Issue 27 - 5th March 2007

Monday 5 March 2007

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Restrictive Covenants

Thomas v Farr plc [2007] EWCA Civ 118

The Court of Appeal reviewed the authorities on non-competition clauses and upheld the enforceability of a clause in a contract of employment of a managing director of a firm of insurance brokers, prohibiting him from competing with the company for 12 months after the termination of his employment. Read the transcript

Minimum wage

Leisure Employment Services Ltd v HMRC [2007] EWCA Civ 92

The Court of Appeal upheld the decision of the EAT that in the circumstances the amounts deducted from the workers for the payment of heat and light in accommodation provided by the employer in addition to the maximum accommodation charge was not allowable under the National Minimum Wage Regulations. Read the transcript

Strike out

Essombe v Nandos Chickenland Ltd UKEAT/0550/06/DA

A Claimant who had told the Tribunal that he had video-recorded an internal disciplinary hearing about which there were crucial conflicts of fact had his claim struck out when he failed to comply with an order to disclose the recording. The EAT would not interfere with the decision. The effect of the Claimant's deliberate decision to disobey the disclosure order was to prevent the Tribunal from having the best evidence on which to base their findings of fact and the Respondent to establish its factual case. This was not a case where a fair trial was still possible and it was one of the rare cases when public policy and the over-riding objective meant the claim should have been struck out. Read more

Admissibility of evidence

Digby v East Cambridgeshire District Council UKEAT/0522/06/DA

A Tribunal has discretion, in accordance with the overriding objective, to exclude relevant evidence which is unnecessarily repetitive or of only marginal relevance in the interests of proper, modern day case-management. However, that discretion must be exercised judicially. It may properly be challenged on appeal on Wednesbury principles. The guiding principle is to ensure justice between the parties.
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Dismissal of claim

Fairclough & ors v John Reilly Civil Engineering Ltd UKEAT/0386/06/DM

A Tribunal erred in dismissing the claims of Claimants who though not personally present appeared by their solicitor. While Tribunal had the power under rule 27(5) of the Employment Tribunal Rules of Procedure to dismiss a claim where a Claimant failed to appear, it was not apparent the Tribunal had regard to this rule and moreover the decision was not clearly made after having considered the matters mentioned in rule 27(6). Read more

Statutory grievance procedures

Odoemelam v The Whittington Hospital NHS Trust UKEAT/0016/06/DM

The EAT held that the grievance procedures do not apply to claims against fellow employees, disagreeing with its view in London Borough of Lambeth v Corlett (UKEAT/0396/06) and agreeing with Bissett v Martins and Castlehill Housing Association Ltd (UKEAT/0022/06), albeit for different reasons. Further, it held that the Claimant's letter which referred to inconsistent treatment with another member of staff did not meet the requirements of Step 1 of the grievance procedures as it did not relate to the subsequent claim for race discrimination in that it did not complain that the difference in treatment was on the grounds of race. Read more

Statutory dismissal procedures

Metrobus Ltd v Cook UKEAT/0490/06/JOJ

On the Respondent's concession at the Employment Tribunal that it failed to carry out the statutory dispute resolution procedure and so automatically unfairly dismissed the Claimant contrary to the s98A Employment Rights Act 1996, the Employment Tribunal was under no duty to make findings under s98 relating to ordinary unfair dismissal. The 40% uplift of compensation was justified by the Employment Tribunal's finding of blatant failure and was not manifestly excessive or perverse. Read more

Statutory grievance procedures and acceptance of claims

The Basingstoke Press Ltd v Clarke UKEAT/0375/06/CEA

Under section 32 Employment Act 2002 an Employment Tribunal shall be prevented from considering a complaint to which the grievance procedures apply if less than 28 days have elapsed since a Step 1 requirement was complied with. The EAT held this meant 28 clear days between the date of the grievance and the date of submission. The Claimant's claim was therefore put in too early and the Tribunal did not have jurisdiction to hear the claim. Read more

Employment status

Forest Mere Lodges Ltd v Watt & Cameron UKEAT/0426/06/ZT

The EAT would not interfere with the Tribunal decision that the Claimants were employees. Despite the fact that the Respondent's stated they were not obliged to provide work, the ET found that they had consistently provided employment for over a year and the only gaps were pre-notified holidays or ill health. On this basis it was open to the Tribunal, although it was not explicitly stated, to find that the expectation of work had crystallised into a legal obligation. Read more

Cragie v London Borough of Hackney UKEAT/0556/06/JOJ

The EAT held that a worker employed by the Respondent through an agency was not an employee of the Respondent. Considering Dacas and Muscat, the Employment Tribunal was entitled not to imply a contract of employment as it found there was no mutuality of obligation on the part of the Respondent to supply work or on the part of the Claimant to accept it despite the fact that he had work for them for over a year. Again the EAT says protection for agency workers should come through statute. Read more

James v Redcats (Brands) Ltd UKEAT/0475/06/DM

The EAT gives guidance to Tribunals on considering for the purposes of s54(3) National Minimum Wage Act (and for other statutes with the same definition) whether a Claimant is a worker, who may be self-employed, or whether they were operating a business on their own account. The question can be analysed in the same was as in discrimination statutes by considering whether the dominant purpose of the contract is the provision of personal service. Importantly it was not relevant whether there was mutuality of obligation when the Claimant was not working. The case of A D Bly Construction Ltd. v Cochrane UKEAT/02043/05 was wrongly decided in so far as it was held that worker status during periods of work depended on mutuality of obligation during breaks between work. The case of Mingeley v Pencock and Ivory t/a Amber Cars [2004] IRLR 373 is not relevant the status of the individual once work is actually being performed. While there may have been no overarching or umbrella contract, and therefore no employment status, in the gaps, the Claimant was a worker during the period when the work was performed and she was entitled to be paid for the work done. In any event the Claimant was alternatively a homeworker under s35 of the Act given a broad construction even though she moved from place to place to deliver packages rather than made up articles at home. Read more

