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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1/ Guardian v Rozanov & EFG Private Bank: EAT holds ET should've acceded to post-trial request from Guardian to be provided with various trial docs in line with open justice principles. Important case on the ET & appellate tests to be applied. assets.publishing.service.gov.uk/media/6239aeeb… #ukemplaw
2/ By this appeal, the Guardian News appealed against an ET's refusal to order EFG to provide it with copies of the ET1, ET3, skeletons, witness statements & bundle documents after the final hearing of the claim.
3/ The underlying case was a whistleblowing detriment & dismissal claim brought by Mr Rozanov, a private banker. Although the ET accepted protected disclosures were made, the detriment & dismissal claims failed.
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.
1/ Dodd v UK Direct Business Solutions: EAT looks at specific disclosure in the context of a whistleblowing claim, & how relevant proof of truth of wrongdoing is to the establishment of protected disclosures under s.43B ERA assets.publishing.service.gov.uk/media/62349aa0… #ukemplaw
2/ D was UDBS's in-house legal counsel for 8 months, before she resigned. She claimed constructive unfair dismissal resulting from detriments she says she suffered for making protected disclosures, including of furlough fraud & mis-selling.
3/ D made an application for specific disclosure. In refusing the application, the EJ noted the test is whether disclosure is 'necessary for fairly disposing of the proceedings' & that D's application was made because the documents might show UDBS did commit the wrongdoings.
1/ Fullah v Medical Research Council: A 2nd detriment case in a week - this time the ET wrongly found suspension not a detriment, & also erred on causation in a victimisation claim by not considering the separation cases. bailii.org/uk/cases/UKEAT… #ukemplaw
2/ F brought an ET claim involving allegations of race discrimination & victimisation. The claim failed & he was suspended immediately after, & subsequently dismissed on grounds of irretrievable breakdown of relationship. He brought a new claim including for victimisation.
3/ The ET dismissed the claim. It found that the suspension wasn't a detriment & that the dismissal wasn't caused by the protected act.
The EAT noted the Shamoon test on detriment & found F considered suspension a detriment & that a reasonable worker could do so.
1/ Frewer v Google: An incredibly useful judgment on the principles applicable to applications to redact information disclosed in ET proceedings. One for the useful authorities folder for sure. And a case ending with a hopeful plea for restraint! bailii.org/uk/cases/UKEAT… #ukemplaw
2/ A commercial director of Google was dismissed for alleged sexual comments & suggestions to 2 female colleagues at a dinner. He brought a wide ranging claim including a wide-ranging s.47B detriment & s.103A dismissal claim. This claim was brought against Google & 3 individuals.
3/ The essence of F's disclosures concerned alleged anti-competitive behaviour by Google in favouring 2 major travel industry clients.
Google applied to anonymise all clients in the bundle & to redact commercially sensitive info not relevant to determining the claim.
1/ Warburton v Northants Police: a victimisation case offering a useful reminder of the Shamoon test on detriment & the authorities on the reason why under s.27, as well as noting that costs can't be awarded under r.76(1)(b) for refusing a stay. bailii.org/uk/cases/UKEAT… #ukemplaw
2/ W, a police officer, applied for a police role with Northants. A few months earlier, he'd been accepted & then rejected for a police officer role at Herts. He commenced ET proceedings in respect of that rejection, alleging disability discrimination.
3/ During the Northants appl'n process, W made the force aware of the situation with Herts, including the claim & 24 complaints raised against Herts staff & officers. W completed Northants' vetting form, listing some complaints against him, traffic offences & crim damage arrest.