🧵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.

#ukemplawsupremecourt.uk/cases/docs/uks… 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.

🧵 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.

#ukemplawjudiciary.uk/wp-content/upl… 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.

🧵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.

#ukemplawbailii.org/uk/cases/UKUT/… 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.

🧵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.

🧵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.

#ukemplawassets.publishing.service.gov.uk/media/64c0d977… 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.

🧵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.

#ukemplawrb.gy/rttwp 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

🧵Brown v General Vending Services Ltd (in CVL): where an employee claiming disability avoids doing something, the EJ must be careful to consider whether it's a coping strategy or whether it's an avoidance strategy. The distinction is crucial.

#ukemplawassets.publishing.service.gov.uk/media/64ad79e9… 2/ B, a region controller, had a shoulder impairment. She had surgery, which wasn't a complete success as she still struggled with heavy lifting, repetitive tasks & reaching her arm behind her. The surgeon advised B to wear a sling for 6 weeks, have physio & take painkillers.

🧵Mendy v Motorola: EAT reminds ETs that (i) you can't strike out a claim at a private PH; (ii) final determination of an issue isn't a case management order but a judgment liable for reconsideration under r70; (iii) case management orders can be reconsidered under r29
#ukemplaw 2/ C was an account manager for R working on the UN Peacekeeping & Development accounts. He brought a wide-ranging claim after being dismissed, including indirect discrimination & breach of contract claims.

🧵Pilkington v Jones: a somewhat confusing EAT judgment on s.15 EqA suggesting a subjective belief can be the 'something arising' & that the Pnaiser links in the chain of causation analogy is not a good one in such a case.


#ukemplawassets.publishing.service.gov.uk/media/64a2fc7e… 2/ J was a team leader for P glassmaker. He suffered a chronic & progressive shoulder condition including loss of muscle. He was put on lighter duties but couldn't do that either, so went on sick leave. Prognoses were -ve, though held he could return once pain was controlled.

🧵F v J: In allowing & remitting an appeal against refusal of an anonymity order, the EAT notes (a) when cases are in the public domain, (b) r.50 procedure, & (c) lack of power to remit a case to a different ET region.

#ukemplawassets.publishing.service.gov.uk/media/64a5a4dc… 2/ F is a uni lecturer with ASD. He brought various disability-based EqA claim, mainly re the handling of a grievance investigation & appeal. In responding to F's claim, the uni admitted disability. F applied for an anonymity order, which the ET rejected.

🧵Higgs v Farmor's School: At last the decision in this appeal on religion/belief, freedom of expression re the Biblical literalist view of gender & marriage etc. Judgment ends with mega-important basic principles on the proportionality exercise
bitly.ws/IF5L
#ukemplaw 2/ H was a pastoral admin/work experience manager at FS. She posted a post on Facebook to petition against govt consultation on relationship & sex education in primary schools would normalise single sex relationships, say gender was a matter of choice & forbid Christian teaching.

🧵Phipps v Priory Education: CA provides really important comments about how fanciful it considers the 'alternative remedy in pro negligence' argument where a party relies on its legal rep's failings in seeking reconsideration of a claim.
#ukemplaw 2/ Ph's claim was listed in March 2018. C had a legal rep throughout. He applied to adjourn the March hearing due to suffering a medical emergency. Postponement was granted but the ET ordered medical evidence be provided. He failed to do so repeatedly.

🧵Kohli v DIT: EAT explains that whilst there can be subconscious discriminatory motivation, it's not necessary in every case to consider whether there was subconscious discrimination.
assets.publishing.service.gov.uk/media/6478aa5f…
#ukemplaw 2/ K worked in the Latin America & Caribbean (LATAC) section of DIT's Global Strategy Directorate. There wasn't much going on & when K was seconded onto the Covid test kit team another dept took over the LATAC work temporarily.

