LRD Booklets January 2017

Case law at work - 13th edition

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Introduction

Introduction
 [pages 5-6] (781 words)

This is the 13th 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
 (807 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

Claim could proceed despite wrong employer name on Acas EC form

 [ch 1: pages 8-10] (847 words)
Mist v Derby Community Health Services NHS Trust [2016] UKEAT/0170/15/MC


Change in respondent did not need a new Acas EC certificate
 [ch 1: pages 10-11] (587 words)
Drake International Systems Ltd & Others v Blue Arrow Ltd (Practice and

Linked complaint could be pursued after Acas EC certificate issued
 [ch 1: pages 12-13] (494 words)
Compass Group UK & Ireland Ltd v Morgan UKEAT/0060/16/RN

Solicitor’s mix-up over Acas EC certificate led to lost claim
 [ch 1: pages 13-14] (459 words)
Tanveer v East London Bus & Coach Company Ltd UKEAT/0022/16/RN

Tribunal wrong to rule claims out of time after claimant’s mistake over Acas EC certificate number

 [ch 1: pages 14-15] (764 words)
Adams v British Telecommunications Plc UKEAT/0342/15/LA

No good reason for failing to file unfair dismissal claim in time

 [ch 1: pages 16-17] (608 words)
Sheredes School v Davies UKEAT/0196/16/JOJ

Dropbox file not valid for appeal

 [ch 1: pages 17-18] (368 words)
Majekodunmi v City Facilities Management UK Ltd & Others UKEATPA/0157/15/DA


Tribunal’s warning over potential costs was not bias

 [ch 1: pages 18-19] (833 words)
Hussain v Nottinghamshire Healthcare NHS Trust UKEAT/0080/16/DM


Chapter 2

2. Categories of worker
 (4 words)

...
Subscribers only

Court interpreters were not “employees”
 [ch 2: pages 20-21] (677 words)
Secretary of State for Justice v Windle & Arada [2016] EWCA Civ 459


Uber drivers are workers entitled to the national minimum wage
 [ch 2: pages 21-23] (778 words)
Aslam & Others v Uber London Limited & Another, Case Nos. 2202550/2015 and others, London Central Employment Tribunal, 28 October 2016


Chapter 3

3. The employment contract
 [ch 3: page 24] (299 words)

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

Employer vicariously liable for injury caused by non-employee under its control 

 [ch 3: pages 24-26] (644 words)
Cox v Ministry of Justice [2016] UKSC 10

Supermarket vicariously liable for staff attack on customer

 [ch 3: pages 26-27] (584 words)
Mr A M Mohamud (in substitution for Mr A Mohamud, deceased) v WM Morrison Supermarkets plc [2016] UKSC 11

Resignation need not be ‘accepted’ by employer to take effect

 [ch 3: pages 27-28] (509 words)
Wallace v Ladbrokes Betting and Gaming Ltd UK EAT/0168/15/JOJ


Sickness procedure could only be changed by agreement

 [ch 3: pages 28-30] (675 words)
Department for Transport v Sparks & Others [2016] EWCA Civ 360


Chapter 4

4. Pay and conditions
 (4 words)

...
Subscribers only

Salary sacrifice vouchers can be stopped during maternity leave 

 [ch 4: pages 31-32] (582 words)
Peninsula Business Services Ltd v Donaldson [2016] UKEAT/0249/15/DM

Commission must be included when calculating statutory holiday pay

 [ch 4: pages 32-34] (825 words)
British Gas Trading Ltd v Lock & Another [2016] EWCA 983 CA


No compensation for injury to feelings over rest break 

 [ch 4: pages 34-35] (323 words)
Gomes v Higher Level Care Ltd UKEAT/0017/16/RN

Employer guilty over trafficked workers’ pay and conditions 

 [ch 4: pages 35-36] (427 words)
Galdikas & Others v DJ Houghton Catching Services Ltd & Others [2016] EWHC 1376 (QB)


Chapter 5

5. Unions and collective organisation
 (5 words)

...
Subscribers only

Were trade union activities the reason for dismissal? 

 [ch 5: pages 37-39] (955 words)
University of Bolton v Corrigan [2015] UKEAT/0408/14/RN


Trade union detriment and burden of proof
 [ch 5: pages 39-41] (1,112 words)
Dahou v Serco Ltd [2016] EWCA Civ 832


Chapter 6

6. Discrimination
 [ch 6: pages 42-43] (424 words)

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

Immigration status does not equate to race or nationality 
 [ch 6: pages 43-44] (639 words)
Taiwo & Another v Olaigbe & Others [2016] UKSC 31


No need for person to share protected characteristic

 [ch 6: pages 44-45] (398 words)
Noble v Sidhil Ltd & Another [2016] UKEAT/0375/14/DA

Instruction to speak English at work was not discriminatory

 [ch 6: pages 45-46] (428 words)
Kelly v Covance Laboratories Ltd [2015] UKEAT 0186/15


