Articles by ‘Gemma Ospedale’

In Newbury v Sun Microsystems, the High Court has offered valuable views on what constitutes a binding agreement. In this particular case, the parties exchanged letters to the effect that an offer was made, was agreed, and it was stated that the agreement would be recorded in a “suitably worded agreement”. Neither letter referred to being subject to contract.

The UK lags behind key European rivals such as Poland, France and Romania when it comes to managing sickness absence, reports Nic Paton of Personnel Today.

The Financial Conduct Authority (the “FCA”) has published its Finalised Guidance on dealing fairly with interest-only mortgage customers who risk being unable to repay their loan (the “FCA Guidance”).

In Schlecker v Boedeker, the ECJ has given judgement on the governing law of a Contract of Employment.

The costs award EAT case of Vaughan v London Borough of Lewisham, reported in a recent edition of the Update, where the Claimant was required to pay around £87,000 in costs, commented on in the June edition of the Update, has now been formally reported in the Law Reports. Interestingly, the appeal by the Claimant against the order for costs was dismissed, notwithstanding that she was unrepresented; the Respondent failed to seek a deposit order or issue a cost warning; or that they had made a substantial offer of settlement. An interesting comment from Mr Justice Underhill, “it is, alas, notorious that the costs of defending a long claim against a persistent Claimant can be such that, from a purely commercial point of view, it makes more sense to make a substantial sum by way of settlement that to pay the lawyers”. Too true…

In Blackburn v Aldi Stores Limited the EAT has held that the employer’s failure to comply with the grievance procedure may be a breach of the implied term of trust and confidence enabling the employee to resign and claim that he has been constructively unfairly dismissed. Therefore such a failure maybe a breach of an implied term even if there is no breach of an express contractual term.

In what is believed to be the first case of its kind, Halliday v Creation Consumer Finance Limited is a Court of Appeal case which has awarded compensation for distress caused by breach of the Data Protection Act. The case involved a consumer transaction but it is potentially relevant in an employment contract because the same principles apply to any organisations which process personal data, which of course includes employers.

The case of Vaickuviene and others v J Sainsbury Plc has been reported in previous editions of the Update as it has made its way the lower Courts. The Court of Session (Inner House) has now given judgement in the latest instalment.

In a first instance decision in the Employment Tribunal, Neal v Freightliner Limited, has held that overtime payments and shift premiums, which were an inherent part of the employee’s payments and inextricably linked with the performance of his duties, should be taken into account in the calculation of his holiday pay.

The situation occurred when an employee left a shop at City Airport where he worked, carrying items for which he had not paid. The Court of Appeal held that in the circumstances the employer could not be criticised for not undertaking further investigation because it was reasonable for the employer to conclude, in all the circumstances, that the employee was not telling the truth when he stated that he genuinely did not realise he had left the boundaries of the shop. On this basis the Court of Appeal held that the employer was entitled to take a contrary view of the employee’s creditability and conflicting evidence to that of the employee even though it did not view available CCTV footage or speak to other witnesses.

In a case which is quite topical regarding zero hours contracts, Docherty and another v SW Global Resourcing Limited is a decision from the Inner House of the Court of Session in Scotland. It held that a dismissal may still be fair where an employer takes action against an employee which amounts to dismissal without considering the legal consequences, or has a mistaken view of what those consequences might be. It was for the Tribunal to assess, on the evidence, whether the employer’s ignorance of the law was excusable and if it was, whether this was a decisive factor or whether it was outweighed by other issues.

In a case which has been reported in the Update as it has made its way through the lower Courts, the Court of Appeal has given its decision in British Airways Plc v Fox. This was a case concerning whether the estate of a deceased employee, who had been dismissed and died shortly thereafter, could bring a claim for loss of the death in service benefit which was enjoyed by the employee whilst in employment (and alive). The Court of Appeal has held that the estate can indeed bring a claim for this. British Airways contended that he could never have received the monies while he was alive so consequently there was no claim for its loss, and it was the putative beneficiaries who had suffered the loss and not him so they had no claim either. However the Court of Appeal did not agree, saying that employment law would be in serious difficulties if an employee could not claim compensation merely because the benefit was payable to others and not him. The benefits formed part of the employee’s remuneration and consequently it was a financial loss suffered by him. It also held that the usual remedy in these circumstances, being the cost of securing the equivalent benefit in the market place, was inappropriate here and that, since that the employee had died so soon after dismissal, the value of the lost benefit was the full £85,000.