Labour

Robinson v British Islands Airways

A dismissal will be for SOSR where the employer dismisses in order to protect the legitimate business interests and the employer is able to establish a sound business reason for dismissal.

Petition of United Closures and Plastics for an interdict against Unite

An employer (U) sought interim interdict against a trade union (T) in respect of strike action scheduled to take place at U's premises in relation to an industrial dispute on working conditions. U submitted that: (1) the notice of the ballot on the proposed industrial action, intimated to it by T, did not accurately represent the number of employees who T should reasonably have believed would be entitled to vote, contrary to s226A TULRCA; (2) the ballot had erroneously excluded and included certain employees entitled to vote, contrary to s277 of the Act; T had to identify employees concerned in terms of s.226A, or affected in terms of s234A as those who would be directly affected by the change in working conditions, and it would be reasonable that these should be the only employees balloted, and that all such employees should be balloted; (3) T's errors were carried through to the s.234A notice of industrial action; (4) in light of its breaches, T was denied protection under s219 of the Act such that it would incur delictual liability to U by inducing employees to breach their contracts of employment by taking strike action; (5) the balance of convenience favoured the granting of interim interdict. T conceded that if U could show that it had a prima facie case, the balance of convenience would favour granting interim interdict. Held: Motion refused. (1) Further members of T wishing to be included in the ballot had come to light following notification under s.226A, but where those employees had a different union coding, they could not be identified on the record of members which T had utilised; consequent to the term "in light of the information in the possession of the union at the time", expressed in ss.226A and 234A, a trade union did not generally need to create records not otherwise available to it, but ought simply to assist an employer by drawing upon information which it already had. (2) U had misunderstood the obligation under s.227, and its implication that only those employees identified by T as directly affected by the changes in working conditions could be induced to strike and therefore balloted ignored the definition given of "employees concerned" and "affected employees" in s226A(2H) and s234A(5C). The term "reasonable" in s.227 qualified T's belief as to who would be induced to take part in industrial action, and did not qualify the inducement. The word "reasonably" in s.226A(2H) qualified T's belief, not the employees' entitlement to vote; and in s.234A(5C), the word "reasonably" qualified T's belief, and not the inducing. (3) The court could not be satisfied that U had a prima facie case, but even if it had, T's error would likely be excused as de minimis. (4) Opinion, (a) that there was a high likelihood that if T was sued in delict, or if there were to be a full hearing on interdict, T would be successful in a defence based on the statutory immunities; (b) that T's concession did not sit easily with the view held in National Union of Rail that in disputes of the instant kind, the court had to have regard to the underlying merits of the claim. Moreover, it had been observed that in Scotland the court was to have regard to the relative strength of the parties' cases as one of the many factors which might go to making up the balance of convenience, albeit that special priority should not be accorded to the either case beyond what was deserved in the particular circumstances.

Wood Group Heavy Industrial Turbines v Crossan

Held that it would be impracticable for an employee to be reinstated or reengaged where all trust and confidence between the parties had irretrievably broken down.

Department for Work and Pensions v Sutcliffe

Held that the word remuneration included statutory sick pay. HHJ Peter Clarke concluded that the payment of sick pay during OML and AML was precluded by section 71(5)(b) of the ERA and regulation 9(3) of the MPLR. Cannot be on more than one type of leave at the same time.

Sunrise Brokers v Rodgers

Held that where the employee's repudiatory breach comprises a failure to give the proper amount of notice coupled with a refusal to return to work, the employer will nonetheless be entitled to affirm the contract and keep it alive. Injunctions will be granted in exceptional circumstances where the court it convinced that injunctive relief (prohibiting the employee from working for anyone other than the employer) will not compel the employee to continue to work for the employer or face idleness or starvation. If the employee can keep the contract on foot and compel the employer too perform as Lord Justice Longmore suggests, it is open to question why the employee should not be permitted to recover any unpaid salary or wages as a debt.

Boyo v LB of Lambeth

If a contractually binding disciplinary procedure has been breached, a court may look to at when the contract could lawfully have been terminated, awarding damages for a short period representing the time necessary to have operated the procedure properly and then the notice period. The practicability and desirability of a general rule in favour of readily inferred acceptance was doubted by Ralph Gibson LJ and Staughton LJ favoured in the Court of Appeal both of whom favoured a requirement for real acceptance.

Manchester College v Hazel

In the absence of function-related modifications or reductions in workforce numbers, it will not be possible to invoke the ETO defence.

Kelly v Sec of State for Justice

It was held not suitable and appropriate to return a 'prison mental health lead' whose contract of employment described her as a 'prison officer' to the role of an ordinary prison officer.

Nelson v BBC

Judges would query what the employee could be required to do in terms of their contract of employment, irrespective of the fact that this bore no relation to the work which they had actually been doing or was ever likely to be asked to do. This made it more difficult to establish redundancy where the contractual obligations were drafted to include a level pdf flexibility. This is the contract test.

Commerzbank AG v Keen

Lord Justice Mummery the rationality test is a very high threshold for an employee to meet. Ordinarily it would take an overwhelming case to persuade the court that the level of a discretionary bonus payment was irrational or perverse in an area where so much must depend on the discretionary judgment of the employer.

Peace v City of Edinburgh Council

Lord Penrose granted interdict to prevent an employee from being disciplined in accordance with the disciplinary process which was contrary to that required by his contract of employment.

Blue Star Ship Management

Phillips J in the Eat held that it was incumbent on the employer to satisfy the tribunal or court that the qualification the employee lacked was one which was substantially concerned with the aptitude or ability of the person to do the job.

Mirja Juuri v Fazer Amica Oy

Regulation 4(10) appears to be in conflict with this case. Here it was suggested that MS must ensure that an employee is entitled to the payment of a salary and other benefits relating to their notice period under the contract of employment where they claim that there has been a wrongful or unfair dismissal owing to substantial changes in working conditions to their detriment.

Blundell v Governing Body of St Andrews Catholic Primary School

School teacher complained that, when she returned from maternity leave she was given a different class to teach and that this constituted a breach of regulation 18 MPLR insofar as it was not the job in which she was employed before her absence. EAT took into account the fact that the MPLR is designed to ensure an element of continuity on the employee's return from maternity leave so that she comes back to a work situation as near as possible to what she left, and any sense of dislocation felt is minimized. This is achieved by the degree of specificity provided in relation to the three factors relating to the employee's pre-leave work narrated in regulation 2(1) of the MPLR, namely its nature and the capacity and place in which it was undertaken. On the basis of these elements of nature, capacity and place of work, Langstaff J decided that the employers had not breached the employee's statutory right to return. Langstaff - As she was a teacher, the role is to teach, she cannot return to exactly the same children at the same age, as that is not the nature of the job, the children will progress, and new ones join school. The place of work is the school, not the reception classroom. The case demonstrates that it is lawful to modify the role of the individual. There is not a right to return to exactly the same job, but to return to a broadly similar job. There is flexibility, but there are limits to this.

Rynda v Rhijnsburger

Single employee constituted an 'organised grouping'. Court of Appeal furnished guidance on the proper approach to be taken in determining whether an employee is assigned to an organised grouping of employees dedicated to the provision of the activities. LJ Jackson • If company A takes over form company B the provision of services to the client, it is necessary to consider whether there has been a service provision change within regulation 3. • The first stage is to identify the service which company B was providing to the client. • The next step is to list the activities of which the staff of company B performed in order to provide that service. • The third step is to identify the employee or employees of company B who ordinarily carried out those activities. • The fourth step is to consider whether company B organised that employee or those employees into a grouping for the principal purpose of carrying out the listed activities.

Sutton and Gates v Boxtall

The EAT adopted a particularly restricted construction of the capability reason. Have to distinguish how far the dismissal was a question of sheer incapability to function with the failure of the employee to reach their full potential.

ICAP v Berry

The central issue is whether the business in which the employee was employed had been transferred from one entity to another and the new party had become responsible for carrying on the business, had incurred the obligations of the employer, and had taken over the day to day running of the business.

Hunter v MacCarrick

The central issue is whether there has been a reassignment of the contractor performing the services or activities for the client and it is essential that the service is provided to the same client or clients throughout, both before and after the change of contractor. Elias LJ approved Metropolitan Resources.

ECM v Cox

A cynical transferee could use Suzen to make non-application of the regulations a self fulfilling prophecy by refusing to take on either assets or staff. This possibility was lessened by the case where such a tactic was used again on a second generation contracting out. EAT held that the regulations did apply on two grounds (1) in a labour intensive industry it may be relevant that the employee in question was dedicated to the work that was being transferred which should point to there being a relevant transfer; (2) in any event as a matter of policy and purposive interpretation a tribunal may which to prevent an employer from deliberately using Suzen to avoid the regulations. On appeal point 1 sas not in issue and point 2 the court of appeal dismissed the employer's appeal and held that all the circumstances of the transfer must be considered including any intent to evade the regulations. The case held that where the evidence demonstrates that the decision not to assume the majority of the workforce was reached to avoid the operation of TUPE in the context of a labour intensive undertaking this will be part of the factual matrix to be considered by the court or tribunal in its evaluation of the position.

James v Greenwich LBC

Agency worker was supplied to the council, worked for 3 years, tried to claim unfair dismissal when replaced, but was held by the tribunal and Eat not to have been the council's employee. Court of appeal upheld the EAT decision. Held that the common law principle of necessity for the implication of a contract ought to be applied in preference to the usual criteria for the identification of a contract of employment (control, personal service and mutuality of obligation). Cannot imply a contract where there is already one in place. Absolute necessity is a very high test. The upshot of the necessity test is that the existence of two valid express contracts between the hirer and the agency and the agency and the agency worker will foreclose any need to imply a third contract between the hirer and the agency worker in the vast majority of cases. The Court of Appeal acknowledged that orthodox doctrinal criteria such as contractual intention and freedom of contract ought to be afforded priority over policy considerations. Therefore, only in rare cases will an agency worker be treated as an employee of the hirer. LJ Mummery - it would be extremely rare that an agency worker is able to persuade a court or tribunal to imply a third contract between the worker and the hirer. They would then be implying mutual obligations on the parties, courts do not see themselves as engineers of people's freedoms. Court should not create contracts out of nothing. Contract law is all about consensus, intention etc. Need certainty, especially when there are contracts already in existence. Cannot simply invent contracts just because there is a social injustice. He expresses some sympathy to agency workers but said that litigants must not have unrealistic expectations as to what the courts, as opposed to Parliament, can do to change the law. The case has stopped the movement towards direct client employment of agency provided individuals. This is a major relief to large scale users of agency workers.

