1/Clark v Middleton & Black Dog Hydrotherapy Ltd: EAT holds it's possible to settle a transferee's TUPE Reg 15(8)(b) consultation liability, & a failure to inform on the t'ee's identity isn't a technicality for which £0 compensation is justified. bailii.org/uk/cases/UKEAT…#ukemplaw
2/ C worked for Black Dog Hydrotherapy ('BDH'), which M ran as a sole trader. There were 5 employees. In Sept 2019, BDH were transferred to a ltd co, Black Dog Hydrotherapy Ltd ('BDHL'), incorporated by one of BDH's employees, JSA. C's employment transferred but she soon resigned
3/ C brought claims against M as TUPE transferor in re failure to consult & against BDHL in re wages, holiday pay & unfair dismissal claims. M asserted she complied with reg 13 duties & that any failure resulted from BDHL's failure to provide requisite information to her.
4/ C then entered into settlement through ACAS with BDHL, leaving only the claims against M and the claims against BDHL were dismissed upon withdrawal. The claim thus proceeded solely against M.
5/ The ET found that M had decided to retire & there had been an expectation of JSA taking over, something of which C was aware & had discussed with JSA, including by suggesting JSA set up a ltd co for the purpose.
6/ The final & necessary details of the transfer were not set out in writing to the staff, though C herself organised M's retirement party & informed clients of the change of ownership & worked on refurbishing the premises prior to the transfer.
7/ On transfer, the new contracts removed various contractual rights, including to 2 weeks' sick pay & paid breaks. They also varied the hours of employment. It was after all of this that the relationship between C and JSA broke down.
8/ The ET found that M failed to communicate to C & others the fact that the transfer was to be to a limited company. As regards contractual/personnel changes, the ET found JSA envisaged changes but kept them from M, & that M's Reg 15(2) defence succeeded.
9/ The ET thus found the only breach made out against M to be the failure to provide the information about the transferee's identity, which the ET described as a 'very technical breach' in respect of which the ET decide to award zero compensation.
10/ The ET said that had the claim against BDHL not been dismissed, there may have been a Reg 15(8)(b) award against it re M's failure to consult, but it considered the dismissal of that claim meant it was outside the interests of justice to make an award against a released party
11/ On appeal, the EAT found the ET wrong to find C erred in solely bringing the Reg 13 claim against M rather than BDHL. The claim was to be brought against the party who was the employer at the point of breach of compliance, & with the duty to consult that was the t'or.
12/ The next question was whether the ET then erred in finding the settlement & dismissal on withdrawal of C's other claims against BDHL meant that an order under reg 15(8)(b) for it to pay the compensation couldn't be made.
13/ The EAT found it possible to reach settlement in re a Reg 15(8)(b) order. The question then was whether the settlement had in fact compromised any such claim. The EAT found it was for reasons set out in the next tweet.
14/ C had asked the ET to dismiss "all claims" against BDHL, conveying the intention to end their entire involvement. No complaint was identified as maintained. Whilst BDHL was a party to the unfair dismissal etc claims, M's response would make it a party to the Reg 13 claim too.
15/ Even if wrong on that, the EAT accepted the legitimacy of the ET's counterfactual position in para 54 of the ET judgment that it could note that BDHL wasn't represented at the hearing & didn't anticipate that it would have further exposure to liability to C after settlement.
16/ On the ET's decision to award no compensation, the EAT disagreed that it was a mere technical breach. Knowing the identity of the new employer is of fundamental importance & failing to inform on this wasn't a mere technicality.
17/ Given its fundamental importance, the ET was wrong to award zero compensation to C for this breach. The amount to be awarded was accordingly remitted, with the EAT deciding to remit it to a differently constituted tribunal.
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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.