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Law reports

The PCS Information Service holds a large number of employment law reports going right back to 1972.

If you want any more information, email the information service: info@pcs.org.uk

Latest employment law reports

Smith and ors v Trustees of Brooklands College, Enterprise Managed Services Ltd v Dance, EAT
Post-transfer contract variations were not transfer-connected

Doc Number: 11 12 100
 

A group of employees whose contracts were varied following a TUPE transfer, because the transferee employer incorrectly believed that they were being overpaid by mistake, could not have the variation declared void on the basis that it was connected to the transfer. The EAT endorses a tribunal’s finding of fact that the employer’s genuine belief that there had been a mistake was the real reason for the variation, which was sufficient to negate a connection with the transfer.

F v G, EAT
EAT gives guidance on anonymity and restricted reporting orders 
 

Doc Number: 11 12 101

An employment tribunal had correctly issued an anonymity order permanently removing the names of the claimant, the college which employed her, and the college’s students and staff from the employment tribunal’s records. In approving the tribunal’s decision, the EAT holds that anonymity orders can be issued where persons affected by the case would otherwise suffer an infringement of their right to a private and family life under Article 8 of the European Convention on Human Rights. The EAT also sets out guidance for tribunals to follow in cases where anonymity orders and restricted reporting orders are required.

CF Capital plc v Willoughby, Court of Appeal
Employer’s mistake did not negate dismissal 

Doc Number: 11 12 102

An employer’s mistake in sending a notice of dismissal did not prevent the clear, unambiguous words of dismissal from taking effect. The Court of Appeal held that, since the employer had intended to dismiss the employee, its mistake as to the employee’s willingness to be dismissed could not constitute ‘special circumstances’ negating the dismissal and, once effected, the dismissal could not be withdrawn unilaterally.

Scattolon v Ministero dell’Istruzione, dell’Università e della Ricerca, ECJ

Public sector cleaners covered by Acquired Rights Directive 
Doc Number: 11 12 103
 

The transfer of school cleaners from a local authority to the Italian State fell within the Acquired Rights Directive’s protection, as it involved a structured group of employees engaged in an economic activity, and did not fall within the excluded category of a transfer of public administrative functions. The European Court of Justice also holds that while it is lawful for the transferee to apply, from the date of the transfer, the working conditions laid down by his own collective agreement, including those concerning remuneration, that must not result in a substantial loss of salary owing to transferring employees’ length of service with the transferor not being taken into account.

Bungay and anor v Saini and ors, EAT
Post-dismissal police complaint attracts aggravated damages 

Doc Number: 11 12 104
 

The EAT holds that two board members of an advice centre were liable for acts of religious discrimination. Furthermore, as they were prime movers in a campaign of discriminatory behaviour, the tribunal was entitled to make them jointly and severally liable for the tribunal’s award of damages for non-financial losses. Finally, the tribunal had not erred in making an award of aggravated damages regarding an unfounded and malicious complaint that the members had made to the police about the claimants after they were dismissed. There is no rule of law that restricts the circumstances in which such damages may be awarded, and there was a clear connection between the members’ pre-dismissal discriminatory behaviour and their subsequent conduct.

KHS AG v Schulte, ECJ
Unlimited carry-over of annual leave not required by EU law

Doc Number: 11 12 105
 

 

The ECJ holds that the EU Working Time Directive does not require unlimited accumulation of annual leave by a worker who is on sick leave for several years. Allowing workers to carry over leave on an indefinite basis would eventually no longer reflect one of the purposes of paid annual leave, which is to provide a rest period away from work. It followed that a German law placing a limit of 15 months on the right to carry over leave was not precluded by the Directive.

Fraser v Southwest London St George’s Mental Health Trust, EAT
Employee on sick leave must request holiday to be paid for it
 

Doc Number: 11 12 106
 

The EAT holds that an employee on long-term sick leave should have requested annual leave in accordance with the Working Time Regulations 1998 to be entitled to receive payment in lieu of it at the end of her employment. In so concluding, the EAT observes that the ordinary rule of ‘use it or lose it’ applies, meaning that the employee’s failure to assert her right to leave by putting in a request for it resulted in that right expiring at the end of each leave year. The EAT considered this conclusion to be compatible with European case law, particularly Pereda v Madrid Movilidad SA.

Dillon and ors v Todd and anor, EAT
Time limit for enforcing TUPE award ran from date of appeal judgment 

Doc Number: 11 12 107
 

The time limit for bringing proceedings to enforce an award of compensation for failure to inform and consult under the TUPE Regulations ran from the date of judgment in a partially successful appeal against the tribunal award, not from the date of the tribunal’s original order. In delivering this appeal judgment, the EAT was in effect exercising the employment tribunal’s power to make an award of compensation, and its order could thus be treated as the trigger for setting time running.

