Articles by ‘Gemma Ospedale’

Changes to various flexible working arrangements are due to come into force in June this year.

A senior employment lawyer has warned firms about the legal implications of auto enrolment on employment contracts.

In a decision which differs from another reported case in this Update on vicarious liability, Mohamud v WM Morrison Supermarket Limited, the Court of Appeal has held that the employer was not vicariously liable for the assault on a customer by one of its employees. The facts were that the Claimant, (of Somali origin) visited the Respondent’s supermarket and petrol station and asked the employee behind the counter if it was possible to print off some documents on a USB stick. The employee responded in an abusive and racist fashion, upon which the customer left but was followed by the employee who subjected the customer to a serious attack involving punches and kicks.

In R (on the application of Unison) v Lord Chancellor, the High Court has rejected the judicial review challenge brought by Unison to the introduction of Employment Tribunal and EAT fees. The Court was not convinced by the evidence to date and preferred a “wait and see” approach. It did not rule out Unison applying for a further review in future, given the Lord Chancellor’s public statement that the existing claim was premature. Unison is likely to appeal.

The case of United States of America v Nolan (No. 2) has been making its way through the Courts and has finally got to the Court of Appeal.

In Portnykh v Nomura International, the EAT has ordered the Respondent to pay all the successful Appellant’s fees for bringing the appeal.

In Kemeh v Ministry of Defence the Court of Appeal has confirmed that common law principles should be used when determining whether an individual is an agent for the purposes of discrimination legislation. The leading authority of Yearwood v Metropolitan Police Commission remains good law, namely that while the employee of one person can also be the agent of another, there must be very strong evidence to support the contention that the duties of the employee were being undertaken as the agent for the other party. Here, there was no evidence to demonstrate the submission that a sub contractor’s employee was acting as an agent for the Claimant’s employer. This was recognised by the Court as potentially leaving the Claimant without a remedy in respect of an act of race discrimination committed by that employee.

In Cox v Ministry of Justice, the Court of Appeal has held that the Ministry of Justice is vicariously liable for the injury caused to a staff member by one of the prisoners. The staff member worked in the catering department and the prisoner worked in the kitchens. The prisoner was considered to be so integral to the work, business and organisation of the prison that the Court of Appeal felt it was only just and equitable to make the Ministry of Justice responsible for his negligence. The prisoner was carrying out paid work under the supervision of the catering manager, who was not strictly speaking an employee but had day to day charge of all the catering in the prison.

In a case which may turn on its facts but is really quite interesting nonetheless, Kisoka v Ratnpinyotip (t/a Rydevale Day Nursery) is an EAT decision which held that a decision to dismiss for gross misconduct was fair even though on appeal the independent appeal panel overturned the employer’s decision to dismiss.

In Secretary of State for Work and Pensions (Job Centre Plus) v Jamil and others, the EAT has held that the employer’s refusal to transfer a disabled employee to an office closer to her home, which would have been a reasonable adjustment, was an on-going failure to make the adjustment and time did not start to run from the date upon which the initial decision was made, for the purposes of bringing a claim. Furthermore, the employer had specifically stated that it would keep the decision under review and it was therefore clear that the duty will continue until it was fulfilled.

In a case which has been making its way through the lower courts, Jessemey v Rowstock Limited has now reached the Court of Appeal. This was the case which centred on whether post termination victimisation could be brought as a cause of action because, under the Equality Act section 108(7), this is specifically excluded.

In quite an interesting case concerning the expiry of fixed term contracts and collective redundancy, the Inner House of the Court of Session has given judgement in University and College Union v University of Sterling.