Occupational health adviser’s knowledge of disability not ‘imputed’ to dismissal-decider
 [ch 6: pages 46-48] (665 words)
Gallop v Newport City Council [2016] UKEAT/0118/15/DM


Manual lifting is a ‘normal day-to-day’ activity

 [ch 6: pages 48-49] (525 words)
Banaszczyk v Booker Ltd [2016] UKEAT/0132/15/RN


Duty to make adjustments applies to sickness absence procedures 

 [ch 6: pages 49-50] (663 words)
Griffiths v The Secretary of State for Work and Pensions [2015] EWCA Civ 1265

Adjustments only “reasonable” if return to work on the cards
 [ch 6: pages 51-52] (844 words)
Monmouthshire County Council v Harris [2015] UKEAT 0010/15


Pay protection for less skilled job was a ‘reasonable adjustment’ 

 [ch 6: pages 53-54] (904 words)
G4S Cash Solutions (UK) Ltd v Powell [2016] EWCA Civ 983


Changes to online test was not a reasonable adjustment
 [ch 6: pages 55-56] (549 words)
Muzi-Mabaso v HM Revenue & Customs [2015] UKEAT 0353/14


Regular requests to work late were a ‘practice’ subject to reasonable adjustment duty
 [ch 6: pages 56-57] (415 words)
Carreras v United First Partners Research UKEAT/0266/15/RN


Application of performance procedure must take disability into account
 [ch 6: pages 57-58] (502 words)
Buchanan v The Commissioner of Police of The Metropolis UKEAT/0112/16/RN


Disability was cause of employee’s gross misconduct, even though link was loose
 [ch 6: pages 58-59] (316 words)
Risby v London Borough of Waltham Forest UKEAT/0318/15/DM

Negative reference over disability absence was discriminatory

 [ch 6: pages 59-60] (691 words)
Pnaiser v NHS England & Another [2015] UKEAT 0137/15


No discrimination when employer failed to investigate fabricated allegations

 [ch 6: page 61] (428 words)
Cordant Security Ltd v Singh & Another [2015] UKEAT 0144/15


Formal warning over religious acts was not discriminatory

 [ch 6: pages 62-63] (799 words)
Wasteney v East London NHS Foundation Trust UKEAT/0157/15/LA


Christian unlawfully dismissed over refusal to leave husband
 [ch 6: pages 63-64] (301 words)
Pendleton v Derbyshire County Council & Another UKEAT/0238/15/LA

Is belief in proper use of public funds a philosophical belief?
 [ch 6: pages 64-65] (429 words)
Harron v Dorset Police UKEAT/0234/15/DA

Linking of pay to service was not indirect discrimination
 [ch 6: pages 65-67] (615 words)
Naeem v The Secretary of State for Justice [2015] EWCA Civ 1264


Age limit in health insurance scheme was not employer’s discrimination
 [ch 6: page 67] (317 words)
Smith v Gartner UK Ltd UKEAT/0279/15/LA


Material differences between comparators explored

 [ch 6: pages 68-69] (505 words)
Croydon Health Services NHS Trust v George UKEAT/0139/15/JOJ

Statistics insufficient to force employer to prove absence of bias
 [ch 6: pages 69-70] (725 words)
Fennell v Foot Anstey LLP UKEAT/0290/15/DM


Need to balance the work-life needs of the rest of the workforce can be a legitimate aim
 [ch 6: pages 71-72] (755 words)
XC Trains Ltd v CD & Others [2016] UKEAT/0331/15/LA


Going rate for uplift in injury to feelings cases is ten per cent
 [ch 6: pages 72-73] (542 words)
Olayemi v Athena Medical Centre & Another UKEAT/0140/15/LA


Claims can be brought against work placement provider
 [ch 6: pages 74-75] (694 words)
Blackwood v Birmingham & Solihull Mental Health NHS Foundation Trust [2016] EWCA Civ 607


Tribunal can hear discrimination claims against regulatory bodies

 [ch 6: pages 75-76] (564 words)
Michalak v The General Medical Council & Others [2016] EWCA Civ 172


Chapter 7

7. Whistleblowing
 (2 words)

...
Subscribers only

Information, rather than allegation, is key to ‘protected disclosure’

 [ch 7: pages 77-78] (652 words)
Kilraine v London Borough of Wandsworth UKEAT/0260/15/JOJ


Ignorance may not be bliss over whistleblowing

 [ch 7: pages 78-79] (549 words)
Royal Mail Group Ltd v Jhuti UKEAT/0020/16/RN

Chapter 8

8. Dismissal
 [ch 8: pages 80-81] (541 words)

Employees dismissed unfairly can go to a tribunal if they have been working for the employer for at least two years. Some specific types of dismissal ...
Subscribers only

Dismissal must be communicated in order to be effective
 [ch 8: pages 81-83] (903 words)
Sandle v Adecco UK Ltd UKEAT/0028/16/JOJ


Different treatment justified over different misbehaviour
 [ch 8: pages 83-84] (663 words)
MBNA Ltd v Jones [2015] UKEAT 0120/15/0109


