LRD Booklets January 2016

Case law at work - 12th edition

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Introduction

Introduction [pages 3-4] (551 words)

This is the 12th 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] (610 words)

Nearly all tribunal claims must be brought within three months of the matter complained of. Tribunals can extend the time limit in an unfair ...
Subscribers only

Tribunal’s first ruling on Acas Early Conciliation process [ch 1: pages 6-7] (548 words)
Thomas v Nationwide Building Society, ET/1601342/2014

Online claim was valid where remission form was sent by post [ch 1: pages 7-8] (538 words)
Deangate Ltd v Hatley & Others (Secretary of State intervening) [2015] UKEAT/0389/14/DM

Acas Early Conciliation mandatory — even in cases of sexual harassment [ch 1: pages 8-9] (278 words)
Cranwell v Cullen [2015] UKEAT/0046/14/2003

Care must be taken over early conciliation paperwork [ch 1: pages 9-10] (329 words)
Sterling v United Learning Trust UKEAT/0439/14/DM

Extra period of Acas conciliation not needed for amended claim [ch 1: pages 10-11] (488 words)
Science Warehouse Ltd v Mills [2015] UKEAT 0224/15/DA

No stand-alone right to compensation for failure on written job details [ch 1: pages 11-12] (224 words)
Advanced Collective Systems Limited v Gultekin UKEAT/0377/14/LA

Wasted costs order should not have been made [ch 1: pages 12-13] (503 words)
Hafiz & Haque Solicitors v (1) Mullick and (2) Paul UK Limited UKEAT/0356/14/DA

Claimant without interpreter was given ‘reasonable opportunity’ [ch 1: pages 13-14] (481 words)
Hak v St Christopher’s Fellowship [2015] UKEAT 0446/14/DA

Balancing prejudice and merits of claim over time extension [ch 1: pages 14-15] (353 words)
Rathakrishnan v Pizza Express (Restaurants) Ltd [2015] UKEAT 0073/15/DA

Associated employers and continuity of employment [ch 1: pages 15-16] (445 words)
Schwarzenbach (t/a Thames-Side Court Estate v Jones [2015] UKEAT 0100/15/DM

Chapter 2

2. Categories of workers [ch 2: pages 17-19] (948 words)
(1) Pimlico Plumbers Limited and (2) Charlie Mullins v Smith [2014] UKEAT/0495/12/DM

A plumbing operative, Mr Smith, working for the London firm Pimlico Plumbers Limited (Pimlico), brought claims for unfair and wrongful dismissal and ...
Subscribers only

Chapter 3

3. The employment contract [ch 3: page 20] (292 words)

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

Absence management procedure was contractual [ch 3: pages 20-22] (659 words)
Sparks and others v Department for Transport [2015] EWCH 181 (QB)

Important ruling on affirmation while on sick leave [ch 3: pages 22-23] (558 words)
Colomar Mari v Reuters Limited [2014] UKEAT/0539/13/MC

New contract was accepted even though unsigned [ch 3: pages 23-25] (747 words)
Wess v Science Museum Group [2014] UKEAT/0120/14/DM

Flexibility clause did not permit varying of part-time hours [ch 3: pages 25-27] (841 words)
Hart v St Mary’s School (Colchester) Limited [2015] UKEAT/0205/14/DM

Summary dismissal justifiable over sending of porn email [ch 3: pages 27-28] (472 words)
Williams v Leeds United Football Club [2015] EWHC 376

Refusal over companion at hearing a breach of trust [ch 3: pages 28-29] (542 words)
Stevens v University of Birmingham [2015] EWHC 2300

Chapter 4

4. Pay and conditions [ch 4: page 30] (343 words)
Lock v (1) British Gas Trading Limited and (2) Secretary of State for Business Innovation and Skills Case No. 1900503/2012 and others

The Leicester Employment Tribunal has delivered a ruling in the long-running case of Mr Lock, supported by UNISON, against his employer British Gas ...
Subscribers only

Voluntary overtime comes into reckoning for holiday pay [ch 4: pages 30-31] (457 words)
Patterson v Castlereagh Borough Council, judgment of the Northern Irish Court of Appeal, ref: GIL 9695, [2015]

