[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] Should an employer get an injunction, based on a contractual confidentiality clause when there are no restrictive covenants - to prevent a former employee in possession of...

Suspending Employees During Disciplinary Hearings

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[Thanks to  Louise Jones  of Temple Garden Chambers for preparing this case summary] In  Crawford v Suffolk Mental Health Partnership NHS Trust , the employer referred a matter of alleged gross misconduct that arose out of the care given to...

TUPE - Organised Grouping of Employees

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] In deliberating whether there has been a service provision change under Reg 3 (1) (b) of TUPE 2006, is it sufficient to say that employees will transfer...

Tribunal Judges Sitting Alone in Unfair Dismissal Cases

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The draft  Employment Tribunals Act 1996 (Composition) Order 2012  has been published, expected to come into force on 6th April 2012. It enables (as the presumed default) employment judges to sit alone in unfair dismissal cases - all part of the...

Restrictive Covenants

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What does "solicitation" mean in a post termination non solicitation clause? In  Towry EJ Limited v Barry Bennett and others , in a 350 page judgment handed down today Mrs Justice Cox held that it should be generally defined as meaning if an...

Compromise Agreements under the Equality Act 2010

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Remember the furore over the drafting of s147 of the Equality Act 2010? Can certain compromise agreements ever be valid? Does the drafting of s147 preclude a complainant's lawyer from being an 'indepedent adviser'? Two top employment law QCs...

Correction: Draft SI for Increasing Qualifying Period

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Hopefully everyone spotted the deliberate (ahem) error in the bulletin an hour ago. The unfair dismissal qualifying period is increasing to two years, not one year. Corrected version below...  The draft  Unfair Dismissal and Statement of Reasons...

Draft SI for Increasing Qualifying Period

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The draft  The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012  have been published. In a nutshell, for all employees employed on or after 6th April 2012, the qualifying period for unfair...

Discrimination - Christian Beliefs v Gay Rights

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The Court of Appeal has confirmed that Christian hotel owners Mr & Mrs Bull discriminated against civil partners Messrs Preddy & Hall by refusing to allow them to share a double-bed. The Chymorvah Hotel in Cornwall operated a strict policy...

Unfair Dismissal - Territorial Jurisdiction

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[Thanks to Rosa Dickinson of St Philips Chambers for preparing this case summary] Is failing to be within one of Lord Hoffmann's three categories of employees who fall within the jurisdiction of employment tribunals (as per Lawson v Serco)...

Team Moves and Springboard Injunctions

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[Thanks to  Katherine Apps of Littleton Chambers for providing this case summary] Harry Potter, Bat Phones, Fantasy Football and Three bells on the fruit machine; unlikely facts for a team move case but all feature in  QBE Management Services...

Employment Status

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[Thanks to  Jahad Rahman  of Kervin & Barnes Solicitors for preparing this case summary] Were 'Leaders' engaged to conduct Weight Watchers meetings employees of Weight Watchers Ltd for the purposes of PAYE and NI contributions? Yes,...

Fixed Share Partner Not an Employee

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Is a fixed share equity partner in an LLP an 'employee'? No, says the Court of Appeal in Tiffin v Lester Aldridge LLP. Upholding the  EAT's decision , the Court held that Mr Tiffin had entered into a partnership agreement with other...

Disclosure of Documents Held Overseas

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[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] Does an Employment Judge in Scotland have the power to order a party outside Great Britain to disclose documents? No, says a division of the EAT in Scotland (the...

Vicarous Liability in Police Force

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[Thanks to David Campion, Pupil Barrister at  Garden Court North Chambers , for preparing this case summary] Could a chief police officer be vicariously liable for alleged discriminatory acts of a police officer against a civilian employee, under the...

Four Weeks Paid Holiday Under EU Law Has Direct Effect

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] Does the right to four weeks annual paid leave under Art (7)(1) of the EU Working Time Directive have direct effect? Yes, says the Court of Justice of the...

Acas Issues Guidance for the Olympics

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Acas has issued guidance on how to deal with issues arising from the Olympic Games in the summer. It covers issues arising for those who do, and don't, want to time off, and has a useful Q&A section for both employers and employees....

Vicarous Liability - Violent Employees

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[Thanks to Louise Jones of Temple Garden Chambers for preparing this case summary] In  Weddall v Barchester Healthcare ;  Wallbank v Wallbank Fox Designs Ltd , the Court of Appeal considered the concept of vicarious liability in...

Redundancy and Suitable Alternative Employment

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[Thanks to Kate Balmerof Devereux Chambers for preparing this case summary] Can an employee act reasonably in refusing an offer of suitable alternative employment where the Employment Tribunal correctly concludes that a reasonable employee would have...

Detriments and Causation

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[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] Does a worker suffer a detriment if he refuses to sign a 48-hour week opt-out, and is then refused an opportunity for overtime by his employer? Not if the employer's...

Adjournment for Unwell Claimant

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[Thanks to Sarah Russell, solicitor at  Capita , for preparing this case summary] Should the tribunal have proceeded to hear a claim in the Claimant's absence when he applied for a second adjournment on the basis of ill-health? No, said the EAT...

Legal Fee Indemnities in Compromise Agreement

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[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] Did an indemnity in a compromise agreement oblige an employer to pay a former employee's legal expenses associated with a criminal investigation into...

Privacy, PHRs and (without) Prejudice

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[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] Ought an Employment Tribunal hold a Pre-Hearing Review ('PHR') in private, if it considers the admissibility of ‘without prejudice’ communications that...