Monday 29 June 2009

TUPE: Service Provisions Change

[Thanks to Ed McFarlane of EEF for providing this case summary]

The EAT has considered, in Metropolitan Resources v Martin Cambridge , the correct approach for establishing whether or not a service provision change falls withinTUPE 2006. A contractor took over the provision of services to asylum seekers, providing services in a new way at a new site.

The EAT held that regulation 3(1)(b), which defines a 'service provision change', has broad scope, the key issue being one of fact as to whether or not any of the conditions in 3(1)(b)(i) to (iii) are met.

A "…commonsense and pragmatic approach is required…". The fundamental question for a tribunal is "…whether the activities carried on by the alleged transferee are fundamentally or essentially the same as those carried out by the alleged transferor…". (para 30.). There is "…no call for a formal list of factors which the Tribunal must consider before it can make a decision…" (para.34) unlike the multi-factorial Cheeseman approach under Reg 3(1)(a).

According to the EAT, "Where one contractor ceases and another commences service provision with differences in time,manner and/or place, there can still be an SPC under TUPE" (para. 37). Thus the sands of time will not save contractors from the quicksands of TUPE.

Wednesday 24 June 2009

Equal Pay

[Thanks to Sarah Bourke of Tooks Chambers, junior Counsel for the Claimants, for providing this case summary]

The EAT has today handed down its judgment in South Tyneside v McAvoy which is authority for the proposition that male colleagues of female equal pay claimants may bring contingent claims.

The EAT held that it is not premature for contingent male claims to be issued prior to the resolution of their female comparators' claims. Furthermore, contingent male claimants are entitled to claim arrears of pay for the full period in respect of which their female comparators have been awarded arrears.

It is believed that approximately 12,000 contingent male claims are currently stayed pending determination of this issue. Given the importance of the issues raised by this appeal, permission has been granted for the Councils to appeal to the Court of Appeal.

Friday 19 June 2009


[Thanks to Emma Price of 1 Temple Gardens for preparing this case summary]

The EAT handed down its decision in the case of Central & NW London NHS Trust v Abimbola, dealing with the factors a tribunal must take into account when deciding whether to order reinstatement.

Section 116 of the Employment Rights Act 1996 requires the tribunal to have regard to (a) whether the complainant wishes to be reinstated, (b) whether it is practicable for the employer to comply with an order for reinstatement and (c) where the complainant caused or contributed to his dismissal whether it would be just to order his reinstatement. The EAT held that the existence of mutual trust and confidence between the employer and ex-employee was a relevant factor when addressing the question of practicability of compliance with an order for reinstatement.

The Respondent argued that the ET failed to take into account relevant factors, including, among others, the finding that the Claimant was evasive and on one occasion dishonest in giving evidence at the remedies hearing and the existence of earlier unproven allegations of misconduct prior to the Claimant's dismissal. The EAT held that the ET had erred in taking too narrow a view of s. 116 and deliberately excluding from the exercise of its discretion these relevant factors. The Respondent could not longer be expected to trust the Claimant and the re-instatement order was set aside.

Wednesday 17 June 2009

Michael Duggan's Case Index

Barrister Michael Duggan of Littleton Chambers has produced his latest online employment law bulletin and employment law index.

As before, they are truly excellent documents and he is making them available to all readers of this bulletin. NOTE: they are large files and there is likely to be a lot of simultaneous demand to download them. Please try again later if they do not download immediately.

Tuesday 16 June 2009

Settlement Negotiations trigger automatic extension of time

[Thanks to Lionel Stride of 1 Temple Gardens for preparing this case summary]

The EAT (HHJ McMullen QC) has handed down its decision in Eagles v Rugged Systems Ltd, which is authority for the proposition that, if a claimant reasonably believed that there was "some process" dealing with a dismissal ongoing - including negotiations and legal advice over a compromise agreement - then he or she would be entitled to an automatic extension of time for presenting a claim under regulation 15(2) of the Employment Act 2002 Dispute (Resolution) Regulations 2004 (now repealed).

It did not matter that no actual appeal had been raised nor formal procedure followed.

The EAT followed the guidance set down in the Court of Appeal case of Towergate London Market Ltd v Harris [2008] IRLR 536 in which the issue as to whether, as a matter of fact, an actual procedure was being followed was irrelevant. The crucial consideration was (a) whether the complainant believed [that there was some process] and (b) whether there were reasonable grounds for such a belief.

