Jason Braier Profile picture
Employment law barrister at @42BR_employment. Dad to 2 amazing children. Love a good #ukemplaw thread. All views my own, etc etc etc.
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2 Jul 20
1/ Hill v Lloyds Bank: A reasonable adjustments case whose real interest to practitioners is concerned with what makes an appropriate recommendation. bailii.org/uk/cases/UKEAT… #ukemplaw
2/ In this case, Mrs Hill complained of bullying by her line manager & their line manager. She was off for quite some time suffering stress as a result. On return, she was placed in a different branch/region to the alleged bullies. She wanted an undertaking that would remain so.
3/ The undertaking she wanted was to the effect that she'd never be required to work with them & if that proved impossible she'd be offered a severance payment akin to redundancy. It was an undertaking the bank wasn't prepared to give.
Read 15 tweets
19 May 20
1/ In Duchy Farm Kennels v Steels, Cavanagh J answers a question we all presumed the answer to but which hadn't ever been decided: what are the consequences of breach of the standard COT3 confidentiality clause? bailii.org/ew/cases/EWHC/… #ukemplaw
2/ Mr Steels brought an ET claim which was compromised via a COT3 on payment of £15,500 over 47 weeks. The COT3 included a standard standalone confidentiality clause as below:
3/ Mr Steels had someone over to give a quote to mend his fence & couldn't keep his excitement in any longer. He told the fencer all about the settlement. Slightly less bizarre a disclosure given that the fencer had also worked for the kennels & left on bad terms.
Read 10 tweets
12 May 20
[THREAD] 1/ Seeing as a @brianmoore666 retweet has brought me a host of rugby fan followers, I thought as a treat I'd introduce you to the greatest ever rugby-based #ukemplaw case - Mason v Huddersfield Giants. Here's the link: bailii.org/cgi-bin/format…) #Rugby #rugbyleague
2/ As many of you will know, Keith Mason is a Welsh international who played for many of the great rugby league teams post-Millennium and is now plying his trade as an actor, boosted by his friendship with Mickey Rourke: en.wikipedia.org/wiki/Keith_Mas… bbc.co.uk/sport/rugby-le…
3/ At the end of each rugby league season, many of the clubs hold an event (or at least did back in 2012) called Mad Monday, which the Judge in this case described in language I've never before seen in a judgment:
Read 12 tweets
9 May 20
1/ HMRC v Professional Game Match Officials Ltd: A potentially important UT(TCC) case about football referees, though disappointingly it's not about whistleblowers! It's on employment status and is a real must read for #ukemplaw-yers. bailii.org/uk/cases/UKUT/…
2/ The case concerns referees who mainly operate in the 1st & 2nd division & FA Cup games, generally as a part-time hobby alongside their normal full-time job. HMRC issued a determination that the refs were employees, with the consequential tax treatment that applies.
3/ PGMOL appealed successfully to the FTT & HMRC then appealed to the Upper Tribunal. The appeal centred on questions of the mutual obligation requirement & control tests & the UT's judgment is as good as a textbook on these issues, with some important legal conclusions.
Read 23 tweets
13 Apr 20
1/ The 1st (I presume) furlough/job retention scheme case has been handed down today featuring one of #ukemplaw Twitter's newest recruits, @StuartBrittend1. It's about whether Carluccio's administrators can furlough the employees & it is here: thompsonstradeunion.law/media/3949/cal…
2/ The case is concerned principally with administrator's duties & what mechanism can be used by the administrator to give furloughed employees super-priority rather than placing them alongside other unsecured creditors, however there is plenty for the pure employment lawyer.
3/ 1st, it's the 1st judicial mention (as far as I know) of the scheme, which I guess of some interest itself. The Judge appears to share #ukemplaw Twitter's longing for clarificatory legislation.
Read 18 tweets
26 Mar 20
1/ Along with a thousand other #ukemplaw-yers, here's a hastily compiled thread on this evening's guidance: gov.uk/guidance/claim…
2/ 1st up, what the £2,500 covers. It covers "usual monthly wage costs". That excludes fees, commission & bonuses. Employer NIC contributions & minimum auto-enrolment pension contributions can be claimed on top.
3/ For those on variable monthly salaries, there is a choice of calculation: (i) the earnings in the same period in 2019; (ii) average over the last 12 months (or monthly average for a shorter period if they've not been in the job for the whole year).
Read 20 tweets
25 Feb 20
1/ Radia v Jefferies International - A costs appeal judgment worth having in the locker, if only to scare your client or opponent into taking sensible settlement decisions. The ET awarded whole litigation costs in a case with a costs application capped at £550k #ukemplaw
2/ HHJ Auerbach gives useful guidance on determination of whether a claim had no reasonable prospects at the outset (under r.76(1)(b)), including the line between unacceptable use of hindsight & careful use of what has been learnt at trial about the contemporaneous evidence
3/ The EAT also approved of the ET's finding that the fact the claimant was granted insurance cover & continued to receive insurance cover didn't provide any get out of jail free card on whether he should have known of the lack of prospects.
Read 5 tweets
4 Feb 20
1/ The headline in the CA judgment in Jesudason v Alder Hey is that calling a whistleblower a troublemaker or liar for the sole purpose of protecting the organisation amounts to a detriment, but the judgment contains a whole lot more of interest. bailii.org/ew/cases/EWCA/… #ukemplaw
2/ 1st, Sir Patrick Elias takes the opportunity at paras 16-31 to provide a useful textbook chapter on key whistleblowing principles. Of greatest use/relevance to the appeal that includes a summary of s.43G, distilling the threshold to 4 requirements:
3/ 2ndly, at para 28 a succinct restatement of the test for what amounts to a detriment, noting that it has both subjective and objective (reasonableness) aspects to it.
