1/ The EAT's judgment in Rodgers v Leeds Laser Cutting has been handed down, but hasn't yet reached the National Archives or EAT website, & I'm not technically proficient enough to upload a copy. Which means you'll have to take my word about what it says! #ukemplaw
2/ The case involves a laser operator who, at the very start of 1st lockdown stopped going in to work. He had a young child with sickle cell anaemia & a young baby at risk as well. R was concerned about their risk of catching Covid.
3/ R's workplace was massive - the size of 1/2 a football pitch, usually with only 5 people working there. Social distancing wasn't a problem. LLC had also taken expert safety advice & put in place plenty of Covid precautions.
4/ R managed to get a self-isolation note from NHS 111 for a 6 day period to 3.4.20 but then didn't go in or contact the employer the following 3 weeks. He was then issued his P45 (he'd only been working there 7 months so had no ordinary unfair dismissal protection yet).
5/ During the period of isolation, R's neighbour broke his leg. R kindly took him to hospital - a good neighbour, but somewhat undermined his concerns about needing to isolate for his child.
6/ When R was dismissed, he brought a claim for automatic unfair dismissal under the circumstances of serious & imminent danger provisions at s.100(1)(d)&(e) ERA
7/ His claim failed before the ET. The EJ didn't view R's credibility favourably, finding R had acted inconsistently with concerns of danger, had changed his story as to why he needed to isolate & didn't have concerns directly attributable to the workplace.
8/ Crucially, the EJ didn't find R's belief of serious and imminent danger to be objectively reasonable.
R appealed asserting a belief in serious & imminent danger at large could amount to an objectively reasonable belief that the workplace presented a serious & imminent danger
9/ Whilst the EAT rejected the appeal, finding the EJ entitled to have reached the conclusion reached in this case, there are some useful principles and guidelines for the future.
10/ The appeal was focused solely on s.100(1)(d), & HHJ Tayler broke the test down into 6 parts whilst making clear that it's not an error to not follow the same dismembering as long as no component part is overlooked.
11/ The 1st part concerns circumstances of danger. The EAT considered whether that was a solely objective question or whether the test was a subjective/objective reasonable belief. Whilst leaning to the latter view, it reached no conclusion, though gave a nice green gas analogy!
12/ The EAT made clear that it wasn't necessary for the circumstances of danger to be generated by the workplace itself.
13/ The remainder of the s.100(1)(d) test was straightforward & agreed between the parties.
14/ The EAT found the ET had found R didn't believe there to be serious & imminent circumstances of danger in his workplace, noting in particular R's acceptance that the precautions of the workplace made it safer than society at large.
15/ Whilst a threat at large could lead to a genuine belief in serious & imminent circumstances of danger preventing a return to work, it was not so in this case. The EAT noted a host of findings of fact going against the EJ allowing the claim. The conclusion was a legit one.
16/ HHJ Tayler concluded by noting that whilst the pandemic could, in principle, be relied on in a successful s.100(1)(d) claim, it failed on the facts in the present case.
17/ Making the brilliant & innovative arguments for R were @42BR_Employment's appeal machine @RadBarrister leading @annadannreuther, instructed by Atkinson Rose, with Jonathan Gidney for the successful employer.
• • •
Missing some Tweet in this thread? You can try to
force a refresh
🧵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.