Jason Braier Profile picture
Jul 27 12 tweets 4 min read
1/ Arian v The Spitalfields Practice: The EAT wasn't bound by its decision in Pruzhanskaya to find no new time limit for adding a s.103A to a s.98 ERA claim, but rather time limits may be of limited weight in line with Abercrombie et al.
assets.publishing.service.gov.uk/media/62dff920…
#ukemplaw
2/ A was a healthcare assistant at a GP practice. He raised various concerns about their health protocols. As a LiP, he brought 2 claims including an ordinary unfair dismissal claim & a protected disclosure detriment claim, but not a s.103A automatic unfair dismissal claim.
3/ He provided a list of issues a few months later which included as an issue whether his dismissal was connected to the grievance in which he'd raised his protected disclosures, though when the R professionally redrafted the list, it didn't include a s.103A claim.
4/ 3 months later, at a PH, A raised sought to add a s.103A claim & another PD, which was then considered as an application to amend at a later PH. The EJ rejected the application, relying on it being 1st raised at the previous PH, 6 months post-presentation of the ET1.
5/ Integral to A's application had been his illness when submitting the claims (resulting from a cancer diagnosis) and that the R had anticipated a s.103A claim, seeking clarification on the point in the GoR & correspondence.
A sought reconsideration but this was rejected too.
6/ A appealed principally on bases that erred in (1) rejecting the application almost exclusively due to delay; (2) considering it a new claim &/or needing consideration of time limits; & (3) finding A 1st raised at the PH rather than the list of issues. Image
7/ Dealing with the s.103A amendment 1st, the EAT agreed that there was a material error of fact in the extent of delay in raising it, given that the matters were raised in the list of issues. Thus the 3rd ground of appeal was allowed.
8/ On the delay point, the EAT stressed the importance of considering the specific implications of the delay/timing in the context of balance of hardship, which was something the ET hadn't done. The ET also hadn't taken account of the R's early anticipation of the s.103A claim.
9/ Ground 2 is the more interesting. A relied on Pruzhanskaya where the EAT held where a C has brought an in-time ordinary unfair dismissal complaint, alleging a further automatic reason for dismissal doesn't involve a new complaint with new time limit. Image
10/ The EAT found that judgment out of kilter with other EAT/CA authority, & thus the EAT wasn't bound to follow Pruzhanskaya. It seems that the distinction is that those authorities focus on the very limited weight of consideration of time limits rather than there being none. ImageImage
11/ However, the EAT found in A's favour in any event that the ET erred in the decisiveness it gave to the time limit point in circumstances where the disclosures & reason for dismissal were both already in play. Image
12/ The EAT moved on briefly to the added disclosure point, finding the position more finely balanced but allowing the appeal on the basis of over-emphasis on delay as against other relevant features. I suspect this may have been rejected had there not been the s.103A grounds.

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More from @JasonBraier

Jul 28
1/ Trentside Manor Care v Raphael: EAT finds it's not appropriate for ET to order a party to provide to the other side's lawyers documents over which privilege is claimed so that they can argue whether they are privileged!
Also useful on legal advice privilege & non-lawyers.
2/ R was a registered care nurse at TMC. She made a flexible working request as a result of ill-health (which she considered a reasonable adjustment for disability). It was granted on a trial basis. A couple of weeks later, R was suspended & then dismissed for gross misconduct.
3/ It was R's position that conduct wasn't the real reason for dismissal, but her flexible working request/reasonable adjustment was. She brought claims including unfair dismissal, direct disability discrim & discrim arising from disability.
Read 19 tweets
Jul 26
1/ Scottish Federation of Housing Associations v Jones: The exception to the 2 years qualified service requirement under s.108(4) ERA concerns dismissal for political opinions/affiliations & not mere breach of a political neutrality clause.
assets.publishing.service.gov.uk/media/62dad6c0…
#ukemplaw
2/ J was head of membership & policy for the SFHA. Her employment contract contained a 'Political Activity' clause preventing her from having a formal role of a political nature.
3/ J told her employer she wished to stand for Scottish Labour at the next general election. The SFHA advised that it didn't consent to this. J then withdrew her candidature. At a meeting, the CEO expressed concern J had sought permission to stand. J was subsequently dismissed.
Read 12 tweets
Jul 20
1/ Harpur Trust v Brazel: Sup Ct dismisses the appeal, holding part-year workers on year-round contracts are entitled to 5.6 weeks' annual leave per year, with a week's pay determined by s.224 ERA, rather than 12.07% of earnings in the year.
supremecourt.uk/cases/docs/uks…
#ukemplaw
2/ This case is concerned with those who work for varying hours, only working during certain weeks, but under a contract continuing throughout the year.

The question is whether leave for them should be counted proportionately or by ignoring that there are weeks they don't work.
3/ B teaches the saxophone & clarinet as a visiting music teacher at a school run by HT & is accepted to be a worker in that capacity. Her hours vary dependent on the number of pupils needing her music lessons, with B normally working 10-15 hours a week during term time.
Read 25 tweets
Jul 18
1/ FDA v Bhardwaj: EAT dismisses appeal against refusal of costs orders (& cross-appeal against making of 1), & derides issue-by-issue costs claims & discourages pernickety costs appeals.
assets.publishing.service.gov.uk/media/62cea659…
#ukemplaw
2/ This is lengthy litigation by B against her former union & 5 of its members. She started the litigation in 2008, lost it & then lost at the EAT & CA before the Supreme Court refused permission to appeal. The FDA applied for costs & partially succeeded. Both sides appealed.
3/ The EAT (Griffiths J) started by bemoaning how great the resources taken up by the case, & how litigation taking up the most resources seem to create their own chain reaction of further & more strenuous fighting. (It was a case in which FDA raised 50 points on costs alone!)
Read 11 tweets
Jul 15
1/ USDAW v Tesco: CA reverses High Ct declaration & injunction to prevent fire & rehire of Tesco workers with a 'permanent' contractual right to retained pay.
bailii.org/ew/cases/EWCA/…
#ukemplaw
2/ The facts start in 2007, when Tesco were looking to move distribution centres & to encourage experienced staff to stick around in spite of the considerable inconvenience of the move.
3/ To incentivise them, they offered them "retained pay" a significant additional monthly sum to agree to move to the new centres. There were contractual restrictions on its alteration, & in collective bargaining it was described as 'permanent' save in certain circumstances. ImageImage
Read 19 tweets
Jun 16
1/ Sejpal v Rodericks Dental Ltd: a must-read case in which the EAT finds the worker status test is very simple, & then throws hand grenades under the reliance on an unfettered right of substitution as a way of denying worker status.
caselaw.nationalarchives.gov.uk/eat/2022/91
#ukemplaw
2/ The appeal concerns the question of whether a dismissed dentist was a worker under the ERA (s.230) and in employment under the EqA (s.83(2)). In simple terms, we're looking at questions of limb (b) worker status.
3/ The contractual position was one in which S had worked under an "Associateship Contract" throughout the relevant periods. It had a substitution clause (of which more later) & a clause saying it was a contract for services and not an employment contract.
Read 23 tweets

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