Employment

Front 1

Ready Mix Concrete (South East) Ltd

Back 1

individual is an employee:
- he must be paid;
- he must have agreed (explicitly or impliedly) to carry out the work
personally; and
- the employer must exercise at least some control over the individual.

Hint 1

employee test

Front 2

Express and Echo Publications Ltd v Tanton

Back 2

a driver entered into an 'agreement for services' which allowed the driver to
send a third party replacement to provide the services (which he had done).
Held: not an employee - there was no requirement for personal service.

Front 3

MacFarlane v Glasgow City Council

Back 3

a gymnastic instructor could arrange a replacement from a register if unable to attend work. This did not preclude the arrangement being
one of employment. The main distinguishing features:
• the Claimant had to be unable to attend (rather than just preferring not
to); and
• his choice of substitute was limited.
Held: an employee - the right to substitute was fettered.

Front 4

Hall v Lorimer

Back 4

overall picture must be considered. Examples of the additional factors:
• Does the individual take a degree of financial risk?
• Does the individual profit from sound management of tasks?
• Is the individual paid through PAYE or does he provide an invoice for services?
• Does the individual hire his own helpers?
• Who provides the materials and the equipment?
• Is there a prohibition on working for others?
• How have the parties described their relationship?
Note that the label placed by the parties on arrangements,

Front 5

Carmichael v National Power plc

Back 5

Power station guides worked on a “casual as required” basis. They were not
obliged to work (but if they did, the company paid tax and NI on their behalf).
The company provided their uniforms and had control over what the individuals did when giving tours of the power station. They were not entitled
to the company’s sick pay and there were no notice provisions applicable to
them. It was held that these individuals were not employees as there was no
mutuality of obligation: they were not obliged to accept work when offered.

Front 6

Brook Street Bureau Ltd v Dacas

Back 6

Ms Dacas was a cleaner. She had a contract with Brook Street Bureau (an employment agency) and worked at a local council. The contract stated that
no contract of employment existed with either Brook Street or the Council.
CA said that Ms Dacas could be an employee of the
council (although the council was not a party to the appeal and no such finding
could be made). The view of the Court was that Ms Dacas had to “belong to”
somebody and could not be left without an employer.

Front 7

James v Greenwich London Borough Council

Back 7

Ms James' work arrangements were set out in two written agreements: one (describing her as self-employed) b/w
herself and an employment agency, the other b/w the agency and the council.
CA ruled that the correct approach for an ET to take is to decide - as a question of fact - whether it is necessary (to give the arrangements business efficacy), rather than simply
desirable, to imply a contractual relationship b/w agency worker and enduser (in this case, the council). In Ms James’ case it would not be necessary to imply a contract with the end user since the contractual arrangements in place between Ms James and the agency on the one hand and the agency and end user on the other hand clearly spelled out what the contractual position was – i.e. that she did not belong to either Respondent.
This is a much more cautious approach and this ruling caused a huge sigh of relief for many companies who use agency temps. The message seems to be that unless the paperwork governing the relationship is unclear as to the individual’s status, the Tribunal should not seek to find an employment relationship. This should be a purely legal, not
“moral” exercise.

Front 8

William Hill v Tucker

Back 8

Mr Tucker was a senior dealer in the fixed odds compiling department at William Hill. He wanted to leave his employment to join a competitor.
William Hill wanted to put him on ‘garden leave’ for his notice
period despite there being no express term in this regard. CA refused to grant a ‘garden leave’ injunction holding that the employer was under an obligation to let him perform his job, not just receive his wages.
By extension it is now regarded that in publicity-based or commissionbased
careers there will be a duty to provide work.
The duty may also arise in other areas where for example:
- there is work to be done;
- the employee is ready and willing to do it; and/or
- there is a need for frequent practice of skills.

Front 9

Spring v Guardian Assurance plc

Back 9

An employer is not obliged to provide a reference at all. However, if a reference is given, a duty of care will be owed in the preparation of the
reference. The obligation on the employer is to provide a true, accurate and fair reference which must not give a misleading impression. There is no obligation to go into any detail or for the reference to be comprehensive.

Front 10

Malik v BCCI

Back 10

the duty as requiring an employer to not “without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”.

Front 11

Faccenda Chicken Ltd v Fowler

Back 11

Mr Fowler was employed as a Sales Manager with Faccenda until he resigned along with several other employees. He set up in direct competition with his old employer selling frozen chickens from refrigerated vans. Faccenda
claimed that he had breached his duty of confidentiality by using sales information (notably delivery routes, customer addresses and price structures) acquired during his employment to Faccenda's detriment.
In determining whether the information could amount to a trade secret, it was necessary to examine all the circumstances of the case and, in particular:
1. the nature of the employment and nature of the employee;
2. the nature of the information;
3. whether the employer impressed upon the employee the confidentiality
of the information; and
4. whether the information could easily be isolated from other information
which the employee was free to use and disclose.
CA applied this test and held that the implied term would
have prevented the use of this information during employment, but after
employment this information did not amount to a trade secret.

