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LRD guides and handbook January 2013
Case law at work - 9th edition
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 ...
Open access
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 ...
Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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. ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
‘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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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. ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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. ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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, ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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. ... Subscribers only
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. ... Subscribers only
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. ... Subscribers only
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 ... Subscribers only
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). ... Subscribers only
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. ... Subscribers only
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 ... Subscribers only
‘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, ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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. ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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. ... Subscribers only
‘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 ... Subscribers only
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 ... Subscribers only
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. ... Subscribers only
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 ... Subscribers only
‘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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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. ... Subscribers only
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. ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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. ... Subscribers only
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. ... Subscribers only
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, ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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. ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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. ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only
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 ... Subscribers only