Dismissal without warning for cumulative misconduct lawful

 [ch 8: pages 84-85] (298 words)
Ham v Beardwood Humanities College [2015] UKEAT/0179/15/MC


Flawed final written warning was manifestly inappropriate
 [ch 8: pages 85-87] (1,043 words)
Bandara v British Broadcasting Corporation UKEAT/0335/15/JOJ


A fair dismissal requires a fair reason
 [ch 8: pages 87-90] (1,158 words)
Broecker v Metroline Travel Ltd UKEAT/0124/16/DM


Employer’s belief that worker not entitled to work in UK was genuine

 [ch 8: pages 90-91] (632 words)
Nayak v Royal Mail Group Ltd UKEATS/0011/15/SM


Employer unreasonably raised performance with employee on sick leave
 [ch 8: pages 91-93] (716 words)
Private Medicine Intermediaries Ltd v Hodkinson & Another UKEAT/0134/15/LA


Inappropriate influence on investigatory report made dismissal unfair 

 [ch 8: pages 93-94] (470 words)
Dronsfield v University of Reading UKEAT/0200/15/JOJ


Head teacher fairly dismissed for failing to disclose relationship 

 [ch 8: pages 94-95] (568 words)
A v B Local Authority & Another [2016] EWCA Civ 766


Acas code does not apply to ill-health dismissals

 [ch 8: pages 95-97] (563 words)
Holmes v Qinetiq Ltd [2016] UKEAT/0206/15/BA


Confidentiality of ‘protected conversation’ laws applies to the fact that it took place
 [ch 8: pages 97-99] (1,014 words)
Faithorn Farrell Timms LLP v Bailey UKEAT/0025/16/RN


EAT confirms principles for mitigation of loss

 [ch 8: pages 99-100] (336 words)
Cooper Contracting Ltd v Lindsey [2015] UKEAT/0184/15/JOJ


Compensation should not have been cut over criminal acts 

 [ch 8: pages 100-101] (364 words)
Carter v Aulds Bakeries Ltd [2015] UKEATS/0018/15/SM


Chapter 9

9. Redundancy
 [ch 9: page 102] (177 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

No implied term in contract over reasonable lay-off period

 [ch 9: pages 102-103] (497 words)
Craig v Bob Lindfield & Son Ltd UKEAT/0220/15/LA


Resignations may count towards redundancy consultation limits

 [ch 9: pages 103-104] (399 words)
Pujante Rivera v Gestora Clubs Dir SL and another [2015] EUECJ C-422/14


Redundancy consultation
 [ch 9: pages 104-105] (431 words)
Thomas v BNP Paribas Real Estate Advisory and Property Management UK Ltd UKEAT/0134/16/JOJ


Failure to offer redundancy package was age discrimination

 [ch 9: pages 105-107] (889 words)
Donkor v The Royal Bank of Scotland [2015] UKEAT/0162/15/MC


Employee opting for redundancy package was not dismissed

 [ch 9: pages 107-109] (683 words)
Khan v HGS Global Ltd & Another UKEAT/0176/15/DM

Employer could not avoid redeployment obligations by ending contract
 [ch 9: pages 109-110] (710 words)
Missirlis v Queen Mary University Of London UKEAT/0038/15/LA

Chapter 10

10. Business transfers and contracting out
 [ch 10: page 111] (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

Ruling examines test for whether activity is ‘fundamentally the same’
 [ch 10: pages 111-113] (717 words)
The Salvation Army Trustee Company v Bahi & Others UKEAT/0120/16/RN


Post-transfer events OK to test if ‘short-term’ intentions are genuine
 [ch 10: page 113] (332 words)
ICTS UK Ltd v Mahdi & Others [2015] UKEAT/0133/15/BA


Temporary lay-off does not prevent a TUPE transfer

 [ch 10: pages 114-115] (602 words)
Inex Home Improvements Ltd v Hodgkins & Others [2015] UKEAT /0329/14/JOJ


Temporary cessation of work did not negate transfer

 [ch 10: pages 115-116] (610 words)
Mustafa & Another v Trek Highways Services Ltd & Another UKEAT/0063/15/BA

Tribunal failure over principal purpose of organised grouping

 [ch 10: pages 117-118] (605 words)
Amaryllis Ltd v McLeod & Others UKEAT/0273/15/RN


Chapter 11

11. Monitoring and surveillance
 (4 words)

...
Subscribers only

Employee who lied about fitness for work was fairly sacked
 [ch 11: pages 119-120] (714 words)
Ajaj v Metroline West Ltd UKEAT/0295/15/RN

Right to privacy not engaged with emails sent to work addresses 

 [ch 11: pages 120-122] (827 words)
Garamukanwa v Solent NHS Trust UKEAT/0245/15/DA


Chapter 12

Two trade union recognition cases to watch out for
 (575 words)

In November 2016, the Court of Appeal considered two separate cases of high importance to the issue of trade union recognition on which rulings are ...
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