1/ Following a judgment on health & safety dismissals and a judgment on separability, the President's decision in Sinclair v Trackwork combines the 2 - a decision on separability in a health & safety dismissal context. assets.publishing.service.gov.uk/media/608983d3…
2/ S was a track maintenance supervisor, required to implement a safe system of work procedure. He was given a mandate to implement a Network Rail safety system, NR019. Trackworks didn't tell S's colleagues he'd been given this mandate.
3/ C implemented the safety system diligently, which caused friction & caused colleagues to raise concerns with management. Due to the upset & friction Trackworks decided to dismiss S. S claimed this was automatically unfair under ERA s.100(1).
4/ The ET found the dismissal wasn't because S was carrying out health & safety activities but because of the upset his approach to implementing the safety system had caused. It said it made this finding with a 'heavy heart'!
5/ The EAT allowed S's appeal. 1st, it looked at the test under s.100(1)(a), holding 2 questions needed to be asked: (i) are the criteria in the section met as a matter of fact; (ii) if yes, was the sole or principal reason for the dismissal the carrying out of those activities.
6/ In considering the separability case law, the EAT looked particularly at Goodwin v Cabletel, in which that issue was considered in a health & safety activity context. The EAT drew the following principles from that case from which separability could occur, but rarely:
7/ In S's case, the EAT found that the high threshold for separability in a health & safety case hadn't been met. S was diligently carrying out his H&S task. The upset resulted from Trackworks' mismanagement of the situation & of everyone's expectations not from any malice by S.
8/ Part of the mischief necessitating the s.100 protection is that implementing H&S rules often will be resisted or regarded as unwelcome. The protection would be undermined if that upset could be relied on as a reason to dismiss.
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1/ Flatman v Essex provides a useful reminder that once an employer has committed a fundamental breach, he can't cure it but can only keep fingers cross the employee will waive the breach/affirm the contract. bailii.org/uk/cases/UKEAT…#ukemplaw
2/ F worked in a school as a learning support assistant. Her job required her to weigh-bear a disabled pupil. She requested manual handling training over some months without the school providing it. She then developed back pain & was signed off for 3 weeks with this.
3/ Around the time F was due to return to work, the head told her she wouldn't be required to lift the pupil on return & that manual handling training was being organised for the following few weeks. C resigned & claimed constructive dismissal.
1/ Watson v Hilary Meredith Solicitors Ltd is an EAT judgment principally applying the Martin v Devonshires separability principle to a whistleblowing case, but its point of greater practical utility concerns waiver of privilege. bailii.org/uk/cases/UKEAT…
2/ In brief, the case concerns a solicitor who became aware of financial irregularities at his firm, disclosed them & resigned with notice. During the notice period he was dismissed for gross misconduct for the speed of his resignation. He brought s.47B & s.103A claims.
3/ The ET found his dismissal was not materially influenced (the Fecitt standard) by the fact he'd made the disclosures but was separable from that, prompted by swiftly resigning & running for the hills rather than sticking around to help sort the problem.
1/ City of London Police v Geldart: CA allows appeal against ET/EAT finding that not paying the London Allowance to a police officer throughout maternity leave was direct discrimination. G's indirect discrimination claim was remitted back to the ET. #ukemplaw
2/ This appeal concerns the London Allowance paid to London-based police officers. It's paid to officers in City of London & Met police for recruitment and retention purposes rather than for cost of living reasons (for which there's London weighting).
3/ G was paid London Allowance for her 1st 18 weeks of maternity leave though not for the additional period of maternity leave which followed. Was she entitled to it under her Terms of Service? Was it directly discriminatory to fail to pay it for that additional period?
1/ The appeal in Efobi appears to be premised on s.136(2) not providing for a burden initially on C which can then shift to R, but a neutral burden which can then be satisfied by R showing it didn't contravene the EqA provision.
2/ Lord Leggatt comes out of the blocks by suggesting E's position (suggesting the change in wording of the burden of proof provision under the EqA as against the legacy Acts) is 'much ado about nothing'. This is going to be an uphill struggle for E.
3/ It's worth noting the reason why E is making this argument. His claim was that he failed in internal job applications due to his race. Royal Mail didn't put up as witnesses the decision-makers. The CA held it didn't have to, as the burden was on E at 1st before it could shift.
1/ On Tuesday, the EAT hears the appeal in Forstater where EJ Tayler found F's comments about the immutability of biological sex not worthy of respect in a democratic society & hence not capable of protection as a philosophical belief. That decision is appealed. #ukemplaw
3/ I've not seen the other side's skeleton, but this has always seemed a pretty simple issue to me. Whilst I'm a big fan of HHJ Tayler's judgments, I think EJ Tayler's judgement went awry on this one, & that the real battle in this case should be on causation, not protection.
1/ Hamilton v Fife Council: Where collective agreements are incorporated into individual contracts, truly collective rights in those agreements aren't individually enforceable (as opposed to rights intended to be individually enforceable such as pay, holidays etc). #ukemplaw
2/ Hence in this case, a term in a collective agreement suggesting a post would only be advertised if there were no surplus teachers to fill it was not incorporated as an individual enforceable right in a surplus teacher's employment contract, for breach of which she could resign
3/ Separately, the EAT held that an ET isn't obliged to consider the just & equitable extension to time limits under EqA s.123 where no evidence or argument is made in support of an extension of time.