LRD Booklets January 2014

Case law at work - 10th edition


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Introduction

Introduction (549 words)

This is the 10th 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 (421 words)

This year, the employment law system has been at the forefront of the government’s attack on employment rights and access to justice for ordinary ...
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Time limits (148 words)

These changes have not affected time limits. Tribunal claims must be brought within specified time limits. In most cases the time limit is three ...
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Equal pay claims must be brought within six months and no extension of time is permitted (411 words)

El-Kholy v Rentokil Initial Facilities Services (UK) Limited [2013] UKEAT 0472/12/2103 ...
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Tribunal claim ruled out of time when it was filed one day late (425 words)

De Souza v Manpower UK Limited [2012] UKEAT 0234/12/1212 ...
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Case preparation (205 words)

New tribunal procedural rules were brought in on 29 July 2013 — the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. ...
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Secret recordings can count as evidence, but are risky and can backfire (338 words)

Vaughan v London Borough of Lewisham UKEAT/0534/12/SM ...
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The importance of obeying orders and directions issued by the employment tribunal (352 words)

Ahmed v Bedford Borough Council UKEAT/0064/13/SM ...
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Cross-examination rules and frightened witnesses (512 words)

Duffy v George [2013] EWCA Civ 908 ...
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Cases will not always be rescheduled even for genuine illness (88 words)

The following two cases show tribunals taking an increasingly tough line in relation to case management where adjournments are requested, even for ...
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Tribunal refuses to reschedule hearing for claimant suffering from severe depression (386 words)

Riley v the CPS [2013] EWCA Civ 951 ...
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Not unfair to hear claim in the absence of a genuinely ill claimant (594 words)

Transport for London v O’Cathail [2013] EWCA Civ 21 ...
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Striking out claim without a full trial (536 words)

Eastman v Tesco Stores Limited [2012] UKEAT 0143/12/0510 ...
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Claimants must be given the reasons why they won or lost (428 words)

Kelly v Fylde Community Link Limited [2013] UKEAT 0444/12/0503 ...
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Costs (213 words)

The general rule in employment tribunal litigation is that each side should pay their own costs, but tribunals can award costs where they decide that ...
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EAT upholds costs order against unrepresented claimant (310 words)

Sud v London Borough of Ealing [2013] EWCA Civ 949 ...
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Tribunals must take into account a claimant’s ability to pay when assessing costs (651 words)

Howman v Queen Elizabeth Hospital Kings Lynn UKEAT/0509/12/JQJ ...
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Chapter 2

2. CATEGORIES OF WORKER (277 words)

Some statutory rights apply only to employees, while others are available more widely to workers. Some individuals, such as the genuinely ...
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Employment status depends on an employer’s right to control day-to-day activities (223 words)

White and Todd v Troutbeck S.A. [2013] UKEAT 0177/12/2301 ...
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ECJ rules on conversion of successive fixed-term contracts in permanent contracts (268 words)

Huet v Universitie de Bretagne Occidentale [2012] EUECJ C251/11 ...
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Employment tribunal tests Swedish derogation (612 words)

Monarch Personnel Refuelling (UK) Limited v Bray & Others Case Nos: 1801581/2012 and others (unreported) ...
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Chapter 3

3. THE EMPLOYMENT CONTRACT (207 words)

At its simplest, an employment contract is an agreement by a worker to carry out a particular kind of work for an employer in return for pay and ...
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There is an employment contract in place from the date a job offer is accepted unconditionally (375 words)

Welton v Deluxe Retail Limited t/a Madhouse (in Administration) UKEAT/0266/12/ZT ...
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An employee can still be bound by a contract even if they did not sign or return it (411 words)

FW Farnsworth Limited v Lacy and others [2012] EWCH 2830 Ch ...
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An internal announcement created a binding obligation to pay a bonus (813 words)

Dresdner Kleinwort Limited v Attrill [2013] EWCA Civ 394 ...
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Notice to end an employment contract must be clear and unambiguous (754 words)

