In Kellogg Brown & Root (UK) Ltd v Fitton, 0206/16, the EAT revisits the interface between redundancy situations and mobility clauses. Two principles are reaffirmed and applied. The first, confirmed by the Court of Appeal in Home Office v Evans ICR 302, is that an employer is lawfully entitled to invoke an express contractual mobility clause; and avoid liability for a statutory redundancy payment, notwithstanding that a redundancy situation has arisen or might arise on the closure of part of a business. The second is that if an employee refuses to relocate and the employer dismisses the employee the employer can rely on that refusal to obey a lawful instruction as misconduct, but the ET must then go on to consider the question of fairness, ie whether the employer has acted reasonably in giving the instruction and whether the employee had acted reasonably in refusing to comply with that instruction.
The collapse of BHS into administration left 11,000 employees facing an uncertain future and 20,000 current and future pensioners facing substantial cuts to their entitlements. According to the Work and Pensions Select Committee, BHS encapsulates many of its ongoing concerns about the regulatory and cultural framework in which business operates, including the ethics of business behaviour, the governance of private companies, the balance between risk and reward, mergers and acquisitions practices, the governance and regulation of workplace pension schemes, and the sustainability of defined benefit pensions.
I want to briefly consider 3 aspects of the law as they relate to BHS: (1) Remedying the pension deficit; (2) The dividends and the deficit; (3) The Directors’ duties and the degree of regard to the position of employees and pensioners. Read more »
We are delighted to have won Employment Law Set of the Year at last night’s Chambers Bar Awards. Earlier this week we were also awarded Employment Law Set of the Year at the Legal 500 UK Awards 2017.
We are delighted to announce that Chambers has received 3 nominations in this year’s Chambers and Partners Bar Awards; Anya Proops QC has been nominated for Defamation Silk of the Year; Jane McCafferty for Employment Law Junior of the Year; and Chambers for Employment Law Set of the Year.
The awards take place at The London Hilton on Park Lane on Thursday, 27th October 2016. A full list of nominations can be viewed here.
A v B Local Authority and C Governing Body of School  EWCA Civ 766 is concerned with whether an ET had been entitled to find that a Head Teacher of a primary school had been fairly summarily dismissed for gross misconduct, i.e. putting the safety of children at risk, for failing to disclose to the school authorities her close personal relationship with a male (IS) convicted of making indecent images of children by downloading them onto his computer. The ET’s finding was upheld by the EAT (Wilkie J presiding) and has now been upheld by a majority in the Court of Appeal (Black and Floyd LJJ). Elias LJ dissented.
Article 1 of Directive 2008/104/EC on Temporary Agency Work defines its scope. Two concepts that are involved are “worker” and “economic activity”. Both have been considered in an Advocate General’s Opinion on 6 July 2016 in Case C-216/15, Betriebsrat der Ruhrlandklinik v Ruhrlandklinik.
Article 1 of the Directive provides that the Directive applies to “workers” with a contract of employment or employment relationship with a temporary-work agency who are assigned to user undertakings to work temporarily under their supervision and direction. It applies to public and private undertakings which are temporary-work agencies or user undertakings engaged in “economic activities” whether or not they are operating for gain. Read more »
As we all reel in shock at today’s news, thoughts will inevitably turn to how our impending divorce from Europe will impact on the sphere of data protection. Our own data protection laws have of course been profoundly shaped by Europe. Until yesterday, many had assumed that Europe’s control over our data protection laws would in due course become even more intensive, as we journeyed into a world in which the EU Data Protection Regulation reigned supreme across Europe. However, the clocks have stopped. The Regulation is not to become law in the UK. The future of data protection law is therefore necessarily shrouded in mystery.
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In McBride v Scottish Police Authority  UKSC 27 the Supreme Court has considered the remedy for unfair dismissal of reinstatement, which must of course be contrasted with the remedy of re-engagement. An ET has no power to order reinstatement in terms which alter the contractual terms of the complainant’s employment. The question was whether that is what the ET had purported to do in this case. The Supreme Court held that it had not.
The appeal arose from the scandal over the disputed identification of a fingerprint in a murder inquiry. A fingerprint at the murder scene was identified by four experts from the Scottish Criminal Records Office fingerprint bureau as belonging to DC McKie. As a result of the identification, DC McKie was charged with perjury for giving evidence that she had never been to the crime scene. During DC McKie’s trial differences of opinion emerged about the fingerprint identification and she was acquitted.
Employment lawyers have tended to see data protection as an employee weapon; in particular the strategic fishing expedition subject access request as a precursor to High Court or Tribunal claims. But there is at least one angle from which the DPA can be used as a weapon of attack by employers against former employees. Where an employee leaves their employer and takes a client list with him, not only will he be in breach of the usual restrictive covenants he is likely to have, but he may also have committed a criminal offence under section 55 DPA. Read more »
Today, in the case of Secretary of State for Justice v. Windle and Arada  EWCA Civ 459, the Court of Appeal (Underhill LJ giving judgment) decided that Court and Tribunal interpreters are not employees for the purposes of pursuing claims under the Equality Act 2010. In doing so, the Court overturned a decision of the Employment Appeal Tribunal (presided over by HHJ Peter Clark)  ICR 156, and restored the judgment of the Leeds Employment Tribunal.
The case concerned professional interpreters working for the Courts and Tribunals on multiple engagements, with no overriding or ‘umbrella’ contract of employment. The appeal was concerned with whether the professional interpreters could be classified as ‘employees’ for Equality Act purposes for each engagement. The appeal turned on a narrow question: whether an employment tribunal could take into account the fact that in between assignments there was an ‘absence of mutuality of obligations’. The EAT had held that this was impermissible.
Lord Justice Underhill allowed the appeal, stating that when determining the employment status of an individual it is ‘necessary to consider all the circumstances’: see §23. Excluding consideration of the absence of mutuality between engagements ‘in limine runs counter to the repeated message of the authorities that it is necessary to consider all the circumstances.’
Furthermore, Underhill LJ explained at §23, ‘It seems to me a matter of common sense and common experience that the fact that a person supplying services is only doing so on an assignment-by-assignment basis may tend to indicate a degree of independence, or lack of subordination, in the relationship while at work which is incompatible with employee status even in the extended sense.’
The same point had been made by Elias LJ in Quashie v. Stringfellows Restaurant Ltd.  EWCA Civ 1735, in respect of employment status for unfair dismissal claims. Underhill LJ explained that there was no reason to apply a different approach when looking at the question of employment status in ‘the extended sense’ under the Equality Act.
Clive Sheldon QC of 11KBW represented the Secretary of State for Justice on the appeal.
Click here to read judgment