LRD Booklets January 2021

Case law at work (17th edition)

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Introduction

Introduction [pages 5-6] (551 words)

This is the 17th 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. Tribunal procedures [ch 1: page 7] (444 words)

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

Bringing an employment tribunal claim [ch 1: pages 7-8] (301 words)

Changes to ET rules from October 2020 [ch 1: pages 8-9] (222 words)

Use of non-employment judges [ch 1: page 9] (81 words)

New functions to be carried out by Legal Officers [ch 1: page 9] (137 words)

More flexibility to deal with errors in EC numbers on Claim forms [ch 1: page 9] (183 words)

Simple, money-based claims to be heard faster [ch 1: page 10] (121 words)

Remote hearings [ch 1: page 10] (114 words)

Multiple Claimants [ch 1: page 10] (233 words)

Late submission of Acas EC Notification Form led to dismissal of claim [ch 1: pages 11-12] (815 words)
Pearce v Bank of America Merrill Lynch & Others [2019] UKEAT/0067/19/LA

Request to add co-respondent would have come as no surprise [ch 1: pages 12-14] (763 words)
Pontoon (Europe) Limited & Another v (1) Shinh and (2) National Grid PLC [2019] UKEAT/0094/18/LA

Solicitor’s email was privileged, so it could not be shown to the tribunal [ch 1: pages 14-16] (882 words)
Curless v Shell International Limited [2019] EWCA Civ 1710

Non-cooperation over medical evidence can result in claim being struck out [ch 1: pages 16-17] (718 words)
Itulu v London Fire Commissioner [2019] UKEAT/0298/18/BA

Striking out a claim for lack of detail is rarely appropriate [ch 1: pages 17-19] (560 words)
Mbuisa v Cygnet Healthcare Limited [2019] UKEAT/0119/18/BA

ET wrong to make “Unless Order” striking out entire whistleblowing claim [ch 1: pages 19-21] (1,011 words)
Ijomah v Nottinghamshire Healthcare NHS Foundation Trust [2020] UKEAT/0289/19/RN

No appearance of bias when same lay ET panel member heard both cases [ch 1: pages 21-22] (596 words)
Lyfar-Cisse v Brighton and Sussex University Hospitals NHS Trust [2020] UKEAT/0181/19/JOJ

Claimant who pursued hopeless case ordered to pay all the employer’s costs [ch 1: pages 22-24] (751 words)
Radia v Jefferies International Limited [2020] UKEAT/0007/18/JOJ

£430,000 costs order against Claimant who made 1000s of secret recordings [ch 1: pages 24-25] (620 words)
Tan v Copthorne Hotels Limited London Central ET Case No. 2200986/2017 3 September 2020

Don’t gossip about your settlement sum [ch 1: pages 25-27] (835 words)
Duchy Farm Kennels Limited v Graham William Steels [2020] EWHC 1208

Chapter 2

2. Employment status [ch2: pages 28-29] (817 words)

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

Disappointing ECJ ruling that Yodel couriers are unlikely to be workers [ch2: pages 29-31] (764 words)
B v Yodel Delivery Network Limited [2020] ECLI:EU: C: 2020:288 (on a referral from Watford ET)

Moped delivery driver was a worker [ch2: pages 31-35] (1,803 words)
Stuart Delivery Limited v Augustine [2019] UKEAT/0219/18/BA

Gold medal winning cyclist not a worker or an employee [ch2: pages 35-37] (1,367 words)
Varnish v British Cycling Federation t/a British Cycling [2020] UKEAT/0022/20/LA

Workers are entitled to same legal health and safety protection as employees [ch2: pages 38-39] (694 words)
Independent Workers of Great Britain Union v Secretary of State for Work and Pensions [2020] Case No: CO/1887/2020

Chapter 3

3. Terms and conditions of employment [ch 3: pages 40-42] (1,134 words)

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

Refusal to work linked to rest breaks must be spelt out [ch 3: pages 42-44] (1,108 words)
Pazur v Lexington Catering Services Limited [2019] UKEAT/0008/19/LA