Societe Generale v Geys [2012] UKSC 63 ...
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Cabin crew bound by signed employment contract and “expenses” not deduction of wages (615 words)

Quantas Cabin Crew (UK) Ltd v Lopez & Anor [2012] UKEAT/0106/12/SM ...
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Chapter 4

4. PAY AND CONDITIONS (74 words)

In the UK, collective agreements are not legally binding between the parties to that agreement — the union and the employer (section 179, Trade ...
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Industrial context matters when interpreting collective agreement (564 words)

Anderson & ors and Philips & ors v London Fire & Emergency Planning Authority [2013] EWCA Civ 321 ...
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Interpreting collective agreements — working out what the parties must have intended (280 words)

Hay v Gilgrove [2013] EWCA Civ 412 ...
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Collectively agreed duty to provide TOIL within five weeks is not a contract term (732 words)

George v Ministry of Justice [2013] EWCA Civ 324 ...
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When will the rules in a job evaluation agreement create individual binding contract terms? (483 words)

Simpson v London Borough of Hackney and others [2012] UKEAT 0104/12/2910 ...
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Holiday pay calculated using basic pay only is a breach of the Working Time Directive (513 words)

Neal v Freightliner Limited ET1315342/2013 ...
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Nominal payments for untaken holiday on termination are unlawful (249 words)

Podlasiak v Edinburgh Woollen Mill Limited Case No. 2701291/2013 ...
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Chapter 5

5. UNIONS AND COLLECTIVE ORGANISATION (500 words)

Toal v GB Oils Limited [2013] UKEAT/0569/12/LA ...
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Government attempt to end local government check off was a breach of contract (486 words)

Hickey v Secretary of State for Communities and Local Government Judgement date: 3 September 2013 ...
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Recognition — CAC makes important change to the law (448 words)

The Pharmacists’ Defence Association Union (PDAU) v Boots Management Services (TUR1/823/2012), 29 January 2013 ...
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Tribunal accepts that firm’s refusal to employ stewards was not because of union membership (594 words)

Miller and others v Interserve Industrial Services Limited [2012] UKEAT 0244/12/0512 ...
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Rep wins interim relief over union-related dismissal (476 words)

London City Airport Limited v Chacko [2013] UKEAT 0013/13/2203 ...
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RMT rep at ‘Boris bikes’ was automatically unfairly dismissed (598 words)

Dahou v Serco Limited Case Number 2202938/2012 London Central Employment Tribunal, 30 August 2013 (unreported). ...
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Chapter 6

6. DISCRIMINATION (292 words)

The Equality Act 2010 (EA 10) prohibits discrimination on grounds of sex, gender reassignment, pregnancy and maternity, race, disability, religion or ...
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Increased susceptibility to infection can be a disability (916 words)

Sussex Partnership Foundation Trust v Norris [2012] UKEAT 0031/12/3010 ...
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Back condition preventing prolonged standing was a disability (419 words)

Aderemi v London and South Eastern Railway Limited [2012] UKEAT 0316/12/0612 ...
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Obese claimant was disabled (313 words)

Walker v Sita Information Networking Computing Limited [2013] UKEAT 0097/12/0802 ...
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Preparing witness statements and the test for disability (401 words)

Qureshi v Marks & Spencer PLC [2013] UKEAT0456/12/1103 ...
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Disability, reasonable adjustments and redeployment procedures (640 words)

Redcar & Cleveland Primary Care Trust v Lonsdale [2013] UKEAT/0090/12/RN ...
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Not a reasonable adjustment to give job to disabled candidate who fails the core criteria (321 words)

Wade v Sheffield Hallam University [2013] UKEAT/0194/12/LA ...
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There can be no disability discrimination if the decision maker does not know about the disability (433 words)

IPC Media Limited v Millar [2013] UKEAT/0395/12/SM ...
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A claimant’s vulnerability is not inextricably linked to their race (297 words)

