LRD guides and handbook January 2015

Case law at work - 11th edition

Introduction

Introduction [pages 3-4] (551 words)

This is the 11th 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 [ch 1: pages 5-6] (718 words)

A major change to the employment tribunal rules was made in 2014 which introduced early conciliation by the employment relations service Acas. Early ...
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Case preparation and proceedings at the employment tribunal [ch 1: pages 6-7] (215 words)

Costs at the employment tribunal [ch 1: page 7] (293 words)

Lying will not automatically trigger liability for tribunal costs [ch 1: pages 7-8 ] (380 words)
Kapoor v The Governing Body of Barnhill Community High School [2013] UKEAT/0352/13/RN

Judge wrong to deny insured claimant his costs [ch 1: pages 8-9] (226 words)
Mardner v Gardner and Others [2014] UKEAT/0483/13/DA

Losing respondent should normally refund tribunal fees [ch 1: page 9] (191 words)
Portnykh v Nomura International PLC [2013] UKEAT 0448/13/0511

Successful appeal should result in recovery of appeal fees [ch 1: pages 9-10] (551 words)
Horizon Security Services Limited v Ndeze and The PCS Group [2014] UKEAT/0071/14/JOJ

UNISON’s legal challenge against tribunal fees [ch 1: page 11] (382 words)
UNISON v The Lord Chancellor [2014] EWHC 4198 (Admin) Case No: CO/4440/2014

Use of confidential documents in tribunal proceedings [ch 1: pages 12-13] (460 words)
Plymouth City Council v White [2013] UKEAT/0333/13/LA

Covert recording of manager’s private comments admissible [ch 1: pages 13-14] (560 words)
Punjab National Bank (International) Limited & Others v Gosain [2013] UKEAT/0003/14/SM

Unless order must be 100% clear and obvious to be valid [ch 1: pages 14-15] (609 words)
Mace v Ponders End International Limited [2014] UKEAT/0491/13/LA

Ill claimant should have been allowed short adjournment [ch 1: pages 15-16] (396 words)
U v Butler & Wilson Limited (2014) UKEAT/0354/13/DM

Tribunals need to be alert to capabilities of representatives [ch 1: pages 16-17] (469 words)
Drysdale v The Department of Transport [2014] EWCA Civ 1083

Termination date not altered by different dismissal route [ch 1: page 18] (424 words)
Rabess v London Fire and Emergency Planning Authority [2014] UKEAT/0029/14/JOJ

Strike out of case rarely appropriate where key facts are disputed [ch 1: page 19] (395 words)
Romanowska v Aspirations Care Limited [2014] UKEAT/0015/14/SM

Claim over work placement should go to County Court [ch 1: page 20-21] (442 words)
Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust [2014] UKEAT/0130/14/RN

Pension loss based on value of pension at retirement [ch 1: page 21-23] (920 words)
Sharan Griffin v Plymouth Hospital NHS Trust [2014] EWCA Civ 1240

Chapter 2

2. Categories of worker [ch 2: page 24] (275 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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Complex employment status led to beautician’s failed claim [ch 2: pages 24-25] (454 words)
Halawi v WDFG UK Limited t/a World Duty Free UK [2014] EWCA Civ 1387

New tribunal to rule whether actors are ‘workers’ [ch 2: pages 25-26] (302 words)
MacAlinden t/a Charm Offensive v Lazarov and others [2014] UKEAT/0453/13/JOJ

Claim could be heard despite woman’s illegal work status [ch 2: pages 26-27] (552 words)
Wijesundera v Heathrow 3PL Logistics Limited (debarred) and another [2013] UKEAT/0222/13/DA

No protection for agency workers with indefinite contracts [ch 2: page 28] (390 words)
Moran v Ideal Cleaning Services Limited [2013] UKEAT/0274/13/DM

Insurer was to blame for unfair treatment of fixed-term worker [ch 2: pages 29-30] (484 words)
Hall v Xerox UK Limited [2014] UKEAT/0061/14/JOJ

Contracted scaffolder deemed to be a worker entitled to holiday pay [ch 2: pages 30-31] (471 words)
Boss Projects LLP v Bragg [2013] UKEAT/0330/13/SM

Workers not covered under Blacklisting Regulations [ch 2: page 31] (182 words)
Smith v Carillion (JM) Ltd & Anor/UKEAT/2014/0081_13_1701.html

Chapter 3

3. The employment contract [ch 3: page 32] (305 words)

Employment rights depend, as a minimum, on the presence of an “employment relationship”. There are important legal distinctions between an ...
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Holiday pay should take account of commission [ch 3: pages 32-33] (376 words)
Lock v British Gas Trading Ltd (Judgment of the Court) [2014] EUECJ C-539/12

Overtime must be taken into account for holiday pay [ch 3: pages 33-34] (470 words)
(1) Bear Scotland Limited, (2) Hertel (UK) Limited and Amec Group Limited v Fulton, Woods, Law and others [2014] UKEATS/0047/13/B1

