EAT Time Limits

[Thanks to James Medhurst of Employment Law Advocates for preparing this case summary]

The EAT (HHJ McMullen) has handed down its decision in Hine Marketing Partnership v Archant Dialogue, a case about a Notice of Appeal which was lodged out of time; a previous notice having been lodged before the deadline but missing a page of the written reasons. A decision of the Deputy Registrar not to accept the appeal was overturned.

The following factors were taken into account:

• The error in excluding a page of the judgment was venial and the essential dispute between the parties could be understood without the missing page being adduced.
  
• The Appellant had provided a full explanation for the delay in that there had been an error made by the office of the instructing solicitor. The fault of an adviser, in conjunction with other factors, is relevant to the exercise of the discretion.
  
• The case could not be said to have no merits.

Minimum Wage: Sleeping on the Job

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

The EAT (Underhill P) has handed down its decision in Wray v JW Lees & Co, which is authority for the proposition that whether time spent by a temporary pub manager on the employer's premises overnight fell to be taken into account for the purpose of being paid the national minimum wage depended solely on the relevant provisions of the National Minimum Wage Regulations 1999.

The employment tribunal had, in error, directed itself to the definition of working time in the Working Time Regulations 1998, which had no application in the context of a national minimum wage claim. Instead of remitting the case, the EAT was able, using the right legislation, to determine the claim on the facts found by the employment tribunal.

On these findings it was clear the claimant was not working during the periods in question and could not therefore call these into account into account for the purposes of a national minimum wage claim. The exceptions in regs 15 (1A) (time work) or 16 (1A) (salaried hours work) of the NMWR applied. The requirement to sleep at the premises did not require the employee to do any work and her position could be distinguished from that of night watchman or night sleeper in a residential home, who had responsibilities throughout the night (see South Manchester Abbeyfield v Hopkins [2011] ICR 254).

Continuity of Employment in the NHS

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

The EAT (HHJ McMullen QC presiding) has handed down Judgment in the case of Winchester and Eastleigh Healthcare NHS Trust v Walker which is authority for the proposition that (apart from TUPE and statutory reorganisations) statutory continuity of employment is not preserved for NHS staff moving between different health service employers unless S218 (8) ERA 1996 applies, which preserves continuity in prescribed circumstances.

In calculating a Basic Award, the employment tribunal incorrectly used the Claimant’s entire service within the NHS, rather than the period when she worked for the Respondent Trust. The EAT reduced the Basic Award as the Tribunal had disregarded S218 (8), which preserves continuity for staff moving between NHS employers in specified circumstances – see S218 (9) - which did not apply to the Claimant.

The Claimant objected to this point being raised in the appeal, but the EAT held that the as the substance of the S218 (8) point was live before the tribunal, it could be raised on appeal.

The Judgment also has commentary on contractual and statutory continuity at paragraph 22.

Summary Dismissal Trumps Notice Period

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

The EAT (Keith J) has handed down Judgment in the case of M-Choice UK Ltd v Alders, which is authority for the proposition that where an employee is dismissed with notice expiring after a year's service, but is then summarily dismissed before a year's service, the employee's right to claim 'ordinary' Unfair Dismissal is extinguished as the second dismissal displaces the first.

The Claimant was given 12 months' notice after 3 months' service. Whilst working her notice, she claimed Unfair Dismissal, and the employer then summarily dismissed her before she reached one year. The Claimant then brought a second claim of automatic unfair dismissal for asserting the statutory right not to be unfairly dismissed. The question at a PHR was whether the second dismissal deprived the Claimant of the right to claim 'ordinary' Unfair Dismissal. The Employment Tribunal said that it did not.

The EAT disagreed, applying Stapp v The Shaftesbury Society [1982] IRLR 326, holding that the Claimant's summary dismissal meant that she had never acquired the one year’s service needed to claim Unfair Dismissal.

The EAT observed that there was one claim of Unfair Dismissal put alternately, and that there could only be one effective date of termination.

The complaint of automatic unfair dismissal remains to be determined.

Agency Worker Regulations - minor amendments

A new statutory instrument, the Agency Workers (Amendment) Regulations 2011 have been made by the government, correcting some drafting errors in the original Agency Workers Regulations 2010.

The Regulations provide that agency workers (ie temps) will have the same rights to pay, benefits, rest periods and holidays as someone recruited directly by the hirer (including the hirer's own directly recruited temp workers and employees).