Important union win in first legal test of Coronavirus job retention scheme [ch 3: pages 44-45] (575 words)
Re Carluccio’s Limited (in administration) [2020] EWHC 886

Chapter 4

4. Trade union rights [ch 4: page 46] (478 words)

In a landmark victory in November 2020, general union Unite secured the formal right for workers taking industrial action to picket their workplaces ...
Subscribers only

Important new ruling on dismissal for trade union activities [ch 4: pages 47-50] (1,567 words)
Cadent Gas Limited v Singh [2019] UKEAT/0024/19/BA

Interim relief for union member helped by union to lodge grievance over pay cut [ch 4: pages 50-52] (923 words)
Morales v Premier Fruits (Covent Garden) Limited Case No. 2302945/20, 12 August 2020

Automatically unfair dismissal of union rep for organising strike ballot [ch 4: pages 52-53] (583 words)
Lucas v John Kyrle High School and 6th Form Centre [2020] Case No.1301603/2017, 4 November 2020

Chapter 5

5. Discrimination [ch 5: pages 54-55] (570 words)

Discrimination law is found in the Equality Act 2010 (EA 10). The EA 10 applies to England, Scotland and Wales. In Northern Ireland, the different ...
Subscribers only

Less favourable treatment due to marriage breakdown [ch 5: pages 55-57] (803 words)
Gould v St John’s Downshire Hill [2020] UKEAT/0002/20/BA

Jaguar Land Rover liable for transgender harassment and discrimination [ch 5: pages 57-60] (1,595 words)
Taylor v Jaguar Land Rover Limited ET Case No. 1304471/2018, dated 2 October 2020

Meaning of long-term disability clarified [ch 5: pages 60-62] (688 words)
Tesco Stores Limited v Tennant [2020] UKEAT/0167/19/00

Grief reaction was not a disability [ch 5: pages 62-63] (509 words)
Igweike v TSB Bank PLC [2020] UKEAT/0119/19/BA

It was disability discrimination not to offer agency worker a trial period [ch 5: pages 63-65] (825 words)
Birtenshaw v Oldfield [2019] UKEAT/0266/18/LA

Failure to investigate grievance did not breach reasonable adjustments duty [ch 5: pages 65-66] (873 words)
Ishola v Transport for London [2020] EWCA Civ 112

“Unfavourable treatment” must be because of Claimant’s disability [ch 5: pages 67-68] (828 words)
Robinson v DWP [2020] EWCA Civ 859

ETs require proper evidence that unfavourable treatment is “proportionate” [ch 5: pages 68-71] (1,035 words)
Chief Constable of Gwent Police v Parsons and Roberts [2020] UKEAT/0143/18/DA

Changes to probation pay scale were not unlawful age discrimination [ch 5: pages 71-73] (1,216 words)
Heskett v Secretary of State for Justice [2020] EWCA Civ 1487

Important new equal pay ruling on the “material factor” defence [ch 5: pages 73-75] (975 words)
Walker v (1) Co-operative Group Limited and (2) Pennycook [2020] EWCA Civ 1075

ET could draw inferences of sex discrimination from male managers’ sexist views [ch 5: pages 75-77] (805 words)
Commerzbank AG v Rajput [2019] UKEAT/0164/18/RN

Employer guilty of racism and racist stereotyping [ch 5: pages 77-79] (911 words)
Base Childrenswear Limited v Otshudi [2019] EWCA Civ 1648

Woman sacked due to IVF suffered pregnancy discrimination [ch 5: pages 79-81] (802 words)
Gita Karavadra v B.J. Cheese Packaging Limited Birmingham Employment Tribunal Case No 1305782/2018

NHS Trust not liable for third-party race harassment of nurse by patient [ch 5: pages 81-83] (1,156 words)
Bessong v Pennine Care NHS Foundation Trust [2019] UKEAT/0247/18/JOJ

