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6 Dec, 4 tweets, 2 min read
1/ Is tomorrow's CA holiday pay Battle Royale in Smith v Pimlico Plumbers (No. 2) the 1st ever #ukemplaw appeal before an all female CA panel?
2/ Whether it is or isn't it should be a fascinating fight. In the blue corner, the holiday pay dream team of @MichaelFordQC & @CasparQC ably assisting the brilliant Smith v Pimlico ever-present @DstephensonDSC, with Michael & Caspar fresh from being against each other in Harpur.
3/ And in the red corner, is #ukemplaw legend, Chris Jeans. I recall seeing him as a pupil in my 1st visit to the EAT in what ended up as Serco v Lawson. A truly, mesmerisingly, unforgettably brilliant advocate.
4/ If you want to read up on the issues before tomorrow's hearing, here's my thread on the EAT judgment. I was pretty confident at the time that the EAT got it right, but if anyone can persuade otherwise, it's the holiday pay dream team!

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More from @JasonBraier

Jason Braier Profile picture
8 Dec
In an interesting ET claim - Plaut v University of Exeter - a Jewish female academic of Ashkenazi heritage argued it was direct race discrimination to dismiss her for shouting at others in circumstances where being an Ashkenazi Jew makes you liable to speak loudly & gesticulate.
The claim failed (though she won an unfair dismissal claim) on the basis that if people thought she shouted at them, then that was their perception & her ethnic origin was irrelevant to that perception. ImageImage
Alas no indirect discrimination claim was brought, but there's an interesting question about cultural behavioural norms & what account to take of them in misconduct proceedings & when it might be unjustifiable indirect discrimination to ignore them in considering sanction.
Read 4 tweets
Jason Braier Profile picture
7 Dec
Smith v Pimlico Plumbers is back post-lunch. 10 or so minutes of @MichaelFordQC followed by @CasparQC



(the right link this time)
@CasparQC making a big submission that paid EU annual leave rights should carry over to termination when the employer refuses to remunerate annual leave because entitlement to that leave is in dispute. Crucial to the time issue in this case.
Making some very strong effectiveness-type submissions as to why the right should be carried over to termination - claims otherwise annually for small sums, needing to take (unpaid) leave to prosecute, unlikely to receive damages awarded, & in precarious employment positions.
Read 5 tweets
Jason Braier Profile picture
6 Dec
1/ Walsh v Network Rail: A rare EAT outing for the flexible working provisions. An agreement to attend a flexible working request appeal outside the decision period wasn't an agreement to extend the decision period.
bailii.org/uk/cases/UKEAT…
#ukemplaw
2/ W submitted a flexible working request under the ERA Part 8A on 11.2.19. It was rejected on 7.3.19 & his employer gave him the right to appeal. Whilst the 3-month statutory decision period was due to end on 10.5.19, the parties agreed to hold the appeal on 1.7.19.
4/ Notwithstanding that schedule, a week before the appeal hearing W presented an ET claim on the basis that the flexible working request hadn't been dealt with reasonably, had been determined on incorrect facts & hadn't concluded within the statutory decision period.
Read 13 tweets
Jason Braier Profile picture
2 Dec
1/ Slade & Ors v Biggs & Ors: A case worth reading just for the awful facts, but also with detailed analysis of s.207A TULRCA looking at double counting & proportionality + a new 4-stage test, with a little grossing up question tacked at the end
bailii.org/uk/cases/UKEAT…
#ukemplaw
2/ Ms Biggs & Ms Stewart were employed by a company operating Woodlands Castle & Maunsel House, Somerset venues used for weddings & other big events, both owned by eccentric baronet Sir Benjamin Slade.
(The below comes from his Wikipedia entry & shows his, erm, eccentricity). Image
3/ In 2017, both Cs became pregnant. The ET found Sir Benjamin found this highly inconvenient & decided to dispense with their services by engineering their departure by making their lives deliberately difficult to persuade them to resign. Image
Read 24 tweets
Jason Braier Profile picture
30 Nov
1/ THIS ONE'S A MUST READ: Burn v Alder Hey Childrens NHS Foundation Trust: CA opens up the possibility of an implied duty to act fairly in disciplinary processes, separate from the obligations under the implied term of trust & confidence.
bailii.org/ew/cases/EWCA/…
#ukemplaw
2/ The appeal concerned the MHPS (Maintaining High Professional Standards in the Modern NHS) disciplinary & capability policy & the extent of disclosure required at the investigation stage under para 1.16 of Alder Hey's transposition of that policy.
3/ Contrary to B's wide reading of it, the CA found that it concerned correspondence rather than all documents & only to correspondence the employee had a legitimate interest in seeing at that stage of the formal process (eg, an invite to an independent practitioner to assist).
Read 9 tweets
Jason Braier Profile picture
29 Nov
1/ Szymoniak v Advance Supply Chain: A good example of an ET getting a no reasonable prospects of success strike out application badly wrong, & also emphasis on the importance of considering the evidential impact of a non-relabelling amendment

bailii.org/uk/cases/UKEAT…
#ukemplaw
2/ S was employed by a logistics company. She resigned in Nov 2018. Over the previous 8 or so months, along with receiving a number of warnings, she also had a number of complaints including 1 of sexual harassment. S brought an unfair dismissal claim (though not an EqA one).
3/ In resisting the claim, ASC asserted S had resigned rather than being dismissed, denying repudiatory breach. Soon before a PH, S asserted a sexual harassment claim & also at a PH she asserted a victimisation claim. The EJ listed a hearing for those to be considered.
Read 7 tweets

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