Ambulance staff win over on-call time [ch 3: pages 34-35] (350 words)
Truslove & Anor v Scottish Ambulance Service [2014] UKEATS/0053/13/JW

Minimum wage is payable for travel time and overnight stays [ch 3: pages 35-36] (637 words)
Whittlestone v BJP Home Support Limited [2013] UKEAT/0128/13/BA

Care worker secures win over minimum wage pay [ch 3: page 37] (214 words)
Esparon t/a Middle West Residential Care Home v Slavikovska [2014] UKEAT/0217/12

Express deductions term will be unenforceable if it is a penalty [ch 3: pages 37-38] (417 words)
Cleeve Link Limited v Bryla [2013] UKEAT40/12/0810

Employee’s pay slip has to show reason for deduction [ch 3: pages 38-39] (254 words)
Ridge v Her Majesty’s Land Registry [2014] UKEAT/0098/10/DM

No breach of contract in refusal to award annual pay rise [ch 3: pages 39-40] (427 words)
The Equality and Human Rights Commission v Earle [2014] UKEAT/0011/14/MC

Chapter 4

4. Unions and collective agreements [ch 4: page 41] (77 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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Civil servants win test case on pay progression [ch 4: page 41] (300 words)
Cabinet Office v Beavan & Others [2013] UKEAT/0262/13/BA

Union loses judicial review application after employer prevents statutory recognition [ch 4: pages 42-43] (545 words)
R (on the application of Boots Management Services Limited) v The CAC and the Pharmacists Defence Association Union [2014] EWHC 2930 (Admin)

European Court of Human Rights upholds UK ban on secondary strikes [ch 4: pages 43-44] (437 words)
National union of Rail, Maritime and Transport Workers v The United Kingdom Application no. 31045/10

There is a clear right to strike, says ruling [ch 4: pages 44-45] (304 words)
Tymoshenko v Ukraine (Application 48408/12)

Tribunal confirms worker’s right to choose companion [ch 4: pages 45-46] (507 words)
Roberts v GB Oils Limited [2013] UKEAT/0177/13/DM

Chapter 5

5. Discrimination [ch 5: pages 47-48] (659 words)

Since 1 October 2010, discrimination law has been contained in the Equality Act 2010 (EA 2010). With a few notable exceptions, the laws in the EA 2010 ...
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Disabled employee should have been allowed companion [ch 5: pages 48-50] (658 words)
Royal Bank of Scotland v O’Doherty [2013] UKEAT/0489/12/RN

Whether an employee is disabled is for the employer’s judgement alone [ch 5: pages 50-51] (388 words)
Gallop v Newport City Council [2013] EWCA 1583

Home Office failed in duty to make reasonable adjustment [ch 5: pages 51-52] (480 words)
Hibbett v The Home Office & Others [2013] UKEAT 0138/13/2410

Reasonable adjustment must raise prospect of return to work [ch 5: pages 52-54] (822 words)
Howorth v North Lancashire Teaching Primary Care Trust [2014] UKEAT/0294/13/2208

Ignoring final warning not a reasonable adjustment [ch 5: pages 54-55] (659 words)
General Dynamics Information Technology Limited v Carranza [2014] UKEAT/0107/14/KN

No obligation to offer post to disabled worker ahead of others [ch 5: page 56] (357 words)
McCarthy v Jaguar Cars Limited [2013] UKEAT/0320/13/SM

Reasonable adjustment would have been transfer closer to home [ch 5: pages 57-58] (468 words)
Secretary of State for Work and Pensions (Job Centre Plus) v Jamil [2013] UKEAT 0097/13/2611

Duty of reasonable adjustments is only owed to disabled person [ch 5: pages 58-59] (397 words)
Hainsworth v (1) Ministry of Defence (2) Equality and Human Rights Commission [2014] EWCA Civ 763

Cost and burden of proof on disability falls on claimant [ch 5: pages 59-60] (588 words)
City Facilities Management (UK) Limited v Ling [2014] UKEAT/0396/13/MC

Met Police discriminated by not returning dog to handler [ch 5: pages 60-61] (345 words)
Commissioner of Police of the Metropolis v Keohane [2014] UKEAT 0463/12/0403

Claimant only has to show evidence of disadvantage [ch 5: pages 61-62] (484 words)
Essop v Home Office (UK Border Agency) [2014] UKEAT 0480/13/1605

Immigration status does not equal nationality under the Equality Act 2010 [ch 5: pages 62-63] (370 words)
Taiwo v Olaigbe [2014] EWCA Civ 279

Illegality of arrangement does not prevent discrimination claim [ch 5: pages 63-64] (612 words)
Hounga v Allen [2014] UKSC 47

Cook left in legal limbo over racial harassment [ch 5: pages 64-65] (433 words)
Kemeh v Ministry of Defence [2014] EWCA Civ 91

Christian care worker fails in bid to make Sunday special [ch 5: pages 66-67] (460 words)
Mba v the Mayor and Burgesses of the London Borough of Merton [2013] EWCA Civ 1562

