LRD Booklets January 2020

Case law at work (16th edition)

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Introduction

Introduction 
 [page 4] (493 words)

This is the 16th edition of Case Law at Work, the LRD’s key source of information on recent employment law cases. It contains clear summaries and ...
Open access

Chapter 1

1. The employment tribunal system 
 [ch 1: pages 5-6] (720 words)

Before issuing any tribunal claim, a claimant must first contact Acas and consider whether to try to conciliate (that is, settle) the claim with the ...
Subscribers only

Extending time for unfair dismissal where claim deadline missed due to non-payment of tribunal fee
 [ch 1: pages 6-8] (770 words)
Wray v Jewish Care [2019] UKEAT/0193/18/JOJ


Supporting claimants with mental ill health at tribunal hearings

 [ch 1: pages 8-9] (642 words)
Anderson v Turning Point EESPRO [2019] EWCA Civ 815


Breach of an ‘Unless Order’ means an automatic strike out
 [ch 1: pages 9-11] (901 words)
Uwhubetine and Njoku v NHS Commissioning Board England and three other respondents [2019] UKEAT/0264/18/JOJ


Chapter 2

2. Employment status
 [ch 2: page 12] (292 words)

Most statutory employment rights depend on someone’s “employment status”. Key minimum employment rights such as the National Minimum Wage ...
Subscribers only

Court of Appeal confirms that Uber drivers are workers

 [ch 2: pages 12-15] (1,140 words)
Uber BV & Ors v Aslam & Ors [2018] EWCA Civ 2748


Addison Lee drivers are workers

 [ch 2: pages 15-17] (1,142 words)
Addison Lee Limited v Lange & Ors [2018] UKEAT 37


Chapter 3

3. Contracts of employment 
 [ch 3: pages 18-19] (579 words)

Employment rights depend, as a minimum, on the presence of an “employment relationship”. There are important legal distinctions between an ...
Subscribers only

Right to written statement of employment particulars after one month not two

 [ch 3: pages 19-20] (520 words)
Stefanko & Others v Maritime Hotel Limited (in voluntary liquidation) and Doherty [2018] UKEAT/0024/18/00


No compensation where employer provided written statement after the statutory deadline
 [ch 3: pages 20-21] (339 words)
Govdata Limited v Denton [2019] UKEAT/0237/18/BA


Implied contract term prevented employer from depriving employee of long-term disability benefit

 [ch 3: pages 21-23] (755 words)
Awan v ICTS UK Limited [2018] UKEAT/0087/18/RN


Teacher’s suspension not breach of trust and confidence

 [ch 3: pages 23-24] (546 words)
Mayor & Burgesses of the London Borough of Lambeth v Agoreyo [2019] EWCA Civ 322


Undocumented worker who relied on employer’s assurances could enforce employment contract

 [ch 3: pages 24-25] (706 words)
Okedina v Chikale [2019] EWCA Civ 1393


A collective term is only binding if it is incorporated into the individual contract of employment
 [ch 3: pages 26-27] (846 words)
Lozaique v Tesco Stores Limited [2019] UKEAT/0261/18/LA


Chapter 4

4. Pay and terms and conditions 
 [ch 4: pages 28-29] (580 words)

This Chapter highlights the key rulings in 2019 concerning pay and conditions, including the National Minimum Wage (NMW), holiday pay and rest breaks. ...
Subscribers only

Directors personally liable for non-payment of National Minimum Wage

 [ch 4: pages 29-30] (554 words)
Antuzis and others v DJ Houghton Catching Services Limited and others [2019] EWHC 843


NHS workers’ holiday pay must include voluntary overtime

 [ch 4: pages 30-32] (1,096 words)
East of England Ambulance Service NHS Trust v Flowers [2019] EWCA Civ 947


Important ruling on calculation of holiday pay for atypical employees 
 [ch 4: pages 33-34] (860 words)
The Harpur Trust v Brazel [2019] EWCA Civ 1402 


Employers must record daily working time 
 [ch 4: pages 34-35] (519 words)
Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE [2019] Case C-55/18


Agency workers not entitled under Agency Worker Regulations to equal working hours 
 [ch 4: page 36] (425 words)
Kocur v Angard Staffing Solutions Limited and Royal Mail Group Limited [2019] EWCA Civ 1185


Chapter 5

5. Union recognition and other collective issues 
 [ch 5: page 37] (347 words)

Perhaps the most harmful judicial ruling of 2019 from the perspective of trade union rights and workplace collective bargaining has been the case of ...
Subscribers only

Deliveroo riders denied access to statutory recognition machinery because they are not ‘workers’

 [ch 5: pages 37-39] (796 words)
R on the application of the Independent Workers Union of Great Britain and the CAC and Roofoods Limited (t/a Deliveroo [2018] EWHC 3342

