LRD Booklets January 2013

Case law at work - 9th edition


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Introduction

Introduction (591 words)

This is the ninth edition of Case law at work, the LRD’s key source of information on recent employment law cases. It contains clear summaries and ...
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Chapter 1

1. THE EMPLOYMENT LAW SYSTEM (107 words)

Tribunal claims must be brought within specified time limits. In most cases this is three months from the date of the act complained of, or the date ...
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Termination date cannot be changed after contract ended (653 words)

Ms Horwood resigned as a practice manager for Lincolnshire County Council with immediate effect by letter dated 28 January 2010. The letter was ...
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Don’t lose shirt over date of termination of employment (516 words)

The effective date of termination of employment (EDT) is important because it is the date used to calculate whether a claim has been brought in the ...
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Claimants must beware of strict approach to time limits (383 words)

Mr O’Cathail had brought an unsuccessful claim against his former employer, Transport for London, and he wanted to appeal to the Employment Appeal ...
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More scope for time extension in discrimination cases (399 words)

Following a period of maternity leave, the claimant, Ms Little, resigned her position as a sales executive with Richmond Pharmacology on 19 July ...
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All income counts in assessing size of deposit order (290 words)

The claimant, a university student, brought claims for discrimination and whistle-blowing. The tribunal decided that her claims were unlikely to ...
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Claimants must cooperate on expert medical opinions (373 words)

Mr Bacchus, brought a claim against his employer, the British intelligence agency GCHQ, alleging disability discrimination and failure to make ...
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Unfair to refuse adjournment for sick claimant (474 words)

The claimant, Mr O’Cathail, was dismissed by Transport for London (TfL) in December 2010 after two years of sickness absence. He complained of ...
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Adjournment must be granted to claimant if they’re unfit (459 words)

Mr Iqbal suffered from stress and depression. He brought various tribunal claims against his employer. ...
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Claimant is usually entitled to adjournment to get fair trial (242 words)

Mr Hibbert, brought an unfair dismissal claim against Apple Europe. It had been adjourned five times for reasons connected to one or other of the ...
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Claim struck out over missed deadline on ‘Unless’ Order (302 words)

Mr Laing brought a tribunal claim for a subsistence allowance for the cost of meals bought on location. During the claim, the tribunal made an ...
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‘Exceptional circumstances’ needed for ‘strike-out’ order (347 words)

The claimant was offered a maternity cover post, but the offer was withdrawn very soon after a telephone call was made by the prospective new ...
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Tribunal wrong to strike out discrimination claim (321 words)

Ms Timbo was employed as an equalities officer for the Greenwich Council for Racial Equality. She was summarily dismissed seven months into her ...
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Claimant must identify series of discriminatory incidents (845 words)

Mr Chikwe, a black African-Caribbean man, brought claims for race and age discrimination against his employer, the Mouchel Group where he worked as ...
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When the burden of proof shifts to employer on discrimination (375 words)

Two employees worked in a family support role in a local authority school — the claimant, Ms Millwood, who was black British, and her colleague Ms ...
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Employer pays price for not calling important witnesses (469 words)

Ms Harrold made claims of race discrimination in the Employment Tribunal against her employer, the North Bristol NHS Trust. The claims were ...
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Tribunal has no power to split up compensation award (438 words)

A group of litigants brought multiple claims against Sunderland City Council, and the GMB and UNISON unions. ...
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No civil court damages for manner of dismissal (721 words)

In these two cases, the Supreme Court considered whether employees are entitled to claim contractual damages in the High Court for losses resulting ...
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Employers must warn on costs (275 words)

Mr Rogers, a school caretaker, lived in on-site housing. He brought a claim against his employer because he was upset about changes to the water ...
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Tribunal’s language suggested bias over question of costs (224 words)

Ms Oni brought claims of constructive unfair dismissal, race discrimination and victimisation against NHS Leicester City Care Trust. The hearing ...
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Tribunal should have queried claimant’s ability to pay costs (347 words)

Ms Doyle brought unsuccessful claims against an NHS Trust for breach of contract, race discrimination and victimisation. The tribunal agreed to a ...
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Chapter 2

2. CATEGORIES OF WORKER (143 words)

Some statutory rights apply only to employees while others apply more widely to workers. This means that it is sometimes necessary to have an ...
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Zero-hours contract did not reflect employment status (468 words)