Front 12

Norbrook Laboratories Ltd v Adair (Blue Pencil Test)

Back 12

part of a non-solicitation clause read as follows: “and
where during the said two years either (i) the employee had direct access to
and/or dealings with such customer or prospective customer or (ii) the
employee had access to confidential information relating to the customer or
prospective customer during the year before the termination of his/her
employment”
By using the blue pencil the court deleted the words “or prospective
customer”, “direct access to and/or” and clause (ii). It left an enforceable
covenant which now read “and where during the said two years the
employee had dealings with such customer.”

Front 13

General Billposting Co Ltd v Atkinson

Back 13

If there is no express PILON clause the employer will be in breach of
contract if he pays in lieu without the consent of the employee.
This can have potentially disastrous consequences for the employer since it
is likely that it will no longer be able to rely upon any restrictive covenants in
the contract

Front 14

SIMAP

Back 14

The ECJ held in this case that time spent by doctors on call at hospital premises (even when asleep) counted as “working time”. The ECJ held that doctors on call are on “working time” if they are required to be present and available at the workplace, but not if they are merely required to be contactable at all times but not on the employer’s premises.

Front 15

Stringer v HMRC

Back 15

This case involved two groups of workers employed by Her Majesty's
Revenue & Customs (HMRC). The first group was absent on sick leave for a period of several months. During that time, they gave notice that they wished to take annual leave. The request was refused, and they therefore issued a claim arguing that they were entitled to take paid
annual leave during their sick leave.
The second group of workers were absent on sick leave for the entire leave year, and they were then dismissed by HMRC. They brought
proceedings claiming a payment in lieu of their untaken annual leave.
The workers' claims were upheld at first instance and at the EAT. HMRC appealed to the CA which found in its favour in April 2005.
The employees appealed to the House of Lords, who decided to refer a
number of questions to the ECJ.
The ECJ gave judgment in January 2009 as follows:
• entitlement to paid holiday does accrue whilst an employee is
absent on sick leave; BUT
• workers may not take their holiday while they are on sick leave;
AND
• after termination of the contract, workers are entitled to a
compensatory payment to reflect accrued but untaken holiday
leave, even where the worker was on sick leave for the full
holiday year.
In June 2009, the House of Lords confirmed the decision of the ECJ as set out in the three bullet points above.

Front 16

Pereda v Madrid Novilidad SA

Back 16

where a worker falls ill before or during a period of pre-planned annual leave, the worker (if he so requests) must be granted a replacement holiday period to ensure that he is not deprived of his entitlement to rest, relaxation and leisure.

Front 17

Clark v Nomura International plc

Back 17

Mr Clark was a senior equities trader for Nomura. His contract provided for a basic annual salary supplemented by a bonus awarded under a discretionary scheme which was stated to be “not guaranteed in any way”.
He was dismissed and paid his basic salary in respect of his three-month notice period. However, although he was still in employment at the date for
payment of the annual bonus and had earned substantial profits for the company during the relevant period, he received no bonus.
The High Court held that an employer will breach the contract of employment
if it exercises its discretion (which on the face of the contract is unfettered or
absolute) in a way that no reasonable employer would have exercised its discretion.
On the facts of the case, the High Court concluded that the employer’s decision to award a nil bonus to an employee who had earned substantial
profits for the company was irrational and did not comply with the terms of the
employer’s discretion.
Having considered the bonus payments made to Mr Clark in the years prior to his dismissal, and the payments made to his colleagues both before and after his dismissal, the High Court concluded that had his employer complied with its contractual obligations, it would have paid Mr Clark £1.35 million.

Hint 17

bonus

Front 18

Horkulak v Cantor Fitzgerald International

Back 18

Mr Horkulak was a broker who resigned with two years left to run on a fixed term contract of employment, successfully claiming wrongful and unfair
dismissal.
The contract stated “the company may in its discretion pay you an annual bonus”. Mr Horkulak claimed an entitlement to the bonus that he would have expected to receive had he remained working for the company for the full term of the contract.
The company argued that as the bonus was discretionary, they would have been under no obligation to pay any bonus and that Mr Horkulak should only be able to recover those sums to which he was contractually entitled.
The Court of Appeal approved the decision in Clark v Nomura and developed the law by stating that Mr Horkulak was entitled to a “bona fide and rational” exercise of discretion by his employer. Mr Clark was awarded close to £1 million in damages in respect of this bonus payment.