Read 11 tweets
20 Dec 19
1/ The question in Barnard v Hampshire Fire & Rescue was when does a promotion break a stable working relationship for the purpose of determining whether that category of equal pay claim is brought in time. assets.publishing.service.gov.uk/media/5dfc86c3… #ukemplaw
2/ That is a question of some importance where an equal pay claim relates either to a number of consecutive periods of employment for the same employer under different contracts, or to employment on a contract prior to the contract in effect at dismissal.
3/ As a reminder, here are the relevant subsections of EqA s.129-130:
Read 16 tweets
17 Dec 19
1/ Given that tomorrow's Lady Hale's valedictory, I thought it a perfect time to list Lady Hale's 10 greatest #discrimination & #ukemplaw hits in the highest court. First up, from way back in 2004, Archibald v Fife on more favourable treatment for disabled people
2/ 2nd, from 2007 Derbyshire v St Helens MBC - strong words in the case about victimising dinner ladies bringing an equal pay claim.
3/ 3rd, the early days of the Supreme Court, giving the classic definition of the difference between direct & indirect discrimination in the JFS case, a case whose unintended consequences have included a boon for attendance by 3 and 10 year olds at synagogue children's services
Read 11 tweets
8 Jul 19
1/ Acetrip v Dogra is a long decision on various remedy issues, much of which should not disturb your sleep, but it starts with a pretty extraordinary factual circumstance that most employers would have wanted to hide by settling. assets.publishing.service.gov.uk/media/5d230f1c… #ukemplaw
2/ There are 10 grounds of appeal, 5 of which merit mention. 1st is compensation for someone on sick leave (& SSP) at dismissal. What's their loss under ERA s.123? The contractual rate or sick pay? The answer depends on the impact of the dismissal.
3/ Dignity v Bruce paras 11-13 hold the key. The ET has to look at the contribution of the dismissal to the illness or its exacerbation. The fact that a pre-existing illness resulting from the employer's actions isn't enough.
Read 7 tweets
12 Feb 19
1/ [Thread] Gan Menachem v de Groen may be principally concerned with whether it's directly discriminatory because of religion/sex for a Lubavitch (i.e. ultra-Orthodox/mega-frum) nursery to dismiss someone for living in sin, but the judgment is surprisingly important. #ukemplaw
2/ 1st some facts. C was a nursery teacher at GM. C is Jewish but is less frum (i.e. less religious) than the nursery's identity and clientele. Significantly, C and her unmarried partner lived together - something that would be seen as scandalous to the Lubavitch community.
3/ C attended a communal bonfire/BBQ on Lag B'Omer (the 33rd day after the 1st day of Pesach). She went with her partner, who let slip to a nursery governor that he & C lived together. Some parents found out, recoiled in horror & threatened to withdraw their children.
Read 20 tweets
13 Dec 18
1/ Seahorse v Nautilus: Two important points arise from this Court of Appeal judgment about the reach of collective consultation rights under TULR(C)A s.188, one territorial and the other more generally definitional. Here's the judgment: bailii.org/cgi-bin/format…) #ukemplaw
2/ On the definitional point, the CA looked at the definition of 'establishment' (as s.188 operates when 20+ are to be made redundant within 90 days at 1 establishment). Put simply, the CA held that a unit (here each ship) with an assigned workforce is an establishment.
3/ On the question of territorial scope, the CA considered whether the focus under s.188 is on the individual or the establishment. The CA found for the latter, with Underhill LJ identifying a host of practical problems if the individual was the focus.
Read 4 tweets
28 Mar 18
1/ The Court of Appeal's judgment in Secretary of State for BEIS v Parry and Trustees of the William Jones's School Foundation is fascinating for a whole host of reasons, perhaps particularly a little bit of obiter thrown in at the end bailii.org/ew/cases/EWCA/… #ukemplaw
2/ First, unusually this was an appeal brought by a non-party to the original hearing and to the EAT appeal. All parties accepted (eventually) the CA had jurisdiction. The SoS had only appealed in shock and horror at an ultra vires ruling without being added as a party.
3/ The case was a bit of a mess from the start. On the ET1 the unfair dismissal and arrears of pay boxes were ticked. In box 8.2 (the details of claim box) 'Please see attached' was written, but particulars of the wrong claim were attached. I believe the right emoji is 🤦‍♂️
Read 17 tweets
28 Mar 18
1/ CA judgment was handed down today in Abertawe Bro Morgannwg University Local Health Board v Morgan. It'll be the go-to case for Claimants seeking a just and equitable extension of time under the Equality Act. #ukemplaw
2/ First, the Court deals with s.123(4), dismissing an argument by the Board that the date time runs from in an omission case must also be considered the date of breach.
3/ The CA then turns to the 'just and equitable' discretion, starting by restating the well known approach to the Limitation Act s.33 factors set out in Keeble and clarified in Afolabi as not being a checklist. Leggatt considers the position more closely analogous to s.7(5) HRA.
Read 9 tweets
29 Nov 17
1/ Thread: The CJEU judgment in the holiday pay case of King v Sash Windows is out and is a 'must-read' for all #ukemplaw practitioners. curia.europa.eu/juris/document…
2/ As you'll know, Mr King worked for Sash Windows for 13 years and was never paid for taking annual leave. This meant some years he was reluctant to take it. #ukemplaw
3/ On retirement he brought a claim for (1) pay for holiday accrued but untaken in his final leave year; (2) pay for holiday taken throughout the 13 years; and (3) payment in lieu for accrued but untaken holiday throughout the 13 years.
Read 10 tweets