The 12 cases of 2013

The 12 cases of 2013


Author: Charles Rae

As Christmas approaches and another year draws to a close, we look back at some of the most notable cases of 2013.

  1. The most unexpected decision of 2013 has to be that of USDAW and ors v WW Realisation 1 Ltd and ors where the EAT held that the words 'at one establishment' should be deleted from section 188 of the Trade Union & Labour Relations (Consolidation) Act 1992. The effect of this decision is that employers must now include all their proposed redundancies over a 90-day period nationwide, regardless of the specific location of each redundancy, when considering whether collective consultation obligations will apply. The Court of Appeal is, however, scheduled to hear an appeal against this decision on 21 or 22 January 2014.
  2. Unison v London Borough of Barnet and another was a salutary reminder to employers to make sure that they provide adequate information to appropriate representatives concerning the use of agency workers within their organisation during either collective consultation in a redundancy exercise or consultation on a TUPE transfer. The London Borough's failure to do so resulted in a protective award being made to all affected employees.
  3. Another unexpected development of the year followed as a result of the case of Toal v GB Oils Ltd. In that case, the EAT made it clear that if a worker 'reasonably' requests to be accompanied by a companion at a disciplinary or grievance hearing, their request for a particular companion does not have to be 'reasonable'. The right to a companion is limited only to a work colleague or appropriately qualified trade union representative, and within that may be whoever the worker wishes. ACAS is in the process of updating its Code of Practice on Disciplinary and Grievance Procedures to reflect this decision.
  4. Employers also need to be mindful of the decision in Blackburn v Aldi Stores Ltd, where the EAT held that an employer's failure to provide an impartial grievance appeal process (by allowing an employee to appeal to a different manager than the one who had heard the original grievance) could amount to a breach of the implied term of trust and confidence and form the basis of a constructive dismissal claim.
  5. In Neal v Freightliner Ltd an Employment Tribunal decided that overtime payments should be taken into account when calculating holiday pay. The worker in this case was, throughout his overtime periods, performing tasks that he was required to do under his employment contract and was doing so on a consistently regular basis. The fact that he might have "volunteered" to perform those tasks outside his contracted hours did not mean that his overtime pay was not "intrinsically linked" to the tasks under his contract. Accordingly, his overtime hours, pay and premia should have been included in his holiday pay calculation.
  6. However, there was some clarity for employers on the relationship between holiday entitlement and sickness absence. The case of Sood Enterprises Ltd v Healy confirmed that European law does not require carry-over of the additional 1.6 weeks' leave under the Working Time Regulations 1998 where a worker is prevented from taking holiday due to long-term sickness absence.
  7. On a positive note for employers, there have been two significant cases in respect of protecting legitimate business interests post termination. In the first of these, Coppage v Safety Net Services, the Court of Appeal upheld a restrictive covenant prohibiting an ex-employee from approaching his former employer's customers to solicit business from them for six months post-termination, and ordered the ex-employee to pay at least £50,000 for breaching the covenant.
  8. Similarly, in JM Finn & Co Ltd v Holliday, the High Court extended an interim injunction to enforce a garden leave clause in a stockbroker's employment contract, the effect of which was to force the stockbroker to stay at home for the duration of his 12-month notice period rather than to start his new job. The Court was persuaded that the injunction was a reasonable way of protecting his employer's legitimate interest in retaining its clients, as it would take the firm's investment managers a long time to forge new client relationships.
  9. On the issue of bringing an Employment Tribunal claim in time, it seems that a claimant's assertion that he did not have the mental capability to bring a claim in time, and that he brought the claim as soon as he was able to, was sufficient to allow the claim to proceed according to Norbert Dentressangle Logistics Limited v Mr Graham Hutton. The Employment Judge concluded that it was not reasonably practicable for Mr Hutton to have presented the claim in time based on his graphic description of his inability to function normally despite the lack of supporting medical evidence.
  10. In a welcome decision for Administrators, the Court of Appeal in Crystal Palace FC Ltd v Kavanagh and others confirmed that a company administrator is able to make dismissals for economic, technical or organisational reasons and then sell the business without passing TUPE liability for the dismissals onto the purchaser, where the reason for the dismissals is to enable the company in administration to reduce the wage bill and continue to trade to avoid liquidation.
  11. In Lockwood v Department of Work and Pensions, the Court of Appeal held that a severance scheme which paid higher payments to older employees on the basis that they were likely to find it harder to obtain alternative employment than younger workers, was objectively justified and therefore not discriminatory on the grounds of age.
  12. In Cox v Essex County Fire and Rescue Service, the EAT decided that even though an employee had told his employer that he was suffering from bipolar disorder, because he would not co-operative with his employer in getting a definite diagnosis, meant that the employer did not know and could not have been reasonably expected to know, that the employee was disabled.

Following such a varied year, it will be interesting to see what case law developments 2014 brings!

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