Montgomery v Johnson Underwood

An agency worker was held not to be the employee (for unfair dismissal purposes) of the agency because once supplied to the client, she worked for that client for 2 years, subject to little or no control, supervision or direction by the agency. In holding that an agency worker was not an employee, the existence of a sufficient degree of control was cited along with the mutuality of obligation test as irreducible minimum criteria for employment.

Home Office v Evans

An employee will not automatically be redundant where an employer enforces a mobility clause in an employee's contract of employment when its need for work diminishes at a particular location.

Fairbrother v Hendy Banks City Print

An employment tribunal or court does to have the right to substitute its own judgment for that of the employer. The task of the tribunal or court is to adopt the range of reasonable responses test when it decides whether the employer has acted reasonably in selecting the pool for redundancy.

Alexander v Standard Telephones

An injunction will be refused if trust and confidence between the parties has been destroyed.

Bouchaala

Authority for the proposition that where an employer has a genuine but mistaken belief that the employee has contravened a legal enactment and that the continuation of the employment contract would be unlawful this will not be a s98(2)(d) reason for dismissal.

Societe Générale v Geys

By a 4:1 majority, the UKSC favoured the elective theory of termination and held that it applied to an outright wrongful dismissal by the employer and an outright resignation by the employee in repudiatory breach of contract. Lord Wilson was extremely sceptical of the utility of the automatic theory and espoused contractual orthodoxy. "In proposing that the court should endorse the automatic theory the case invites it to cause the law of England and Wales in relation to contracts of employment to set sail, unaccompanied, upon a journey for which I can discern no purpose and can identify no final destination. Unclear whether the SC has adopted a genuine form of the elective theory, whereby an employee dismissed in breach of a substantive or procedural term of their contract or in the absence of such a provision, without notice can elect either to accept the repudiation and sue for damages or to keep the contract alive by seeking some form of equitable relief, most likely an injunction. Post the case it is not entirely clear what happens next when an employee decides to affirm the contract in response to the employer's repudiatory outright dismissal. The employee who has affirmed the employment contract should be entitled to recover unpaid wages from the employer as a debt rather than damages where the employer fails to pay them provided they are ready and willing to work, albeit not actually working. The elective theory of repudiatory breach applies. The employee has an option to decide whether to accept the termination and treat the contract as terminated or to say no and reject the repudiatory breach and affirm the contract, the contract continues, can go to work and demand work as the contract is still alive. G was aiming to prolong his contract, he was successful, it was so he could say his contract was live at a certain date which would entitle him to bonus.

Alemo Herron v Parkwood Leisure

CJEU rejected the dynamic interpretation on the basis that the transferee had no power to participate in the negotiating process for the new terms of the collective agreement and that to compel it to honour such renegotiated terms in such circumstances would amount to an unjustifiable interference in the transferee's freedom to run a business. As such the dynamic approach was rejected on the basis that it would infringe the transferee's fundamental right to conduct a business under Art 16 EUCFR. This decision was codified in reg 4A TUPE. The CJEU subordinated the socially protective purposes of the ARD in the context of re-organisations to an organisations fundamental right to conduct a business. CJEU's emphasis on the commercial freedoms of commercial companies can be read as forming part of a wider trend for it to prioritise economic over social considerations.

Commotion v Rutty

Challenge of refusal to grant flexible working. Held that a tribunal was entitled to examine the evidence on which the employer made its decision in order to discover whether the ground in section 80G(1)(b) invoked by the employer as the reason for the refusal was based on incorrect facts. This would entail an investigation of the circumstances surrounding the employee's request, the effect of granting it, any potential disruption, and the attitude of other staff. The requirement to establish correct facts is a measure that empowers a tribunal to consider whether the employer's assertion and conduct generally were reasonable.

Nokes v Doncaster Amalgamated Collieries

Clarified that the contract of employment is personal to the parties involving delectus personae and cannot be transferred by the employer to a purported transferee employer without the consent of the employee. Principal authority to propound the doctrine of the personal non-transferable nature of the contract of employment. Viscount Simmons • The benefit of a contract entered into by A to render personal service to X cannot be transferred by X to Y without A's consent, which is the same thing as saying that, in order to produce the desired result, the old contract between A and X would have to be terminated by notice or by mutual consent and a new contract of service entered into by agreement between A and Y. • Common law principle that a free citizen in the exercise of his freedom is entitled to choose the employer whom he promises to serve, so that the right to his services cannot be transferred from one employer to another without his assent. Lord Atkin • The principle that a man is not to be compelled to serve a master against his will is just as deep seated in the common law of this country....and that here there is no clear, definite, or positive enactment overturning it. The employee won the case and was held to be entitled to walk away from his employment contract and work for someone else. The case is also authority for the opposite proposition - that the new employer is equally free to choose its employees. Mineowner changes, person does not want to work for the new owner. Date of the case 1940, decided in June/July, start of the occupation of France, mass evacuation of the troops, lot of slave labour in Europe. Reassertion of liberty, no man is a servant, liberty to choose who you work for. Case has to be understood in its factual context. Looks like a victory for the employee. But if you are a person who wants to stay in the employment, then there is a choice for the employer to decide whether they want you to work. Employer has the right to say they don't want you. This is the issue, new employers will just lay off the employees. If you are the employer and want rid of people, just set up a new company and offload the workers under the transfer of the business = easy way to get rid of people without paying a massive amount of compensation. Double edged sword of liberty.

Hoyland v Asda

Concerned the breadth of the term renumeration. An annual bonus was paid by the employer to its employees based on the sales achieved by the workforce as a whole. Since it was paid in recognition of work undertaken by the employee, the EAT took the view that it was paid as part of the employees' 'wages or salary' and therefore was excluded due to being renumeration. The claimant was not entitled to the bonus. Inner House held it was lawful to make a pro rata deduction from a discretionary annual bonus (based on profits) to reflect the employee's time absent from work on maternity leave during the bonus year.

Maistrellis v Ypourgos

Conditionalities are unlawful. If a member state's law makes a father's entitlement conditional on the mother of the child being in employment or engaged in the exercise of a profession, this will constitute a breach of EU law.

G4S Justice Systems v Anstey and Simpson

Considers the situation where an employee dismissed by the transferor before the transfer lodges an appeal against dismissal. A was assigned to a specific contract until his summary dismissal for alleged misconduct, against which he appealed as his contract allowed. Prior to the appeal hearing, however, his employer lost the contract to another company. Neither the old nor prospective 'new' employer could agree on who should then hear his appeal, but finally, his old employer agreed to do so. A's appeal was upheld, but by that time, he was unable to be re-instated by his old employer, since it no longer operated the contract to which he had been assigned, and the new company refused to engage him. A brought an unfair dismissal claim against both companies. Held (logically but oddly) that where an employee dismissed for conduct before the transfer brought an appeal which was heard after the transfer, the transferor could still reinstate him even though they were reinstating him into the transferee's employment. The transferee was the transferor's competitor to which it had just lost the contract. The EAT found A's successful appeal expunged his original dismissal, and he should have been treated as having been employed up until the transfer date and accordingly transferred. It made no difference that his appeal was not heard before the transfer date.

CD v ST

Controversial decision. CJEU decided that an employee who was the commissioning non-birth mother in a surrogacy arrangement had no entitlement to maternity leave under the Pregnant Workers' Directive, irrespective of the fact that she had started to breastfeed and mother the child within one hour of its birth. The justification was if maternity leave was designed to enable women to recover from childbirth then it should not apply to non-commissioning mothers.

Gunton v Richmond Upon Thames

Court of Appeal adopted the elective theory of termination in the context of an outright wrongful dismissal. Although it did so half-heartedly and sought to reconcile the two by holding that an employee's acceptance of an employer's wrongful dismissal in repudiatory breach of contract should be easily inferred. This formulation meant little, if any, manifestation of acceptance would be necessary on the employee's part. Amounts to a very restrictive or weak incarnation of the elective there, since it directs the courts to presume that the employee had accepted the employer's outright dismissal in repudiatory breach. Where the employer fails to adhere to a contractually binding disciplinary procedure, the employee will be entitled to damages for the period it would have taken the employer to complete the procedure if it had complied. Damages are restricted to financial loss only, and this will be the employee's net wages and other contractual benefits during the notice period. Damages over and above the damages for the notice period are referred to as .... damages.

Key2Law v De'Antiquis

Court of Appeal applied an absolute approach by ruling that administration would never fall within regulation 8(7) of TUPE. Regulation 8(1)-(6) operates to make the Sec of State liable for certain classes of employment debts via the NI fund. Rimer LJ explained regulation 8. • Regulation 8 aims to relive transferees of the burdens which would otherwise apply in the certain defined circumstances. • The most extensive exception is regulation 8(7). • A narrower exception is carved out whether regulation 8(6) applies. This applied to insolvency proceedings where the purpose is not with a view to liquidation of assets. • This modifies the effects of regulations 4 and 7 - the transferee does not pick up all the liabilities that would otherwise transfer to him. • Regulation 8(3) has the effect of making the Sec of State liable for all obligations outstanding at the date of transfer which are caught by Part XII of ERA. To the extent that liabilities exceed the statutory limits, liability transfers to the transferee. • Regulation 8(5) has the effect of making the NI Fund rather than the transferee liable to meet any redundancy liabilities......these will typically arise where there are dismissals for redundancy which are not for ETO reasons.

Eddie Stobart v Moreman

Court of Appeal decided that employees did not transfer under TUPE when they were not structured into a team by reference to the requirements of the client in question. This was despite the fact that the majority of their time was occupied with tasks related to a particular contract, part of which involved servicing a particular client.

Cable and Wireless v Muscat

Court of Appeal expressly upheld the reasoning of the majority in Dacas, finding that it was necessary to imply a contract of employment between the agency worker and the hirer in order to give business reality to the relationship. Court upheld a tribunal decision that an agency worker had become the direct employee of the client after 2 years service.

Powell v LB of Brent

Court of Appeal granted an interlocutory injunction restraining the employers from depriving the employee of a promotion for which she had successfully applied.

Print Factory v Millam

Court of Appeal rules that if day-to-day control of a corporate employer is effectively assumed by the transferee of the shares of that company, TUPE will apply, notwithstanding that there has been no change in the employer of the employees. There is a share sale but then a subsequent hire up or hire down.

Lupton

EAT observed that re-engagement was not to be used to impose a duty on the employer to search for and find a 'generally suitable place within the ranks for a dismissed employee irrespective of actual vacancies. That........puts the duty too high. An employer does not necessarily have a duty to create space for a dismissed employee to be re-engaged. The question at the end of the day is one of fact and degree by reference to what is capable of being carried into effect with success'.