Unite to take Kostal inducements ruling to the Supreme Court 
 [ch 5: pages 39-40] (615 words)
Kostal UK Limited v Dunkley & Others [2019] EWCA Civ 1009


Chapter 6

6. Discrimination 
 [ch 6: pages 41-42] (514 words)

Discrimination law is found in the Equality Act 2010 (EA10). The Act applies to England, Scotland and Wales. In Northern Ireland, equality law is ...
Subscribers only

Vegetarianism is not a protected philosophical belief 
 [ch 6: pages 42-43] (544 words)
Conisbee v Crossley Farms Limited and others Norwich Employment Tribunal Case No. ET3335357/2018 


Not religious discrimination to refuse special shift pattern for Seventh Day Adventist [ch 6: pages 43-45] (1,135 words)
City of Oxford Bus Services Limited v Harvey [2019] UKEAT/0171/18/JOJ


No religious discrimination against NHS non-exec who publicised his opposition to adoption by same-sex couples
 [ch 6: pages 46-47] (758 words)
Page v NHS Trust Development Authority [2019] UKEAT/0183/18/DA


No discrimination if less favourable treatment due to discriminator’s protected characteristic 
 [ch 6: pages 47-49] (954 words)
Gan Menachem Hendon Limited v de Groen [2019] UKEAT/0059/18/00


Gay teacher’s dismissal for sexual activity was discriminatory

 [ch 6: pages 49-51] (970 words)
Governing Body of Tywyn Primary School v Aplin [2019] UKEAT/0298/17/LA



Whether a sight impairment is ‘correctable’ by lenses is a practical question
 [ch 6: pages 52-53] (551 words)
Mart v Assessment Services Inc [2019] UKEATS/0032/18/SS


‘Tendency to steal’ requires a pattern of behaviour and evidence of dishonest intent

 [ch 6: pages 53-54] (745 words)
Wood v Durham County Council [2018] UKEAT/0099/18/00


Police chief constable discriminated against police officer with mild hearing loss 

 [ch 6: pages 54-56] (696 words)
Chief Constable of Norfolk v Coffey [2019] EWCA Civ 1061


Lack of diagnosis will not prevent an impairment (fibromyalgia) being a disability
 [ch 6: pages 56-58] (795 words)
Nissa v (1) Waverley Education Foundation Limited and (2) Newsome [2018] UKEAT/0135/18/DA


No discrimination arising from disability where the claimant is mistaken about link with disability
 [ch 6: pages 58-59] (465 words)
iForce Limited v Wood [2019] UKEAT/0167/18/DA


Appeal hearing not too late to reveal disability

 [ch 6: pages 59-60] (420 words)
Baldeh v Churches Housing Association of Dudley & District Limited [2019] UKEAT/0290/18/JOJ


No discrimination against trainee teacher unable to write for more than a few minutes without pain

 [ch 6: pages 60-61] (553 words)
Ahmed v The Cardinal Hume Academies [2019] UKEAT/0196/18/RN


Not disability discrimination to base disabled worker’s pension on reduced hours
 [ch 6: pages 61-62] (411 words)
Williams v Trustees of Swansea University Pension & Assurance Scheme [2018] UKSC 65


Loose causation test in disability discrimination claims

 [ch 6: pages 62-64] (1,052 words)
Professor Roya Sheikholeslami v University of Edinburgh [2018] UKEATS/0014/17/JW


Administrative email address error was not maternity discrimination

 [ch 6: page 65] (362 words)
South West Yorkshire Partnership NHS Foundation Trust v Jackson [2018] UKEAT/0090/18/BA


Government public sector pension transition arrangements discriminate unlawfully
 [ch 6: pages 66-69] (1,589 words)
Secretary of State for the Home Department & Others v Sargeant & Others [2018] EWCA Civ 2844; The Lord Chancellor v McCloud & Others [2018] EWCA Civ 2844


Backto60 challenge to state retirement age for women dismissed 
 [ch 6: pages 69-70] (638 words)
Delve and Glynn v Secretary of State for Work and Pensions [2019] EWHC 2552 (Admin)


Managing within a reduced budget can be a legitimate aim 
 [ch 6: pages 71-72] (858 words)
Heskett v Secretary of State for Justice [2019] UKEAT/0149/18/DA


No harassment where claimant ‘gave as good as he got’

 [ch 6: pages 72-73] (490 words)
Evans v Xactly Corporation Limited [2018] UKEATPA/0128/18/LA


Facebook post to Friends of Gollywog graphic on home computer not in course of employment
 [ch 6: pages 74-75] (800 words)
Forbes v LHR Airport Limited [2019] UKEAT/0174/18/DA