Wednesday 10 June 2009

Holiday Pay - House of Lords decision

[Thanks to Michael Ford of Old Square Chambers, instructed by Thompsons on behalf of the employees, for preparing this summary]

The House of Lords has today decided in favour of the workers in the long-running litigation in Stringer v HMRC (sometimes referred to as Ainsworth v HMRC), overturning the Court of Appeal.

Their Lordships have now unanimously held that a claim for (i) unpaid holiday under regulations 13 and 16 of the Working Time Regulations or (ii) a payment on termination under regulation 14 can be pursued as unauthorised deduction claims as well as under the Working Time Regulations. The important practical effect is that a worker can take advantage of the more generous time limits which apply to unlawful deduction claims. A claim for unlawful deduction from wages can be brought within three months of the last in a series of deductions, so allowing a claim to go back more than three months if the underpayments form part of a series.

The ECJ had previously decided that a member state (i) could allow a worker off sick to take annual leave; or (ii) could prevent a worker taking leave while off sick but - and this is the critical point - only if the worker has the right to carry over annual leave to subsequent leave years if he or she was unable to take leave because of illness. It also held that compensation payments on termination should not be discounted on account of sickness.


[Thanks to Emma Price of 1 Temple Gardens for preparing this case summary]

The EAT has handed down its decision in Verma v Harrogate NHS Trust, which is authority for the proposition that where a costs order is made pursuant to dismissal of a "hopeless" strike out application made by the Respondent, it is perverse to allow recovery of Counsel's fees for attending the PHR and drafting a skeleton argument, whilst excluding recovery of the Solicitor's costs of preparation for the PHR and attendance on Counsel at the hearing.

HHJ Peter Clark stated that he had seen occasions when counsel's fees have been disallowed and solicitor's costs ordered but never the other way around. The Employment Judge had also taken into account an irrelevant factor, namely the fact that Case Management Orders were made at the PHR. But for the unsuccessful strike out application, the remaining case management issues could have been dealt with by way of a telephone conference or Case Management Discussion.

The only order in these circumstances which could reasonably be made was for the Claimant to recover his reasonable costs of and occasioned by the PHR, including those of both counsel and his solicitors.

Sunday 7 June 2009

Bye bye BERR. Hello BIS

[Thanks to David Hewitt of Citation plc for telling me about this]

The Department for Business, Enterprise and Regulatory Reform ('BERR'), formed only two years ago the Department of Trade and Industry with the Better Regulation Executive, is to be merged with the Department for Innovation, Universities and Skills.

The Government is creating a new Department for Business, Innovation and Skills whose key role, according to the Government press release, will be “ build Britain’s capabilities to compete in the global economy”.

The new Department is in its infancy and is still finding its feet. It already has a new combined website for what was BERR and DIUS information, but no website address. In the meantime, the current BERR website address – – takes you to the new Department’s website (which the eagle-eyed will spot sports a logo for the brilliantly named 'BIS').

Friday 5 June 2009

Employment Status

[Thanks to Thomas Brown of Cloisters for writing this case summary]

HHJ Peter Clark, sitting alone in the EAT in Little v. BMI Chiltern Hospital , has held that the fact that the Respondent could, and did, send home workers half way through a rostered shift, without pay, when their services were not required, negatived the existence of mutuality of obligation, even on the basis of a succession of individual assignments each amounting to a contract of service.

The Employment Judge's finding that, on occasions, workers were sent home halfway through a shift without the worker being entitled to payment for the remainder of the shift materially distinguished the case from Cornwall County Council v. Prater [2006] IRLR 362 and North Wales Probation Area v. Edwards (12 December 2007). There was no more than a contract in the Stephenson v. Delphi Systems Ltd [2003] ICR 471 sense for freelance services.

Territorial Jurisdiction

[Thanks to Thomas Brown of Cloisters for writing this case summary]

Lady Smith, sitting in the EAT in Scotland, has held in Dolphin Drilling Personnel Pte Limited v. Winks, that it is an error of law for an Employment Tribunal to apply a 'substantial connection' test when considering whether there was territorial jurisdiction to consider a complaint of unfair dismissal. Such an approach is inconsistent with the House of Lords' decision in Lawson v. Serco [2006] ICR 250.

As a general, though not absolute rule, place of employment is decisive. Expatriate or peripatetic employees may be exceptions to that rule. Questions of 'substantial connection' are relevant when considering if an expatriate employee may present an ET complaint, but the existence of a substantial connection is not alone decisive. The circumstances of W, who was employed by a Singapore company and worked on an oil rig off Nigeria, did not support the conclusion that jurisdiction arose.