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21 May 2015 0 Comments Posted in Employment, Opinion

“Establishment” is the entity to which a worker is assigned

Posted by , Partner

In January the Update reported on the Advocate General’s opinion on the referral to the European Court of Justice of the case colloquially known as the Woolworths case, USDAW and another v VW Realisation 1 Limited and others, concerning the dismissal, by Woolworths and Ethel Austin stores in the UK, for redundancy of thousands of employees after the companies went into administration. The Court of Justice of the European Union has now given its decision, which is to follow the A-Gs opinion.

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20 May 2015 0 Comments Posted in Employment, Opinion

Restricted Reporting Order guidance on granting

Posted by , Partner

The EAT decision in EF and another v AB (Debarred) and others is interesting for its comments on circumstances in which a permanent Restricted Reporting Order will be granted. It illustrates the considerations taken into account in deciding whether this will be granted and how the competing interests of individuals relate to one another.

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Contract can still exist even absent remuneration

Posted by , Partner

In Stack v Ajar-Tec Limited the Court of Appeal has restored an Employment Tribunal decision that a company director and shareholder who had worked for a company for at least 3 years without being paid, or expecting to be paid, was an employee and a worker and was therefore entitled to bring claims of unfair dismissal, failure to pay holiday pay, and unlawful deduction from wages.

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Diplomatic immunity prevents claims being brought

Posted by , Partner

In Reyes and another v Al-Malki and another (Secretary of State for Foreign and Commonwealth Affairs and others intervening) the Court of Appeal has held that the principle of diplomatic immunity takes precedence over the international prohibition on trafficking of people.

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Damages for psychiatric injury caused by drug use non-recoverable

Posted by , Partner

In AB v Chief Constable of X Constabulary the High Court has held that psychiatric injury suffered by an undercover police officer was not caused by the employer’s breach of its duty of care but instead as a result of his misuse of cocaine.

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7 May 2015 0 Comments Posted in Employment, Opinion

Associative discrimination is possible in indirect discrimination

Posted by , Partner

In Chez Razpredeleinie Bulgaria, the Advocate General has given an opinion on whether the concept of discrimination by association can be extended from direct to indirect discrimination. The opinion stated that the definition of indirect discrimination in the Race Directive is not inconsistent with the concept of associative discrimination: the fact that the concept had so far only arisen with direct discrimination did not mean it could not also be considered in an indirect discrimination context. However no reasoning was given for the opinion and neither was the precise wording of the difference between the definitions of the two types of discrimination considered.

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Employee’s admissions had impact on employer’s investigation

Posted by , Partner

In CRO Ports London Limited v Wiltshire, the EAT held that a Tribunal was wrong when it considered the impact made by the employee admitting misconduct on the reasonableness of the employer’s investigation. The employer had relied on the admissions made by the employee during the investigation and at the disciplinary hearing. The question for the Tribunal was whether, in doing so and limiting the scope of its investigation as a result, the employer acted within the range of reasonable responses open to it. The EAT considered that the Tribunal has drawn conclusions about what would have been discovered had it undertaken further investigations and had not appreciated the significance of the admissions which were made at the time.

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Injury to feelings award not taxable

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In Timothy James Consulting Limited v Wilton, the EAT considered the authorities both in respect of tax and employment on the taxation of injury to feelings awards. It gave its considered view that these awards are not taxable, albeit this decision is not binding on HMRC and is in conflict with the latest tax case to consider the issue. The case concerned a constructive unfair dismissal claim – the EAT held that while the constructive dismissal may be the result of acts of harassment towards the individual, the constructive dismissal of itself could not be an act of harassment.

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Type 2 diabetes is not a disability

Posted by , Partner

In Metroline Travel Limited v Stoute, the EAT has overturned an Employment Tribunal decision that an employee’s type 2 diabetes qualified as a disability under the Equality Act 2010. It held that the condition, which was controlled by not consuming sugary drinks and similar products, did not have a substantial adverse effect on his ability to carry out day to day activities.

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Commission must be included in holiday pay calculations

Posted by , Partner

Following on from the Bear Scotland decision of the EAT in October 2014, the case of Lock and others v British Gas Trading Limited and another, which was referred to the ECJ for an opinion on whether commission should be included in the calculation of holiday pay, has now returned to the Employment Tribunal and a decision has been given. Unsurprisingly the Employment Tribunal has held that there is no issue with interpreting the Working Time Regulations to include commission payments in the calculation of holiday pay in respect of the 4 weeks statutory annual leave provided for under regulation 13. Holiday pay calculated without taking into account commission would be considered an unlawful deduction from wages.

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When is constructive knowledge of disability deemed?

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In Donelien v Liberata UK Limited, the EAT has stated what is required for an employer to be considered to have constructive knowledge of disability.

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And again… Injury to feelings

Posted by , Partner

In another case on the same point of the Simmons uplift, Chawla v Hewlett Packard Limited IDS 1017 page 14, has also decided that the uplift does not apply to Tribunal awards for injury to feelings. There are now conflicting lines of EAT authority on this point and clarification is needed from the Court of Appeal, as to which it is hoped that the parties in the Pereira de Souza case will appeal. This is particularly the case since the Presidential Guidance issued in 2014 expressly refers to the Vento guidelines on injury to feelings as being updated by the Simmons decision i.e. that the 10% uplift should apply, and the Da’Bell v NSPCC case which approved the increase in the Vento guidelines in line with inflation. There are also EAT cases which have followed Simmons in providing for a 10% uplift: Cadogan Hotel Parters Ltd v Ozog, and Sash Windows Workshop v King – both 2014 cases.

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