Eighteen months cut-off for holiday carry-over by sick workers [ch 4: page 32] (440 words)
Plumb v Duncan Print Group Limited UKEAT/0071/15/DA

Calculating leave when shift patterns change [ch 4: pages 33-34] (584 words)
Ms Greenfield v The Care Bureau Ltd, C-219/14

Mobile staff travel time from home to clients is working time [ch 4: pages 34-35] (445 words)
Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL and Tyco Integrated Fire & Security Corporation Servicios SA, C-266/1

Chapter 5

5. Unions and collective organisation [ch 5: pages 36-37] (606 words)
BALPA v Jet2.Com Limited [2015] EWHC 1110 (QB)

This case concerns the scope of collective bargaining under the statutory recognition procedure. A claim was brought by pilots’ union BALPA against ...
Subscribers only

Union detriment claim must be heard by full tribunal panel [ch 5: pages 37-38] (469 words)
Birring v Michael Rogers and Carolyn Moore t/a Charity Link UKEAT/0388/14/RN

Chapter 6

6. Discrimination [ch 6: pages 39-40] (406 words)

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

Firms have duty to keep long-term sick workers informed [ch 6: page 40-41] (494 words)
Chawla v Hewlett Packard Limited [2015] UKEAT/0280/13/BA

Sole candidate was victimised by withdrawal of post [ch 6: pages 41-42] (699 words)
Dr Sukhomoy Das v Ayrshire & Arran Health Board [2015] UKEATS/0021/14/SM

Discriminatory cuts to contract terms were a ‘provision, criterion or practice’ needing justification [ch 6: pages 42-46] (1,464 words)
Braithwaite v HCL Insurance BPO Services Limited [2015] UKEAT/0152/14/DM

Absence-related bonus scheme was unfair to staff with disability [ch 6: pages 46-47] (583 words)
Land Registry v Houghton & Others [2015] UKEAT/0149/14/BA

Dismissal decision not discriminatory where final decision maker not influenced by discrimination [ch 6: pages 47-49] (785 words)
CLFIS (UK) Limited v Dr Mary Reynolds [2015] EWCA Civ 439

Baker’s refusal to make cake was discriminatory on two counts [ch 6: pages 49-51] (802 words)
Lee v Ashers Baking Co Limited, Judgment of The Northern Ireland County Court, delivered 19 May 2015

Not race discrimination to insist clothes are not a ‘trip’ hazard [ch 6: pages 51-52] (515 words)

Single act of race discrimination not linked to dismissal [ch 6: pages 52-53] (528 words)
Salter v Imperial College Healthcare NHS Trust UKEAT/0122/14/DXA

Claim can be brought over victimisation by association [ch 6: pages 53-55] (940 words)
Thompson v London Central Bus Company Limited UKEAT/0108/15/DM

Ruling draws distinction between ‘unfavourable’ and ‘detriment’ [ch 6: pages 55-57] (606 words)
(1) The Trustees of Swansea University Pension & Assurance Scheme and (2) Swansea University v Williams UKEAT/0415/14/DM

Position of each respondent has to be considered separately [ch 6: pages 57-58] (400 words)
Harden v (1) Wootlif and (2) Smart Diner Group Limited UKEAT/0448/14/DA

A limited company can claim direct discrimination [ch 6: pages 58-59] (804 words)
EAD Solicitors LLP and 7 Others v Garry Abrams UKEAT/0054/15/DM

Chapter 7

7. Dismissal [ch 7: pages 60-61] (533 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

Basic unfair dismissal principles apply to Twitter misuse [ch 7: pages 61-62] (771 words)
Game Retail Limited v Laws [2014] UKEAT 0188/14/0311

No need to always investigate every line of defence [ch 7: pages 63-64] (777 words)
Rajendra Shrestha v Genesis Housing Association Limited [2015] EWCA Civ 94

Contract is revived if employer allows appeal over dismissal [ch 7: pages 64-66] (568 words)
Salmon v (1) Castlebeck Care (Teesdale) Limited (In Administration) and (2) Danshell HealthCare Limited [2014] UKEAT/0304/14/DM