The five claimants were care workers engaged by Carewatch UK to provide a 24-hour critical care package for a severely disabled woman called VF. ...
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Casual workers on assignments may have employment status (434 words)

Mr Drake worked for market researchers IPSOS MORI for five years, visiting members of the public in their homes and interviewing them. After he was ...
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Stringfellows lap dancer was an employee of nightclub (470 words)

The claimant, a lap dancer at London nightclub Stringfellows, brought a claim for unfair dismissal. The club argued that she was not an employee and ...
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Individual must accept some work to rank as employee (281 words)

Mr Knight was a taxi driver who worked seven days a week with the Fairway and Kenwood taxi service (F&K). When the arrangement came to an end, ...
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Independent contractor did fall into category of ‘worker’ (339 words)

For a number of years Dr Westwood provided hair restoration services under a contract of services as an independent contractor with the Hospital ...
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Chapter 3

3. THE EMPLOYMENT CONTRACT (154 words)

A contract of employment is, at its simplest, an agreement by a worker to carry out a particular type of work for an employer in return for pay and ...
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New guidance on incorporating collectively agreed terms (658 words)

Dr Husain was a consultant paediatrician employed by Surrey and Sussex Healthcare NHS Trust (the Trust). She was involved in the care of a baby with ...
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Domestic worker loses out over illegal employment contract (266 words)

The claimant, an Indonesian national, colluded with her prospective employer to enter the UK illegally, using a false identity. She had been ...
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Illegal status of au pair bars discrimination claim (290 words)

Ms Hounga, a young illiterate Nigerian citizen, was encouraged by her employers to travel from Nigeria to work in the UK illegally as their au pair. ...
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What time counts towards permanent status? (338 words)

This case concerns the 2002 Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations, and in particular the meaning of Regulation 8. ...
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Plan to cut pay was breach of employment contract (405 words)

Mr Roberts, a teacher at Whitecross School, was on sick leave suffering from stress and depression caused by work. ...
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Four-year delay in disciplinary was not breach of contract (536 words)

This case involved a consultant anaesthetist, Dr Lim, who sought a High Court injunction against his employer, the Royal Wolverhampton Hospitals ...
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Demotion over Facebook postings a breach of contract (927 words)

Mr Smith, a practising Christian and occasional lay preacher, worked as a manager for a housing trust (the Trust). ...
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Chapter 4

4. PAY AND CONDITIONS (103 words)

Under the National Minimum Wage Act 1998, UK workers have the right to a minimum wage, currently set at £6.19 an hour for those aged 21 or over. ...
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ECJ guidance on carrying over holiday after sickness absence (515 words)

Mr Schulte worked as a locksmith for the German firm KHS AG. His employment was subject to a collective agreement which stated that when a worker ...
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‘Use it or lose it’ holiday rules not allowed for sick workers (520 words)

Mrs Larner was off sick from her role as a clerical officer for NHS Leeds for the whole of the 2009-10 holiday year and into the next holiday year, ...
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Offshore workers forced to take annual leave onshore (470 words)

Offshore oil and gas workers worked a shift pattern of two weeks offshore followed by two weeks onshore, described as a “field break”. The ...
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Government free to decide on rules for statutory holiday (294 words)

This case at the European Court of Justice (ECJ) involved a German fireman who retired from service with 86 days of unused statutory holiday, built ...
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Employer not required to make guarantee payment (329 words)

The claimants, members of the GMB general union, were hourly-paid workers at the cooker manufacturer Aga Rangemaster, where the union is recognised. ...
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Staff worked longer but were not entitled to overtime pay (281 words)

A group of room attendants worked for a cleaning business, Hotel Solutions, contracted to clean rooms for the Sheraton Hotel. They brought a ...
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Chapter 5

5. DISCRIMINATION (220 words)

The Equality Act 2010 (EA 10) prohibits discrimination on grounds of sex, gender reassignment, pregnancy and maternity, race, disability, religion ...
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Former NHS manager wins almost £1 million in race case (318 words)

Elliot Browne, former divisional director at Central Manchester NHS Foundation Trust, was awarded compensation of £933,115 for direct race ...
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Culture of racial harassment condoned by employer (288 words)

Mr Morgan, a black delivery and warehouse operative, resigned from his employer and brought a claim for constructive dismissal and direct race ...
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Chat in Polish led to employer’s illegal race discrimination (177 words)

