1/ Fitzmaurice v Luton Irish Forum: EAT finding that the ET erred in applying the causative test in a s.47B detriment claim by looking for the reason for detriment rather than material factors influencing the doing of the detrimental act. bailii.org/uk/cases/UKEAT… #ukemplaw
2/ F was a welfare caseworker for LIF, which provided support to the Irish community. Disciplinary proceedings followed comments by F about going to the Charity Commission, trustees risking loss of their houses & a comment a Polish colleague being Hitler's henchman.
3/ F claimed that those proceedings were instigated because she'd made protected disclosures, she resigned & brought ordinary & s.103A automatic unfair dismissal claims, though didn't end up pursuing the latter. F also brought a s.47B detriment claim re the disciplinary process.
4/ The ET found that the instigation of the disciplinary proceedings wasn't on grounds of F making protected disclosures. F appealed on grounds that the ET erred in law in applying the causative test to the s.47B claim & argued it also fed into the ordinary unfair dismissal claim
5/ The EAT noted the material influence causative test in Fecitt as well as the case law on separability between the making of a protected disclosure & the manner in which it's made (Martin v Devonshire & Panayiotou).
6/ The ET had found that whilst F's comments about potential breach of Charity Commission guidelines & possible consequences for trustees could amount to a protected disclosure, LIF was "much more concerned" with the way F raised it rather than the fact of doing so.
7/ The EAT noted that of the 3 reasons the ET found for opening disciplinary proceedings, the 2nd was based on potential protected disclosures & noted confusion in the ET's reasoning about whether the comments resulting in the disciplinary were in part protected disclosures.
8/ Notwithstanding the caution that DPP v Greenberg requires of the EAT where the ET has set out the correct legal test, the EAT in this case felt compelled to find that the ET had sought to ascertain THE reason for the treatment rather than the question of material influence.
9/ The EAT accepted the possibility that instigating disciplinary proceedings due, in part, to the making of a protected disclosure could give rise to a fundamental breach entitling an employee to terminate & thus remitted the s.47B & s.98 matters back to the ET.
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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.