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26 June 2013 0 Comments Posted in Employment, Opinion

TUPE and prior dismissal

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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.

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Compulsory Retirement Age – Seldon revisited

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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.

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Post employment victimisation is covered by Equality Act

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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.

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Settlement with one Respondent did not release others

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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.

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Non-competition clause not breached where work moved with employee

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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.

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Dismissal procedure and legal representation

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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.

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Unfair dismissal compensation and set-off

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An interesting point arose in the case of Optimum Group Services Plc v Muir.

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Dismissal within range of reasonable responses

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This is something which is quite often discussed when employers are considering dismissals following disciplinary proceedings.

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Whistle blowers protected after employment has ended

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In a case which may have quite a significant impact, the EAT has held, in Onyango v Berkeley t/a Berkeleys Solicitors that employees are protected from less favourable treatment for whistle blowing even where the whistle blowing allegation is made after the employment is ended.

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Employment News Update – Tribunal fees

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From Monday 29th July 2013 fees will become payable in the Employment and Employment Appeal Tribunals. 

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31 May 2013 0 Comments Posted in Employment

Interpretation of Confidentiality Agreement

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Unusually, the Court of Appeal has given judgment on the interpretation of a confidentiality agreement.

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Appropriate representatives for collective consultation

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In Kelly and another v Hesley Group, the EAT held that the Tribunal was wrong to conclude that members of a pre-existing consultative body were “appropriate representatives” for the purposes of a collective redundancy consultation. The tribunal should have considered whether the representatives had authority from the relevant employees to be consulted about the dismissals. In particular, the tribunal did not consider the purpose for which the body had originally been set up, or the fact that some of the members of the body were co-opted rather than elected. Furthermore the body was expressly stated as being “non-negotiating”. The case was remitted to the Tribunal for further fact finding and consideration.

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