In Parsons v Airplus International Ltd, UKEAT/0023/16/JO, Ms Parsons claimed that she had been dismissed for whistleblowing. She applied for interim relief under Section 128 of the Employment Rights Act 1996. If, on the hearing of such an application, it appears to the ET that it is likely that on determining the complaint the Tribunal will find in favour of the Claimant, the Tribunal must make an Order for interim relief. For many years it has been understood that in applying this provision the ET must ask itself whether the Claimant has established that she has a “pretty good chance” of succeeding at the substantive hearing. This interpretation, says Judge Shanks, is justified, because if the employee satisfies the test the ET must make an Order for interim relief and, if it does so, the employer is obliged to pay the employee pending the determination of the complaint and there is no provision for re-payment in the event that she ultimately fails on the merits. Read more »
Reports of the decision of the Supreme Court in the joined appeals in Cavendish Square and ParkingEye left me confused because some reckoned the decision represented a narrowing of the application of the penalty doctrine whilst others considered it had expanded the doctrine’s scope. So on a wet weekend afternoon I took hold of a copy of the Judgment –  UKSC 67- and tasked myself to find out. Here is what I found. Read more »
The European Court of Justice (“the ECJ”) has now given judgment in Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security Case C-266/14 consistent with the Advocate General’s opinion, on which James Goudie QC blogged recently. For peripatetic or mobile workers (who do not have a fixed or habitual workplace) time spent travelling from home to the first appointment and from the last appointment back home counts as working time under EU law. The judgment has very significant implications for employers whose workforce includes, for example, home care staff, gas fitters, and sales teams. Read more »
Petter v EMC: Employment Share Schemes, Choice of Forum and Anti –Suit Injunctions – did the CA take a step too far?August 13th, 2015 by Julian Wilson
In granting the anti-suit injunction against EMC Corporation in Petter v (1) EMC Europe Limited (2) EMC Corporation  EWCA Civ 828, the CA considered that it was upholding the policy in section 5 of Regulation (EU) 1215/2012 for the protection of employees from being sued other than in the courts of their domicile. But was it exceeding the limits of its jurisdiction to regulate the lawful conduct of foreigners, and interfering in the process of justice in the court of a friendly foreign state? Read more »
Spanish employers refused to count as “working time” within the meaning of the Working Time Directive the time that their employees spend each day travelling from home to their first customer and from their last customer to their home. In an Opinion delivered on 11 June 2015, in Case C-266/14, Advocate General Bot has advised that the Directive should be interpreted as meaning that the time that peripatetic workers, that is to say workers who are not assigned to a fixed or habitual place of work, spend travelling from home to the first customer designated by their employer and from the last customer designated by their employer to their homes constitutes “working time”. Read more »
In Anderson v Chesterfield High School UKEAT/0206/14/MC, Mr Anderson is currently the elected Mayor of Liverpool. This is an executive post and regarded as full-time. The position carries with it an annual allowance of almost £80,000. He had previously held positions as Councillor of Liverpool City Council, the Leader of the opposition on the Council and ultimately at the time of his election as Mayor, Leader of the Council, which was in effect a full-time post with an annual allowance of approximately £50,000. Read more »
What proof of linguistic knowledge should be required in order to be able to access employment in the public service? That was the issue before the CJEU in Case C-317/14, European Commission v Kingdom of Belgium, in which Judgment was given on 5 February 2015.
All the provisions of the TFEU relating to freedom of movement for persons are intended to facilitate the pursuit by nationals of the Member States of occupational activities of all kinds throughout the European Union, and preclude measures which might place nationals of Member States at a disadvantage if they wish to pursue an economic activity in another Member State. Those provisions thus preclude any measure which, albeit applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by EU nationals of the fundamental freedoms guaranteed by the Treaty. However, Member States are entitled to lay down the conditions relating to the linguistic knowledge required by reason of the nature of the post to be filled. Nonetheless, the right to require a certain level of knowledge of a language in view of the nature of the post must not encroach upon the free movement of workers. The requirements under measures intended to implement that right must not in any circumstances be disproportionate to the aim pursued and the manner in which they are applied must not bring about discrimination against nationals of other Member States. Read more »
Yesterday the ECJ released Advocate General Jääskinen’s opinion on the UK government’s challenge to the Bonus Cap. The Bonus Cap provides by Articles 92 to 94 of the CRD IV Directive, and implemented by the UK regulators within SYSC 19A, that certain bankers’ bonuses may not be more half their total pay, or two-thirds with shareholder approval. Read more »
Was there gross misconduct? If there was, did it justify dismissal? Those were issues before Judge Eady QC in Burdett v Aviva Employment Services Ltd, UKEAT/0439/13/JOJ, a case concerned with both unfair dismissal and discrimination arising from disability. The employee had committed assaults in the workplace. However, this was because of his disability. He suffered from a paranoid schizophrenic illness. The ET was judged to have been in error in finding gross misconduct. They had failed to engage with the question of blameworthiness. The ET was also found to have been in error in assuming that dismissal will necessarily fall within the range of reasonable responses in a gross misconduct case. Read more »
[This post originally appeared on 11KBW’s Education Blog].
In Davies v LB Haringey, a decision of Mr. Justice Supperstone handed down on today (17 October 2014), the claimant was a teacher who had been on full time release for trade union duties for 14 years. At the time she went on release, she was working at a community school, so by section 35 of the Education Act 2002 her employer was the local authority rather than the governing body. Read more »