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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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 »


CJEU ruling on untaken holiday pay

November 29th, 2017 by Claire Halas

On 29 November 2017, the Court of Justice of the European Union handed down its judgment in the case of King v The Sash Window Workshop Ltd, Richard Dollar (Case C-214/16) concerning whether a worker was entitled, upon termination, to a payment in lieu of untaken holiday throughout the 13 years of his engagement. Marcus Pilgerstorfer represented the Respondents, instructed by James Potts of Peninsula.

The CJEU’s judgment will now be considered by the Court of Appeal.

The judgment can be seen here; and the opinion of the advocate general here.


Court of Appeal rules that claimants do bear an initial burden of proof under the Equality Act 2010

November 27th, 2017 by Claire Halas

Ayodele v Citylink Ltd [2017] EWCA Civ 1913 

The Court of Appeal has ruled that claimants still bear an initial burden of proof under the Equality Act 2010 (“EA 2010”), despite the change in wording in s. 136 as compared with the pre-EA legislation. In coming to this conclusion, the Court ruled that the interpretation placed on that section by the EAT in Efobi v Royal Mail Group Limited (UKEAT/0203/16, 10 August 2017) was wrong, and should not be followed. Read more »


Monitoring employees’ communications: the final word

September 6th, 2017 by Robin Hopkins

In January 2016, Panopticon brought you a post entitled “Employer was entitled to access employee’s private Yahoo! messages (and to sack him)”. It concerned an eye-catching judgment of the Fourth Section of the European Court of Human Rights in the case of Barbulescu v Romania (application 61496/08). Read more »


Oh so false Number 9s – why the law is powerless to act – A football tale for the Summer Holidays

August 15th, 2017 by Julian Wilson

The Premiership season may have begun but the transfer window rumbles on. We, mere supporters, have to put up with the unedifying spectacle of highly paid “want away” players requesting transfers, refusing to train, feigning injury, and generally malingering. The great Bill Shankly once said that players like these were a menace to society and that he would lock them up if he could. In these more liberal days, fans still ask why it is that a “want away” player’s contract cannot be enforced to oblige him to play. The answer is that English contract law has a rule against the compelled performance of personal services, by employees. Read more »


Supreme Court quashes ET fees

July 26th, 2017 by Tom Ogg

The Supreme Court has quashed the employment tribunal fees order (SI 2013/1893) because it has the effect of preventing access to justice. It is unlawful under both domestic and EU law.

The judgment is available here.

Employment law practitioners will find much to agree with in the judgment. It will also be of interest to constitutional scholars on account of its exposition of the constitutional right of access to the courts as a right inherent in the rule of law. The Supreme Court’s conclusions were based in the first instance on the common law.

This blog now simply sets out selected highlights from the judgment. 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 »


Recent Cases on the Braganza duty and the exercise of discretion: an intensification of scrutiny of the decision making process

June 12th, 2017 by Julian Wilson

It used to be thought that in exercising a contractual discretion accorded to it, in relation for example to a bonus or a share plan, an employer could, so long as it addressed the matter honestly and genuinely, make subjective qualitative judgments which would only be reviewable if they were perverse or illogical.
Braganza appears to have changed this.  The decisions since Braganza appear to show an intensification of the scrutiny given to the employer’s decision making process. Read more »