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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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 [2016] 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) [2015] 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. [2012] 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

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 »