Lower pay for Muslim chaplains not religious discrimination [ch 5: pages 67-68] (396 words)
Naeem v Secretary of State for Justice [2014] UKEAT 0215/13/RN

Age discrimination for scheme to pay less in redundancy to over-60s [ch 5: pages 68-69] (461 words)
Heron v Sefton Metropolitan Borough Council [2013] UKEAT/0566/12/SM

Another ruling of age discrimination for scheme which pays less in redundancy to over-60s [ch 5: pages 69-70] (474 words)
Smith v Department for Business and Skills [2014] UKEAT/0308/12/RN, Budgen v Ministry of Justice UKEAT/0309/12/RN

Claimant picked on wrong age group as comparator [ch 5: pages 70-71] (643 words)
Palmer v Royal Bank of Scotland PLC [2014] UKEAT/0083/14/MC

Severe obesity can amount to disability if obstacle at work [ch 5: pages 71-72] (295 words)
FOA (on behalf of Karsten Kaltoft) v Kommunernes Landsforening (on behalf of the Municipality of Billund) Case C-354/13

Chapter 6

6. Working parents and carers [ch 6: page 73] (364 words)

The Children and Families Act 2014, has introduced improved rights for working parents. Some parts of this new Act are already in force while others ...
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Post-maternity sick leave was outside ‘protected period’ [ch 6: pages 73-74] (350 words)
Lyons v DWP JobCentre Plus [2014] UKEAT 0348/13/1401

Chapter 7

7. Dismissal [ch 7: pages 75-76] (510 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 ...
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Refusal of cross-examination rarely makes dismissal unfair [ch 7: pages 76-77] (532 words)
Yeung v Capstone Care Limited [2013] UKEAT/0161/13/DA

Employee affirmed contract by giving extra notice [ch 7: pages 77-78] (359 words)
Cockram v Air Products PLC [2014] UKEAT/0038/14/LA

Contributory fault which was not improper, not relevant to capability dismissal [ch 7: pages 78-79] (413 words)
Frith Accountants Limited v Law [2014] UKEAT/0460/13/SM

Long-term sick staff must be consulted over return to work [ch 7: pages 79-81] (648 words)
BS v Dundee City Council [2013] CSIH 91

NHS Trust had no right to increase severity of sanction [ch 7: pages 81-82] (633 words)
McMillan v Airedale NHS Foundation Trust [2014] EWCA Civ 1031

An unfair dismissal claimant cannot still be employed [ch 7: pages 82-83] (243 words)
Mr Clutch Auto Centres v Blakemore [2014] UKEAT/0509/13/LA

Employee can still claim constructive dismissal in spite of own breach of contract [ch 7: pages 83-84] (509 words)
Atkinson v Community Gateway Association [2014] UKEAT/0457/12/BA

Chapter 8

8. Redundancy [ch 8: page 85] (333 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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Redundancy pay success following TUPE transfer [ch 8: pages 85-86] (362 words)
Peacock Stores v Mr Brian Peregrine and Others [2014] UKEAT 0315/13/25

Employer’s unreasonable delay over alternative employment [ch 8: pages 86-87] (288 words)
Langford v East Sussex County Council [2013] UKEAT/0275/13/DM

Rugby club failed to consult on possible job share alternative [ch 8: pages 87-88] (371 words)
Stroud Rugby Club v Monkman [2013] UKEAT/0143/13/SM

Refusal of voluntary redundancy made compulsory job loss unfair [ch 8: pages 88-89] (378 words)
Stephenson College v Jackson [2013] UKEAT/0045/13/JOJ

Chapter 9

9. Business transfers and contracting out [ch 9: page 90] (156 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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Question as to when is a task of “short duration” under TUPE [ch 9: pages 90-92] (806 words)
Robert Sage t/a Prestige Nursing Care Limited v O’Connell [2014] UKEAT/0336/13/DA

Activities were basically the same before and after transfer [ch 9: pages 92-93] (377 words)
Qlog v O’Brien & Others [2014] UKEAT/0301/13/JOJ

Transferee did not have to consult with incoming staff [ch 9: pages 93-94] (477 words)
Allen v Morrisons Facilities Services Limited [2014] UKEAT/0298/13/DM

TUPE can apply even if some activities of a firm are unlawful [ch 9: pages 94-95] (497 words)
Ejiofor t/a Mitchell & Co Solicitors v Sullivan & Ors [2014] UKEAT/0268/13/SM

Longer commute time was not ‘substantial change’ [ch 9: pages 95-96] (397 words)
Cetinsoy & Others v London United Busways Limited [2014] UKEAT/0042/14/LA

Transfer day is when responsibility for business passes to new owner [ch 9: pages 96-97] (386 words)
Housing Maintenance Solutions Limited v McAteer [2014] UKEAT/0440/13/LA

Chapter 10

Cases to look out for in 2015 [ch 10: pages 98-99] (676 words)

In its annual look ahead at significant employment law decisions expected in 2015, online HR news publisher Personnel Today identifies eight notable ...
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