Decision-maker on dismissal was biased and interfering [ch 7: pages 66-67] (602 words)
Ethnic Minorities Law Centre v Deol UKEATS/0022/14/SM

No implied contractual duty to disclose misconduct allegations [ch 7: pages 67-68] (492 words)
The Basildon Academies v Amadi UKEAT/0342/14/RN

Witness must get chance to rebut finding of bad faith [ch 7: pages 68-70] (659 words)
Secretary of State for Justice v Lown UKEAT/008215/BA

Two-year-old Facebook post leads to fair dismissal [ch 7: pages 70-72] (826 words)

Interference from HR made dismissal unfair [ch 7: pages 72-73] (749 words)
Ramphal v Department for Transport UKEAT/0352/14/DA

Chapter 8

8. Redundancy [ch 8: page 74] (174 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

Woman on maternity leave protected when job scrapped [ch 8: pages 74-77] (1,476 words)
Sefton Borough Council v Wainwright [2014] UKEAT 0168/14/1310

Contract and job context are key in ‘place of work’ redundancy for mobile workers [ch 8: pages 77-79] (937 words)
Exol Lubricants Limited v (1) Birch and (2) Perrin [2014] UKEAT/0219/14/KN

Disappointing final ruling in Woolworths redundancy consultation challenge [ch 8: pages 79-80] (478 words)
USDAW & Wilson v WW Realisation 1 Limited, in liquidation, Ethel Austin Limited and Secretary of State for Business, Innovation and Skills, Case C-80/14

‘Special circumstances’ defence not available to employer who doesn’t realise consultation is required [ch 8: pages 80-82] (947 words)
E Ivor Hughes Educational Foundation v Morris & Others UKEAT/0023/15/LA

‘Sham’ redundancy claim must have clear evidence to succeed [ch 8: pages 83-84] (741 words)
East Lancashire Masonic Hall Co Limited v Buckley UKEAT/0447/14/DA

Duty to consult over job losses covers foreign state’s UK base [ch 8: pages 84-85] (247 words)
USA v Nolan [2015] UKSC 63

Chapter 9

9. Whistleblowing [ch 9: pages 86-87] (546 words)
Chesterton Global Limited v Nurmohamed [2015] UKEAT/0335/14/0804

A director of a national chain of estate agents, Chestertons, made an internal complaint about accounting irregularities where he worked, involving ...
Subscribers only

What is ‘in the public interest’ for whistleblowing protection? [ch 9: pages 87-88] (561 words)
Underwood v Wincanton plc UKEAT/0163/15/RN

Chapter 10

10. Business transfers and contracting out [ch 10: page 89] (177 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

No ‘percentage test’ in deciding whether employee transfers [ch 10: pages 89-90] (563 words)
Costain v (1) Armitage and (2) ERH Communications Limited [2014] UKEAT 0048/14/0207

Contractual duties relevant in determining if worker transfers [ch 10: pages 90-92] (569 words)
London Borough of Hillingdon v Gormanley and others [2014]

State guarantee only applies to pre-transfer employment debts [ch 10: pages 92-93] (549 words)
Secretary of State for Business Innovation and Skills v Dobrucki [2015] UKEAT/0505/13/JOJ

End-user can’t dictate who is included in transferring staff [ch 10: pages 93-95] (692 words)
Jakowlew v Nestor Primecare Services Limited t/a Saga Care & Anor UKEAT/0431/14/BA

Permanently incapacitated employee did not transfer [ch 10: pages 95-96] (544 words)
BT Managed Services Limited v Edwards UKEAT/0241/14/MC

No transfer where old employer is part of new employer group [ch 10: pages 96-97] (346 words)
Hyde Housing Association Limited & Others v Layton UKEAT/0124/15/MC

Transferee’s duty on reasonable adjustments over offer [ch 10: pages 97-99] (1,012 words)
NHS Direct NHS Trust v Gunn UKEAT/0128/14/BA

Further information

Five cases for reps to watch out for in 2016 [pages 100-101] (860 words)

Here are five cases that will have a significant impact on individual and collective employment rights during 2016. Unions have played a central role ...
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