Booth v Delstar: EAT reinforces the need to follow Pnaiser's guidance in a s.15 EqA claim, & emphasises that the comparison in an indirect disability discrimination claim is between those sharing C's disability & those not doing so, rather than disabled v non-disabled.
#ukemplaw 2/ This case concerned an employee on long-term sick leave following a pulmonary embolism, kidney disease & a stroke. The employer subscribed to an income protection policy for those on long-term leave, but HR didn't think it applied to those unlikely to return.

🧵Most appellate judgments keep you waiting to the end to work out who's won or lost. Sainsbury's v Clark is a welcome exception. The CA made clear as early as para 3 its disdain for the suggestion 100s of claimants should be struck out as their ACAS EC numbers weren't on the ET1 2/ The appeal forms the next preliminary chapter in one of the supermarket equal pay claims, which have now been ongoing for 8 years without reaching trial. Bean LJ made clear both in the hearing & in judgment his disdain of this lengthy litigation process.

🧵Williamson v Bishop of London: CA holds that where someone has a civil proceedings order (CPO) against them, an ET claim will be a nullity if issued before seeking the required High Court permission to issue.

bailii.org/ew/cases/EWCA/…
#ukemplaw 2/ Since 1997, W has been subject to a CPO under s.42(1A) SCA. Under the CPO he can't start civil proceedings in any court or tribunal without leave from the High Court, having satisfied that court the proceedings aren't an abuse of process.

🧵Edward v Tavistock & Portman: EAT clarifies the approach to reductions for failure to mitigate loss, in upholding an appeal against ET 50% reduction in compensation for failure to mitigate. The judgment deals with both burden & whether a % reduction can apply.
#ukemplaw 2/ C worked for the NHS as a band 5 data officer. He was downgraded to band 4 & dismissed on grounds of there being no band 4 vacancies. An ET found the failure to redeploy was victimisation for having made allegations of discrimination. The matter then went to a remedy hearing.

🧵Minnoch v Interserve FM: Another unless order appeal - this is an HHJ Tayler special, with a run down of the case law & a paragraph neatly summarising the principles. Worth a prime place in your unless order case law folder.
bit.ly/3n1bk3f
#ukemplaw 2/ This case involved a multiple claimant claim brought by 37 claimants re the withholding of pay for days on strike. At a PH, EJ Burns (unusually) ordered sequential disclosure with the claimants going first, & a schedule of loss for each claimant. The wording is important:

🧵 Kaul v MoJ: A useful example of the EAT upholding a merits strike out - here of EqA claims brought by a circuit judge in respect of the conduct of grievance procedures. It also contains important clarification re objectivity of detriments.
bit.ly/3yIJwDa
#ukemplaw 2/ K is a circuit judge. She raised 2 grievances, 1 against 3 fellow Judges, a 2nd against 3 members of HMCTS staff. The judicial grievance was dismissed by #ukemplaw legend Sir Patrick Elias. The staff complaint was dismissed as out of time under policy by 2 senior HMCTS execs.

🧵Scheldebouw v Evanson: EAT follows Barnetson v Framlington Group in holding w/p privilege operates only if at the time of the negotiations the parties contemplated might reasonably have contemplated litigation if they couldn't agree.
assets.publishing.service.gov.uk/media/63e20de3…
#ukemplaw 2/ E was soon due to potentially to retire. At a meeting this possibility was discussed. Those discussions included agreeing on outstanding holiday entitlement. S made an offer in amicable discussions. It was rejected & E made a counter offer at a later date.

1/ Jaleel v Southend Uni Hospital: EAT provides useful reminder of how the shifting of the burden of proof operates under s.136 EqA both for direct discrimination claims & for harassment claims.
assets.publishing.service.gov.uk/media/63e12e0d…

#ukemplaw 2/ The case concerns a consultant who was also Director of Medical Education, went sick, raised a grievance against her line manager, refused to return to the DME role until the grievance was heard, & wasn't happy the manager was on the panel when she applied for a new DME term.