Reizniece

ECJ held that an employer will infringe the Parental Leave Directive when it transfers an employee returning from parental leave to an equivalent role in a different department which it knows is due to be eliminated in the near future.

CLECE SA v Valor

ECJ said that the employee's rights were not protected when a municipal authority terminated a cleaning contract with a private company and brought the cleaning back in-house.The ECJ began by stressing that in order to honour the whole point of the directive (which is to safeguard employees in the event of a transfer of their job), generally the term "legal transfer" was interpreted fairly flexibly. The ECJ further noted that the ARD applies to public undertakings engaged in economic activities, whether or not they were operating for gain. Therefore, the fact that one of the parties in the dispute was a municipal authority did not necessarily prevent the ARD from applying.It also said that the ARD was capable of applying to a situation in which an undertaking, which had previously used the services of another undertaking to clean its premises decided to terminate the contract and in future carry out the work itself. However, for the ARD to apply, the ECJ said that the transfer had to involve "an economic entity which retains its identity" after the change of employer. To decide whether an entity had retained its identity, the ECJ had to "consider all the facts characterising the transaction in question". In this case the municipal authority had not taken on any of C employees, nor had it taken over any of its tangible or intangible assets. The only factor creating a link between the activities carried out by C and the municipal authority was the activity in question - the cleaning of premises. However, the ECJ said that an entity cannot just be reduced to the activity entrusted to it. Instead, it ruled that an entity's identity emerges from several factors, including its workforce, its management staff, the way in which its work is organised, its operating methods and indeed, where appropriate, the operational resources available to it.The ECJ found that the identity of an economic entity, in this case was essentially based on manpower and it could not be retained if the majority of its employees were not taken on by the municipal authority. The directive did not therefore apply.

RMT v UK

ECtHR unequivocally endorsed the right to strike. Decision of ECtHR the union made this argument they could not comply with that level of detail. The ECtHR said it was not a breach. Doctrine in human rights - the margin of appreciation which works in favour of the state. There has to be an element of deference to the decisions of the state. Although the ECtHR recognised that Article 11 of the ECHR entailed a right to strike, and that secondary action was an integral component of that right, the UK's ban on secondary action was upheld. The ECtHR decided that the statutory prohibition on secondary action did not have the effect of striking at the very substance of the trade union's freedom of association in Article 11 of the ECHR. It also opined that Member States such as the UK must be afforded a margin of appreciation as to how a proper balance between the interests of labour and management ought to be struck and also how trade union freedom and the protection of the occupational interests of union members should be secured.

X v Y

Employee worked for a charity which provided personal development among young people. He was dismissed when he was arrested for gross indecency after pulling into a lay by when he was off duty and gone into the toilet where he engaged in a consensual sex act with a stranger. The ET, EAT and court of appeal he'd that the reason for dismissal was the employee's misconduct even though the activities had taken place outside the workplace.

Lesney Products v Nolan

Employer reorganised the arrangements for machine maintenance by changing its employee machine setters' shifts from one long day shift plus overtime to two day shifts. Initially the employer required the engagement of 36 machine setters; when certain employees objected to the changed shift pattern and were replaced, it was held that their dismissal did not amount to redundancy, since the function of machine maintenance for which they had been employed remained the same. Example of the function test rather than the contract test.

Franks v Reuters

F had been working for the client for six years, as an agency worker. The Court of Appeal said he had effectively been integrated into the employer's organisation. Obiter suggestion that there could have been an evolving contract of employment with the client over time. Although the length of the assignment was significant, the court stressed that length of service would not always mean that there was an implied contract.

Murray v Foyle Meats

HL criticised both the contract and function tests and ruled that the question was one of simple factual causation. Lord Irvine • Two questions of fact. The first is whether one or other of various states of economic affairs exists. In this case, the relevant one is whether the requirements of the business for employees to carry out work of a particular kind have diminished. • The second question is whether the dismissal is attributable, wholly or mainly, to that state of affairs. This is a question of causation. • Tribunal found as a fact that the requirements of the business for employees to work in the slaughter hall had diminished. Secondly they found that that state of affairs had led to the applicants being dismissed. • Both the contract test and the function test miss the point. • No reason in law why the dismissal of an employee should not be attributable to a diminution in the employer's need for employees irrespective of the terms of his contract or function which he performed. The case is particularly important in the context of bumping in redundancies. Misconceived to ask whether the employer's need for the employee claimant to perform their particular job or function has ceased or diminished; instead the question is whether an employee's dismissal is caused by a reduction in an employer's need for employees to perform work of a generic type. The result is that bumped employees will more often than not be treated as redundant. Created a third test - factual causation. Not asking anything specific just did the circumstances cause the redundancy. Was the person dismissed, yes, and was that dismissal attributable to a reduction or cessation in the employer's requirement for work, yes = redundant. Completely ignores the words 'of a particular kind' in the legislation. The function the job, is not focused on at all. Means that bumping is allowed, the person is redundant even though the job is still there - seems more fair, that the person will still be paid. Where we are now is still positive but it seems to overlook parts of the statute.

Polkey v AE Dayton

HL rejected the 'no-difference' rule which had been established by the EAT. Held that the evaluation of the reasonableness of a dismissal under section 98(4) should depend on the facts which were known to the employer at the time of the dismissal and what it had done rather than what the position would have been id the employer had acted differently. Therefore the effect is that this accords a large degree of prominence onto the application of procedural standards. If the employer fails to comply with such standards then there will be a finding of unfair dismissal. However, there is an exception. In circumstances where a range of reasonable employers would conclude that the compliance with procedural standards would be utterly useless or futile, the employer's failure will be excused and the dismissal will nevertheless be held to be fair. Lord Bridge - an employer having prima facie grounds to dismiss for one of the reasons specifically recognised as valid will in the great majority of cases not act reasonably in treating the reason as a sufficient reason for dismissal unless and until he has taken the steps, conveniently classified in most of the authorities as procedural which are necessary in the circumstances of the case to justify that course of action. The employer must furnish the employee with fair warning and an opportunity to amend their wars and show that they can do the job. Lord Bridge was careful not to exclude the possibility that an employer may reasonably dismiss without engaging in procedural steps in the context of a misconduct case. An employer who has failed to follow fair and proper disciplinary procedures prior to dismissal will be entitled to have the compensatory award reduced to the extent that observance of such procedure would have made no difference to its decision to dismiss. Quite an important case concerning disciplinary procedures. Get to the procedural fairness stage, prior to this the employer has been won all prior stages. Did they follow procedure - no, then this is unfair. Employer has not followed procedure, but they had caught the employee red handed, did not need to follow procedure. Argued that in certain cases these are so worthy of dismissal they should be excused from not following procedure. HL If you interpret the statute - if there is procedural failure, then there is unfair dismissal. There is then a P deduction, reduced amounts of compensation due to this. Deduction to reflect the fact that those were the circumstances, more flagrant the misconduct then the higher the deduction - can be 100%.

Malik v BCCI

HL were asked to reconsider the limb of Addis which disentitled an employee from recovering compensation for a loss of earning capacity or reputation as a result of being unable to attain fresh employment in breach of contract. The challenge was successful. They crafted an exception which is confined within particularly limited bounds, rather than dismantling the general rule. Held that on a breach of the employment contract, an employee would be entitled to stigma damages where the employer had run a dishonest and corrupt business and it was reasonably foreseeable that the employee's future employment opportunities would be compromised as a result. The employee can recover the financial losses sustained in respect of the damage to their reputation. Extremely challenging for an employee to success in this claim as it is an exception. Lord Steyn - loss of reputation is intrinsically difficult to establish and the usual contractual techniques of causation, remoteness of damages, mitigation of loss and contributory fault present formidable obstacles to such claims succeeding.

Harper v Virgin

Held that Johnson prevented a claim for damages for the loss of the opportunity to claim unfair dismissal since such damages arose out of the fact and manner of the dismissal itself. Wrongful dismissal action cannot be used to challenge an employer's cynical use of short notice to avoid an unfair dismissal claim.

Jackson v Computershare

Held that a transferring employee was disentitled from parity of terms in such circumstances. The circumstances being that the terms and conditions of the transferring employees are less favourable than those of the existing staff of the transferee.

Packman v Fauchon

Held that an employee was redundant when there was a material reduction in his working hours because the employer needed less work of the sort done by that employee. Employer bought a software package, reduced the number of hours they needed the worker. Claimed he was working less and that this was dismissal. Issues of whether this is a unilateral variation in the contract, next has the job changed too much that it is redundancy. Although staff numbers and functions might remain the same, as long as there is evidence of a substantial reduction in the employer's need for work or hours of work, a dismissed employee will be entitled to claim that they are redundant.

Cross v British Airways

Held that an employee's normal as opposed to contractual retirement age does not transfer. BA's retirement policy imposed a retirement age of 55, which C and several colleagues challenged. Some brought unfair dismissal claims against the airline, alleging they should be subject to a retirement age of 60 applied by their previous employer. The TUPE 1981 had not been considered at the time they transferred, but the employees alleged they did apply and that, by imposing an earlier retirement age, BA had unfairly dismissed them. Three other employees claimed under the Sex Discrimination Act 1975, challenging a special exception that BA applied to staff employed pre-1971. Prior to 1971, male employees had a compulsory retirement age of 60, and female employees, 55. BA had allowed those male staff to stay in work until the age of 60 - an exception that was later extended to female staff engaged pre-1971. Although BA staff were mainly female, the majority of pre-1971 employees were male. On that basis, it was claimed the exception was indirectly discriminatory and could not be justified. All of the claims were dismissed by the employment tribunal and again on appeal. The EAT found that, although TUPE applied and the contractual retirement age for C and his colleagues had been 60, 55 was the age that had been consistently applied by BA for years and was the applicable 'normal retirement age'. The EAT also found that there was indirect sex discrimination but it was justified.