Disability discrimination

Fowler v London Borough of Waltham Forest UKEAT/0116/06/DM

The EAT, following O'Hanlon v Commissioners HM Revenue and Customs (UKEAT/0109/06), held that save in exceptional circumstances payment of wages or sick pay to a disabled person absent from work could not constitute on its own a reasonable adjustment because it could not be said to facilitate a return to work. Further, in most cases it would be reasonable for an employer to decide that it was appropriate to pay those employees who attended work and not to pay those who did not. Any difference in treatment therefore between disabled employees and those who were not would be justified. Read more

Heathrow Express Operating Company Ltd v Jenkins UKEAT/0497/06/MAA

The EAT held that the Employment Tribunal had erred in disagreeing with the Respondent's view of the medical evidence and deciding that the Claimant had been fit to return to work and therefore her dismissal was not justified. Justification for disability related dismissal is a subjective one (Jones v Post Office). It was not altered by the fact that the Tribunal had found that some adjustments could have been made to enable the Claimant to return to work. The employer was entitled to come to the conclusion that no adjustments could be made as she was, on the medical evidence as they were entitled to see it, not fit to return. Read more

Sex discrimination

Reedman v Athithan UKEAT/0296/06/CEA

The Claimant claimed she was sexually harassed by the Respondent which led to her resignation. The claims were generally denied. The EAT found that the Tribunal had erred in failing the grasp the issue of whom it believed but instead finding against the Claimant on the basis that she had not discharged the burden of proof. Cases which are "too close to call" will be very rare indeed, and Tribunals must guard against relying on the burden of proof as a means of avoiding the unpalatable task of deciding which witnesses are truthful and which are not. If the Tribunal is unable to decide whose evidence was to be preferred it has to explain why it is not persuaded that the Claimant's version of events was true (Anya v University of Oxford [2001] ICR 847). Read more

Religious discrimination

Glasgow City Council v McNab UKEATS/0037/06/MT

The EAT upheld the decision that an atheist teacher working in a Roman Catholic school was discriminated against on religious grounds when he applied for the post of Acting Principal Teacher of Pastoral Care by not being considered for an interview as he was not of the Roman Catholic faith. This was not a genuine occupational requirement. Read more

Part-time workers and pensions

Wilkes v Dundee City Council UKEATS/0041/06/MT

The Claimant worked under a series of short-term contracts until August 1990 when she was appointed to a permanent part-time post and admitted to the pension scheme. Two year's later she submitted a claim complaining of her previous exclusion from the scheme. She claimed she had at all times worked under a global contract of employment. The Respondent argued that as the series of short-term contracts came to an end in 1990 and she was therefore out of time for bringing the claim. The Tribunal held there was no global contract and her claim was out of time. The EAT upheld the decision following Preston No 3 and Jeffery & ors v Secretary of State for Education & ors [2006] ICR 1062. The ECJ in Preston & ors v Wolverhampton Healthcare NHS Trust [2000] IRLR 506 had been aware of the possibility that employer and employee may remain in an employment relationship beyond a time when their relationship has been governed by a series of short term contracts from which a stable employment relationship can be inferred, had regard to that possibility and determined the start of the limitation period would not be postponed in that event. Read more

Whistle blowing

Kuzel v Roche Products Ltd UKEAT/0516/06/CEA

Where the allegation is that the reason for dismissal was for making a protected disclosure and the employee has less than one year's service, the burden is on her to establish that her protected disclosure was the employer's reason (or principal reason) for dismissal in order to found the Tribunal's jurisdiction to entertain her complaint. If the employee has more than one year's employment, she only has to raise a prima facie case of an inadmissible reason for dismissal. The onus then rests on the employer to either prove his own, other reason, for dismissal or disprove that the reason was the protected disclosure. Read more

Unfair dismissal

Airbus UK Ltd v Webb UKEAT/0453/06/DA

Employers cannot to take into consideration expired warnings when deciding whether to dismiss for misconduct. Read more

Loosley v Social Action for Health UKEAT/0378/06/DA

Failure to draw to the attention of a redundant employee a suitable alternative post was in the present circumstances a failure to follow a procedure under s98A(2) Employment Rights Act 1996, although it may not always be so. The more serious the procedural breach, the more cogent the evidence which is needed that the dismissal would have taken place in any event. This was an exceptional case where the Tribunal were entitled to find that the dismissal was not unfair. Read more

Manchester College of Arts and Technology v Smith & Ors UKEAT/0460/06/DM

Even though the Respondent had established a business case for redundancies it was still open to the Tribunal on the evidence to find that it was not the true reason or principal reason for the dismissals. Read more

Mullinger v Department for Work and Pensions UKEAT/0515/05/RN

It is not open to a Tribunal to reduce upon the just and equitable principle an award of compensation for unfair dismissal under section 123(1) Employment Rights Act 1996 in respect of conduct which did not take place during employment but afterwards. That section is entirely directed to financial loss due to the loss of employment. Read more

Constructive dismissal

Yorke & ors v Moonlight UKEATS/0025/06/MT

The Tribunal had erred in holding that the behaviour of the Claimant's employer's father was enough to create a fundamental breach of contract. The EAT held that the conduct of a third party could be relevant in a constructive dismissal case, for example if an employer were to fail without reasonable and proper cause, to take reasonable steps to control the behaviour of a third party who repeatedly causes upset and distress in the workplace. However in this case there was no criticism of the employer's conduct at all. Read more

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