Hint 18

bonus

Front 19

Abrahams v Performing Rights Society

Back 19

If there is a mandatory PILON clause in the employee’s contract (e.g. “upon termination of the contract the employer will pay the employee in lieu of
notice”), the claim is a debt claim and there is no duty to mitigate loss by attempting to find another job

Front 20

Murray and anor v Foyle Meats Ltd

Back 20

the House of Lords held that neither the contract between the parties nor the function performed determined the redundancy point. It stated that the only question that matters is whether or not a reduction in work had resulted in the dismissal. The key
word was the word ‘attributable’ at the beginning of s.139(1) ERA 1996.

Front 21

Foley v Post Office and Midland Bank plc v Madden

Back 21

In this case the Court of Appeal re-established that the test should be to ask
whether the decision to dismiss was within the band of reasonable
responses open to the employer. The test is therefore subjective.

Hint 21

band of reasonable responses

Front 22

British Homes Stores v Burchell

Back 22

This case established:
1. The employer must have an honest belief at the time of dismissal that there was a fair reason to dismiss (it is irrelevant if that belief is mistaken);
2. The employer must have reasonable grounds for holding that belief; and
3. The employer’s reasonable grounds must be based on a reasonable investigation.

Hint 22

belief, grounds, investigation

Front 23

Norton Toll Co Ltd v Tewson

Back 23

It is the duty of a Tribunal when making an award of compensation to state
their reasons for the award and to show how the award was made up, albeit
that the award need not be precisely and arithmetically related to the proved
loss.

Hint 23

state reasons for the award

Front 24

Polkey v A.E. Dayton Services Ltd

Back 24

The case establishes the absolute right of an employee, save in exceptional circumstances, to be consulted before being dismissed notwithstanding that consultation would make no difference to the decision to dismiss him.
By extension, the rule in Polkey means that compensation for unfair dismissal should be reduced if the dismissal was unfair on procedural grounds (i.e. because the employer adopted faulty dismissal procedures) but the Tribunal is
satisfied that the employee would have been dismissed anyway even if proper procedures had been followed.

Hint 24

reduction

Front 25

Shamoon v Chief Constable of the Royal Ulster Constabulary

Back 25

Lord Scott commented that the comparator must be ‘in the same position in all
material respects as the victim save only that he, or she, is not a member of
the protected class’.

Hint 25

comparator

Front 26

Goodwin v UK

Back 26

transsexuals should be legally recognised as having changed sex for all purposes

Front 27

Moonsar v Fireways Express Transport Ltd

Back 27

The EAT came to the decision that the behaviour in this case, namely that on three occasions male colleagues in the same room as the female claimant were downloading pornographic material onto a computer, clearly had the
potential effect of causing an affront to a female employee working in the close environment and as such would be regarded as degrading or offensive
to that employee as a woman.

Front 28

BBC Scotland v Souster

Back 28

the Scots and English are separate racial groups, defined by reference to their national origins.

Front 29

Mandla and another v Lee and others

Back 29

two essential characteristics of an ethnic group:
a) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; and
b) a cultural tradition of its own, including family and social customs and
manners.
In addition to these essential characteristics his Lordship identified others which albeit not essential could be expected to be displayed by the group, namely:
a) either a common geographical origin or descent from a small number
of common ancestors;
b) a common language, not necessarily peculiar to the group;
c) a common literature peculiar to the group;
d) a common religion different from that of neighbouring groups or from the general community surrounding it;
e) being a minority or being an oppressed or a dominant group within a larger community.

Front 30

Dresdner Kleinwort Wasserstein Ltd v Adebayo

Back 30

.............................

Front 31

Baggs v Fudge

Back 31

The ET concluded that the BNP is a political party as it has a political ethos
and puts up political candidates in elections, so allegiance to it is therefore not
a religion, religious belief or similar philosophical belief within the terms of the
RB Regs. However, note that the amendment made to the RB Regs by the Equality Act 2006 means that it is not necessary for the philosophical belief to be similar to a religious belief, so any genuine philosophical belief, including political beliefs, are likely to be covered.

Front 32

Nicholson v Grainger PLC and others

Back 32

The EAT concluded that a belief relating to climate change, the environment
and the need to cut carbon emissions could constitute a belief for the
purposes of the RB Regs (on the basis that the claimant's beliefs were more
than just opinions but impacted on the way he lived his life).

Front 33

The “Heyday” case

Back 33

The ECJ decided that reg 30 is in principle acceptable provided that the UK
courts can be satisfied that it is justified. The case then returned to the High
Court which decided that the default retirement age of 65 is lawful (but only
just). In coming to its decision, the Court did note that there was a "compelling
case" for a change in the law and that if the Government had not announced,
two days before the hearing, that the default retirement age of 65 will now be
reviewed in 2010 (a year earlier than had previously been expected), the
Court’s decision could have been different.
For the time being the result of this case is that employers can still lawfully
retire employees at the age of 65 as long as they follow the statutory
procedure. However further legislation on this issue should be expected
towards the end of 2010.

