Issue 2 - 30 January 2006

Monday 30 January 2006

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Serco v Lawson [2006] UKHL 3

Since the repeal of s196 Employment Rights Act 1996, territorial limits on the right to claim unfair dismissal, with limited exceptions, are to be implied by the courts when appropriate. However the House of Lords found that historical principles, such as whether an employee ordinarily works in Great Britain, will still be persuasive factors. In the case of peripatetic workers who are employed to travel outside Great Britain, the issue remains where they are based. However more significance should be given to how the contract is operated than under previous case law. In the case of ex-patriate employees, the circumstances would have to be unusual for an employee who works and is based abroad to come within the scope of British labour legislation.

The question of whether, on given facts, a case falls within the territorial scope of section 94(1) should be treated as a question of law.

Statutory procedures

Holc-Gale v Makers UK Ltd EAT UKEAT/0625/05/SM

Under Regulation 14 Employment Act 2002 (Dispute Resolution) Regulations 2004 statutory questionnaires do not constitute a grievance for the purpose of the regulations. Even thought both Claimant and Respondent indicated on the ET1 and ET3 that a grievance procedure had been started, in fact this was a reference to the questionnaire procedure. The issue was first raised by the Respondent at a Case Management Discussion and the Tribunal held it did not have jurisdiction to hear the claim. The EAT upheld the decision, finding that the fact that the issue was raised at the CMD complied with s32(6)(b) Employment Act 2002.

Withdrawal of claim

Khan v Heywood and Middleton PCT UKEAT/0581/05/ZT


Notice of withdrawal of a claim given under Rule 25(2) of The Employment Tribunals Rules of Procedure 2004 cannot be set aside. However fresh proceedings may be issued with respect to the same facts, unless the original claim has been dismissed under Rule 25(4).

Default judgments

Pestle & Mortar v Turner UKEAT/0652/05/ZT

When reviewing a judgment in default under Rule 33 of The Employment Tribunals Rules of Procedure 2004, the lack of a good reason under Rule 33(6) is a factor which must be taken into account but it does not necessarily have more weight than the other factors.

Mutual obligations

Wilson v Circular Distributors Ltd EATS/0043/05


A contract of employment may exist even if there is no obligation on the part of the employer to provide work. As long as the employee is obliged to accept work that is offered, it may be enough that the employer is obliged to provide work when it is available to be done.

Vicarious liability


Hawley v Luminar Leisure & Others [2006] EWCA Civ 18

In Viasystems (Tyneside) Limited v Thermal Transfers (Northern) Limited the Court of Appeal held that more than one employer may be vicariously liable for the negligent acts of their employees. In the present case the court found that where a security guard provided to a nightclub under contract attacked and seriously injured a member of the public, liability for the acts had wholly passed to the nightclub as the guard's length of service and the control exercised by the nightclub meant he had become "embedded in the organisation".

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