Taiwo v Olaigbe [2013] UKEAT 0254/12/0503 ...
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Failure to stop racial banter was direct discrimination (719 words)

Burrell v Micheldever Tyre Services Limited [2013] UKEAT 0427/12/1502 ...
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Balancing the conflict between religious belief and sexual orientation rights in the workplace (582 words)

Eweida and others v The United Kingdom [2013] ECHR 37 ...
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Sunday working by care worker was not indirect religious discrimination (307 words)

Mba v the Mayor and Burgesses of the London Borough of Merton [2012] UKEAT 0332/12/1312 ...
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ECHR decision changes UK law on dismissal for political belief (386 words)

Redfearn v The United Kingdom [2012] ECHR 1878 ...
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European Court of Justice gives new guidance on the compulsory retirement age (491 words)

European Commission v Hungary (Case C286/12) ...
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Not age discrimination to make more generous severance payments to older workers (283 words)

Lockwood v Department of Work and Pensions [2013] EWCA Civ 1195 ...
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Pay protection could be justified in equal pay case (519 words)

Haq v the Audit Commission [2012] EWCA Civ 1621 ...
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Genuine volunteers are not protected by the Equality Act 2010 (404 words)

X (Appellant) v Mid Sussex Citizens Advice Bureau [2012] UKSC 59 ...
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Not harassment where a victim’s response is unreasonably sensitive (371 words)

Heafield v Times Newspapers Limited [2013] UKEAT 1305/12/1701 ...
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Dismissal for lodging multiple discrimination grievances was victimisation (535 words)

Woodhouse v West North West Homes Leeds Limited [2013] UKEAT 0007/12/0506 ...
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Liability for compensation for unlawful discrimination is joint and several (784 words)

London Borough of Hackney v Sivanandan & ors [2013] EWCA Civ 22 ...
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Career break employee wins £88,000 after being misled (617 words)

HM Land Registry v McGlue [2013] UKEAT 0435/11/0602 ...
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Site ban on agency workers was a one-off act of discrimination (377 words)

Okoro and another v Taylor Woodrow Construction Limited and others [2012] EWCA Civ 1590 ...
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Placing disabled employee on formal capability review was a continuing act (554 words)

Network Rail Infrastructure Limited v Mitchell [2013] UKEAT 0057/12/2203 ...
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Chapter 7

7. WORKING PARENTS AND CARERS (342 words)

Reizniece v Zemkopibas Ministrija Case C7/12 ...
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Chapter 8

8. DISMISSAL (588 words)

Employees dismissed unfairly can go to a tribunal if they have been working for at least two years. The length of continuous service required to ...
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Dismissal at the request of a third party can be fair (615 words)

Bancroft v Interserve (Facilities Management) Limited [2012] UKEAT 0329/12/1312 ...
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Legal representation refusal at disciplinary and human rights (384 words)

Ministry of Justice v Parry [2012] UKEAT 0068/12/1411 ...
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Disciplinary investigations failure to interview witnesses made dismissal unfair (508 words)

Stuart v London City Airport [2012] UKEAT 0273/12/0911 ...
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Failure to watch complete CCTV footage was unfair (465 words)

Miller v William Hill Organisation Limited [2013] UKEAT 0336/12/2106 ...
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A ‘too thorough’ investigation will not make a dismissal unfair or breach the Data Protection Code (527 words)

City and County of Swansea v Gayle [2013] UKEAT/0501/12/RN ...
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The ‘band of reasonable responses’ test for unfair dismissal does not breach human rights (553 words)

Turner v East Midlands Trains [2012] EWCA Civ 1470 ...
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Dismissal of manager with no prior warning was unfair (316 words)

JJ Food Services Limited v Kefil [2013] UKEAT 0320/12/1202 ...
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EAT gives judgment on dismissal after formal warning (611 words)