The claimant, who is Polish, was having a work-related conversation with a Polish colleague. Shortly after, her line manager called her into a ...
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No disclosure of information right for rejected candidate (371 words)

Ms Meister, a Russian national, answered a newspaper advert placed by a German business called Speech Design, looking for an “experienced software ...
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Claimant failed to identify ‘less favourable treatment’ (506 words)

In this case the claimant, Ms Rose, worked as a science teacher at the Lambeth Academy, run by the United Learning Trust. ...
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‘Astounding’ differences in approach by health board (530 words)

Mrs Sumithra Hewage was a consultant orthodontist of Sri Lankan nationality and a head of department with the Grampian Health Board. She worked for ...
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Paid work experience demand was discriminatory (363 words)

Ms Crilly had been out of paid work for six years looking after her children. Over this period, she was involved in extensive high-level voluntary ...
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It’s marriage itself not who you married that counts (324 words)

Mrs Hawkins was married to the chief executive of the Atex Group who appointed her as corporate marketing director. He also employed his daughter. ...
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Historical reason for pay differential is relevant (330 words)

The claimant, Ms Bowling, was recruited into a customer service/IT support role for the Prison Service. Her pay as a new recruit was set at spinal ...
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‘Hot-desking’ was disadvantage (271 words)

Mr Roberts worked for the ambulance service call routing centre. He suffered from Social Anxiety Disorder. The ambulance service had a policy of ...
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Duty to make reasonable adjustment during sick leave (503 words)

Mr Olenloa worked in the stroke unit of the North West London Hospitals NHS Trust as a band 6 clinical team leader. He suffered from a disability ...
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Harsh test for disability ignores deterioration after dismissal (416 words)

Mr Haggart fell down the stairs and suffered concussion but no obvious brain damage. He went off sick with symptoms including headaches, nausea and ...
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Cursory review of grievance suggests discrimination (365 words)

Mr Bennett, an openly gay solicitor, came across an offensive memo tucked inside an old archived file. Written by a colleague some two years ...
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B&B couple guilty of sexual orientation discrimination (389 words)

Mr and Mrs Bull were committed Christians who strongly believed that sex outside marriage was sinful. ...
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Was age discrimination justified over law degree requirement? (350 words)

Mr Homer retired from the police force aged 51 as a detective inspector and joined the Police National Legal Database (PNLD) as a legal adviser. ...
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What factors can justify compulsory retirement (729 words)

Mr Seldon was a partner at a law firm. The law firm had an agreed partnership deed with a compulsory retirement age of 65. As Mr Seldon neared ...
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Aggravated damages are meant to compensate, not punish (492 words)

This case looks at aggravated damages. Although the context of the case is whistleblowing, the compensation rules in whistleblowing cases are the ...
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Chapter 6

6. WORKING PARENTS AND CARERS (136 words)

Every woman in work has the right to maternity leave (although not necessarily paid). There are three types of ...
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No discrimination in holding disciplinary during maternity (336 words)

Ms Haque was dismissed for misconduct by the police. The disciplinary process was conducted while she was on maternity leave. Ms Haque’s request ...
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Chapter 7

7. DISMISSAL (186 words)

The right to claim unfair dismissal is generally available only to employees who have sufficient service (one year’s continuous service for ...
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Failure over ‘reconstruction’ made dismissals unfair (620 words)

Two long-serving nurses with clean disciplinary records were dismissed for gross misconduct after a colleague reported seeing them tie an ...
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Employer may discipline staff twice for same offence (835 words)

Ms Christou was a team manager in the safeguarding team of the children’s service department of the London Borough of Haringey. One of her line ...
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Sacking over misuse of taxi account a reasonable response (396 words)

Mr McCafferty worked as a postman. He was dismissed for gross misconduct after using Royal Mail’s taxi account 87 times over the course of a year ...
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Existence of second job was not reason to stop sick pay (716 words)

In this case, a dismissal was unfair because the employer changed its mind about the reason for the dismissal midway through the dismissal process. ...
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Constructive dismissal and main reason for resignation (294 words)

Ms Logan resigned from her job as a veterinary nurse because her employer failed to pay contractual sick pay and because of bullying. ...
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Doctor’s disciplinary did not engage human rights law (630 words)