Proctor and Gamble

Held: Judgment accordingly. (1) The fact that an entitlement was discretionary did not take it out of art.3(1) of the Directive. The phrase "rights and obligations" in art.3(1) and the Regulations was to be liberally interpreted without regard to domestic distinctions between discretionary entitlements and legally enforceable rights. The employees' entitlement and P's concomitant obligation were therefore transferable under the Regulations. However, the entitlement had never been to be given early retirement benefits but a right to apply for such benefits: the employees had only the expectation of being fairly treated in being considered for the benefits. Applying domestic principles of interpretation, "liabilities" in the sale agreement extended to any liability, obligation, right or benefit which would be treated as transferring under the Regulations, with the proviso that, given that the agreement was to provide for a price adjustment by way of a calculated sum, the liability had to be capable of calculation. The agreement had been intended to enable calculation of the early retirement benefits. The provision for those benefits was a liability that transferred to S and fell to be calculated on the basis of assumptions referred to in the agreement. That conclusion was consistent with the Regulations' objective of safeguarding employees' interests by vesting the power to provide early retirement benefits in the entity employing them. (2) Several obligations had to be allocated to calculate the extent of P's obligation to pay S: the entitlement of each transferring member to be considered in good faith for early retirement benefits was transferred to S; the obligation to provide a standard pension was met by the vesting of a deferred pension; the entitlement to a deferred pension, once vested, conferred an interest in P's pension fund which was the property of the employee and was unaffected by the transfer of his employment to S; and the acquisition by the employee of a vested interest discharged the employer company's contractual obligation in respect of deferred benefit, save for additional entitlements such as the enhancements, meaning that the only relevant obligations in respect of the early retirement benefits, apart from those relating to the enhancements, were satisfied by the provision of deferred pensions in P's fund which were funded in accordance with obligations which were not enforceable by the employees. The only obligation to transfer was liability in respect of the enhancements. That result accorded with the Regulations' objectives. The same result could be reached by purposive interpretation of Regulation 4(2). Regulation 4(2)(a) and (b) were to be construed together so as to confine the rights, powers, duties and liabilities to be transferred to those under a continuing contract of employment that had not already been substantially satisfied. Further, it could never have been intended that the agreement should operate in such a way as to require P to pay again for benefits it had already provided and remained liable to fund, or that S should receive money which it would not actually have to pay out; the intention had plainly been to provide S with a payment calculated to hold it harmless against a liability imposed by the Regulations. (3) The question was whether benefits first triggered as early retirement benefits had to be treated as such even after normal retirement age, therefore never becoming an old age benefit. Such a rule would be counter-intuitive. It was obvious that pension instalments paid after normal retirement age fell to be characterised as old age benefits, notwithstanding that the pension had first come into payment before normal retirement age. Further, the ECJ had not indicated that there should be a rule to the contrary.

Gogay v Hertfordshire CC

If the employee has already suffered damage prior to the eventual dismissal (e.g. through harassment or bullying before termination) they can bring a common law claim for damages. It should not be automatic that a care worker in a children's home being investigated for allegations of child abuse must be suspended. Such a suspension involved different issues to those in the enquiry itself. Characterisation of the enquiries under section 47 had not helped in this case. The 'knee jerk' reaction of suspension in this case amounted to a breach of the employer's duty of trust and confidence toward the employee. Such a suspension which led to damages could be compensated in damages, although the law was in need of clarification. Female employee works with a extremely distressed child who makes an allegation of sexual harassment, employer immediately suspends, this was held to be a knee jerk reaction. Suspension was a repudiatory breach of contract, can you get damages from the psychiatric injury that arises? Yes, this was prior to Johnson, and stills stands after as suspension is way before the manner of dismissal.

Robb v LB of Hammersmith

In May 1990 R was suspended on full pay pending investigations under the provisions of the authority's disciplinary procedures as to his capability. Negotiations took place in relation to the termination of his employment and in July 1990 the authority wrote to him stating that the disciplinary procedures would not be continued in view of the impending termination. Negotiations subsequently broke down and the authority summarily dismissed R. He sought injunctions requiring the authority to maintain his suspension on full pay whilst the disciplinary procedures were reinstated and completed. HELD, that an injunction would be granted restraining the authority from terminating his employment notwithstanding loss of trust and confidence between the parties, and requiring R to be suspended on full pay whilst the disciplinary procedures were carried out. The court considered that such an order was workable since R would not have to carry out his usual duties and responsibilities during the suspension, thereby justifying its departure from the usual principle against specific performance. The balance of convenience weighed in R's favour since the authority had admitted a breach of contract.

Rigby v Ferodo

In accordance with the elective theory of termination of the contract of employment the employee will have a claim for damages together with the right to (a) accept the employer's breach and terminate the contract of employment or (b) affirm the contract so that it continues in existence notwithstanding the employer's repudiatory breach. If the employee affirms the contract and continues to work on the basis of new terms under protect, they are entitled to (a) claim damages in respect of any financial differential between the new terms and the old terms, or (b) if the variation amounts to a repudiatory breach, ultimately to resign and claim damages for a common law constructive wrongful dismissal or compensation for an unfair statutory constructive dismissal. HL evinced a preference for the elective theory of termination. Lord Oliver was at pains to leave aside the extreme cases of outright dismissal or walk out by the employee.

Shaw v CCL

Invoking sex discrimination to challenge the refusal to grant flexible working. An employer was found to have both directly and indirectly discriminated on the grounds of sex in turning down the employee's request to be allowed to work flexibly on her return from maternity leave.

Montull v INSS

It is lawful for a MS to exclude an employed father of a child from entitlement to maternity leave, where the mother of the child is not an employee.

Sanders v Ernest A Neale

It was said that contracts of employment form an exceptional category in which the employee has no choice but to accept the repudiation and due for damages, so that the employer's repudiation automatically terminates the contract. Sir John Donaldson P said "The obvious and indeed the only explanation is that the repudiation of a contract of employment is an exception to the general rule. It terminated the contract without the necessity for acceptance by the injured party.". The applicants appealed dismissal of their claims for redundancy payments. Held: The Court considered the time of acceptance by an employee of an employer's repudiatory actions. Sir John Donaldson P set out the principle which he regarded as well established in the field of employment represented an exception to the general rule of the law of contract allowing the innocent party to elect whether to accept the repudiation or affirm the contract. The mere fact that the employee's action created the redundancy situation does not disentitle them to a redundancy payment.

Williams v Compare Maxim

Key case. Browne-Wilkinson • Impossible to lay down detailed procedures which all reasonable employers would follow in all circumstances. • Generally accepted view in industrial relations that in cases where the employees are represented by an independent union recognised by the employer, reasonable employers will seek to act in accordance with the following principles o Give as much warning as possible o Consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible o Employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience or length of service. o Employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection. o See whether instead of dismissing an employer he could offer him alternative employment. • Not all these factors are present in every case • Principles to be departed from only when there is some good reason shown to justify such departure. . These are not principles of law but standards of behaviour. There are indications that these have since more or less been treated as principles of law, even though Browne Wilkinson asserted that they were not points of law. Browne Wilkinson also underscored the importance of consultation with trade unions where the workforce was unionised.

British Aerospace v Green

Key case. Where employees are graded according to skills, qualifications, experience, performance, aptitude, appraisal ratings, time-keeping, work attendance record, disciplinary record, abilities, and other neutral criteria, these will be deemed to be fair and objective. There is no legal obligation imposed on the employer to make available to the selected employee the scores and assessment records of those employees who were not selected for redundancy where the tribunal or court is satisfied that the scoring process fell within the range of reasonable responses.

Loy v Abbey National

L, a former national account manager, raised an action against his former employers seeking a redundancy payment. L had been employed by a company which had been taken over by X in 2001, and he submitted that his original job had become redundant because, following the merger, there were significant changes to the conditions which applied to the performance of his duties. L relied on his loss of exclusive control of allocating particular sales managers to the individual accounts which he controlled and the training and education budget thereof, X having acted in a way that destroyed the relationship of trust and confidence between employer and employee, and his entitlement to be treated in the same way as the regional sales managers formerly employed by the company, who were given redundancy packages from X following the merger. Held, refusing L's pleas in law, that (1) The only basis for establishing a case of redundancy in general terms was by reference to the s139(1) ERA but there was no suggestion that the work which L was expected to do in the merged company had in any way ceased or diminished and it was clear that material and unilateral change by an employer to an employee's terms and conditions of employment even to the extent that the employee was entitled to regard himself as constructively dismissed from his former employment did not mean that the dismissal was by reason of redundancy. (2) While there appeared to have been a great deal of posturing, intransigence and unwillingness to co-operate on X's part which might have contributed to L's decision to leave X's employment, it had no effect whatsoever on the essential nature of the job which national accounts managers were to be required to do under the new arrangements. (3) It was simply impossible to make any realistic comparison between the position of the national accounts managers and that of the regional sales managers where the latter were at a different level in the hierarchy of the company from L and did a very different job to that of the national accounts managers, and more importantly, the regional sales managers and their exact equivalents in the company numbered far too many for the number of positions which X proposed should be taken forward under the new conditions whereas the positions formerly occupied by the national accounts managers were all available to be filled and no selection process was required.

Horkulak v Cantor Fitzgerald International

Large damages were awarded under an apparently discretionary bonus scheme and here the Court of Appeal in effect synthesised the two approaches adopted beforehand by finding an implied term that the employer would exercise the discretion genuinely and rationally. The employee claimed under a bonus clause which 'contained in a contract of employment in a high earning and competitive activity in which the payment of discretionary bonuses is part of the remuneration structure of employers.' Held: The damages award was reduced. Although the contract did not contain any particular formula or point of reference for the calculation of the bonus, the obligation was to consider the question of bonus as a rational and bona fide exercise when taking into account the criteria adopted for the purpose of arriving at a decision. To do otherwise would be to 'fly in the face of the principles of trust and confidence which have been held to underpin the employment relationship.' Potter LJ said: 'While, in any such situation, the parties are likely to have conflicting interests and the provisions of the contract effectively place the resolution of that conflict in the hands of the party exercising discretion, it is presumed to be the reasonable expectation and therefore the common intention of the parties that there should be a genuine and rational, as opposed to an empty or irrational, exercise of discretion. Thus the courts impose an implied term of the nature and to the extent described.'

Addis v Gramophone

Leading authority for the proposition that damages are confined to wages/salary and other contractual benefits during the notice period. A much criticised decision. Authority for three limbs 1. Injury to the employee's feelings, anxiety and mental distress arising as a result of the breach will not be compensated 2. Such damages are unavailable in respect of the manner of the employee's dismissal 3. Any losses the employee might suffer as a result of being unable to secure alternative employment will not be compensated. The employee has no right to be compensated for the longer term consequences of the loss of a job. It was a decision reached in 'the heyday of a judicial philosophy of market individualism in respect of what was then called the law of master and servant where in the eyes of the law the position of a servant was a subordinate one which seemed natural and inevitable.'

