LRD guides and handbook January 2017

Case law at work - 13th edition

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Introduction [pages 5-6] (778 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 (799 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 ...
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Claim could proceed despite wrong employer name on Acas EC form [ch 1: pages 8-10] (845 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] (585 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] (493 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] (456 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] (763 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] (605 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] (830 words)
Hussain v Nottinghamshire Healthcare NHS Trust UKEAT/0080/16/DM

Chapter 2

2. Categories of worker (4 words)

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Court interpreters were not “employees” [ch 2: pages 20-21] (675 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] (765 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] (295 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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Employer vicariously liable for injury caused by non-employee under its control [ch 3: pages 24-26] (643 words)
Cox v Ministry of Justice [2016] UKSC 10

Supermarket vicariously liable for staff attack on customer [ch 3: pages 26-27] (582 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] (665 words)
Department for Transport v Sparks & Others [2016] EWCA Civ 360

Chapter 4

4. Pay and conditions (4 words)

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Salary sacrifice vouchers can be stopped during maternity leave [ch 4: pages 31-32] (575 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] (821 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] (319 words)
Gomes v Higher Level Care Ltd UKEAT/0017/16/RN

Employer guilty over trafficked workers’ pay and conditions [ch 4: pages 35-36] (420 words)
Galdikas & Others v DJ Houghton Catching Services Ltd & Others [2016] EWHC 1376 (QB)

Chapter 5

5. Unions and collective organisation (5 words)

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Were trade union activities the reason for dismissal? [ch 5: pages 37-39] (953 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] (419 words)

Discrimination law is found in the Equality Act 2010 (EA10). The EA10 lists nine “protected characteristics”: age; disability; gender ...
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Immigration status does not equate to race or nationality [ch 6: pages 43-44] (635 words)
Taiwo & Another v Olaigbe & Others [2016] UKSC 31

No need for person to share protected characteristic [ch 6: pages 44-45] (395 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] (427 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] (523 words)
Banaszczyk v Booker Ltd [2016] UKEAT/0132/15/RN

Duty to make adjustments applies to sickness absence procedures [ch 6: pages 49-50] (660 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] (842 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] (897 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] (546 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] (412 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] (686 words)
Pnaiser v NHS England & Another [2015] UKEAT 0137/15

No discrimination when employer failed to investigate fabricated allegations [ch 6: page 61] (424 words)
Cordant Security Ltd v Singh & Another [2015] UKEAT 0144/15

Formal warning over religious acts was not discriminatory [ch 6: pages 62-63] (797 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] (297 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] (426 words)
Harron v Dorset Police UKEAT/0234/15/DA

Linking of pay to service was not indirect discrimination [ch 6: pages 65-67] (612 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] (316 words)
Smith v Gartner UK Ltd UKEAT/0279/15/LA

Material differences between comparators explored [ch 6: pages 68-69] (502 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] (562 words)
Michalak v The General Medical Council & Others [2016] EWCA Civ 172

Chapter 7

7. Whistleblowing (2 words)

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Information, rather than allegation, is key to ‘protected disclosure’ [ch 7: pages 77-78] (646 words)
Kilraine v London Borough of Wandsworth UKEAT/0260/15/JOJ

Ignorance may not be bliss over whistleblowing [ch 7: pages 78-79] (545 words)
Royal Mail Group Ltd v Jhuti UKEAT/0020/16/RN

Chapter 8

8. Dismissal [ch 8: pages 80-81] (536 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 ...
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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] (662 words)
MBNA Ltd v Jones [2015] UKEAT 0120/15/0109

Dismissal without warning for cumulative misconduct lawful [ch 8: pages 84-85] (293 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] (626 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] (710 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] (464 words)
Dronsfield v University of Reading UKEAT/0200/15/JOJ

Head teacher fairly dismissed for failing to disclose relationship [ch 8: pages 94-95] (563 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] (557 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] (1,011 words)
Faithorn Farrell Timms LLP v Bailey UKEAT/0025/16/RN

EAT confirms principles for mitigation of loss [ch 8: pages 99-100] (335 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] (361 words)
Carter v Aulds Bakeries Ltd [2015] UKEATS/0018/15/SM

Chapter 9

9. Redundancy [ch 9: page 102] (175 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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No implied term in contract over reasonable lay-off period [ch 9: pages 102-103] (492 words)
Craig v Bob Lindfield & Son Ltd UKEAT/0220/15/LA

Resignations may count towards redundancy consultation limits [ch 9: pages 103-104] (398 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] (887 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] (679 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] (708 words)
Missirlis v Queen Mary University Of London UKEAT/0038/15/LA

Chapter 10

10. Business transfers and contracting out [ch 10: page 111] (176 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] (598 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] (607 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] (598 words)
Amaryllis Ltd v McLeod & Others UKEAT/0273/15/RN

Chapter 11

11. Monitoring and surveillance (4 words)

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Employee who lied about fitness for work was fairly sacked [ch 11: pages 119-120] (712 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] (824 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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