Mutuality of Obligations

September 20th, 2021 by James Goudie KC

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 KC

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 KC

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.


Workplace Investigations

April 23rd, 2019 by James Goudie KC

Investigations into workplace conduct are increasingly frequent, in the private and public employment sectors. The investigations are often complex. They may be scrutinised by a Court or a Tribunal. A robust and reliable professional process fair to all concerned is required.

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Teachers (and other public servants) pay

February 18th, 2019 by James Goudie KC

Significant budgetary restraints. A significant deficit in the public finances.  Does that all sound familiar?  It is a feature not only in the United Kingdom but also in the Republic of Ireland.  It is the context of Case C-154/18, Horgan and Keegan v Minister for Education and Skills, in which the Second Chamber of the ECJ gave Judgment on 14 February 2019, on a reference from the Irish Labour Court.

Mr Horgan and Ms Keegan are school teachers.  They work in an Irish State primary school. They are supported by the Teachers’ Union, INTO.

In order to meet the need to achieve a medium-term structural reduction in the cost of the public service, the Irish Government, as part of its 2011 Budget, adopted salary arrangements by which newly recruited public servants, including teachers in national schools, such as Mr Horgan and Ms Kegan, are recruited on lower pay than teachers already employed before a specified date, irrespective of age. Read more »


Wrongful Dismissal Damages

June 29th, 2017 by James Goudie KC

It is established law that (1) the doctrine of mitigation of loss by way of avoided loss applies to claims for damages for breach of contract by way of wrongful dismissal from employment, (2) this means that there must be deducted amounts that the employee earned or should have earned in substituted alternative employment, and (3) such amounts are capable of encompassing benefits in kind, but (4) this is subject to the important qualification that the benefit must not be too remote. Read more »


Mobility clauses

January 16th, 2017 by James Goudie KC

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.


Head Teacher’s Safeguarding responsibilities

July 20th, 2016 by James Goudie KC

A v B Local Authority and C Governing Body of School [2016] 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.

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Temporary agency work

July 7th, 2016 by James Goudie KC

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 »



June 15th, 2016 by James Goudie KC

In McBride v Scottish Police Authority [2016] 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.

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