Thread by @JasonBraier

1/ THREAD Robinson v Al-Qasimi - very important on the textured approach to illegality, as per the Patel v Mirza test but influenced by what went beforehand. Less interesting on interim relief. A tad interesting on reconsideration.

bailii.org/ew/cases/EWCA/…

#ukemplaw

2/ R worked for AQ from 2007. The appointment letter detailed that she'd be responsible for her own tax & NI, but she declared none from 2007-2014, which was when AQ became aware of this. In 2014, R alleged her arrangement was to be paid net of tax. AQ disagreed.

3/ From July 2014, AQ deducted a tax equivalent amount at source, but rather than pay it to HMRC he held it in a separate account so that it could be paid if the tax status dispute was resolved in R's favour.

4/ In 2017, AQ wrote to R requiring her to account for the tax due on past salary, failing which AQ would have to terminate her contract. She was summarily dismissed in May 2017, the failure to pay tax since 2007 being one reason.

5/ R brought claims including a s.103A automatic unfair dismissal claim, in the context of which she then applied for interim relief. It was granted, AQ appealed, the appeal was allowed, & interim relief was remitted. It was only decided on the 2nd day of the liability hearing.

6/ R then lost on liability before another judge, dismissing unfair & wrongful dismissal claims for illegality, & finding that R was not dismissed because of any protected disclosure but because AQ didn't want to agree that she was an employee and that PAYE applied.

7/ AQ then applied in time for reconsideration from the interim relief judge on account of the liability decision. That judge refused interim relief. R appealed the illegality decision & AQ appealed the interim relief decision & reconsideration. The EAT allowed both appeals.

8/ The ET's illegality decision needs to be expanded upon. The ET referred to Patel v Mirza but not for any relevant purpose. It found that R ought not to be entitled to free access to the administration of justice if not paying the taxes properly due.

9/ Importantly, the ET found that AQ's conduct in 2014 didn't restore R's access to the ET to enforce her contract nor did HMRC stating she was an employee in 2015 - any illegality by AQ in not deducting PAYE did not, they found, cure R's own failure to pay any tax.

10/ The CA dealt with AQ's appeal against the illegality decision & R's appeal against the interim relief decision. A ground on which permission to appeal was refused concerned the compatibility of interim relief provisions with A1P1 & its impact on the threshold test.

11/ The CA started with the illegality appeal. Unsurprisingly, it focused on Patel v Mirza, which places public policy, the integrity of the legal system and proportionality of denying a claim at the centre of consideration of whether the illegality defence should be made out.

12/ Singh LJ noted some reliance in Patel on Hall v Woolston Hall in which the employer's acquiescence in the employee's illegal conduct in defrauding the Inland Revenue was of some relevance. An inextricable link test between claim & illegality was held relevant in that case.

13/ Singh LJ also noted the distinction identified in Okedina v Chikale between statutory & common law illegality & that in the latter it is knowing participation which has been held to be the touchstone. Underhill LJ held Hall & Patel consistent on common law illegality.

14/ The CA in Robinson looked at the background context to Okedina in finding the correct position to be that knowledge plus participation is merely a necessary criterion but not alone sufficient for the illegality defence to succeed.

15/ The CA was keen to see Patel as a staging post in illegality jurisprudence rather than amounting to a 'year zero' rendering irrelevant what went before. That enabled the CA to build its position on the flavour of illegality from earlier jurisprudence too.

16/ That earlier jurisprudence reinforced a flexibility of approach rather than a mechanised approach, steeped in individual relevance & proportionality of consequential response. It also allowed for timing of illegality to bear relevance.

17/ It is at this point that the crux of the CA judgment on illegality is reached, for it's now that the CA gets to "an illuminating essay by @thebigbogg".

18/ As Singh LJ explains, @thebigbogg was keen to ensure a textured approach to considering illegality, with the court not just looking at the flat features of knowledge and participation but also matters of degree - seriousness, culpability, proximity of illegality to the claim.

19/ The CA next dealt with AQ's grounds of appeal. Of interest is ground 3, where the CA held the ET entitled in conducting the required proportionality exercise to find that public policy did not preclude R's reliance on her rights in 2017 for illegal performance to 2014.

20/ Whilst historic illegal acts could be relevant to the proportionality exercise, it needed to be considered in the mix alongside seriousness of the illegality, how historic, & how closely connected it was to the claim now made.

21/ On a further ground, the CA briefly considered the question of severance, finding it possible to sever a contract of employment when considering illegality, & hence open to the EAT to sever 2014-2017 from the earlier period of the contract. The illegality appeal was dismissed

22/ Moving on to the interim relief decision, the CA skipped through the statutory provisions & legislative history of interim relief, noting the Taplin test of a 'pretty good chance' & noting the irrecoverability of sums paid under a continuation of contract order.

23/ The CA noted that the 'relatively high threshold' of the pretty good chance test had the serious consequences for the employer priced in to it (@jamesladdie would have argued that it should be priced in to a higher test, but wasn't given permission to do so).

24/ On the substance grounds, the CA found EJ Stewart failed to consider the relevance of illegality to the unfair dismissal claim & it would've been unrealistic for the EAT to remit the interim relief matter to the ET post-liability decision given it was intended as 'interim'.

25/ To require the EAT to remit for redetermination would be to require the EAT to close its eyes to the absurdity of requiring the ET to make a decision on likelihood of success by closing its eyes to the fact that it knew that the claim had by then failed.

26/ The CA didn't grasp the nettle, which had been addressed in submissions, about whether there were any circumstances (apart from reversal on appeal) where interim relief payments should be recoverable. It was suggested that dishonesty/fraud in the application was an example.

27/ Alas the CA were silent on this & on how it would work (reconsideration out of time plus a claim for damages in the county court was, I think, the proposal). It's a point also addressed in submissions in the CA in Steer v Stormsure. Perhaps that CA will deal with it.

28/ The CA lastly considered briefly the power of the ET to reconsider where it is 'necessary in the interests of justice to do so' (ET Rule 70). The CA agreed with HHJ Eady in Outasight v Brown that the old 2004 reasons to review shouldn't fall under the new interests of justice

29/ The CA noted that the eventual outcome of an unfair dismissal claim wasn't strictly relevant to whether an interim order was properly made out, so that here EJ Stewart wouldn't have been required to reconsider on that basis.

30/ However, the EAT was right to allow the appeal against the reconsideration decision given that that decision was tainted by the same error of law on illegality as EJ Stewart's decision on remission to allow the interim relief application.