A new term of procedural fairness?

December 2nd, 2021 by Daniel Stilitz QC

In Burn v Alder Hey Children’s NHS Foundation Trust [2021] EWCA Civ 1791, the Court of Appeal (Underhill, Singh and Elisabeth Laing LJJ) rejected an argument, brought by a consultant surgeon under disciplinary investigation, that a contractual right to sight of correspondence imposed on her employer a general duty of disclosure extending to all documentation relating to the investigation.

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Mutuality of Obligations

September 20th, 2021 by James Goudie QC

HMRC v Professional Game Match Officials (2021) EWCA Civ 1370 concerns football referees. Elizabeth Laing LJ addresses the question of sufficiency of mutuality of obligations in order for there to be a contract of employment, giving rise to an employer obligation to deduct tax and national insurance contributions. From para 49 -69 inclusive she reviews the appellate authorities.  She states in relation to mutuality of obligations:-

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State and Diplomatic Immunity

September 16th, 2021 by James Goudie QC

The appeal to the EAT (Clive Sheldon QC) in Nigerian High Commission v Ihame, Judgment on 15 September 2021 raised issues relating to State and Diplomatic Immunity in the context of a race and religion discrimination and victimisation claim by an employee of the High Commission.  The claim was tantamount to bringing a claim against the Federal Republic of Nigeria.  The ET had misdirected itself by failing to consider whether or not the employment involved an inherently sovereign or governmental act or was a purely private act. This was a misapplication of the Supreme Court’s Judgment in Benkharbouche (2017) ICR 1327.  If the former, State Immunity applies and the claims have to be dismissed on that ground.

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December 30th, 2020 by James Goudie QC

Labour and Social Standards are addressed briefly  In the Christmas Eve Brexit deal at pages 200-201, Chapter 6 of Title XI in Part 2, of the Agreement between  the UK and the EU. The deal does no more than to prohibit a reduction in the level of protection for workers or failure to enforce rights in a manner that goes so far as to have an effect on trade or investment. Subject only to that, the UK will be free to make its own decisions. EU retained law will not have a special place on the statute book. There will be a new procedure for dispute resolution.


Government consulting on reform of Non-Competes

December 4th, 2020 by Julian Wilson

The Government has today announced an Open Consultation on Measures to reform post-termination Non-Compete clauses in contracts of employment:

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Knowledge test for duty of confidence – what is a sufficient state of mind to make an employer liable for breach of confidence when it receives a client list from a recruited employee?

June 9th, 2020 by Julian Wilson

In my blog piece on 28 February 2020, I looked at the state of mind required to make an employer liable in tort for inducing a breach of contract when it employs a person subject to post-termination restrictions. I reported by reference to the recent case of Allen v Dodd that in order to be liable the employer must know that it was inducing a breach. Knowledge that it might be is not sufficient.

I now turn my attention to the state of mind required to make an employer liable for breach of confidence when it receives a client list from a recruited employee.

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Beneficial variations invalidated by TUPE transfer

May 18th, 2020 by Simon Devonshire QC

What is the position if business owners employed by their own company award themselves substantially enhanced ‘golden parachute’ terms in advance of a TUPE transfer, confident in the expectation that those liabilities will be picked up by the unwitting transferee?

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Morrisons triumphs in the Supreme Court

April 1st, 2020 by Anya Proops QC

As we all adjust to the strange new reality ushered in by the arrival of Covid-19, it is reassuring to see that the wheels of the justice system continue to turn, and at the highest levels. Today the Supreme Court has handed down its judgment in one of the most watched data protection and employment cases of recent years: Various Claimants v Morrisons. The judgment is a real watershed moment, and one that will doubtless bring considerable relief to employer data controllers across the land.

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CA considers knowledge test for inducing breach – What is a sufficient state of mind to make an employer liable in tort for inducing a breach of contract when it employs a person subject to post-termination restrictions arising from his previous employment?

February 28th, 2020 by Julian Wilson

That was the question with which the CA were confronted this month in David Allen v Dodd & Co Limited [2020] EWCA Civ. 258.

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Tillman -v- Egon Zehnder; The Supreme Court Decides

July 3rd, 2019 by Simon Devonshire QC

1. The Supreme Court handed down its judgment in this case today; [2019] UKSC 32. It has not heralded quite the sea change in the law that some commentators had anticipated.

2. Ms Tillman had a contract that precluded her from being engaged, concerned or interested in a competing business (post termination), but omitted the conventional saving allowing her to hold a minority shareholding in a publicly quoted company. At first instance, the Judge (Mann J) held that properly construed, the restraint did not bite on a passive shareholding and made an injunction enforcing it.  The Court of Appeal set aside the injunction, on the basis that the prohibition on being ‘interested in’ a competing business plainly extended to a passive shareholding and that part of the covenant could not be severed or blue-pencilled, applying Attwood –v- Lamont [1920] 3 KB 571 (severance of an apparently unitary covenants only possible where as a matter of grammer/construction it comprised two or more discrete restrictions).

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