Articles by ‘Gemma Ospedale’

In Inex Home Improvements Limited v Hodgkins and others, the EAT held that the temporary cessation of work does not prevent the existence of an organised grouping of resources having, as its principle purpose, the carrying out of activities on behalf of the client immediately prior to a transfer for the purposes of a service provision change under TUPE.

In Ibarz v University Sheffield the EAT held that it had power under the EAT Rules to order the Respondent to repay the successful Appellant’s fees even where the fees had in fact been paid by the Trade Union. This is contrary to the previous decision by the EAT in Goldwater and Others v Sellafield Limited which held that no reimbursement order may be made where the fees are payable by a third party on the Appellant’s behalf. In the current case, the EAT considered this decision was wrong. There are now therefore now have two contrasting EAT decisions on this matter.

In British Waterways Board v Smith the EAT overturned a Tribunal decision that a dismissal was unfair where the individual was dismissed for gross misconduct for comments on Facebook.

InThe Court of Appeal has rejected Unison’s challenge to the introduction of Employment Tribunal and EAT fees in R (on the application of Unison) v Lord Chancellor (Equality and Human Rights Commission intervening). Lord Justice Underhill commented that the decline in claims due to fees needed more evidence than that it was just the affordability of fees causing this and not simply a drop in numbers. He also held that the availability of remission meant that the fee system was not unaffordable so that there was no remedy under European Union law. The arguments about indirect discrimination and public sector equality duty were also dismissed.

In Coles v Ministry of Defence the EAT has upheld a Tribunal decision that the scope of regulation 13 of the Agency Workers Regulations 2010 is restricted to giving agency workers the right to be informed of vacancies within the company where they are working, but does not extend to offering them equal status to permanent employees in being considered for a vacancy.

In a first instance decision in the Leeds Employment Tribunal, Southern v Britannia Hotels Limited and Another a Claimant has been awarded the sum of £19,500 for injury to feelings. The Claimant was a waitress who worked in one of the Respondent’s hotels under a zero hours contract. She was a 22 year old with a history of mental health problems, of which the Respondent was aware. She claimed that she had been subjected to serious sexual harassment by her line manager, and complained about it to another line manager who told her to lodge a written complaint but did nothing more. She did not want to make a fuss because she was concerned that her shifts would be reduced if she did; but the harassment became sufficiently serious for her to go off sick with stress. She eventually lodged a formal grievance, the outcome of which was that some of the individual’s behaviour was deemed to be inappropriate but no disciplinary action was taken against him.

In Adeshina v St Georges University Hospitals NHS Foundation Trust and Others, the EAT has upheld an Employment Tribunal decision that the dismissal of the Claimant was fair where there were serious procedural failings at the first stage of the process which were rectified on appeal. The Tribunal was found to have paid sufficient attention to the nature and extent of the flaws and had been correct to conclude that these had been remedied by the appeal process. The EAT also upheld the Tribunal in finding that the fact that some members of the appeal panel did not meet the standards set out in the ACAS Code did not render the dismissal unfair.

An ECJ case, CHEZ Razpredelenie Bulgaria AD v Komisia za Zashtita ot Diskriminatsia, IDS 1026 page 15 has extended the principle of discrimination by association first made in Coleman v Attridge Law and Another from disability discrimination to indirect race discrimination.

The case of Federación de Servicios Privados del sindicato Comisiones obreras (CC.OO.) v Tyco Integrated Security SL, the Advocate General’s Opinion on which was reported in a recent edition of the Update, has come before the ECJ, which has now issued its judgment. The ECJ has ruled that time spent by a worker without a fixed place of work in travelling between their home and the first and last work assignments should be counted as ‘working time’ for the purpose of protecting workers’ safety.

The thorny chestnut of annual leave entitlement whilst someone is on long term sick has arisen again in the case of Plumb v Duncan Print Group Limited.

In R (on the application of Hottak and another) v Secretary of State for Foreign and Commonwealth Affairs and another, the High Court has held that Afghan interpreters who were working for the British Armed Forces in Afghanistan were not able to bring claims under the Equality Act on the basis of failing the test for territorial jurisdiction set out in the leading case on this area, Lawson v Serco. The Court held that the Claimants were not considered to have closer connections with Britain and British employment law than with Afghanistan and Afghan law.

In Harden v Wootlif the Tribunal had to consider the situation where an extension of time was requested to lodge a claim against more than one Respondent in the same case. The employee lodged claims against the employer for direct discrimination and detriment for whistleblowing. However he also brought harassment claims against the employer and against Mr Harden who was the chairman of the employer – but these were lodged out of time. The Tribunal had to consider whether it was just and equitable to extend time under the Equality Act.