There is a 12 week qualifying period, so genuine short-term agency temps will not qualify for this right. The 12 weeks do not have to be continuous; there can be breaks between assignments and absences on grounds of eg sickness or jury service.

The corrections are:-

• the definition of 'agency worker' in regulation 3 is changed from requiring the agency worker to have a contract with the agency which is either an employment contract or "any other contract to perform work and services personally for the agency" to "any other contract with the agency to perform work or services personally". The change clarifies that the worker does not need to be working for the agency itself;
  
  
• the so-called 'Swedish Derogation' is clarified by removing another minor drafting error; and,
  
  
• tweaking the statutory defence in regulation 14, enabling a work agency to avoid liability for breach of the Regulations by a hirer when the agency takes reasonable steps to obtain information about the hirer's terms and conditions..

If you need help with any issues surrounding the Agency Worker Regulations, I recommend Lawspeed.

Businesses can recover uninsured losses from the police

An ancient law allows uninsured businesses to recover compensation for damage caused by riots directly from the police.


The Riot (Damages) Act 1886 applies to any “house, shop or building” which has been damaged, or had its contents damaged, by “any persons riotously and tumultuously assembled together”.


The police are required to pay compensation to any person who has suffered losses as a result, including those who have had property stolen. This would cover not only the owners of the businesses, but (for example) owners of clothes which were damaged by looting of a dry cleaners.


A claim must be made to the police force within 14 days, so it is important that all business owners act promptly. A special form must be used (see appendix to the SI), evidence of losses must be supplied, and the person claiming is usually required to swear on oath that their claim is genuine. The form must be sent to either the clerk to the police authority, or the clerk to the county council, depending on which police district is involved.


Compensation can be reduced if the property owner failed to take reasonable care (eg they left their premises unlocked).


Insured businesses should note that their insurers can also recover losses from the police, provided the police are notified within 14 days. For this reason, most insurance policies which cover damage by riot require that the insurance company be notified of the claim within seven days, giving the insurance company another seven days to notify the police. If the business to lodge an insurance claim within this period, they will probably lose the right to claim.

Criminal Prosecution cannot be Racial Discrimination by Employer

[Thanks to Neil Addison of Palmyra Chambers for preparing this case summary]

Where an employer is a public prosecutor is a decision to prosecute an employee something that can be challenged in the Employment Tribunal ? Not according to Mr Justice Keith in LB of Waltham Forest v Martin.



The Claimant was employed as a Bus Driver and was also a local resident receiving benefits. When he received a bonus he failed to report this to the benefits department and subsequently the Council decided to prosecute him for benefit fraud. The Claimant alleged that the decision to prosecute rather than imposing an administrative penalty was racially motivated and brought Employment Tribunal proceedings under the Race Relations Act.



The EAT held that the decision to prosecute Mr Martin even if racially motivated was a decision made by the council in its role of public prosecutor and not employer therefore any claim of racial discrimination had to be brought in the County Court. The EAT noted that the same principle applied to any public authority whose decisions cannot be challenged in the ET merely because they happen to affect an employee

Doctors' Disciplinaries: Right to a Fair Trial

[Thanks to Simon Oakes of Outer Temple Chambers for preparing this case summary]

Is the process of dismissing a doctor a determination of his civil rights, so as to entitle him to an independent and impartial tribunal under Article 6? Maybe, but not here, held the High Court in the case of Mattu v University Hospitals Coventry and Warwickshire NHS Trust.

The Claimant, a consultant employed by an NHS Trust, was seeking to set aside his dismissal, citing breach of contract during the dismissal and appeal; that claim was dismissed.

Of more general interest was the Claimant's contention that his Article 6 rights were engaged because the dismissal (by a public body) prevented him practising his profession. He argued that dismissal would have the same effect as striking him off the medical register, or barring him from employment in a monopoly provider: the NHS.

The Court disagreed, holding that GMC proceedings would not be affected, and that he could still practise privately, or elsewhere within the NHS. At worst, the Claimant's ability to remain in his current employment was affected. But unlike the right to practise one's profession, doing a particular job is not a civil right, and is not protected by Article 6.

The Court added that deciding whether an individual is dismissed is not the same as determining their reputation, and again, Article 6 was not engaged.

The Court stated, however, that the dismissal by the Trust's chief executive, of a trust employee, would not meet the requirements of independence and impartiality required by Article 6. That problem could be cured by a sufficiently independent and impartial Appeal panel.