Articles by ‘Gemma Ospedale’

The Court of Session has upheld the EAT decision in Ceva Freight UK Limited v Seawell Limited that an individual who spends all his time providing services to a customer would not necessarily transfer under regulations 3(1)(b) of TUPE in circumstances where other employees also provided the service.

In a surprising (but heartening for employers) decision the EAT, in Vaughan v London Borough of Lewisham has held that an Employment Tribunal was entitled to make a cost award which the paying party cannot afford to pay. The Claimant appealed against the costs award made by the Tribunal. She had bought 3 sets of proceedings against numerous Respondents, culminating in a 20 day hearing, at the end of which all the claims were rejected. The Tribunal ordered her to pay one third of the Respondent’s costs, which amounted to around £260,000 in total (so the Claimant had to pay around £87,000), on the basis that the claims were misconceived and the Claimant should have appreciated this. The cost award was made despite the fact that there had been no warning about costs issued to the Claimant.

In a case which is bound to have important ramifications for businesses with multiple sites, Usdaw v Ethel Austin Limited (in administration) and another (the Woolworths case) has held that in order for compliance with the EU collective redundancies Directive to be achieved, section 188 of the Trade Union and Labour Relations (Consolidation) Act, the requirement to collect the consultant where there are more than 20 employees at risk of redundancy in one establishment, must be removed. Whereas up until now the duty to consult collectively with employees where redundancies over 20 were expected at one establishment generally meant that each site could be treated as a separate establishment provided it had certain degree of autonomy, the result of this case means that the collective consultation requirements will be triggered where at least 20 employees are intended to be made redundant over a 3 month period regardless of where they work.

In CFF Holdings Limited and another v Mundey and others the High Court has held that a multi-national company which had non-poaching and non-compete covenants in its employment contracts could not enforce these because they were unreasonable.The non-poaching covenant was deemed to be too wide and it was impossible to identify which of the company’s employees in the UK and overseas were meant to be covered by it. The non-competition covenant was not considered to be needed to protect the company’s interests since less intrusive restraints would provide adequate protection.

In a case which went all the way to the Supreme Court before being remitted back to the Employment Tribunal, Homer v Chief Constable of West Yorkshire Police has held that the requirement to obtain a law degree in order to obtain the highest pay grade amounted to unjustified indirect age discrimination.

In Micheldever Tyre Service Limited v Burrell, the EAT upheld the Tribunal decision that dismissal of the Claimant was fair. The employee had raised a grievance and submitted a Tribunal claim about persistent racist comments. The employer had relied on its contractual mobility clause to require the Claimant to relocate but he had refused to do so. When the individual refused to participate in an ACAS mediation, which was a reasonable solution to the problems which had arisen, the relocation was imposed on him. This included an offer to subsidise additional travel costs and gave him a choice of jobs at the new site. When he continued to refuse to relocate he was dismissed.

In Koenig v The Mind Gym the EAT has held that, for the purposes of calculating continuity of employment, work done outside the contract of employment cannot count. However determining what work falls under the contract is a matter of fact and degree.

In another case dealing with the amount of a protective award, this time under the TUPE regulations, the EAT, in Shields Automotive v Langdon and Brolly,  held that assessment of the amount of a protective award should be based on the concept of punishment for the employer rather than compensating the employee.

In AEI Cables v GMB, the EAT has overturned an Employment Tribunal decision that the employers should be culpable for 90 day protective awards to each employee under section 189 of TULR(C)A, because of their precarious trading position. The question was whether it was reasonable for an employer to continue trading potentially unlawfully in order to comply with the 90 day consultation requirement where it had a total of 124 employees at risk of redundancy.

In a case which will continue the ongoing debate sparked by Société Generale v Geys (reported in a recent edition of the Update), the High Court has given judgement on the question of restrictive covenants and an injunction application in Romero Insurance Brokers v Templeton. The employee’s contract included a clause precluding him, for a period of 12 months following termination, from procuring orders from or doing business with a client of the employer’s with whom he had dealt within the last 6 months of his employment. Having reviewed the case law on protecting business interests, the High Court held that the covenant was necessary in the context of the insurance industry, where renewals usually take place annually. Consequently the Court granted the injunction to enforce the covenant.

The Supreme Court has given judgement in the case of Vestergaard Frandsen v Bestnet Europe Limited on the subject of breach of confidentiality. Mrs Sig worked for the Claimant. She left, along with two other employees, to form another company, the product design of which was based on confidential information obtained by one of the other employees, Dr Skovmand, from the Claimant. Mrs Sig was unaware of this until the commencement of proceedings. The Supreme Court considered two issues, that of contract, and that of common design.

In a quite interesting decision which probably largely turns on its facts, the EAT in Oasis Community Learning  v Wolff has held that allegations made by the Claimant against the Respondent and its staff do not necessarily preclude a Respondent from re-engaging the Claimant at a different location to the one where he originally worked.