Category Archives: Case update

Case update (1): Unfair dismissal – The ‘Vanishing dismissal’

Summary:  Where a dismissed employee brings an internal appeal, which results in their re-instatement, should they be treated as if the employment relationship had remained in existence throughout the appeal process? Yes, says the EAT in Phoenix Academy Trust v Kilroy, available here, even if the employee made it clear when appealing that they have…
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Case update (2): Unfair dismissal – Personality clash S.O.S.R. dismissal

Summary:  Can a dismissal be fair in the absence of any procedure or right of appeal, when there is a personality clash between two senior members of staff resulting in an irreparable relationship? Yes, says the EAT in Gallacher v Abellio Scotrail Limited available here. Facts:   Mrs Gallacher, the employee, was a senior manager at…
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Case update (3): Unfair dismissal – Anonymous witnesses

Summary:  Is it unfair for an employer to dismiss an employee based on the evidence of an anonymous witness? Not necessarily, says the EAT in Tai Tarian Ltd v Christie, available here. Background:  During the investigation stage of employers’ internal procedures there maybe witnesses who wish to remain anonymous. To rely on such evidence, the…
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Case update (2):  Unfair dismissal – What work counts for Continuous Service?

reading employment contract
Summary:  Does ‘unofficial’ work prior to formal start date count towards a period of continuous employment? No, says the EAT in R O’Sullivan v. DSM Demolition Ltd, available here. Background:  Employees have the right under the Employment Rights Act 1996 (ERA) not to be unfairly dismissed, provided they have been continuously employed for a period…
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Case update (1): TUPE – Beneficial variations void

signing employment contract
Summary:  Are beneficial (as well as adverse) variations to an employment contract void where the principal reason is a TUPE transfer? Yes, held the EAT in Ferguson & Ors v Astrea Asset Management Limited (available here). Background:  Regulation 4(4) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) renders any variation of a…
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Case update (3):  Redundancy – Careful of selection by interview

waiting for interview
Summary:  Can an employer reasonably rely on just an interview process when considering redundant employees for ‘alternative employment’ which is essentially the same as their current role? No, says the EAT in Gwynedd Council v Barrett, available here. Facts:  The employer, Gwynedd Council, decided to implement a reorganisation of the schools in the local area.…
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Case update (1): Unfair dismissal – is it the last straw?

dismissal
Summary: If an employee resigns in response to a trivial act (which they consider the ‘last straw’) is previous conduct by an employer still relevant when deciding whether the employee has been (constructively) unfairly dismissed? Yes, held the EAT in Williams v Alderman Davies Church in Wales Primary School (available here). Background:   In order to…
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Case update (2):  Discrimination – expanding the scope

Summary:  If an employer announces during a radio interview that they would never hire (or wish to work with) a homosexual, are they guilty of discrimination even in circumstances where there was no hiring process ongoing at the time of the comment? Yes, says the European Court of Justice (CJEU) in NH v. Associazione Avvocatura…
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Case update: Employer’s liability – it’s less likely!

liable
What do we already know?  We updated you in our August 2018 Newsletter Case update (1) Employer’s liability – it’s more likely on the Court of Appeal’s decision in Barclays Bank plc v Various Claimants that Barclays was liable for the conduct of the late Dr Gordon Bates who was an independent contractor who conducted…
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Case update:  Morrisons data breach

data breach
Summary: This is an important judgment which effectively returns the law of employers’ vicarious liability for the criminal acts of their employees back to the state it was in prior to the January 2018 High Court decision.  This decision is, in essence, that the employer will not be liable if the criminal act was not…
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