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17 September 2014 0 Comments Posted in Employment, Opinion

Negligent references!

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In Playboy Club London Limited and others v Banca Nazionale Del Lavoro, the High Court has held a bank to be liable to a casino after finding that it negligently provided an inaccurate reference for one of the casino’s customers.

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3 mile location difference not a substantial change under TUPE

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In Cetinsoy and others v London United Bus ways Limited, the EAT has upheld a Tribunal decision that a change in location following a TUPE transfer of 3.5  miles was not a substantial change to the material detriment of the bus workers’ working conditions. Although the case was factually similar to Abellio London Limited (formally Travel London Limited) v Musse and others, where a relocation of 6 miles following a TUPE transfer was considered to be a substantial change to the material detriment of the drivers concerned, the EAT held that, on the particular facts of this case, the Tribunal was entitled to make a different finding of fact. This case reinforces that TUPE cases are very much fact specific and each must be judged on its own facts.

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Employee’s breach of contract is not fatal to constructive dismissal claim

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In Atkinson v Community Gateway Association the EAT has held that an employee is not prevented from claiming that he has been constructively unfairly dismissed by the fact that he was in breach of contract at the time of the employer’s breach. The EAT followed the line of authority in McNeill v Aberdeen City Council which it considered set out the proper approach under English law.

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Private meeting with police looked biased

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In Begraj and another v Heer Manak Solicitors and others the EAT has upheld a Tribunal decision that it was correct to cease hearing a long running case after the employment judge met privately with two police officers, and the officers passed on information which was prejudicial to one of the parties. The judge initially failed to reveal that the meeting had taken place, which indicated that if a judge was prepared to act in a way which would prejudice one of the parties, this would also prejudice the Tribunals’ impartiality. The hearing was abandoned after 30 days of evidence, at considerable cost, both to the parties and the public purse. However the EAT was adamant that this was irrelevant compared to the importance of ensuring that Tribunal impartiality is never compromised. The EAT went on to give guidance to Tribunals on how to act in the future in similar cases.

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One off payment to staff unlawful

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In a first instance decision, Bugden and others v London Borough of Bromley the Tribunal held that a local authority which made a one-off payment to its staff to induce them to agree to a local pay review mechanism and forgo collective bargaining did so unlawfully. The purpose of the offer was clearly to induce the employees to agree to move from collective negotiation for annual pay awards on a national and regional level to a system where pay increases were set by the council. Each of the 18 Claimants was awarded £3,600 in compensation.

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Contract did not allow increase in sanction

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In McMillan v Airedale NHS Foundation Trust the Court of Appeal has upheld a High Court decision that a contractual disciplinary procedure could not be interpreted as allowing the employer to increase a sanction from a written warning to dismissal when the employee, who was a doctor, appealed against the written warning. The Court of Appeal considered that implying such a power would be inconsistent with the right of appeal which was intended to benefit the employee, not for him to risk being worse off. The employee was therefore granted a permanent injunction preventing the employer from reconsidering the disciplinary sanction on appeal.

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21 August 2014 0 Comments Posted in Employment, Opinion

Restrictive covenant could not be rewritten by judiciary

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In a case which was recently reported in the Update, and the overturned decision highlighted in June’s update, Prophet Plc v Huggett is the rather surprising High Court decision where the judge effectively re-wrote the restrictive covenant to give effect to what he thought the meaning should be – in essence, because he abhorred the way in which the employee had behaved and felt the employer was entitled to some form of remedy. The Court of Appeal has now overturned this decision, saying that it was not the role of the Judge to effectively re-write the restrictive covenant to give effect of what he thought the parties intended it to achieve. This was a 12 month non-compete restriction which, interpreted literally, afforded the employer no protection at all. The covenant specifically precluded the employee from working in connection with any products with which he was involved while working for the company – the problem being that no competitor would ever be selling the products which this particular company produced, so of course the covenant was useless. However the High Court Judge had taken it upon himself to add words which he thought gave some useful meaning to the covenant for the employer, and granted the requested injunction.

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Unless order not clear enough to justify strike out

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In Mace v Ponders End International Limited the EAT has overturned a Tribunal decision that the claim should be struck out on the basis of an Unless Order which required the Claimant to “provide disclosure of all relevant documents”. The lack of clarity apparently was whether the intention was to require the Claimant to provide a list of documents (disclosure) or actual copies (inspection). The Claimant lodged a claim of unfair dismissal and the initial case management orders required a list of documents to sent, with copies if needed. The Respondent asked the Tribunal to provide an Unless Order to the Claimant since the Claimant had failed to provide his list of documents. The Tribunal duly did so, directing that the Claimant should provide “disclosure of all relevant documents” failing which his claim would be struck out. The Claimant sent some documents to the Tribunal but none to the Respondent. When the Judge saw the file the day before the Unless Order expired she sent an urgent message to the Claimant saying “he must get a copy of everything he has” to the Respondent by the following day. Since the Claimant neglected to do so, the claim was struck out.

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Illegal immigrant can claim race discrimination

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In a case which has been reported in the Update as it has made its way through the lower Courts, Hounga v Allen and another has now reached the Supreme Court. The case concerned the illegal immigrant who brought claims for race discrimination and unfair dismissal when she was abused and sacked from her position as an au pair. The Court of Appeal had previously overturned the EAT decision that the Claimant could not bring claims of race discrimination and being dismissed for a discriminatory reason because her contract was illegal and to allow her to bring claims on the back of an illegal contract would be to condone the illegality.

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Age discrimination – motivation of managers important

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In Reynolds v CLFIS (UK) Limited and others, the EAT have overturned the decision of an Employment Tribunal and remitted the case back to a fresh Tribunal on the matter of whether, in terminating the consultancy agreement of a consultant aged 73, the appropriate individuals’ motivations for the termination had been properly considered. The EAT held that the Tribunal had been wrong to focus solely on the motivation of the manager who terminated the agreement but should have taken into account the thought processes of other managers who had influence over the decision once the burden of proof shifted to the employer to demonstrate that there was no discrimination.

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Night shifts attract national minimum wage

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In another case, similar to Whittlestone v BJP Home Support Limited, reported in a recent edition of the Update, the case of Esparon t/a Middle West Residential Care Home v Slavikovska is another case on payment of the national minimum wage where care workers reside overnight at their place of work during a night shift.

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Manner of disclosure can make whistleblowing dismissal fair

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In an interesting and not uncontroversial EAT decision, which may yet be the subject of further appeal, Panayiotou v Chief Constable of Hampshire Police holds that the way in which the employee behaved in disclosing and pursuing his whistleblowing allegations was a fair reason for his dismissal which was not connected to the fact of his whistleblowing. His judgment differs from the decision by the EAT in Woodhouse v West North West Homes Leeds Limited where the EAT held that it would be “an exceptional case” where the disclosure of the protected acts could not be said to cause the detriment concerned. In the current case the judge took the view that there was no additional requirement for the circumstances to be exceptional, because here the way in which the disclosures were pursued was unacceptable to the employer and thus the reason for dismissal.

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