Dr Mattu, a consultant cardiologist had been the subject of earlier disciplinary proceedings that had led to his suspension for around five years, ...
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Employer cannot unilaterally withdraw dismissal notice (772 words)

Finance intermediary firm CF Capital PLC (CFC) was suffering in the economic downturn and considering redundancies. To cut costs, it decided to ...
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Chapter 8

8. REDUNDANCY (100 words)

Collective consultation — If an employer proposes to dismiss 20 or more employees the employer must consult with the union or other ...
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Legal reversal means less work can lead to redundancy (397 words)

This case revisits the meaning of “redundancy” and is a significant deveopment in the law. The case decides that there does not always have to ...
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Consult, then select — or dismissal is unfair (249 words)

Mr Tattersall was in a senior management team of five (the SMT). To cut costs, the brewery’s board of directors decided to make one redundancy ...
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Employer can use subjective criteria in redundancy selection (421 words)

Samsung Electronics carried out a restructuring which eliminated the claimant’s existing role and created other positions, including a new role ...
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Selection for redundancy based on cost can be justified (1,014 words)

The Land Registry lost £80 million in 2008-09 due to the property slump. It needed to cut costs, especially staffing costs, urgently, so it decided ...
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What’s the score over selection process for redundancy? (366 words)

Mr Nicholls worked as a field service engineer. The employer needed to make one redundancy and engaged in a selection exercise which resulted in his ...
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No general right exists to see notes of redundancy meeting (527 words)

In 2009, lottery company Camelot was forced to re-organise, making 158 redundancies to cut costs. The claimant, Ms Hogg, was selected for redundancy ...
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Steward was automatically unfairly selected for redundancy (437 words)

The claimant, a GMB shop steward, worked in the warehouse of a large multinational building materials manufacturer. ...
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Yes, an employer can use a selection pool of one (250 words)

The claimant worked for a small distributor. He was the only member of staff based in China. Other employees, based in the UK, carried out ...
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No, an employer cannot use a selection pool of one (224 words)

Capita Hartsmead employed four actuaries, and needed to make one redundancy because of a fall in work. Many of the pension schemes administered by ...
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Alternative employment approach ‘inadequate’ (746 words)

In this case, the EAT condemns a bank’s practice of dismissing employees without consultation or notice. It also contains important guidance ...
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Pay in lieu of notice is payable despite employee’s misconduct (750 words)

Mr Cavenagh was managing director of the London-based gun dealer William Evans Limited (WEL). The firm decided that Cavenagh’s post was redundant ...
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European Court of Justice refuses to rule on consultation failure (322 words)

Some 200 civilians were employed at the US military base at Hythe where they were represented by a staff council. The US government decided to close ...
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Chapter 9

9. BUSINESS TRANSFERS AND CONTRACTING OUT (115 words)

If a business transfers from one employer (the transferor) to another (the transferee) its employees are protected by the Transfer of Undertakings ...
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Dedicated team required for service provision transfer (320 words)

The company, Eddie Stobart Limited, ran a warehousing and logistics business distributing meat between suppliers and several British supermarkets. ...
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TUPE applies even where no buyer is in prospect (390 words)

Administrators dismissed the chief executive of Ultralon Holdings Limited, Mr Baillavoine, on the first day of an administration, along with 43 ...
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Early retirement benefits do transfer with employees (844 words)

The US multinational Procter & Gamble (P&G) manufactures domestic cleaning and hygiene products. In 2007, P&G agreed to sell its Family ...
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Transfer ‘not sole or principal reason’ for contract variation (537 words)

The claimants in this case were a group of teaching and learning assistants (TLAs) employed by Spelthorne College to work 25 hours a week. They had ...
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Bus drivers’ relocation was a ‘significant change’ (553 words)

This is an important case interpreting regulation 4(9) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). This ...
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Replacing staff with franchisees was a ‘change of workforce’ (366 words)

The claimants were a group of directly employed meter readers, who went from house to house reading domestic meters for Scottish Power. Their ...
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TUPE’d workers did not have to accept ‘self-employed’ terms (335 words)

A local authority put its window-cleaning contract out for re-tender, and the bid was won by F&G Cleaners Limited (F&G). F&G won the bid ...
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Harmonisation of contracts led to discord and unfair dismissals (868 words)

Three and a half thousand new staff joined Manchester College, a further education college, as a result of a TUPE transfer of the Offender Learning ...
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