City of Edinburgh Council v Wilkinson and ors, Court of Session
Cross-establishment comparison valid for equal pay claims 
 

Doc Number: 11 12 108
 

Employees based in schools and Council employees based at other locations were not employed at the same establishment for the purposes of an equal pay claim. In so holding, the Court of Session clarifies that ‘establishment’ is something distinct from the employer’s whole undertaking, being largely concerned with the place of work, and that the EAT had been wrong to take a broad approach and treat the whole Council as a single undertaking. However, the Court goes on to hold that common terms and conditions applied to the relevant classes of employee, meaning that the two groups could validly be compared for equal pay purposes.

Skills Development Scotland Co Ltd v Buchanan and anor, EAT
TUPE preservation of comparator’s terms was defence to equal pay claim 
 

Doc Number: 11 12 109
 

An employer could rely on a historical TUPE transfer as a genuine and material factor for a pay differential between claimants and their comparator at the date of their equal pay claim. In reaching that decision, the EAT notes that the employer’s failure to reduce the pay disparity by ‘red-circling’ the comparator’s salary did not break its causal link with the TUPE transfer, since the imposition of a pay freeze might well have left the employer in breach of contract. The original cause of the pay disparity was the TUPE transfer and the passage of time did not negate this.

Cordell v Foreign and Commonwealth Office, EAT
Costly support for deaf employee was not reasonable adjustment

Doc Number: 11 12 110
 

 

An employer’s refusal to provide a team of lipspeakers to enable a deaf employee to take up a role in Kazakhstan was neither direct disability discrimination nor a failure to make a reasonable adjustment. The EAT endorses a tribunal’s finding that the refusal was not on the ground of the employee’s disability, and so could not amount to direct discrimination. It also holds that that the employer was entitled to conclude that the cost and impracticability of providing lipspeaker support meant that it was not a reasonable adjustment.

DB Schenker Rail (UK) Ltd v Doolan, EAT, 13.4.11 (0053/09)
Tribunal substituted own view on employee’s fitness for work 
 

Doc Number: 11 12 111
 

An employment tribunal erred in holding that an employer should not have concluded, on the basis of expert evidence, that an employee was not fit to return to his job following two bouts of work-related stress. The tribunal substituted its view of the employee’s capability for that of the employer. In so holding, the EAT states that the duty to ascertain the true medical position in a capability dismissal case simply requires the employer to carry out a reasonable investigation, and that the decision to dismiss is a managerial one, not a medical one.

Adams and anor v Harwich International Port Ltd, Bury St Edmunds Tribunal, 31.8.11, ET Case
Leave accrued on sickness absence can be carried over 
 

Doc Number: 11 12 112
 

In finding that an employer had denied two workers their right to annual leave, an employment tribunal determines that, in order to give effect to EU law, it is necessary to read words into the Working Time Regulations 1998. These have the effect of allowing a worker who is unable to take annual leave during the relevant leave year because of sickness absence to carry that leave over into the following year. This applies equally to the minimum four weeks required by the EU Working Time Directive and the additional 1.6 weeks provided for by the Regulations.

NHS Leeds v Larner, EAT, 29.6.11 (0088/11)
No need to request annual leave while absent sick 
 

Doc Number: 11 12 113
 

The EAT holds that an employee who was on sick leave during the whole of a leave year is entitled to receive a payment in lieu of accrued annual leave upon the termination of her employment, even though she did not make a request for that leave to be carried over into the following year.

Molaudi v Ministry of Defence, 2011 ICR D19, EAT
Soldier’s tribunal claim barred where ‘service complaint’ was out of time 
 

Doc Number: 11 12 114
 

The EAT upholds the decision of an employment tribunal that it had no jurisdiction to hear a discrimination claim by a former member of the armed forces. In order to bring a complaint relating to discrimination during military service, a claimant must first present a valid ‘service complaint’ to the military authorities.
The claimant had failed to satisfy this requirement as his service complaint had been rejected as being out of time.

Wang v University of Keele, EAT, 2011 ICR 1251
Notice period began day after employee read dismissal letter 
 

Doc Number: 11 12 115
 

Unless the contract of employment or the dismissal letter can be construed as providing that notice of termination of employment is to start immediately, the notice period runs from the day after the date on which it is given, regardless of whether notice is given orally or in writing. Thus, three months’ notice of termination began to run the day after the employee received the dismissal letter in an e-mail attachment, and the employee had accordingly presented his unfair dismissal claim in time.

Bonuses: the legal issues 
 

Doc Number: 11 12 116
 

Few disputes with an employer are more likely to spur an employee into litigation than an argument over entitlement to a bonus. In this short feature article, we take a look at some of the legal issues surrounding this ever-controversial topic.