Emplaw Monthly - February 2015
Sparks and others v Department for Transport  EWHC 181: DfT wrong to unilaterally alter absence management policy terms.
In Sparks and others v DfT, the High Court held that terms relating to attendance management were ‘apt for incorporation’ into employees’ contracts and could not be unilaterally altered by the DfT.
Norman and others v National Audit Office  UKEAT/0276/14: Right to vary provision was not clear and unambiguous
The EAT in Norman and others v National Audit Office found that an Employment Tribunal had erred in concluding that a term in the letters of appointment of Ms Norman and others enabled the employer to vary the contract unilaterally; the term was unclear and ambiguous. Clause 2 in the offer letters provided: ‘detailed particulars of conditions of service [found in the relevant sections of the HR manual] are subject to amendment; any significant changes affecting staff in general will be notified […]’ followed by notification details.
Hart v St Mary’s School (Colchester) Ltd  UKEAT/0305/14: No unilateral variation where clause was not clear and unambiguous.
In Hart v St Mary’s School, the EAT again decided that a clause purporting to reserve to the employer the right to vary the contractual terms did not confer upon the employer a unilateral power of variation. In this case, Ms Hart, a part-time learning support teacher, worked three days a week.
Braithwaite and others v HCL Insurance BPO Services Ltd  UKEAT/152/14/0502: Removal of benefits on standardisation of terms was justified:
A common problem in the context of transfers of businesses is the harmonisation of terms across the business. This case is not a TUPE transfer case as such (the tribunal had held that the dismissals that had occurred were not TUPE transfer related dismissals) but it addresses the problems with standardisation of terms, in this case arising from a TUPE transfer. In Braithwaite and others v HCL Insurance, Ms Braithwaite and other employees were previously employed by a business called Liberata and had transferred under TUPE 2006 to HCL.
In Stack v Ajar-Tec Ltd Mr Stack, a director and major investor and shareholder in Ajar Ltd who carried out unpaid work for it brought claims for unfair dismissal and unlawful deductions from wages when he was removed as a director following a disagreement with his fellow investors. To bring these claims, he had to show that he was both a worker under section 230(3) Employment Rights Act 1996 (for the unlawful deductions claim) and an employee under section 230(1) (unfair dismissal). Mr Stack had entered into business with two other investor/shareholders.
Carroll v Mayor’s Office for Policing and Crime  UKEAT/0203/14: - Appeal out of time despite ET error
Time for lodging an appeal with the EAT runs from the date on which written reasons are sent to the parties (Rule 3(3)(a)(i) EAT Rules 1993), not the date of receipt. There is a discretion to extend time but this is exercised only in exceptional cases.
Land Registry v Houghton and others  UKEAT/0149/14: Non payment of bonus where employee received warning for disability related sickness absence was discriminatory
The Land Registry in Land Registry v Houghton operated a discretionary bonus scheme which included a term that an employee who received a formal warning in respect of sickness absence during the relevant financial year would be ineligible to receive the bonus. The Land Registry had put in place reasonable adjustments that would adjust the trigger points that would lead to a warning but Ms Houghton and others received warnings. They brought claims for discrimination arising from disability.
Dismissal for excess mileage claimed was fair.
Rubins v Latvia  ECHR 2: Dismissal of university professor was breach of the right to freedom of expression.
Article 10 of the European Convention on Human Rights (ECHR) provides that everyone has the right to freedom of expression. It is a qualified right so that interference can only be justified if it was prescribed by law, pursued a legitimate aim and was necessary in a democratic society for the achievement of such an aim. Latvian law allows for an employee to be dismissed for prescribed reasons if he had committed significant infringements of his terms of employment or the employee had fulfilled his duties in a way that disregarded good morals.
Begraj and another v Secretary of State for Justice  EWHC 250: No claim for breach to right to a fair trial when fresh ET hearing possible
Article 6 of the ECHR provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
Mari v Reuters Ltd  UKEAT/0539/13: Employee could not claim constructive dismissal after 18 month delay
In Mari v Reuters Ltd, Ms Mari, a systems support analyst, was off sick from work with stress, anxiety and depression. She claimed that she had been placed under an unreasonable workload and bullying working conditions. During a lengthy period of sickness absence she accepted contractual sick pay until it expired after 39 weeks. She then resigned and claimed constructive unfair dismissal.
Rynda (UK) Ltd v Rhijnsburger  EWCA Civ 75: Single employee was an organised grouping for purposes of TUPE 2006.
Rynda Capital Partners Europe LLP owns a large portfolio of properties across Europe (known as the "H20 properties") through a complicated corporate structure. In May 2009 the various subsidiary companies entered into management agreements with Drivers Jonas under which Drivers Jonas agreed to manage all the H20 properties.