RMT v Serco

Lord Justice Elias was prepared to interpret the small and accidental failures defence more purposively than the courts previously. He concluded that a requirement that errors be both unintentional and unavoidable could frustrate the entire purpose of the 'small and accidental' errors defence contained in section 232B. He preferred to view the defence as accounting for human errors in the process of complying with the balloting requirements. Employers sought interim injunctions and full injunctions against the trade unions in order to thwart union-planned industrial action on the grounds that the requirements in sections 226 and 234A of TULRCA had been breached. In response, the trade unions contended that they had satisfied the pre-strike balloting and notice requirements, but interestingly, they also sought to harness Article 11 of the ECHR in aid of their case. The unions argued that the balloting provisions represented a disproportionate interference with their Article 11 ECHR right to freedom of association. Whilst holding that the question of the compatibility of the pre-strike balloting and notice requirements with Article 11 of the ECHR should not be revisited as it had been settled by the Court of Appeal in Metrobus, Lord Justice Elias did recognise that the ECtHR had 'in a number of cases confirmed that the right to strike is conferred as an element of the right to freedom of association conferred by Article 11(1) which in turn is given effect by the Human Rights Act. This is a particularly telling passage from Elias LJ's judgment as it represents the first time that the Court of Appeal has come close to an acknowledgement that there has been something which is little short of a revolution recently in the jurisprudence of the ECtHR when it comes to the rights of trade unions pursuant to Article 11. Where the employer is seeking an interlocutory/interim injunction the relevant test is that stipulated by Lord Justice Elias to the effect that only 'in a very exceptional case should an injunction be granted in the face of the likelihood of a trade dispute defence succeeding'.

Eastwood v Magnox Electric

Lord Nichols gave the leading speech and held that where a distinct cause of action arises prior to the employee's dismissal, the path is clear for common law damages to be awarded in respect of that action. The implied term of mutual trust and confidence applies to restrain the conduct of the employer during the dying stages of the employment relationship. Employee suffered a psychiatric disorder as a result of a failure on the part of the employer to investigate properly the allegations made against the employee or to conduct the disciplinary hearing on a proper basis. The illness generated financial losses and the HL held that the employee was entitled to an award of damages. The implied term had been breached which brought about a cause of action to compensate losses attributable to an event which occurred prior to and was independent of the dismissal. Employee's financial loss must be wholly separate from the dismissal itself which is a considerable hurdle for the pursuer to overcome. It is unusual for such losses to crystallise unless the employee is dismissed. The idea that the implied term of mutual trust and confidence could be applied to place constraints on the unrestricted reasonable notice rule was rejected.

Anderson v Pringle

Lord Prosser granted a decree for interim interdict restraining a dismissal in breach of the last in first our redundancy selection procedure.

Dunnachie v Kingston upon Hull CC

Made it clear that an employee cannot recover compensation for the loss arising from the manner of their dismissal, including humiliation, injury to feelings and distress. Approved Norton Tool which stressed that the construction of the word loss in section 123 ERA is restricted to financial loss and so non-economic losses are excluded.

Metrobus v UNITE

Maurice Kay "In this country, the right to strike has never been much more than a slogan or a legal metaphor. What has happened is that ......... legislation has provided limited immunities from a liability in tort". Votes must be fairly and accurately counted and the detailed results must be made known both to those voting and to their employers as soon as reasonably practicable after the holding of the ballot. This is even so when the union decides not to proceed with industrial action. Held that the technical rules on strike ballots did not contravene Art 11, being within the margin of appreciation left to states in complying with the convention. Employers sought interim injunctions and full injunctions against the trade unions in order to thwart union-planned industrial action on the grounds that the requirements in sections 226 and 234A of TULRCA had been breached. In response, the trade unions contended that they had satisfied the pre-strike balloting and notice requirements, but interestingly, they also sought to harness Article 11 of the ECHR in aid of their case. The unions argued that the balloting provisions represented a disproportionate interference with their Article 11 ECHR right to freedom of association. Court of Appeal rejected the trade union's argument that the intricate pre-strike balloting and notice requirements represented a disproportionate interference with their Article 11 ECHR right to freedom of association. Holding that Article 11 had no application to the case on the grounds that the legislation had been carefully adapted over the years in order to strike a balance between the interests of employers, unions and members of the public, the Court of Appeal took the step of doubting whether the decision of the ECtHR in Enerji Yapi-Yol Sen was good authority for the legal proposition that the Article 11 right to freedom of association incorporated the right to strike. The Court of Appeal pointed to the fact that Enerji Yapi-Yol Sen contained a 'less fully articulated judgment' than that of the Grand Chamber in Demir and Baykara v Turkey.

Dacas v Brook Street Bureau

Motivated by policy considerations, the Court of Appeal lamented the absurdity of the no-man's land in which agency workers found themselves. Sedley J (and Mummery) took the view that it was 'simply not credible' that D was employed by nobody: 'Once arrangements like these had been in place for a year or more, I would have thought that the same inexorable inference (that there was a contract of employment would have arisen.' The CA held that it was necessary in such circumstances to imply a contract of employment. CA advocated obiter a similar approach to Motorola. Court suggested that the actual practice of the parties may allow one to infer that they have implicitly undertaken sufficient reciprocity of obligation. Other policy considerations included the idea of vicarious liability.

Amicus v Dynamex

Mr Smith was the sole director of Friction Dynamics Limited (Friction). Following an application by Mr Smith, joint administrators were appointed. They immediately dismissed the entire workforce as there was no money to pay them. Subsequently, Friction's production line and customers were taken over by Dynamex which also took on 60 of Friction's former employees. Dynamex was set up by an ex-Friction employee with support from Mr Smith who later acquired a controlling shareholding. Friction's parts and machinery were sold to Ferotec Realty Limited (Ferotec). Ferotec was controlled by Mr Smith and already owned Friction's premises. Claims were brought by employees fired by Friction's administrators, for unfair dismissal and failure to conduct collective redundancy consultation. The key issue was the reason for the dismissals. Had Mr Smith involved administrators in Friction just to free himself of employment liabilities, having arranged for the business to continue under another name? If so, the dismissals (which automatically followed the appointment of the administrators) were transfer-related and the timing and order of events were stage-managed to by-pass the operation of the TUPE. Alternatively, were the dismissals unconnected with the transfer, and made simply because the administrator had no money to pay wages? If so, neither the employees nor any connected liabilities transferred to Dynamex or Ferotec. The ET decided that there was no collusion between the administrator and Mr Smith and the employees had been dismissed for an economic reason. Liability for the employees' claims therefore fell to the DTI (now the Department for Business, Enterprise and Regulatory Reform) as Friction was insolvent liability did not pass under TUPE to the new employer. The EAT disagreed, but the Court of Appeal has now restored the ET's decision. It held that when an ET is determining the reason for a dismissal, what counts is the thought process of the decision maker. Here, the decision maker was the administrator, who had dismissed the employees because there was no money. The reason for the dismissals was therefore not the prospective TUPE transfer, but a straightforward lack of cash. The Court of Appeal saw nothing to suggest that the dismissals were designed to make the business more saleable, nor that they were engineered specifically to avoid employee liabilities. The administrator had not acted at the behest of or in collusion with Mr Smith or Dynamex.

Power v Regent

Mummery LJ referred to the departmental guidance on TUPE issued by the Department for Business Enterprise and Regulatory Reform in March 2007, which stipulated that 'changes to terms and conditions agreed by the parties that are entirely positive are not prevented'. This approach was consistent with the terms of the ARD i.e. that an employee's rights on a transfer are not being safeguarded if they are prevented from taking the benefit of a term that was agreed with the transferee on or after the transfer. An employee's pre-transfer employment contract stipulated that his contractual retiring age was 60. Subsequent to the transfer, the retiring age was increased to the age of 65 and the question was whether the employee had no option but to rely on the pre-transfer contractual retiring age. Court held that the employee had no power to waive his right to the pre-transfer retiring age of 60, but that he had also obtained an additional right to continue working if he wished up to the age of 65. TUPE did not prevent the employee from choosing from both retiring ages and therefore, the employee had the best of both worlds. Mummery LJ opined that there was nothing in regulation 4 TUPE which would preclude the same construction he had reached in respect of regulation 5 TUPE 1981 when he stated 'the provisions in TUPE are not materially different on the particular point raised.'

Zoi Chatzi

Observance of the principle of equal treatment, which is one of the general principles of EU law and whose fundamental nature is affirmed in Article 20 of the charter is all the more important in implementing the right to parental leave because this social right is itself recognised as fundamental by article 33(2) of the charter. ECJ ruled that the national legislature was required in light of the principle of equal treatment to establish a parental leave regime which would ensure that the particular needs of parents of twins are duly taken into account. Where twins are born, a parent will not be entitled to two periods of parental leave. However, MS must establish a parental leave regime which ensures that the parents of twins receive treatment taking due account of their particular needs.

Rodway v South Central Trains

Parental leave may not be taken in periods other than a week or multiples of such. The claimant had been entitled to parental leave. He had complained that he had not been allowed to take a day's leave to look after his child. The employer said that the regulations only allowed a minimum of one week's leave to be taken at a time. Held: The Regulations provided for default provisions to apply in default of a workplace agreement. Those regulations said that only a week's leave was permissible unless the employee was entitled to disability living allowance. The reading which required no less that a week's leave to be taken made practical sense. The appeal failed. The fact that the leave can only be taken in one week blacks underscores the relative inflexibility of the entitlement.

Thomson v Alloa Motor

Petrol pump attendant was dismissed for misconduct by her employer after she drove a car into a petrol pump. Lord McDonald said that the conduct of the employee which the employer treats as sufficient justification for dismissal must have some connection to the rights and duties of the parties in terms of the employment relationship.

BA v UNITE

Recognising that he was bound by the decision of the Court of Appeal in Metrobus, Mr. Justice Cox nonetheless stated that '[s]ooner or later, the extent to which the current statutory regime is in compliance with [the UK's] international obligations... and with relevant international jurisprudence will fall to be carefully reconsidered.

Metropolitan Resources v Churchill Dulwich

Regulation 3(1)(b) of TUPE was described in the EAT as a 'wholly new statutory concept'. Leading authority on how tribunals and courts should evaluate the nature of activities conducted by the putative transferor and transferee in order to establish the existence or non-existence of a service provision change. Judge Burke • The employment tribunal should ask itself simply whether, on the facts, one of the three situations set out in regulation 3(1)(b) existed and whether the conditions set out in regulation 3(3) are satisfied. • Statutory words require the employment tribunal to concentrate upon the relevant activities. • Cannot have been the intention of the introduction of the new concept of service provision change that that concept should not apply because of some minor difference or differences between the nature of the tasks carried on after what is said to have been a service provision change as compared with before it or in the way in which they are performed as compared with the nature or more of performance of those tasks in the hands of the alleged transferor. • Tribunal needs to ask itself whether the activities carried on by the alleged transferee are fundamentally or essentially the same as those carried out by the alleged transferor. • No call for a formal list of factors which the tribunal must consider before it can make a decision as to whether there was or was not a relevant transfer. Underscores the central point that tribunals and courts must focus on whether the activities performed after the putative transfer are fundamentally or essentially the same as those carried out pre-transfer. A minor difference or differences between the nature of the tasks carried on will be overlord. This is the fundamentally or essentially different test codified in reg 3(2A).

