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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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Meaning of garden leave

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In Ashcourt Rowan Financial Planning Limited v Hall the High Court has given some guidance on the meaning of garden leave in a case in which this was interlinked with the operation of post termination restrictions.

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Confusion between direct and indirect age discrimination

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McCririck v Channel 4 Television Corporation and others is a case which highlights the Tribunal’s not unusual confusion between the direct and indirect age discrimination requirements. Channel 4’s well known TV personality, John McCririck, was dropped from Channel 4’s coverage of racing when Channel 4 won the exclusive rights to screen all terrestrial racing. Mr McCririck was 72 years old and immediately claimed that he had been dropped because of his age. He brought a claim of direct age discrimination and not indirect age discrimination. Interestingly, he did not bring a claim for unfair dismissal (which on the findings of the Judgement he would almost certainly have won!).

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Compensation payments calculated on reduced salary were discriminatory

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In Dawson v UK Asset Resolution Limited an Employment Tribunal has found an employer’s decision to make various termination payments to a redundant employee based on the income she was receiving at the time under a permanent health insurance scheme, which was less that her full-time salary, was a breach of contract. This also amounted to unfavourable treatment arising in consequence of her disability and was not a proportionate means of achieving the employer’s aims to ensure consistency and continued practical and financial liability of the PHI scheme.

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Reinstatement – unconditional

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In a case which was reported in an earlier addition of the Update in the lower courts, McBride v Strathclyde Police Joint Board (subsequently Scottish Police Services Authority), the Court of Session Inner House has overturned a Tribunal Order on reinstatement which had conditions attached to it, on the findings that the Claimant had been unfairly dismissed. The Tribunal had misunderstood the statutory provisions under which the Claimant could only be returned to her contractual role and had reinstated her on the basis that she carry out restricted duties.

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Shared Parental Leave – CJEU decision

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In Montull v Instituto Nacional De La Seguridad Social the CGEU has given a decision which does not follow the Advocate General’s Opinion in a case regarding the right of men to maternity benefit under Spanish law, which may have implications in the UK. The circumstances were that the Claimant was an employee but his wife was self employed and as such outside the social security system. The Claimant sought payment of maternity benefit for the period after the compulsory leave period had expired under Spanish law. The Advocate General’s Opinion followed the decision of a case in 2010 which held that if only employed mothers held a primary right to time off to care for a child and that if she did not hold this right, the advantage of it could not be transferred to her partner, this would be discriminatory. In that case, the CJEU had held that it was discriminatory for only a mother who was an employee to hold the right to, and qualify for, leave, whereas a man who was employed did not hold the right to take that leave.

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3 January 2014 0 Comments Posted in Employment, Opinion

ECJ Preliminary rulling on right of insured to choose lawyer under legal expenses policy

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In Jan Sneller v DAS Nederlandse Rechtsbijstand Verzerekeingsmaatschappij, is an ECJ decision on the right of an individual who has the benefit of legal expenses insurance to choose their own lawyer under the policy.

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Injunction to enforce 12 months garden leave

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In JM Finn & Co Limited v Holliday, the High Court has extended an interim injunction to enforce a garden leave clause in the contract of employment of a stock broker. The effect was to force the stockbroker to stay at home for the entirety of his 12 month notice period on garden leave, when he had found employment with a new firm. The Court was persuaded that the injunction was a reasonable way of protecting the employer’s legitimate business interest in retaining its clients because it would take the firm’s investment managers a long time to forge new client relationships.

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Consultant’s services through limited company – not employee or worker

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In Halawi v WDFG UK Limited (trading as T/A World Duty Free) and another, the EAT had upheld a Tribunal decision that a beauty consultant was not in “employment” under section 83 of the Equality Act because she did not have a contract of employment or a contract personally to do work. She provided her services through a limited company to an agency which supplied staff to a third party to work in a duty free outlet. There was a right of substitution, which she exercised. The EAT held that the Tribunal had reached the right conclusion by looking at the reality of the working relationship, and in particular mutuality of obligation, control and the fact that she could, and did, provide a substitute.

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Dismissals before sale of football club were for ETO reason

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In Crystal Palace FC (2000) Limited and another v Kavanagh and others, the Court of Appeal has upheld the Tribunal decision that the dismissal of some of the football club’s staff in order to reduce the wage bill to keep the club operating was indeed for an ETO reason in a TUPE transfer. It held that this decision was separate to the longer term objective of ensuring the club’s subsequent sale. Therefore the liability for the dismissal did not transfer under TUPE. It held that the statement in Spaceright Europe Limited v Baillavione and another, that an ETO reason cannot be used where an employee is dismissed to make a business more attractive to potential purchasers, should be seen in context.

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