Chapter 7

7. Parental leave and pay
 [ch 7: pages 76-77] (713 words)

The most prominent judicial rulings in 2019 directly affecting rights to parental leave and pay are the cases of Ali v Capita Customer Management ...
Subscribers only

Shared Parental Pay and Leave does not discriminate against men

 [ch 7: pages 77-80] (1,194 words)
Ali v Capita Customer Management Limited (Working Families intervening); Chief Constable of Leicestershire Police v Hextall [2019] EWCA Civ 900


Chapter 8

8. Whistleblowing 
 [ch 8: page 81] (327 words)

Under the Public Interest Disclosure Act 1998 (PIDA), employees and workers who disclose information about certain types of alleged wrongdoing at ...
Subscribers only

Co-workers personally liable for whistleblowing dismissal

 [ch 8: pages 81-83] (660 words)
Timis and Sage v Osipov and Protect [2018] EWCA Civ 2321


Disclosure of generalised allegations not protected

 [ch 8: pages 83-85] (908 words)
Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436


No reasonable belief that disclosure to clear own name was in public interest

 [ch 8: pages 85-86] (377 words)
Ibrahim v HCA International Limited [2019] UKEAT/0105/18/BA



Reasonable belief that data protection concerns over record-keeping and shared phones were in public interest
 [ch 8: pages 86-88] (809 words)
Okwu v Rise Community Action (a company limited by guarantee) [2019] UKEAT/0082/19/00 


Chapter 9

9. Dismissal
 [ch 9: page 89] (334 words)

Employees dismissed unfairly can go to a tribunal if they have been working for at least two years. Some specific types of dismissal do not require ...
Subscribers only

No extension to claim missed deadline due to negligence

 [ch 9: pages 89-90] (482 words)
Pora v Cape Industrial Services Limited [2019] UKEAT/0253/18/BA


Extension granted to employee with dyslexia after unclear dismissal letter 
 [ch 9: pages 91-92] (522 words)
Lowri Beck Services Limited v Brophy [2019] UKEAT/0277/18/LA


Worker fairly dismissed by Royal Mail over poor attendance record

 [ch 9: pages 92-94] (1,055 words)
Kelly v Royal Mail Group Limited [2019] UKEAT/0262/18/RN


Dismissal fair despite not all witnesses giving statements

 [ch 9: pages 94-96] (998 words)
H v Governing Body of Manchester Grammar School [2018] UKEAT/0048/18/DA


Not always unfair to dismiss without separate investigation

 [ch 9: pages 96-98] (691 words)
Radia v Jefferies International Limited [2019] UKEAT/0123/18/JOJ


Admission of responsibility usually reduces need for investigation

 [ch 9: pages 98-99] (773 words)
Catherine Beattie v Condorrat War Memorial and Social Club [2019] UKEATS/0019/17/JW


Suspension during disciplinary investigation should not lead to any loss of salary

 [ch 9: pages 99-101] (715 words)
North West Anglia NHS Foundation Trust v G [2019] EWCA Civ 387


Unfair to re-open conduct issue
 [ch 9: pages 101-103] (933 words)
Upton-Hansen Architects Limited v Gyftaki [2019] UKEAT/0278/18/RN 


Making a covert recording at work not necessarily gross misconduct (although it is misconduct)
 [ch 9: pages 103-105] (781 words)
Phoenix House Limited v Stockman [2019] UKEAT/0284/17/00


No right to insist on re-engagement after unfair dismissal 

 [ch 9: pages 105-106] (467 words)
MacKenzie v Chancellor, Masters & Scholars of the University of Cambridge [2019] EWCA Civ 1060


Chapter 10

10. Redundancy 
 [ch 10: page 107] (346 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 ...
Subscribers only

Seafarers based beyond UK waters denied protective award

 [ch 10: pages 107-109] (867 words)
Seahorse Maritime Limited v Nautilus International [2018] EWCA Civ 2789


Notice that role had been “deleted” was not notice of dismissal for redundancy 
 [ch 10: pages 110-112] (1,074 words)
East London NHS Foundation Trust v O’Connor [2019] UKEAT/0113/19/JOJ


Chapter 11

11. Business transfers and service provision change (TUPE)
 [ch 11: page 113] (407 words)

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) are intended to protect the rights of employees on the transfer of ...
Subscribers only

Dismissal over poor working relationship with director of transferee was because of transfer 

 [ch 11: pages 114-115] (507 words)
Hare Wines Limited v Kaur and H&W Wholesale Limited (dissolved) [2019] EWCA Civ 216


Statutory duty to preserve NMW records passes to a TUPE transferee
 [ch 11: pages 115-116] (587 words)
Mears Homecare Limited v Bradburn & Others [2019] UKEAT/0170/18/JOJ