Spaceright Europe

Regulation 7 of TUPE - whether dismissal for a reason connected with the transfer that is not an ETO reason entailing changes in the workforce. Tribunal's finding as to administrator's reason for dismissing Claimant not perverse or insufficiently reasoned. Tribunal's approach to 'ETO reason entailing changes in workforce' flawed; but Tribunal's decision plainly right, given its findings as to the reason. Requirement that the reduction in the numbers is designed to continue the business, rather than to make it more attractive to an identified buyer in the context of an insolvency sale. This impedes the ability of administrators to dismiss for ETO reason, meaning that the liability for such a dismissal will transfer to the transferee.

Norton Tool v Tewson

Restricts the compensatory award to pecuniary/financial losses sustained buy unfair dismissal and precludes compensation to injury to feelings and distress. Key authority for heads of loss recoverable under the compensatory award. The rules for calculation of the compensatory award represent a departure from the common law with the potential to offer more extensive compensation. Courts adopted the tort measure of compensation, so that, unlike the common law remedy, losses arising from the probable period of unemployment following an unfair dismissal were treated as recoverable. Sir John Donaldson • The measure for compensation for the statutory wrong of unfair dismissal is itself a creature of statute and is to be found in the ERA and nowhere else. • The amount has to be discretionary with the discretion being exercised judicially and on the basis of principle. • Court has to assess compensation in an amount which is just and equitable. • First the object is to compensate and compensate fully. • Secondly the amount to be awarded is that which is just and equitable in all the circumstances, having regard to the loss sustained by the complainant. • Four areas of compensation: immediate loss of wages, manner of dismissal, future loss of wages and loss of protection in respect of unfair dismissal or dismissal by reason of redundancy. • Unjust for the compensatory award to confer a windfall on the employee.

Edwards v Chesterfield Royal Hospital

Statutory unfair dismissal regime precluded the court from recognising a common law employment right to damages in respect of the manner of an employee's dismissal. Where there is a defect in the employer's adherence to an expressly incorporated disciplinary procedure, unless expressly agreed to the contrary, the employee will not be permitted to avail themselves of a damages remedy where the claim related to the manner of the employee's dismissal. Baroness Hale - Parliament intended to create a new statutory remedy for unfair dismissal which would supplement whatever rights the employee already had under his contract of employment. Parliament did that because most employees had very few rights under their contracts of employment. Lord Justice Dyson gave the leading judgment and held that damages at large were excluded. The principle obstacle to the availability of damages was said to be the decision in Johnson. It was held that the damages claim was connected to the manner of the dismissal, since the issue involved speculation as to the impact that proper compliance with the contractual disciplinary procedure might have had on the employer's decision to dismiss. Since parliament had prescribed the statutory unfair dismissal regime as the exclusive mechanism for affording relief to dismissed employees, a common law action for damages for the chance that the employee might not have been dismissed was excluded. E is particularly odd in that the employee would be unable to secure damages for breach of contract but would not be excluded from seeking an injunction: the fact that an injunction may be an adequate remedy, whereas damages will not, ultimately turns contractual orthodoxy on the law of remedies on its head.

Credit Suisse v Lister

Subsequent to a TUPE transfer, the transferring employees had agreed with the transferee to the alteration of the terms of their contract to include restrictive covenants which came into play subsequent to the termination of the contracts of employment of the transferring employees. Notwithstanding the fact that the transferring employees had agreed to the restrictive covenants in return for cash payments and free shares, they were held to amount to an unlawful variation for the reason of the transfer and invalid. Employees could escape the operation of the post-termination restraints.

Delahaye

The Administrative Court of Luxembourg referred to the ECJ for a preliminary ruling the question whether, in the event of a transfer of an undertaking from a legal person governed by private law to the state, the Business Transfers Directive 77/187 precluded the state as new employer from reducing the amount of the remuneration of the employees concerned for the purpose of complying with the national rules for public employees. Held, giving a preliminary ruling, that the Directive had to be interpreted so that, in the event of a transfer of an undertaking from a legal person governed by private law to the state, the state as the new employer was not precluded in principle from reducing the transferred employees' remuneration so as to comply with national rules for public employees. However, the national rules ought to be interpreted and applied in the light of the purpose of the Directive, taking into account in particular an employee's length of service in so far as national rules took a state employee's length of service into consideration for the calculation of remuneration. If such a calculation led to a substantial reduction in the employee's remuneration, such a reduction constituted a substantial change in working conditions to the detriment of the employees affected by the transfer, such that the termination of their contracts of employment for that reason had to be regarded as resulting from the action of the employer in accordance with Art.4(2).

Post Office v Foley

The Court of Appeal restored the primacy of the range of reasonable responses test. The court asserted that the RORR standard was not a formulation which the judiciary arrived at by modifying s98(4). The judiciary were simply interpreting that section.

Hextall v Chief Constable of Leicestershire

The EAT confirmed it is possible that not enhancing shared parental pay to the same rate as maternity pay could be indirect discrimination on the grounds of sex. The question was whether it was indirect sex discrimination not to pay full salary to a father taking shared parental leave, in circumstances where a mother taking maternity leave during the same period would have received full pay? The employer paid 18 weeks enhanced maternity pay to mothers on maternity leave but only paid statutory pay to parents taking shared parental leave. The employee took 14 weeks shared parental leave in the period that, if he had been a woman on maternity leave, would have entitled him to full pay. The employee brought a claim that this non-payment of full pay amounted to both direct and indirect sex discrimination. For the indirect discrimination claim, the employer's practice was to only pay statutory pay to parents taking SPL. The Tribunal held that this practice did not put men at a disadvantage because the same amount was paid to men and women on SPL. The Tribunal felt that the employee's true case was that men were not disadvantaged by the practice but disadvantaged by the fact they cannot get pregnant (and that was not capable of being indirect sex discrimination). The Tribunal dismissed both claims. The employee appealed the finding of indirect sex discrimination to the EAT. The EAT held that the Tribunal had not properly considered the test for indirect discrimination. The EAT accepted the employee's case that the relevant practice was the practice of paying only the statutory rate of pay for those taking shared parental leave. The EAT further held that: • the Tribunal was wrong to conclude that because the practice applied to men and women equally, there could be no indirect discrimination; • the Tribunal had not properly identified the disadvantage relied on. The EAT summarised the disadvantage as because a man is "proportionately less likely to be able to benefit from an equivalent rate of pay when taking leave to act as the primary carer for his child to that received by a woman on maternity leave". That is because men have to take SPL whilst women who have given birth can choose to take maternity leave or SPL; and • the Tribunal should not have excluded women on maternity leave from the pool for considering whether fathers were disadvantaged by the practice. Rather, the pool should include all employees with a present or future interest in taking leave to care for their new-born child. The question of who should be in the pool for comparison, is likely to be the most difficult issue before the Tribunal. The EAT acknowledged this challenge and suggested that the appropriate place to deal with the difference in circumstances between women taking maternity leave and men taking SPL was when the Tribunal considers whether an employer can justify indirect discrimination.

Roca Alvarez v Sesa Start Espana

The ECJ declared that the Equal Treatment Directive precludes a national measure which provides that female employees are entitled to take leave during the first 9 months following the child's birth, while fathers are not entitled to the same leave unless the child's mother is also employed. The Spanish law had detached the period of leave from the biological fact of breastfeeding, since the leave could be taken by the mother or the father, and was accorded to workers in their capacity as parents rather than to protect the biological condition of women following pregnancy, the ECJ took the view that the imposition of an additional requirement on fathers in order to qualify for the 9 month period of leave would not be permissible under the directive.

Scottish Police v Mcbride

The ET ordered reinstatement of the employee to a fingerprint officer but changed her responsibilities to the effect that she was prohibited from attending court as an expert witness. As she was deprived of a section of her job, she claimed this was no reinstatement. Lord Hodge held that this did not constitute an alteration of the terms of the employee's employment contract, but was simply a practical restriction on the scope of the employee's work that was attributable to the circumstances beyond the control of the parties. In fact for many years the employee has worked without ever having been asked to give evidence as an expert witness in court. Therefore the reinstatement order was sound.

British Airways v UNITE

The Union appealed against an interim injunction disallowing it from relying on a strike ballot. The Judge had said that it had failed to comply with section 231 in that in announcing the results of the ballot, the union had not taken active steps to contact its members to notify them of the detailed results, particularly the numbers of ballot papers spoiled. Held: The appeal succeeded (Lord Neuberger MR dissenting). The section was poorly drafted, and in particular the phrase 'reasonably necessary' was unclear. It was not appropriate to adopt an over-literal interpretation of a poorly drafted section which might defeat the policy behind the relevant Act. The section was intended to not require the Union to inform each member of the full results, but to allow some leeway. In this case, the union members were highly computer-literate, and the Union had made the full results available on its web-site. There was a high probability that if taken to trial, the Union would succeed in persuading a court that, even though more might have been done, it had brought itself within the protection of the section. The judge had underestimated the union's prospects of success. Lord Neuberger MR dissented, saying that the section required strict compliance to give the union the freedom from liability it sought. McCombe J had correctly applied a strict standard.

Vigano v Red Elite

The applicants were the proprietors and landlords of commercial premises. The applicants leased commercial premises to a company, R. R was a commercial undertaking whose main business was the sale of electrical household goods. In 2005, R lodged an application for a voluntary insolvency. In June 2006, liquidation of R was opened. At the same time, when the liquidation stage was opened, the decision was made, by order of 12 June 2006, to make a transfer of undertakings to E. That had the effect of transferring one of the stores that the applicants owned to E. Following that order, the applicants brought before an action for eviction against R, its insolvency administrators and E, on the ground that the assignment of the lease had been without consent. They submitted that, under the lease, they had to give their consent to assignment of the lease and there was no statutory provision which obliged them to accept assignment to E. The national court staying the proceedings in order to refer questions for preliminary ruling to the ECJ. The questions referred were essentially whether art 3(1) of Council Directive (EC) 2001/83 (on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses) required, in the event of transfer of an undertaking, the preservation of a lease of commercial premises entered into by the transferor of the undertaking with a third party where the termination of that lease was likely to entail the termination of contracts of employment transferred to the transferee. Held - Article 3(1) of the Directive did not require, in the event of transfer of an undertaking, the preservation of the lease of commercial premises entered into by the transferor of the undertaking with a third party even though the termination of that lease was likely to entail the termination of contracts of employment transferred to the transferee.

