Search articles

26 June 2013 0 Comments Posted in Employment, Opinion

Continuity of employment

Posted by , Partner

In Koenig v The Mind Gym the EAT has held that, for the purposes of calculating continuity of employment, work done outside the contract of employment cannot count. However determining what work falls under the contract is a matter of fact and degree.

Read more

More protective awards – consultation under TUPE

Posted by , Partner

In another case dealing with the amount of a protective award, this time under the TUPE regulations, the EAT, in Shields Automotive v Langdon and Brolly,  held that assessment of the amount of a protective award should be based on the concept of punishment for the employer rather than compensating the employee.

Read more

Redundancy and failure to collectively consult

Posted by , Partner

In AEI Cables v GMB, the EAT has overturned an Employment Tribunal decision that the employers should be culpable for 90 day protective awards to each employee under section 189 of TULR(C)A, because of their precarious trading position. The question was whether it was reasonable for an employer to continue trading potentially unlawfully in order to comply with the 90 day consultation requirement where it had a total of 124 employees at risk of redundancy.

Read more

Constructive dismissal and restrictive covenants

Posted by , Partner

In a case which will continue the ongoing debate sparked by Société Generale v Geys (reported in a recent edition of the Update), the High Court has given judgement on the question of restrictive covenants and an injunction application in Romero Insurance Brokers v Templeton. The employee’s contract included a clause precluding him, for a period of 12 months following termination, from procuring orders from or doing business with a client of the employer’s with whom he had dealt within the last 6 months of his employment. Having reviewed the case law on protecting business interests, the High Court held that the covenant was necessary in the context of the insurance industry, where renewals usually take place annually. Consequently the Court granted the injunction to enforce the covenant.

Read more

Breach of confidentiality

Posted by , Partner

The Supreme Court has given judgement in the case of Vestergaard Frandsen v Bestnet Europe Limited on the subject of breach of confidentiality. Mrs Sig worked for the Claimant. She left, along with two other employees, to form another company, the product design of which was based on confidential information obtained by one of the other employees, Dr Skovmand, from the Claimant. Mrs Sig was unaware of this until the commencement of proceedings. The Supreme Court considered two issues, that of contract, and that of common design.

Read more

Re-engagement at a different location

Posted by , Partner

In a quite interesting decision which probably largely turns on its facts, the EAT in Oasis Community Learning  v Wolff has held that allegations made by the Claimant against the Respondent and its staff do not necessarily preclude a Respondent from re-engaging the Claimant at a different location to the one where he originally worked.

Read more

TUPE and prior dismissal

Posted by , Partner

In Bangura v Southern Cross Healthcare, the EAT has held that an employee who was summarily dismissed before the transfer took place but had an appeal against the dismissal outstanding at the time of transfer, did not transfer under TUPE.

Read more

Compulsory Retirement Age – Seldon revisited

Posted by , Partner

Last year the Supreme Court remitted back to the Employment Tribunal the case of Seldon v Clarkson Wright and Jakes, the case on age discrimination and whether a law firm was justified in imposing a mandatory retirement age of 65. The Tribunal had to consider a number of issues relating to justifying the age discrimination, the main one being whether 65 was a proportionate age for a mandatory retirement age or whether another age should have been adopted. In a judgement which will hearten employers, Mr Seldon lost.

Read more

Post employment victimisation is covered by Equality Act

Posted by , Partner

In a decision which runs counter to previous authority the EAT, in Onu v Akwiwu and another held that the Equality Act does cover post employment victimisation, overturning the Tribunal’s finding that a migrant domestic worker had not suffered victimisation when threats were issued to her sister after she lodged a race discrimination claim against her former employers. The EAT acknowledged that the Equality Act does not expressly provide full protection from victimisation for former employees but acknowledged that European obligations require domestic law to do so. It held however that as a matter of domestic statutory construction the Equality Act could be interpreted as providing for a claim of post employment victimisation. It held that the relevant section covering victimisation in the Equality Act could be interpreted to include acts of victimisation which took place after the employment relationship has ended.

Read more

Settlement with one Respondent did not release others

Posted by , Partner

In Tamang and another v ACT Security Limited and another the EAT has held that an Employment Judge was wrong to conclude that a settlement agreement which sought to settle with one Respondent should be construed as settling with all of them. The agreement related to a claim for failure to inform and consult under TUPE, for which all three Respondents were jointly and severally liable. It is a general principle that the release of one joint tortfeasor from liability, releases them all. However the EAT held that, properly constructed, the agreement was not intended to be an unqualified release of all the Respondents but instead a covenant not to sue the Respondent with whom the agreement was made.

Read more

Non-competition clause not breached where work moved with employee

Posted by , Partner

In Threlfall v ECD Incite Limited and another the High Court has held that an employee did not breach the non-compete clause in his Contract of Employment when, on leaving his employer, he undertook “event moderation” work, which was work he had undertaken whilst with the employer. This activity was performed exclusively by him for his former employer and was work which the former employer had not undertaken prior to the individual joining. Neither was it carried on once the individual had left. Accordingly the employee was held not be competing with his former employer by doing this work after termination because he was doing work which the employer had not done previously and would not carry on doing after he left.

Read more

Dismissal procedure and legal representation

Posted by , Partner

In  Ministry of Justice v Parry the EAT overturned a Tribunal decision which held that the dismissal of a District Probate Registrar created a legal barrier to her working in her profession and that, as such, Article 6 of the European Convention on Human Rights was engaged in the dismissal procedure. The EAT went on to hold that even if Article 6 was engaged, failure to allow legal representation does not automatically mean that the dismissal would be unfair; the key question was whether, overall, the procedure in dismissal was fair.

Read more

Search articles