LRD Booklets January 2020

Case law at work (16th edition)

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Introduction

Introduction [page 4] (489 words)

This is the 16th 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 tribunal system [ch 1: pages 5-6] (713 words)

Before issuing any tribunal claim, a claimant must first contact Acas and consider whether to try to conciliate (that is, settle) the claim with the ...
Subscribers only

Extending time for unfair dismissal where claim deadline missed due to non-payment of tribunal fee [ch 1: pages 6-8] (765 words)
Wray v Jewish Care [2019] UKEAT/0193/18/JOJ

Supporting claimants with mental ill health at tribunal hearings [ch 1: pages 8-9] (631 words)
Anderson v Turning Point EESPRO [2019] EWCA Civ 815

Breach of an ‘Unless Order’ means an automatic strike out [ch 1: pages 9-11] (890 words)
Uwhubetine and Njoku v NHS Commissioning Board England and three other respondents [2019] UKEAT/0264/18/JOJ

Chapter 2

2. Employment status [ch 2: page 12] (289 words)

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

Court of Appeal confirms that Uber drivers are workers [ch 2: pages 12-15] (1,131 words)
Uber BV & Ors v Aslam & Ors [2018] EWCA Civ 2748

Addison Lee drivers are workers [ch 2: pages 15-17] (1,130 words)
Addison Lee Limited v Lange & Ors [2018] UKEAT 37

Chapter 3

3. Contracts of employment [ch 3: pages 18-19] (570 words)

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

Right to written statement of employment particulars after one month not two [ch 3: pages 19-20] (513 words)
Stefanko & Others v Maritime Hotel Limited (in voluntary liquidation) and Doherty [2018] UKEAT/0024/18/00

No compensation where employer provided written statement after the statutory deadline [ch 3: pages 20-21] (335 words)
Govdata Limited v Denton [2019] UKEAT/0237/18/BA

Implied contract term prevented employer from depriving employee of long-term disability benefit [ch 3: pages 21-23] (749 words)
Awan v ICTS UK Limited [2018] UKEAT/0087/18/RN

Teacher’s suspension not breach of trust and confidence [ch 3: pages 23-24] (542 words)
Mayor & Burgesses of the London Borough of Lambeth v Agoreyo [2019] EWCA Civ 322

Undocumented worker who relied on employer’s assurances could enforce employment contract [ch 3: pages 24-25] (699 words)
Okedina v Chikale [2019] EWCA Civ 1393

A collective term is only binding if it is incorporated into the individual contract of employment [ch 3: pages 26-27] (834 words)
Lozaique v Tesco Stores Limited [2019] UKEAT/0261/18/LA

Chapter 4

4. Pay and terms and conditions [ch 4: pages 28-29] (573 words)

This Chapter highlights the key rulings in 2019 concerning pay and conditions, including the National Minimum Wage (NMW), holiday pay and rest breaks. ...
Subscribers only

Directors personally liable for non-payment of National Minimum Wage [ch 4: pages 29-30] (548 words)
Antuzis and others v DJ Houghton Catching Services Limited and others [2019] EWHC 843

NHS workers’ holiday pay must include voluntary overtime [ch 4: pages 30-32] (1,082 words)
East of England Ambulance Service NHS Trust v Flowers [2019] EWCA Civ 947

Important ruling on calculation of holiday pay for atypical employees [ch 4: pages 33-34] (850 words)
The Harpur Trust v Brazel [2019] EWCA Civ 1402

Employers must record daily working time [ch 4: pages 34-35] (512 words)
Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE [2019] Case C-55/18

Agency workers not entitled under Agency Worker Regulations to equal working hours [ch 4: page 36] (418 words)
Kocur v Angard Staffing Solutions Limited and Royal Mail Group Limited [2019] EWCA Civ 1185

Chapter 5

5. Union recognition and other collective issues [ch 5: page 37] (343 words)

Perhaps the most harmful judicial ruling of 2019 from the perspective of trade union rights and workplace collective bargaining has been the case of ...
Subscribers only

Deliveroo riders denied access to statutory recognition machinery because they are not ‘workers’ [ch 5: pages 37-39] (786 words)
R on the application of the Independent Workers Union of Great Britain and the CAC and Roofoods Limited (t/a Deliveroo [2018] EWHC 3342

Unite to take Kostal inducements ruling to the Supreme Court [ch 5: pages 39-40] (607 words)
Kostal UK Limited v Dunkley & Others [2019] EWCA Civ 1009