Metroline Travel v Unite

The claimants operate bus companies in London and were faced with possible strike action concerning bonus payments for employees for working over the period of the Olympic and Paralympic Games. The respondent Union held a ballot, the vote was in favour and strike action planned for 22 June. On 21 June the hearing for these applications was held and the interim relief was granted after the claimant submitted that the Union had not complied with the duties under Part V of TULR(C)A. In this judgment Supperstone outlines the reasons for granting the requested relief. He reviews the relevant law and the evidence presented before him. He decides that the critical phrase in the ballot notices was that the Union would ballot those "working on TfL contracts either on a full time or part time basis". In his view it was not clear that the phrase covered employees who "might be expected" to work on such contracts, or those who were "associated with" TfL work or those working on TfL contracts whether "directly" or "indirectly". Accordingly the claimants could not readily deduce 1. the total number of employees concerned, 2. the categories of employee to which the employees concerned belong and the number of the employees concerned in each of those categories, and 3. the workplaces at which the employees concerned work and the number of them who work at each of those workplaces.

Enterprise Management Services v Connect Up

The claimants were employed by E on a contract to be the preferred provider of IT support for schools run by Leeds City Council. E decided not to tender again for the contract when it expired. C won the new contract. The new contract did not cover service cover for curriculum systems, which formed about 15% of the work previously undertaken by E. There was a dispute as to whether or not E employees transferred to C under the TUPE Regulations. At the date of the new contract, C had signed up 41% of the schools that had previously contracted with E; over time, C signed up 62.5% of the schools formerly signed up to E, with the remaining schools distributed among five other providers. The TUPE Regulations provide that there is a TUPE transfer where "before the service provision change - there is an organised grouping of employees ... which has as its principal purpose the carrying out of the activities concerned on behalf of the client" and "the client intends that the activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or task". The employment judge held that E had an organised grouping of employees that had the principal purpose of carrying out activities on behalf of the client. However, the judge found that the activities carried out by C were significantly different from those carried out for the council by E, meaning that there was no transfer of an undertaking. In particular, C did not carry out curriculum work, which amounted to 15% of the work done by the organised grouping of E employees. The EAT dismissed an appeal against the finding that there was no transfer of an undertaking, agreeing with the employment tribunal on the basis that there were significant differences between the activities carried out by E and C. The activities carried out by C were not essentially or fundamentally the same as those carried out by E. Moreover, the provision of services formerly provided by E fragmented after its contract came to an end, and the employment judge was entitled to conclude that the provision of services formerly provided by E was so spread out among other providers as well as C that no service provision change had taken place on that basis.

Tees Esk and Wear Valley NHS v Harland

The claimants were employed by the Second Respondent as part of an organised grouping of employees put together to look after CE, an individual in the care of the Second Respondent. Over time, CE's condition improved and the Claimants were required to undertake work for other service users, also under the Second Respondent's care, in the same location. The contract to provide care for CE was taken over by the First Respondent and the Second Respondent contended this was a relevant transfer (a service provision change) for TUPE purposes and that the employees assigned to the team organised to provide care for CE would therefore transfer into the First Respondent's employment. The First Respondent disagreed - as did the employees concerned (who preferred to remain in NHS employment i.e. the Second Respondent) - but reluctantly agreed to employ those who the Second Respondent was refusing to treat as still in its employment. A number of the employees thus affected brought claims in the ET. The ET found that there was a change in the provision of the service - care for CE - from the Second to the First Respondent. Furthermore, there was an organised grouping of employees, put together to provide that service. However, given that the employees concerned undertook other work, the ET considered the principal purpose of the grouping had been diluted such that, by the time of the transfer, it was no longer the provision of care to CE. There was, therefore, no service provision change for the purpose of regulation 3(3) TUPE. There being no transfer for TUPE purposes, the ET further declared that the Claimants were at all times employed by the Second Respondent and not at any time by the First Respondent. The Second Respondent appealed. The EAT dismissed the appeal. The ET had properly focused on the period immediately prior to the service provision change. By that stage, allowing that the principal purpose need not be the sole purpose, the ET found that the dominant purpose of the organised grouping was the provision of care to other service users; by then, care for CE was merely a subsidiary purpose of the group. Given its primary findings of fact, that was a permissible conclusion for the ET in this case.

Pannu

The claimants worked for GWK which provided commercial vehicle parts, under contract, for IBC. After GWK went into receivership, IBC entered into a contract with Premier for the assembly of parts formerly manufactured by GWK. The ET ruled that the claimants' employment did not transfer to either Premier or IBC because a relevant transfer would only take place where the activities concerned do not consist wholly or mainly of the supply of goods for, here, IBC's use (regulation 3(3)(b)). In the present case, when GWK fell into financial difficulties, IBC sourced the parts from a Spanish supplier and funded the supply of parts to GWK who continued to assemble them until they ceased operation. The ET, although it accepted that the assembly line was providing a service in that it had to ensure the goods were safe to use, GWK's overall process was more than one of assembly. Although there was activity involved in assembling the goods, regulation 3(3)(b) of TUPE applied because the activities consisted wholly or mainly of the supply of goods rather than services. The claimants appealed. The EAT rejected the appeal. GWK's activity was the supply of finished goods to IBC. The ET had made a permissible finding that the GWK activities wholly or mainly consisted of the supply of goods rather than services to IBC. Further, the fact that IBC sourced and paid for the parts when GWK was in financial difficulty did not alter the position. The activities concerned do not consist wholly or mainly of the supply of goods for the client's use.

Inex Home Improvements v Hodgkins

The claimants worked on contracts which had been subcontracted to the respondent by another organisation. They were temporarily laid off while the next contract was being sorted out but unfortunately this contract was given to another subcontractor. The ET concluded that the employment of the claimants did not transfer, because immediately before the date of the service provision change they were no longer "an organised grouping" of employees. His reasoning was that they could not be part of such a grouping because they were not working, having been temporarily laid off. If no work was being carried out, there could be no organised grouping as the activity had ceased. The claimants appealed. The EAT allowed the appeal concluding that a temporary absence from work, or cessation from work, did not in itself deprive employees who had been involved in the relevant "activities" of their status as an organised grouping of employees. Whether or not this was the case was a straightforward question of fact to be determined by an ET. An organised grouping may well continue in being despite a temporary cessation of the activity.

Motorola v Davidson and Melville Craig

The client was held to be the employer of the agency worker. MC the employment agency supplied individuals (and paid them) to its customers (who paid the agency). The worker has been engaged on the clients behalf for an extensive period. ET held that the workers were the employees of the client. Unsuccessful EAT appeal, where M attacked the lack of control. The question on appeal was whether M had the right to control the worker to a degree sufficient to enable M to be regarded at the employer; it was not argued that the other provisions of the contract were inconsistent with the relationship being one of employment. EAT found various manifestations of control. The agency worker was treated on all fours with permanent staff members in terms of induction, uniform and equipment. Absences, leave and grievances were dealt with by M, and M was in charge of suspensions and disciplinary hearings. The approach in this case is helpful for agency workers but might be thought to lack authority by reason of both the narrow basis of appeal and the reliance on de facto rather than de jure control. The case along with Dacas represents the possibility that an agency worker may be an employee of a body rather than an employee of no one. This goes against conventional wisdom of the industry.

Skidmore v Dartford and Gravesham NHS Trust

The disciplinary code for doctors employed by the NHS provides different procedures cases involving allegations of 'professional conduct' or 'personal conduct.' The first would involve a more judicial process, and the second a more informal disciplinary process. The allegations were of having misled others both patients and authorities, and had been treated as personal conduct. The CA had decided that it was properly classified as professional misconduct. Held: No public law considerations applied. The Trust made the decision, but must do so within the contract. Here, the decision was clearly flawed since the acts complained of were part of the claimant's professional conduct. Acts committed as part of a professional practice were to distinguished from acts for which the professional practice provided opportunity. Lord Steyn said: 'It is common ground that the questions before the House must be resolved within the framework of the contract between Mr Skidmore and the trust. That is so despite the fact that a public body is involved. Prima facie therefore the position is as follows. The trust is entitled to decide what disciplinary route should be followed. That decision must, however, comply with the terms of the contract. If a non-conforming decision is taken and acted upon, there is a breach of contract resulting in the usual remedies. The only escape from this position would be if it could be shown that the parties agreed upon wording in their contract making it clear that the employer's decision would be final thereby excluding the role of the court except, of course, in cases of bad faith or possibly the absence of reasonable grounds for the decision. There is no such provision in the present contract. It does, of course, provide that 'It is for the authority to decide under which category a case falls'. This provision merely states the obvious: the trust must take the initial decision to commence the appropriate disciplinary procedure. It is, however, quite insufficient to exclude the normal consequences of a failure to follow the agreed contractual procedures. If there has been a breach by the trust in adopting the wrong procedure, Mr S is entitled to appropriate relief.'

Dietman v Brent London BC

The doctrine of elective theory of termination was endorsed. A child, Jasmine Beckford, had died and the claimant social workers were criticised in a report. The claimants were summarily dismissed and claimed unfair dismissal. Held: Where a disciplinary procedure is set out in a contract, a failure to implement that procedure may in itself be a breach of the contract. The contract may itself limit the matters which can be subject to disciplinary proceedings.

Beckmann v Dynamco Whichloe Macfarlane

The exclusion of pensions under reg 10 is a derogation and so according to the ECJ is to be construed narrowly. Regulation 10(2) provides that the exception does not apply to 'provisions of an occupational pension scheme which do not relate to benefits for old age, invalidity or survivors'. In this case, early retirement benefits and benefits intended to enhance the conditions of such retirement were payable on the dismissal of employees who had reached a certain age, rather than on the occurrence of old age. ECJ held that these early retirement benefits were dependent on the occurrence of dismissal and so were not included within the occupational pension scheme liabilities exception. The liability had transferred to the transferee.

