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.
A question finally asked of @CasparQC: has anyone challenged the 2-year limitation (under ERA s.23(4A).
Answer given: No [Pause]; Yes [Pause]; Maybe
All bases covered there, before CG then gives a nod to the livestream audience (an audience of 12 at the time!).
Chris Jeans gets onto his feet and starts: "Sounds complicated, doesn't it?" - brilliant opening line. Now suggesting it sounds complex because it's being argued back to front & then enumerates a simple way to consider matters from front to back.
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1/ Rainford v Dorset Aquatics Ltd: the EAT considers how the law on s.230 ERA status applies to a director/shareholder of a very small family business.
2/ 2 brothers owned a family landscaping & water feature business. They split the work between them & worked freely without the other being in control of them. They worked hours they chose, took holidays they chose & were free to do other work outside the company.
3/ The brothers were paid an equal "salary" on which they paid PAYE income tax & NICs on accountants' advice for tax reasons. They also paid themselves dividends. They were directors & shareholders of the business. There was no written contract of employment.
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.
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.
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.
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.
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).
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.
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).