Chapter 6

6. Discrimination [ch 6: pages 41-42] (507 words)

Discrimination law is found in the Equality Act 2010 (EA10). The Act applies to England, Scotland and Wales. In Northern Ireland, equality law is ...
Subscribers only

Vegetarianism is not a protected philosophical belief [ch 6: pages 42-43] (538 words)
Conisbee v Crossley Farms Limited and others Norwich Employment Tribunal Case No. ET3335357/2018

Not religious discrimination to refuse special shift pattern for Seventh Day Adventist [ch 6: pages 43-45] (1,125 words)
City of Oxford Bus Services Limited v Harvey [2019] UKEAT/0171/18/JOJ

No religious discrimination against NHS non-exec who publicised his opposition to adoption by same-sex couples [ch 6: pages 46-47] (750 words)
Page v NHS Trust Development Authority [2019] UKEAT/0183/18/DA

No discrimination if less favourable treatment due to discriminator’s protected characteristic [ch 6: pages 47-49] (941 words)
Gan Menachem Hendon Limited v de Groen [2019] UKEAT/0059/18/00

Gay teacher’s dismissal for sexual activity was discriminatory [ch 6: pages 49-51] (961 words)
Governing Body of Tywyn Primary School v Aplin [2019] UKEAT/0298/17/LA

Whether a sight impairment is ‘correctable’ by lenses is a practical question [ch 6: pages 52-53] (539 words)
Mart v Assessment Services Inc [2019] UKEATS/0032/18/SS

‘Tendency to steal’ requires a pattern of behaviour and evidence of dishonest intent [ch 6: pages 53-54] (737 words)
Wood v Durham County Council [2018] UKEAT/0099/18/00

Police chief constable discriminated against police officer with mild hearing loss [ch 6: pages 54-56] (686 words)
Chief Constable of Norfolk v Coffey [2019] EWCA Civ 1061

Lack of diagnosis will not prevent an impairment (fibromyalgia) being a disability [ch 6: pages 56-58] (785 words)
Nissa v (1) Waverley Education Foundation Limited and (2) Newsome [2018] UKEAT/0135/18/DA

No discrimination arising from disability where the claimant is mistaken about link with disability [ch 6: pages 58-59] (460 words)
iForce Limited v Wood [2019] UKEAT/0167/18/DA

Appeal hearing not too late to reveal disability [ch 6: pages 59-60] (416 words)
Baldeh v Churches Housing Association of Dudley & District Limited [2019] UKEAT/0290/18/JOJ

No discrimination against trainee teacher unable to write for more than a few minutes without pain [ch 6: pages 60-61] (547 words)
Ahmed v The Cardinal Hume Academies [2019] UKEAT/0196/18/RN

Not disability discrimination to base disabled worker’s pension on reduced hours [ch 6: pages 61-62] (410 words)
Williams v Trustees of Swansea University Pension & Assurance Scheme [2018] UKSC 65

Loose causation test in disability discrimination claims [ch 6: pages 62-64] (1,041 words)
Professor Roya Sheikholeslami v University of Edinburgh [2018] UKEATS/0014/17/JW

Administrative email address error was not maternity discrimination [ch 6: page 65] (358 words)
South West Yorkshire Partnership NHS Foundation Trust v Jackson [2018] UKEAT/0090/18/BA

Government public sector pension transition arrangements discriminate unlawfully [ch 6: pages 66-69] (1,573 words)
Secretary of State for the Home Department & Others v Sargeant & Others [2018] EWCA Civ 2844; The Lord Chancellor v McCloud & Others [2018] EWCA Civ 2844

Backto60 challenge to state retirement age for women dismissed [ch 6: pages 69-70] (628 words)
Delve and Glynn v Secretary of State for Work and Pensions [2019] EWHC 2552 (Admin)

Managing within a reduced budget can be a legitimate aim [ch 6: pages 71-72] (848 words)
Heskett v Secretary of State for Justice [2019] UKEAT/0149/18/DA

No harassment where claimant ‘gave as good as he got’ [ch 6: pages 72-73] (483 words)
Evans v Xactly Corporation Limited [2018] UKEATPA/0128/18/LA

Facebook post to Friends of Gollywog graphic on home computer not in course of employment [ch 6: pages 74-75] (792 words)
Forbes v LHR Airport Limited [2019] UKEAT/0174/18/DA

