Articles by ‘Gemma Ospedale’

In a case which probably turns on its, hopefully, fairly rare facts, Riley v CPS is a Court of Appeal decision which held that a Tribunal was justified in striking out a case where the Claimant was ill due to stress which was allegedly caused by the employer’s bullying.

The case of Howman v Queen Elizabeth Hospital Kings Lynn is a case involving a costs order against the Claimant in excess of £40,000 to be assessed by the County Court on an indemnity basis. The EAT allowed an appeal against the amount of the order on the basis that the Tribunal had failed to take into account the effect on the Claimant that such a costs order would have; requiring him to sell his home where he lived with his wife and children and wipe out most of his life’s savings. The Tribunal had also not considered the possibility of putting a cap on the amount he had to pay.

In North and others v Dumfries and Galloway Council, the Supreme Court has handed down a decision regarding what constitutes “same employment” for an equal pay case. It held that, in a situation where female employees were based at schools and male council employees were based at other locations, the comparison did not require there to be a “real possibility” of the comparators doing the same or broadly similar jobs at the location where the Claimants were working. The Supreme Court held that it was sufficient that they would have broadly similar terms and conditions. This interpretation is consistent with European law which gives effect to the principle of equal pay where the difference in treatment can be attributed to a “single source” which is capable of rectifying any pay inequality.

In London City Airport v Chacko the EAT has given judgementon an application for interim relief in circumstances where the individual claimed that they were unfairly dismissed for reasons relating to Trade Union membership or activities. Interim relief may be applied for where a dismissal is claimed to be for these reasons, and where an Employment Tribunal determines it is likely that, at the full merits hearing, the claim will succeed and the dismissal will be found to be for the prohibited reasons i.e. Trade Union membership or activities. The EAT held that “likely” requires more than just a balance of probability regarding the prospects of ultimate success. The employee still needed to demonstrate a “pretty” good chance of “success”, as stated in the EAT authority Taplin v C Shippam Limited. The interesting point about the interpretation of “likely” is comparing the House of Lords’ interpretation of the same word in the context of disability discrimination, where it is interpreted to mean “could well happen”.

In a case which has featured in a number of updates over the years, Alemo-Herron and others v Parkwood Leisure Limited, the CJEU has delivered judgement on the reference from the Supreme Court to decide whether an employer which acquired employees by way of a TUPE transfer was required to honour pay rises which were agreed in future collective agreements concluded in a negotiating form of which the transferee was not a member.

In a case which will hearten employers who are fed up with paying long term sick employees endless amounts of holiday pay, Sood Enterprises Limited v Healy is a case where the EAT has held that the right of workers to carry over annual leave because they were off sick and unable to take their holiday is limited to the basic right to 4 weeks leave under the Working Time Regulations, and there is no automatic right to carry over the additional 1.6 weeks leave unless there is specific agreement to this effect between the worker and employer.

The case of Whitmar Publications v Gamage is a good example of an employer being granted an injunction to prevent employees, who left to set up their own competitive business, from using the confidential information which they had obtained from the company while employed by it. The employees resigned, the company discovered the existence of the new company which they had set up and strongly believed they had taken preparatory steps to compete before their resignation. The application was an urgent one and the High Court granted the injunction without having access to the full amount of evidence against the employees; but nonetheless, on a preliminary assessment of the weight of evidence available to it at the time, concluded that there was a “strong case” that the employees had been taking more than just preparatory steps prior to their resignation but had in fact taken active steps with a view to competing with their employer on leaving.

In Fairstar Heavy Transport NV v Adkins and Anor, the Court of Appeal has granted the application of a company to inspect and copy the business related emails sent and received by its former CEO while he was acting on their behalf, which were stored on his personal computer. The CEO was not an employee but had been contracted as CEO via a separate company, which was controlled by him. When the company was subject to a hostile takeover, it sought access to the CEO’s emails on his personal computer. All his work related emails were automatically forwarded to his personal computer and deleted from the company server.

In Wade v Sheffield Hallam University¸ the EAT has held that it is not necessarily a reasonable adjustment to remove a competitive interviewing process for a disabled employee. The disabled individual had applied for a new post in 2006 and again in 2008, and both times failed to meet the essential criteria. The Tribunal, endorsed by the EAT, held that it would not have been a reasonable adjustment to allow the individual to avoid the competitive interviewing process because she did not meet the essential criteria necessary for the role. The Tribunal specifically considered the case of Archbald v Fife Council where the then House of Lords indicated that disapplying a competitive interview process can be a reasonable adjustment. This case is definitely one which turns on its facts but is nonetheless interesting for general information in terms of reasonable adjustments and the extent to which an employer should or should not disapply a competitive interview process.

Black and another v Wilkinson is a case of more topical than legal interest, and has been reviewed in the Update before as it has made its way through the Courts. The Court of Appeal has now held that the decision of an individual who ran a B & B to only offer double rooms to married couples was unlawful and both direct and indirect discrimination.

In London Borough of Islington v Bannon and another the EAT has upheld a Tribunal decision that there was a service provision change under TUPE where the council, in taking back in-house the service provided by an external organisation, continued the services but on a much reduced basis.

The case of Attrill and others v Dresdner Kleinwort Limited and another has progressed from the High Court to the Court of Appeal on whether or not the announcement of a bonus by the bank meant this was contractually binding. The Court of Appeal has now given its decision on whether or not the bank’s announcement of a guaranteed minimum bonus pool of 400 million euros created a contractually binding obligation to determine bonuses by reference to that pool. The Court of Appeal upheld the High Court decision that this was a contractually binding obligation and the bank could not rely on the use of the term “absolute discretion” in the employee handbook in relation to whether or not a bonus was awarded. The terms of the bonus were according to individual performance but the manner in which it was announced created a contractually binding obligation.