LRD Booklets January 2022

Case law at work (18th edition)

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Introduction

Introduction [pages 3-4] (524 words)

This is the 18th 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. Categories of worker and employment rights [ch 1: page 5] (454 words)

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

Zero hours agency workers have statutory rights [ch 1: pages 6-8] (1,041 words)
Angard Staffing Solutions Limited and Royal Mail Group Limited v Kocur and others [2020] UKEAT/0050/20/JOJ

Ruling clarifies limited rights of agency workers [ch 1: pages 8-12] (2,335 words)
Angard Staffing Solutions Limited and Royal Mail Group Limited v Kocur, Roberts and others [2020] UKEAT/0105/19/JOJ

Uber drivers have worker rights, Supreme Court rules [ch 1: pages 13-16] (1,548 words)
Uber BV and others v Aslam and others [2021] UKSC 5

Failure to give part-time workers paid breaks was not unlawful [ch 1: pages 16-17] (741 words)
Forth Valley Health Board v Campbell EA-2020-SCO-000093-SH

Chapter 2

2. Pay and conditions [ch 2: page 18] (352 words)

A National Minimum Wage (NMW) was introduced by the Labour government under the National Minimum Wage Act 1998 (NMWA). The details are set out in ...
Subscribers only

Supreme Court rules against sleep-in pay for care workers [ch 2: pages 19-21] (1,095 words)
Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad t/a Clifton House Residential Home [2021] UKSC 8

Minimum wage claim limited to two years but holiday claim extended [ch 2: pages 21-22] (606 words)
Miles v Hesp t/a The Great Western Hotel ET Case No.1601554/2018

Sash Window case extending holiday pay claim does not apply if holiday taken [ch 2: pages 22-23] (531 words)
Smith v Pimlico Plumbers Ltd UKEAT/0211/19

Chapter 3

3. Trade union rights [ch 3: page 24] (209 words)

Most trade union and collective organisation rights are found in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), as amended. ...
Subscribers only

Warning over email list was trade union detriment [ch 3: pages 24-26] (895 words)
University College London v Brown [2020] UKEAT/0084/19/VP

Union wins unlawful inducement claim in Supreme Court [ch 3: pages 26-28] (765 words)
Kostal UK Ltd v Dunkley & Ors [2021] UKSC 47

Chapter 4

4. Discrimination [ch 4: pages 29-30] (567 words)

Discrimination law is found in the Equality Act 2010 (EA10). The EA10 lists nine “protected characteristics”: age; disability; gender ...
Subscribers only

Employer should have provided refresher equality training [ch 4: pages 30-32] (833 words)
Allay (UK) Limited v Gehlen [2021] UKEAT/0031/20/AT (V)

‘Gender-critical’ views are protected by Equality Act [ch 4: pages 32-34] (996 words)
Forstater v CGD Europe and others UKEAT/0105/20

Court says remedies for unintentional discrimination are adequate [ch 4: pages 34-35] (482 words)
Wisbey v The Commissioner of the City of London Police and anor [2021] EWCA Civ 650

Requiring foster carers to refrain from “homosexual activity” was unlawful [ch 4: pages 35-36] (459 words)
R (Cornerstone Fostering and Adoption Services Ltd) v Ofsted [2021] EWCA Civ 1390

JR challenge to self-employed income support scheme fails [ch 4: pages 36-38] (629 words)
R (on the application of The Motherhood Plan (Pregnant then Screwed) & another v HM Treasury and HMRC [2021] EWHC 309 (Admin)

BA parental leave rostering policy under the spotlight [ch 4: pages 38-39] (646 words)
Cumming v British Airways PLC [2021] UKEAT/0337/19/JOJ (V)

Compulsory retirement can be justified [ch 4: pages 39-42] (1,049 words)
Pitcher v University of Oxford and others; University of Oxford and others v Ewart EA-2019-000638-RN; EA-2020-000128-RN

Interim relief is not available in discrimination claims [ch 4: pages 42-44] (941 words)
Steer v Stormsure Ltd and anor [2021] EWCA Civ 887

Employee with paranoid delusions was not disabled [ch 4: pages 44-46] (1,255 words)
Sullivan v Bury Street Capital Limited [2021] EWCA Civ 1694

Lack of evidence of underlying mental health condition meant claimant was not disabled. [ch 4: pages 46-48] (621 words)
Seccombe v Reed in Partnership Ltd EA-2019-000478-OO

Continuing pay was not a reasonable adjustment [ch 4: pages 48-50] (826 words)
Aleem v E-Act Academy Trust Ltd [2021] UKEAT/0099/20/2807

ET failed to consider whether dismissal related to disability [ch 4: pages 50-51] (402 words)
Thompson v Vale of Glamorgan Council UKEAT/0065/20

Discretionary policy did not prevent discrimination [ch 4: pages 51-52] (526 words)
Martin v City and County of Swansea EA-2020-000460-AT

Tribunal must decide specific reason for dismissal [ch 4: pages 52-53] (309 words)
Cummins Ltd v Mohammed UKEAT/0039/20

Retail workers can compare terms with distribution workers [ch 4: pages 53-55] (1,129 words)
Asda Stores Ltd v Brierley and ors UKSC 10

EU equal pay law has direct effect [ch 4: pages 55-56] (440 words)
K and others v Tesco Stores Ltd Case C624/19