Chapter 7

7. Parental leave and pay [ch 7: pages 76-77] (708 words)

The most prominent judicial rulings in 2019 directly affecting rights to parental leave and pay are the cases of Ali v Capita Customer Management ...
Subscribers only

Shared Parental Pay and Leave does not discriminate against men [ch 7: pages 77-80] (1,183 words)
Ali v Capita Customer Management Limited (Working Families intervening); Chief Constable of Leicestershire Police v Hextall [2019] EWCA Civ 900

Chapter 8

8. Whistleblowing [ch 8: page 81] (323 words)

Under the Public Interest Disclosure Act 1998 (PIDA), employees and workers who disclose information about certain types of alleged wrongdoing at ...
Subscribers only

Co-workers personally liable for whistleblowing dismissal [ch 8: pages 81-83] (650 words)
Timis and Sage v Osipov and Protect [2018] EWCA Civ 2321

Disclosure of generalised allegations not protected [ch 8: pages 83-85] (894 words)
Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436

No reasonable belief that disclosure to clear own name was in public interest [ch 8: pages 85-86] (371 words)
Ibrahim v HCA International Limited [2019] UKEAT/0105/18/BA

Reasonable belief that data protection concerns over record-keeping and shared phones were in public interest [ch 8: pages 86-88] (798 words)
Okwu v Rise Community Action (a company limited by guarantee) [2019] UKEAT/0082/19/00

Chapter 9

9. Dismissal [ch 9: page 89] (331 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

No extension to claim missed deadline due to negligence [ch 9: pages 89-90] (478 words)
Pora v Cape Industrial Services Limited [2019] UKEAT/0253/18/BA

Extension granted to employee with dyslexia after unclear dismissal letter [ch 9: pages 91-92] (515 words)
Lowri Beck Services Limited v Brophy [2019] UKEAT/0277/18/LA

Worker fairly dismissed by Royal Mail over poor attendance record [ch 9: pages 92-94] (1,042 words)
Kelly v Royal Mail Group Limited [2019] UKEAT/0262/18/RN

Dismissal fair despite not all witnesses giving statements [ch 9: pages 94-96] (991 words)
H v Governing Body of Manchester Grammar School [2018] UKEAT/0048/18/DA

Not always unfair to dismiss without separate investigation [ch 9: pages 96-98] (687 words)
Radia v Jefferies International Limited [2019] UKEAT/0123/18/JOJ

Admission of responsibility usually reduces need for investigation [ch 9: pages 98-99] (765 words)
Catherine Beattie v Condorrat War Memorial and Social Club [2019] UKEATS/0019/17/JW

Suspension during disciplinary investigation should not lead to any loss of salary [ch 9: pages 99-101] (704 words)
North West Anglia NHS Foundation Trust v G [2019] EWCA Civ 387

Unfair to re-open conduct issue [ch 9: pages 101-103] (917 words)
Upton-Hansen Architects Limited v Gyftaki [2019] UKEAT/0278/18/RN

Making a covert recording at work not necessarily gross misconduct (although it is misconduct) [ch 9: pages 103-105] (774 words)
Phoenix House Limited v Stockman [2019] UKEAT/0284/17/00

No right to insist on re-engagement after unfair dismissal [ch 9: pages 105-106] (462 words)
MacKenzie v Chancellor, Masters & Scholars of the University of Cambridge [2019] EWCA Civ 1060

Chapter 10

10. Redundancy [ch 10: page 107] (342 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

Seafarers based beyond UK waters denied protective award [ch 10: pages 107-109] (858 words)
Seahorse Maritime Limited v Nautilus International [2018] EWCA Civ 2789

Notice that role had been “deleted” was not notice of dismissal for redundancy [ch 10: pages 110-112] (1,056 words)
East London NHS Foundation Trust v O’Connor [2019] UKEAT/0113/19/JOJ

Chapter 11

11. Business transfers and service provision change (TUPE) [ch 11: page 113] (405 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

Dismissal over poor working relationship with director of transferee was because of transfer [ch 11: pages 114-115] (500 words)
Hare Wines Limited v Kaur and H&W Wholesale Limited (dissolved) [2019] EWCA Civ 216

Statutory duty to preserve NMW records passes to a TUPE transferee [ch 11: pages 115-116] (583 words)
Mears Homecare Limited v Bradburn & Others [2019] UKEAT/0170/18/JOJ