1/ SoS for BEIS v Mercer: CA finds EAT went beyond the limits of statutory construction in finding a worker sanctioned for arranging to take part in industrial action protected by s.146 TULR(C)A. EAT reversed & dec of incompatibility declined. bailii.org/ew/cases/EWCA/… #ukemplaw
2/ M, a support worker for AFGL, a health & social care charity, was a UNISON workplace rep & was involved in planning a series of strikes. She was suspended after speaking to the press re the plans & issued a written warning (albeit this was overturned on appeal).
3/ M brought a whistleblowing detriment claim & a s.146 TULR(C)A claim that in suspending her she was subject to a detriment for the purpose of preventing/deterring her from taking part in the strike action. A PH was listed to determine whether s.146 extended to this situation.
4/ At the PH, the EJ held s.146 didn't extend that dar, it wasn't compliant with the extent of protection Art 11 required, but it couldn't be construed in a compliant manner without going against the grain of the legislation.
5/ The EAT reversed that on appeal, agreeing on the 1st 2 points but finding a sufficiently wide interpretation of s.146 to make it A11-compliant was possible without offending the rules of statutory construction.
6/ The company didn't appeal, but the SoS BEIS sought to do so as intervener, asserting that the protection wasn't in breach of Art 11 & that in any event the EAT went beyond the limits of statutory construction.
7/ The CA were clear that a domestic construction of s.146 didn't include taking part in industrial action. TULCRA gave no protection against disciplinary action short of dismissal.
8/ On A11, (after a trawl through Strasbourg case law & submissions re margins of appreciation for public/private empl't) the CA accepted failing to protect a private sector employee from sanction short of dismissal breaches A11 if the sanction strikes at the core of TU activity.
9/ Turning to the 3rd q, statutory construction under HRA principles, the CA highlighted a number of policy quandaries as to how far to go in any judicial amendment, raising the concern that those should be matters for Parliament. To amend here would be judicial legislation.
10/ So the CA held it couldn't make the amendment, which then left the q of a declaration of incompatibility. The CA considered such declarations aren't to be used in respect of an omission by Parliament, but in respect of an express incompatibility, thus it declined to make one.
11/ It's always somewhat disappointing when the CA chooses to sidestep ensuring compliance with the ECHR by raising the limits of statutory construction, especially in respect of rights of the importance of these ones.
12/ My guess is @MichaelFordQC & @StuartBrittend1 are already working on the permission application, hoping to find a braver voice in the Supreme Court, and that Michael has already laid out his special tie ready for the battle ahead.
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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.