DWP ordered to pay nearly £250,000 to new joiner over race and age harassment and victimisation [ch 5: pages 83-85] (670 words)
Giwa-Amu v DWP ET Claim No. 1600465/2017, ET judgment dated 20 February 2020

Surprising ruling that unwanted shoulder massage was not harassment related to sex [ch 5: pages 85-86] (775 words)
Raj v Capita Business Services Limited and Ward [2019] UKEAT/0074/19/LA

Ruling showcases flexibility of ET’s power to make “Recommendations” [ch 5: pages 87-89] (1,057 words)
Hill v Lloyds Bank PLC [2020] UKEAT/0173/19/LA

Chapter 6

6. Whistleblowing [ch 6: page 90] (338 words)

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

Motivation of devious Royal Mail manager could be attributed to employer [ch 6: pages 90-92] (929 words)
Royal Mail Group Limited v Jhuti [2019] UKSC 55

Chapter 7

7. Dismissal [ch 7: page 93] (335 words)

Employees who are dismissed unfairly can go to an employment tribunal (ET) if they have been working for at least two years. Some specific types of ...
Subscribers only

Interim relief [ch 7: pages 93-94] (244 words)

Interim relief granted despite disputed employment status [ch 7: pages 94-96] (909 words)
Hancock v Ter-Berg and NHS England Midlands and East [2019] UKEAT/0138/19/BA

Unclear dismissal letter justified extension of time to claim unfair dismissal [ch 7: pages 96-97] (741 words)
Lowri Beck Services Limited v Brophy [2019] EWCA Civ 2490

‘Unofficial’ work on site did not count towards continuous service [ch 7: pages 98-99] (912 words)
O’Sullivan v DSM Demolition Limited [2020] UKEAT/0257/19/VP

A fair dismissal requires clear advance notice of dismissal grounds [ch 7: pages 100-102] (1,121 words)
K v L [2020] UKEATS/0014/18/JW

Investigator’s failure to share information made dismissal unfair [ch 7: pages 102-103] (681 words)
Uddin v London Borough of Ealing [2020] UKEAT/0165/19/RN

Not always unfair to dismiss without an investigation meeting (but it usually will be) [ch 7: pages 104-106] (1,066 words)
Sunshine Hotel Limited t/a Palm Court Hotel v Goddard [2019] UKEAT/0154/19/00

Dismissal was fair despite use of anonymous evidence [ch 7: pages 106-109] (1,822 words)
Tai Tarian v Christie [2020] UKEAT/0059/19/VP

Unfair dismissal claim allowed to go ahead despite past illegality [ch 7: pages 110-112] (1,415 words)
Robinson v Al Qasimi [2020] UKEAT/0106/19/RN

Re-engagement is unlikely to be ordered if trust and confidence is broken [ch 7: pages 112-114] (948 words)
Kelly v PGA European Tour [2020] UKEAT/0285/18/2608

Chapter 8

8. Business transfers and service provision change (TUPE) [ch 8: page 115] (167 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

Beneficial contract variations due to TUPE transfer are void [ch 8: pages 115-117] (1,095 words)
Ferguson and Others v Astrea Asset Management Limited [2020] UKEAT/1039/19/JOJ

Chapter 9

9. Redundancy [ch 9: page 118] (426 words)

During 2020, redundancy is an unwelcome reality for tens of thousands of employees as a result of the Coronavirus pandemic. ...
Subscribers only

Public Sector Exit Payments Regulations 2020 [ch 9: page 119] (126 words)

Teachers made to apply for their own jobs were unfairly dismissed [ch 9: pages 119-122] (1,573 words)
Gwynedd Council v Shelley Barratt and Another [2020] UKEAT/02/6/18/VP

No obligation to add redundant employee to “bank” list [ch 9: pages 122-123] (728 words)
Aramark (UK) Limited v Fernandes [2020] UKEATS/0028/19/SS