Front 34

Goodwin v Patent Office

Back 34

guidance on how to approach the question of whether a complainant is
disabled. The proper approach is to concentrate on things the
complainant cannot do or cannot do without difficulty. It is not to
concentrate on what the complainant can do.

Front 35

Power v Panasonic UK Ltd

Back 35

the claimant was suffering from depression as a result of alcohol dependency. At first instance the Tribunal decided that she did not fall within the definition of ’disability’ (despite providing psychiatric evidence that she was depressed) because it was not satisfied that the depression was not a
symptom or manifestation of alcohol addiction and abuse.
The EAT, however, allowed an appeal against that decision, confirming the important principle that the DDA distinguishes between excluded conditions, such as alcohol dependency, and impairments resulting from that excluded condition, depression in this case.
It is clear from this case that if a person has an impairment within the meaning of the Act, it is not necessary to consider how the impairment was caused.

Front 36

SCA Packaging v Boyle

Back 36

In this important decision the House of Lords has overturned previous
authority on the meaning of the word “likely” in the DDA. This case is
now authority for the proposition that the word “likely” used in the DDA
should be interpreted as meaning “could well happen” rather than “more likely than not”. In doing so, the House of Lords have introduced a lower
standard for claimants to meet.

Front 37

Jones v Post Office

Back 37

CA held that a Tribunal could not substitute its own assessment for that of an employer as to how long it was safe for a diabetes sufferer to be on driving duty. The employer had obtained what were admitted to be suitably qualified and expert medical opinions.
Where a properly conducted risk assessment provides a reason which is on its face both material and substantial, and is not irrational, the Tribunal could not substitute its own appraisal.
It would be different if no risk assessment was made or a decision was taken otherwise than on the basis of appropriate medical evidence, or was an irrational decision as being beyond the range of responses open to a reasonable decision-maker.

Front 38

Malcom v London Borough of Lewisham

Back 38

the House of Lords considered
the meaning of s.3A(1) DDA and the identity of a comparator in cases of
disability-related discrimination. The House of Lords held:
- a person can only be liable for discrimination if they know that
the employee is disabled;
- a narrow interpretation will be given to “a reason which relates to
a person’s disability.” If, for example, an employee is dismissed
following a year’s sickness absence from work, and the absence
is due to sickness, not their disability, their employer will not be
liable under the DDA;
- the correct comparator, in cases of disability-related
discrimination, is someone to whom the reason for the absence still applies. In the above example, the correct comparator is someone who has been absent for a year and does not have a disability.

Front 39

Berriman v Smith’s Detection – Watford Ltd

Back 39

the EAT provided a useful list of matters to be considered. It said that in order for there to be a finding of a failure to make reasonable adjustments the following must be identified:
i) the relevant arrangements made by the employer;
ii) the relevant physical features of the premises occupied by the employer;
iii) the identity of non-disabled comparators (where appropriate); and
iv) the nature and extent of the substantial disadvantage suffered by the claimant.

Front 40

DWP v Alam

Back 40

An employer will not be required to make reasonable adjustments if he did not know nor could reasonably be expected to know that an individual was disabled and would be at a substantial disadvantage as a result of their disability

Front 41

Walters v Fareham College Corporation

Back 41

if an employer decides to dismiss an employee and
a reasonable adjustment could have been made which could have avoided the dismissal, the dismissal itself will be an act of disability discrimination as a consequence of failing to make reasonable adjustments.

Front 42

Coleman v Attridge Law

Back 42

proposition that direct discrimination and harassment are prohibited under the DDA even if they are not against the disabled person him or herself but if they are against someone associated with a disabled person
e.g. the disabled person’s carer. Consequently, an employee had a claim
where she was directly discriminated against/harassed because of her child’s disability.

Front 43

Vento v Chief Constable of West Yorkshire

Back 43

The Court of Appeal reviewed the position on injury to feelings compensation and identified 3 broad bands of compensation. The original bands set by the Court of Appeal have now been adjusted to take into account inflation as a result of the EAT’s decision in Da’Bell v NSPCC 14 May 2009 ET1803960/07.
The bands are now as follows:
1. a top band between £18,000 and £30,000 in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race.
2. a middle band of between £6,000 and £18,000 for serious cases which
do not merit an award in the highest band; and
3. a lower band of between £500 and £6,000 for less serious cases, such as where the act of discrimination is an isolated or one off occurrence.
In the Vento case the Court of Appeal also said that "in general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings"