1/ Opalkova v Acquire Care Ltd is a (short) must-read judgment on the application of the ET's powers to make a PTO (or costs order) under r.76(1)(b) (i.e. where the claim or response had no reasonable prospect of success).
2/ The facts of the case aren't important. What's important though is that O's ET1 contained 6 bases of claim, under 3 of which she succeeded. O applied for a PTO. The ET denied the application, in part because AC succeeded in responding to 3 of the 6 bases of claim.
3/ The relevant part of ET Rules r.76 is set out below. In considering whether the response had no reasonable prospect of success, the EJ considered the response as a whole & the circumstances in the round. HHJ Tayler held this to be in error.
4/ HHJ Tayler construed 'claim' in r.76(1)(b) in light of r.1, holding that as 'claim' refers to 'complaint' & as 'complaint' = anything referred to in an enactment conferring ET jurisdiction, each statutory cause of action is a complaint, so an ET1 can have a number of claims.
5/ Concomitantly, 'response' must refer to each of the claims brought, i.e. each statutory complaint raised in the ET1. Thus in this case there were 6 claims and hence 6 responses to consider under ET rules r.76(1)(b).
6/ Whilst HHJ Tayler acknowledged parts of the rules weren't consistent with his construction (such as strike out under r.37 being available against part of the response), he was comfortable that those contraindications didn't undermine his construction.
7/ The consequence of HHJ Tayler's construction is that consideration under r.76(1)(b) had to be given separately in respect of each of the 6 statutory claims brought.
8/ The EAT set out 3 key questions: (i) objectively did the response have no reasonable prospect when submitted or at a later stage; (ii) at that stage did R know that was the case; (iii) If not, should R have known that?
9/ Whilst only the 1st of those questions was relevant to the threshold for making an order under r.76(1)(b), the other 2 questions were relevant to how the discretion is exercised. However, all 3 questions are relevant to the r76(1)(a) threshold before applying discretion.
10/ Unsurprisingly, a legally represented respondent is likely to be judged to a higher expectation than a non-represented respondent when determining whether the party should have known its response lacked reasonable prospects.
11/ In this case the ET erred by not considering each response independently, by relying on matters going to lack of knowledge of prospects as part of the 76(1)(b) threshold rather than discretion & by failing to consider 76(1)(a) at all even though raised by O.
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🧵SSBT v Mercer: Supreme Court issues declaration of incompatibility re the lack of protection from sanction short of dismissal for workers taking part in strike action. The current position breaches Art 11 ECHR.
2/ M was a support worker in the care sector & a UNISON workplace rep, who planned & participated in a lawful strike at her workplace. She was suspended, receiving normal pay but no overtime. Suspension removed her from the workplace during the period of industrial action.
3/ M was also given a first written warning, though that was overturned on appeal.
M brought an ET claim reliant on s.146 TULR(C)A, which provides protection against detriments for taking part in trade union activities. The statutory provisions are below:
🧵 R (TTT) v Michaela Community Schools Trust - High Ct finds it was neither a breach of Art 9 nor indirectly discriminatory for the school to prohibit prayer rituals in response to Muslim pupils seeking to pray during their lunch break.
2/ The facts of this case will be familiar. Michaela is the school run by Katherine Birbalsingh, which has superb results but some incredibly strict rules & practices, including restricting discussion topics & limiting break time socialisation to groups of 4.
3/ The school, which is 50% Muslim, places considerable stock not only in its disciplinary regime, but also in what it calls its Team Ethos by which it seeks 'aggressively' to promote integration and to disrupt separation.
🧵Mathur v HMRC: UT (Tax & Chancery) decides to broadly construe s.401 ITEPA so that a settlement including for claims re dismissal but also re unrelated pre-termination discrim is taxable where the trigger for bringing the claim is dismissal.
2/ M worked for Deutsche Bank. Her employment was ended when the bank entered settlement with the New York State Dept of Financial Services re manipulation of interbank offered rates. DFS ordered the bank to terminate 7 employees, including M, said to be complicit in misconduct.
3/ She was offered c.£80k in a draft settlement agreement for that termination but declined to accept. Instead she brought ET proceedings for an equal pay claim, harassment, direct sex discrim, victimisation, s.47B & s.103A claims & ordinary unfair dismissal.
🧵The Supreme Court's judgment in Tui Ltd v Griffiths is one of those rare non-employment law cases that all employment lawyers (& all other civil practitioners) really must read.
It's about whether you can impugn a witness without putting the point in XX. supremecourt.uk/cases/docs/uks…
2/ The case concerned the court's treatment of an expert report prayed in aid of a claim by Mr Griffiths for the serious stomach upset & longer term stomach problems he suffered following an all-inclusive Tui package holiday at a Turkish resort.
3/ Mr G relied on an expert report from a microbiologist, Prof P. Tui didn't rely on any expert report (they sought unsuccessfully to apply to rely on one at too late a stage) & called no witnesses to give evidence. They didn't require Prof P to attend court to be cross-examined.
🧵Garcha-Singh v BA: It wasn't unfair for BA to repeatedly extend the termination date in a medical incapacity dismissal - it was to G's advantage. There was also no need to provide an appeal against the final refusal to extend that date.
2/ G worked as long haul cabin crew. He was off for a year, 1st for physical health reasons & then stress reasons, at which point his employment was terminated with a little more than 4 months' notice.
3/ During the notice period. G returned to work, performing some duties albeit not his contractual role. BA decided to extend his notice period to allow him to demonstrate an ability to sustain a full flying roster, implying that if he did so the termination might not go ahead.
🧵Jackson v Uni Hospitals of North Midlands: EAT holds ET erred in law in finding a Hogg v Dover dismissal wasn't a Hogg v Dover dismissal. The EAT clarified that there's no special repudiatory breach threshold for a Hogg v Dover dismissal.
2/ J was a specialist research nurse, entitled to 4 weeks' notice of termination. In a restructure, she was placed in a lower grade research practitioner role, against her will (she'd refused to sign T&Cs). Those deciding on this hadn't appreciated this was a redundancy situation
3/ Because of that, J hadn't been offered a trial period in the new role, nor redundancy on enhanced contractual terms, which is what she sought. The contractual terms provided for a loss of enhancement if a person left their job prior to expiry of notice.