Wincanton Group PLC v Stone [2012] UKEAT 0011/12/1110 ...
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Court of Appeal rules on fairness of dismissal after final warning (401 words)

Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 135 ...
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Re-instatement/re-engagement can be ordered even if compensation is cut (379 words)

Arriva London v Eleftheriou [2012] UKEAT 0272/12/2011 ...
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Re-instatement/re-engagement can be refused if the working relationship has been destroyed (249 words)

Oasis Community Learning v Wolff [2013] UKEAT/0364/12/MC ...
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“I have no alternative but to resign”, written in a letter to an employer ended the employment contract immediately (842 words)

Secretary of State for Justice v Hibbert [2013] UKEAT/0289/13/GE ...
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A summary dismissal took effect on the day the claimant’s solicitor communicated the dismissal decision to them (650 words)

Robinson v Bowskill & Others Practising as Fairhill Medical Practice UKEAT/0313/12/JOJ ...
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Chapter 9

9. REDUNDANCY (410 words)

A redundancy situation exists where an employer closes or intends to close the workplace or reduce the number of employees doing a particular kind of ...
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USDAW changes the law on collective consultation but the government has appealed (478 words)

USDAW v Ethel Austin Limited (in administration) and USDAW v Woolworths (in administration) [2013] UKEAT 0547/12/3005 ...
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Protective award reduced because directors closed down company after being warned that they risked trading while insolvent (408 words)

AEI Cables Limited v GMB, Unite and others [2013] UKEAT0375/12/0504 ...
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Commercial confidentiality is no excuse for failing to consult (309 words)

Unite v Waverley TBS Limited Case No. 2506345/2012, 9 September 2013 unreported ...
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Non-union staff body had no authority to represent workers (587 words)

Kelly v The Hesley Group Limited UKEAT/0339/12/ZT ...
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Past performance is relevant to selection for redundancy (462 words)

Mental Health Care (UK) Limited v Biluan [2012] UKEAT/0248/12/SM ...
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Enhanced redundancy pay terms in staff handbook can create contractual rights (445 words)

Allen v TRW Systems [2013] UKEAT 0083/12/1701 ...
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Court of Appeal issues new guidance on contractual redundancy payments (581 words)

Park Cakes Limited v Shumba [2013] EWCA Civ 974 ...
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Redundancy pay after short-time working (319 words)

Dutton v Jones t/a Llandow Metals UKEAT/0236/12/ZT ...
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Rejecting an offer of alternative employment in the context of redundancy can still be reasonable (546 words)

Devon Primary Care Trust v Readman [2013] EWCA Civ 1110 ...
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Chapter 10

10. BUSINESS TRANSFERS AND CONTRACTING OUT (192 words)

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) are intended to protect the rights of employees on the transfer of ...
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Plans to change TUPE in 2014 (322 words)

The government is planning a series of changes to TUPE in January 2014 and LRD will be publishing a new booklet explaining these changes. These are ...
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European Court ruling backs employer over TUPE and sector/industry level collectively agreed contract terms (316 words)

Parkwood Leisure Ltd v Alemo Herron [2013] C426/11 ...
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Visteon bound by Mirrored Terms Agreement until agreement changed through collective bargaining (807 words)

Visteon Engineering Services Limited v Oliphant [2013] UKEAT/0010/13 ...
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Limited TUPE obligation to consult staff left behind after transfer (905 words)

ILAB Facilities Limited v Metcalfe [2013] UKEAT 0224/12/2504 ...
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Liability for dismissal does not transfer despite pending appeal (359 words)

Bangura v Southern Cross Healthcare Group PLC [2013] UKEAT/0432/12/RN ...
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UNISON wins protective award for failure to supply information on agency workers (504 words)

UNISON v (1) London Borough of Barnet and (2) NSL Limited Case No. 3302128/2012 (unreported) ...
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Another UNISON victory enforcing the duty to provide information about agency workers (320 words)

UNISON v Capita Business Services Limited Case No. 2341219/2012/L unreported ...
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