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3 April 2014 0 Comments Posted in Employment, Opinion

Penalty clause or genuine pre-estimate of loss

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In Cleeve Link Limited v Bryla the EAT has considered whether a clause in a contract was a penalty clause designed to deter breach of contract, or a genuine pre-estimate of loss and so a liquidated damages clause.

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Ill health dismissals – constitutes reasonableness?

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In BS v Dundee City Council the Inner House of the Court of Session has given useful guidance on the points employers need to consider when looking at dismissing on the grounds of ill health.

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6 March 2014 0 Comments Posted in Employment, Opinion

KEY CASES WATCHDOG

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This month sees the annual review of important decisions expected this year and cases to look out for in 2014, some of which may have important effects on employment law.

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Strike-out of High Court proceedings because of abuse of process

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In Vaughan v London Borough of Lewisham and others, the Claimant’s High Court claims have all been struck out as an abuse of process.

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Considering final written warnings in decision to dismiss

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In Adegobola v Marks & Spencer Plc, the Court of Appeal has confirmed that Tribunal is able to consider the reasonableness of a final written warning when looking at the fairness of a dismissal. In this case it was irrelevant because the Tribunal had found the employer was justified in dismissing for an unrelated act of gross misconduct, but the decision is helpful nonetheless in giving guidance on considering the reasonableness or otherwise of final written warnings.

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No automatic costs award for false evidence

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In Kapoor v Governing Body of Barnhill Community High School, the EAT has, astonishingly, overturned a Tribunal decision to award costs against the unsuccessful Claimant on the basis that she had unreasonably conducted her case in not telling the truth in evidence. All her claims of race discrimination, victimisation and harassment were dismissed after a 5 day hearing and the Tribunal awarded £8,900 of the Respondent’s costs to be paid by the Claimant on the basis of her unreasonable conduct in falsely presenting her case. The Tribunal held that conducting a case by not telling the truth is, in its view, acting unreasonably.

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Hotel policy discriminated against gay couple

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In Bull and another v Hall and another, the Supreme Court has given judgment on the decision of a hotel only to let married heterosexual couples share a room with a double bed. It considered this amounted to direct discrimination against a homosexual couple in a civil partnership under the Equality Act (Sexual Orientation) Regulations 2007. The requirement to be married was imposed by the hotel owners because of their religious beliefs but the Supreme Court considered it was discriminatory because gay people cannot get married. A minority of the Supreme Court also considered that the hotel’s policy was unjustified indirect discrimination on the grounds of sexual orientation.

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Whistleblowing – Allegation or disclosure?

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In Cavandish Monro Professional Risk Management v Geduld, decided in 2010, the EAT held that a statement by the employer to the effect that “you are not complying with health and safety requirements” did not qualify as a qualifying disclosure because it was an allegation, rather than information which, in the reasonable belief of the employee or worker, tends to show one of the categories of wrong doing contained within the Employment Rights Act. Understandably, this decision was criticised as being confusing and described by the Whistle Blowing Commission as “artificial and undermines the purpose of the law”. The Commission also noted that, under Section 43F of the ERA, such an allegation would indeed be protected if it was made to a prescribed person.

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24 February 2014 0 Comments Posted in Employment, Opinion

Arrests in connection with bribery investigation.

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Earlier in February it was reported in the press that the authorities in England had made two arrests and searched a number of addresses in London as part of an investigation into bribery and corruption at Rolls-Royce Holdings Plc.

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10 February 2014 0 Comments Posted in Employment, Opinion

Dangerous to rely on occupational health assessment of disability

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In Gallop v Newport City Council, the Court of Appeal has held that an employer could not defend a disability discrimination claim on the basis that it did not know about the disability through reliance solely on the occupational health report, the opinion of which stated that it did not consider the employee to be disabled. The Court of Appeal noted that the question of disability is to be determined by the Employment Tribunal and a reasonable employer should make its own judgement and not rely solely on the opinion of an occupational health report.

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Agency Workers Regulations do not cover indefinite engagements

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In Moran and others v Ideal Cleaning Services Limited and another, the EAT has given judgment on the concept of “temporary” in the Agency Workers Regulations 2010 and the EU Temporary Agency Workers Directive. Somewhat unsurprisingly, the ET held that “temporary” means “not permanent”.

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Calculation of correct payment for annual leave

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In Lock v British Gas Trading Limited and others, the Advocate General (who goes by the wonderful name of Bot) has given his opinion on a referral made by the Employment Tribunal to the CGEU asking whether Article 7 of the Working Time Directive requires commission to be included in holiday pay and, if so, the appropriate basis to calculate the remuneration to pay annual leave. The Advocate General’s Opinion is that commission is required to be taken into account when calculating pay for annual leave.

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