Johnson v Unisys

The question raised was whether the implied term of mutual trust and confidence could circumscribe the operation of the employer's untrammelled prerogative of dismissal, thus enabling an employee to claim compensation for the manner of their dismissal. Employee suffered a psychological breakdown as a result of the manner of his dismissal. His claim for unfair dismissal under Part X of the ERA was successful in the employment tribunal. He subsequently commenced court proceedings against the employer for damages for wrongful dismissal. The employee sought to press the burgeoning implied term of mutual trust and confidence into service as a means of constraining the employer's power to dismiss employee's on reasonable notice. Had the HL held that the implied term had no application to dismissal then there would be no breach of contract and he would be denied damages for the psychological harm suffered. The principal reason Lord Hoffman gave for rejecting the argument that the employer's power of dismissal was constrained by the implied term of mutual trust and confidence was that it would be unconstitutional. Parliament had crafted a scheme for the regulation of dismissals and so it was undesirable and unwarranted for the common law to evolve in order to confer damages at large for the manner of a dismissal, otherwise there was the danger that the common law would outflank the statutory regime. The intention of the UK parliament was for the unfair dismissal regime to check the expansion of the common law of wrongful dismissal. Case led to the ....... exclusion zone. Does the event exist independently of dismissal thus giving rise to common law damages.

Albron Catering

There was no contract of employment between the transferring employee and the transferor. A reference was made to the ECJ, which was asked to determine whether or not it is possible to regard group company A (the group company to which the employees were permanently assigned) as a "transferor" under the Acquired Rights Directive, given that the employees actually had employment contracts with group company B. The ECJ considered that the Acquired Rights Directive's requirement that there be either an employment contract or an employment relationship at the transfer date suggests that a contractual link with the transferor is not always required for employees to benefit from the Directive's protection. Heineken Nederland BV could be regarded as Mr Roest's "non-contractual employer" and Heineken Nederlands Beheer as his "contractual employer". In such a situation, according to the ECJ, the Acquired Rights Directive does not prevent the non-contractual employer from being capable of being regarded as a "transferor". Here, there had been a transfer under the Directive when the catering activities of Heineken Nederland BV were outsourced to A.

Wilson v St Helen's BC

This and Daddy's Dance Hall held that a variation of a transferring employee's terms and conditions of employment, which is attributable to the transfer and which is not an ETO reason, is of no legal effect, even though the employee is no worse off overall when the terms of the contract are looked at as a package. Concerning the question of whether a transferring employee is entitled to have a court declare that their dismissal is null and void and if so it the employee entitled to continue in employment with the transferee on the basis of their pre-transfer terms and conditions? Lord Slynn • Regulation 7 points to the dismissal being effective and not a nullity. If there is no dismissal there cannot be compensation for unfair dismissal. It is because the dismissal is effective that provision is made for it to be treated as unfair for the purposes of awarding compensation under employment legislation • Under the regulations dismissals are not rendered nullities; nor is there an automatic obligation on the part of the transferee to continue to employ - to find work for - the employees who have been dismissed. • Neither the regulations nor the ARD nor the jurisprudence of the court create a community law right to continue in employment which does not exist under national law. Fundamental point - dismissals for the reason of TUPE transfer are valid and effective in law. The dismissed employee has no right to be reinstated or reengaged by the transferee.

Daddy's Dance Hall

This and Wilsons held that a variation of a transferring employee's terms and conditions of employment, which is attributable to the transfer and which is not an ETO reason, is of no legal effect, even though the employee is no worse off overall when the terms of the contract are looked at as a package. There is an argument that the decision in this case was merely an authority for the proposition that a transferring employee should not be entitled to waive his/her rights under the pre transfer terms and conditions of employment and that subsequent cases have unjustifiably extended that proposition to post transfer consensual variations of terms and conditions of employment.

London Underground v ASLEF

This case concerned proposed industrial action relating to a dispute over payments to tube drivers for working on Boxing Day. The union notified LU that it would ballot approximately 1,950 members at listed depots. On 14 December 2011, the union notified the employer of the ballot result: 998 people voted, with 920 voted in favour of strike action. The union called for strike action on Boxing Day 2011. LU sought an interim injunction to prevent the strike, on the basis that the number of people voting in the ballot was approximately double the number who could potentially take part in the action, as only about 480 ASLEF members were scheduled to work on Boxing Day. There was no issue as to whether or not the action was in contemplation of furtherance of a trade dispute. The key issue was whether or not it was likely that the union had lost immunity by failing to comply with the strict ballot and notice requirements for lawful industrial action. The provisions of TULRCA concerning the ballot require that the union must include all those members who, at the time of the ballot, it is expected will be induced to take part in the action, and exclude everyone else. LU submitted that the ballot was invalid as it included members who were not due to attend work on Boxing Day. LU also argued that the union was calling for action on Boxing Day and three additional days, but that the ballot notice had referred only to Boxing Day. The High Court found that the likely conclusion at trial, on the basis of witness evidence from A, was that the industrial action being considered was not limited to Boxing Day. The High Court also said that, although a strike requires a democratic mandate, it does not necessarily follow that the persons balloted must be limited to those who will actually be on strike, ie withdrawing labour on a particular day. The provision in TULRCA states that the ballot must be restricted to those likely to be induced to "take part" in industrial action. This was, in the opinion of the High Court, a strong indication that it was not limited to those who actually take strike action. The High Court considered that there were reasonable grounds to believe that workers not rostered to work on Boxing Day would be induced to take part in the industrial action. The High Court refused to grant the injunction and the action went ahead on Boxing Day. This decision takes a wide view of the category of workers that the union is entitled to ballot in respect of industrial action.

Capita Customer Management v Ali

This case is authority for the proposition that where the employer provides a contractually enhanced maternity pay scheme to its employees who are mothers, but has a policy of denying an equivalent benefit to its employees who are fathers this will not amount to direct sex discrimination. A was an employee of Telefonica until Telefonica transferred their employees and policies to C, and he became an employee of C. Female employees who had transferred from Telefonica were entitled to enhanced maternity pay. The maternity policy stated that female employees who had been employed for at least 26 weeks were entitled to 14 weeks' enhanced maternity pay on full salary, followed by 25 weeks' statutory maternity pay. In contrast, male employees taking paternity leave were entitled to take 2 weeks' ordinary paternity leave on full pay, followed by up to 26 weeks' additional paternity leave during which they "may or may not be paid". A's wife gave birth and A took the first 2 weeks' ordinary paternity leave. His wife was then diagnosed with post-natal depression, the suggested treatment of which was to return to work. To look after his daughter, A planned to take further leave and so approached C to ask about his rights. They told him he was eligible for shared parental leave, but that they would only pay statutory shared parental pay. A asserted that, beyond the first 2 weeks after birth, he should receive the same entitlement as the female employees. C rejected this grievance. In the Tribunal he argued that the policy assumed that a man caring for his baby is not entitled to the same pay as a woman caring for her baby. The ET upheld his claim of direct sex discrimination, stating that beyond the first 2 weeks (when maternity pay is primarily used to help mothers recover from childbirth), pay is largely designed to facilitate the care for the baby. Given men are encouraged to care for their babies, parents should be able to decide who will take on the role of primary carer and both parties should be offered full pay. C appealed the case to the EAT. The EAT agreed with C, upholding the appeal, deciding that there was no direct sex discrimination. They disagreed with the ET's findings - the purpose of maternity pay is for the health and wellbeing of the mother, whereas the purpose of shared parental pay is to care for the child. Given the purpose of his leave was to care for the baby, A could not therefore compare himself to a woman on maternity leave. The correct comparison would be to a woman on shared parental pay, who would be paid on the same terms as A.

Wade v North Yorkshire Police Authority

W's first child had been expected in the week beginning December 18, 2005. On August 1, 2005, W notified the authority that she wanted her police maternity leave to begin on September 18 (the 13th week before the expected week of confinement) and her statutory maternity pay to run from December 18. In the event, her police maternity leave began on September 25 and her first child was born on December 1. W's second child had been expected in the week beginning June 24, 2007. On January 18, 2007, she notified the authority that she wanted her police maternity leave to begin on February 28 (the 18th week before the expected week of confinement) and her statutory maternity pay to run from May 28 (the fourth week before the expected week of confinement). She took police maternity leave from February 28 and her second child was born on June 21. W asserted before the tribunal that SMP should commence in the fourth week before each expected week of confinement, while the authority's case was that it was payable from the 11th week before each expected week of confinement. The tribunal found in favour of in respect of the first pregnancy and in favour of the authority in relation to the second. Held: Appeals of W allowed, appeal of the police authority dismissed. The appeals turned on the meaning of the words "in conformity with that notice ceases to work for him" in the Statutory Maternity Pay (General) Regulations 1986 reg.2(1). The preferable construction was that for which W had argued. In other words, a woman might cease to work "in conformity with [a] notice" for the purposes of reg.2(1) even if she had previously ceased to work on some other basis. That interpretation was consistent both with the terms of reg.2(1) and with the scheme of the legislation. An analogy with the regime for statutory maternity leave lent support to that interpretation. A woman eligible for statutory maternity leave could claim it from a date of her choosing, regardless of whether she had by then already been away for annual leave, time off in lieu or sick leave, or under a contractual scheme for maternity leave, provided only that the date was no earlier than the 11th week before the expected week of confinement and during the last four weeks before the expected week of confinement she was not absent from work because of pregnancy in advance of the specified date. It made sense that she should be able to claim SMP from a similar date, especially given the symmetries between the regimes for SMP and statutory maternity leave. An interpretation under which a woman could nominate a date from which she wished to claim SMP produced clarity for both employer and employee. The result was that W was entitled to statutory maternity pay from the fourth week before each expected week of confinement. It did not matter whether, in respect of the second pregnancy, it was reg.2(1) or reg.2(4) that governed. The date was the same either way.

Kavanagh v Crystal Palace

Where the administrator has no buyer in mind when they decide to reduce the workforce, but their ultimate objective is to enable the business to carry on trading, this will be sufficient to enable them to avail themselves of the ETO exception.

Martin v South Bank University

Workers had been transferred from the NHS to the university sector and were required on their emergence into education to join the educational pension scheme. Held: 'In circumstances such as those in the main proceedings, the alteration of the employment relationship is nevertheless connected to the transfer. It is clear from the file that SBU wished merely to bring the terms upon which it offered early retirement to employees of Redwood College into line with those offered until that time to its other employees and, in such circumstances, an alteration of the employment relationship must be regarded as connected to the transfer. That the situation in the main proceedings is of that type is confirmed by the fact that, immediately after the transfer, SBU offered the employees from Redwood College a contract of employment on its terms, which the applicants nevertheless refused. It should, however, be stated that the mere fact that the applicants had joined the higher education retirement scheme has no bearing on this analysis: that factor concerns their retirement rights per se, which are the subject of the derogations under Article 3(3) of the Directive, and not the terms of early retirement. Since the transfer of undertaking is indeed the reason for the unfavourable alteration of the terms of early retirement offered to the employees of that entity, any consent given by some of those employees to such an alteration is invalid in principle.'