Order for disclosure was legitimate [ch 4: pages 56-57] (478 words)
Tesco Stores Ltd v K Element & Ors [2021] UKEAT 0228/20

Chapter 5

5. Dismissal [ch 5: page 58] (269 words)

Employees who are dismissed unfairly can go to an employment tribunal if they have been working for their employer for at least two years. ...
Subscribers only

Medical evidence obtained after dismissal should not be considered [ch 5: pages 58-61] (1,115 words)
Brightman v TIAA Ltd UKEAT/0318/19

Employer should have waited longer for medical improvement [ch 5: pages 61-62] (660 words)
Secretary of State for Justice v Edwards UKEAT/0049/20

No choice but to return after successful appeal [ch 5: pages 62-64] (838 words)
Phoenix Academy Trust v Kilroy [2020] UKEAT/0264/19/0602

Decision not to return after maternity leave was constructive dismissal [ch 5: pages 64-65] (508 words)
Chemcem Scotland Limited v Ure [2020] UKEAT/0036/19/SS

Reporting unfounded allegations to police was a detriment [ch 5: pages 65-67] (937 words)
The Edinburgh Mela Ltd v Purnell UKEAT/0041/19

Chapter 6

6. Redundancy [ch 6: page 68] (230 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

Employer’s motive irrelevant to whether genuine redundancy situation exists [ch 6: pages 68-70] (1,071 words)
Berkeley Catering Limited v Jackson [2020] UKEAT/0074/20/LA(V)

Enhanced redundancy payments were not contractual [ch 6: pages 71-73] (1,105 words)
Thomas and others v FW Farnsworth Ltd (t/a Pizza Factory) EA-2020-000068-BA 21.09.21

No defence for failure to collectively consult [ch 6: pages 73-74] (460 words)
Carillion Services Ltd (in compulsory liquidation) and others Benson and others EA-2021-000269-BA

Chapter 7

7. Whistleblowing [ch 7: page 75] (395 words)

The Employment Rights Act 1996 (ERA) protects employees and workers who disclose information about certain types of alleged wrongdoing at work ...
Subscribers only

Tribunal must follow structured analysis [ch 7: pages 76-78] (974 words)
Martin v LB Southwark & anor EA-2020-000432-JOJ

Tribunal must make finding of fact before carrying out analysis [ch 7: pages 78-79] (636 words)
Lumb v Chief Constable of Greater Manchester Police EA-2020-000590-AT

Tribunal took wrong approach on reason for dismissal [ch 7: pages 79-81] (1,005 words)
Secure Care UK Ltd v Mott EA-2019-000977-AT

Chapter 8

8. Employment tribunal procedures [ch 8: pages 82-83] (607 words)

Nearly all employment tribunal (ET) claims must be brought within three months less one day of the matter complained of. ETs can extend the time ...
Subscribers only

Ticking box 10 was not enough to bring a whistleblowing claim [ch 8: pages 83-85] (964 words)
Petrica v Central London Community NHS Trust UKEAT/0059/20

ET to consider whether ignorance of time limits reasonable [ch 8: pages 85-86] (547 words)
Leeds & Yorkshire Housing Association Ltd v Fothergill UKEAT/0211/20

Responsibility for submitting multiple claims in time rests with lead claimant [ch 8: pages 86-87] (413 words)
Kim v KKDC England Ltd and anor and other cases UKEAT/0218/19 and others

Claims of unlawful inducement were out of time [ch 8: pages 87-89] (829 words)
Scottish Borders Housing Association Ltd v Caldwell and others EA-2020-SCO-000084-SH

Imposing new contract was a “one-off” act [ch 8: pages 89-91] (796 words)
Ikejiaku v British Institute of Technology Limited [2020] UKEAT/0243/19/VP

Extension of retirement age was one-off, not continuing discrimination [ch 8: pages 91-93] (804 words)
Moore Stephens LLP and others v Parr UKEAT/0238/20

Failure to make adjustments extends over a period of time [ch 8: pages 93-94] (849 words)
Kerr v Fife Council UKEATS/0022/20/SH

Judge erred when striking out in claimant’s absence [ch 8: pages 95-97] (1,115 words)
Mukoro v Independent Workers’ Union of Great Britain and others UKEAT/0128/19

Judge wrong to strike out claim without identifying it [ch 8: pages 97-99] (900 words)
Cox v Adecco and others UKEAT/0339/19

Claims brought by separate claimants should have been heard together [ch 8: pages 99-100] (587 words)
Tesco plc v Bush UKEAT/0068/20; Tesco Stores Ltd v Rogberg UKEAT/0069/20

Employer had not waived privilege to all documents [ch 8: pages 100-103] (1,119 words)
Watson v Hilary Meredith Solicitors and another UKEAT/0092/20

Failure to provide evidence of mitigation reduced compensation [ch 8: pages 103-104] (452 words)
Gavli and anor v LHR Airports Ltd UKEAT/0012/21

Compensation for a whole lifetime of lost earnings should be rare [ch 8: pages 104-106] (957 words)
BMI Healthcare Ltd v Shoukrey UKEAT/0336/19

Failure to apply uplift in compensation was perverse [ch 8: pages 106-108] (638 words)
Brown v Veolia ES (UK) Ltd UKEAT/0041/20