Recent Decesions

CASE AND COURT

KEY QUESTIONS TO BE DETERMINED

Eweida and others v United Kingdom

 

 

 

 

 

 

 

 

 

 

ECHR

Discrimination. The UK failed to protect a Christian employee’s right to manifest her religious belief. Ms Eweida, whom British Airways prevented from wearing a cross owing to its uniform policy, failed with her religious discrimination claim before domestic courts and tribunals. However, while BA’s wish to project a certain corporate image was legitimate, the Court of Appeal accorded it too much weight in deciding that the uniform policy was objectively justified. The ECtHR rejected the complaints of three other Christian employees: Mrs Chaplin, a nurse whose employer prevented her from wearing a crucifix on hospital wards because of health and safety; Ms Ladele, a registrar who was dismissed by a council for refusing to conduct civil partnership ceremonies; and Mr McFarlane, who was dismissed by Relate for refusing to counsel same-sex couples.

Kenny and others v Minister for Justice, Equality and Law Reform, Minister for Finance, Commissioner of An Garda Síochána (C-427/11)

 

ECJ

Equal pay. The aim of ensuring “good industrial relations” cannot, of itself, give rise to an employer’s objective justification defence to indirect gender discrimination in pay. However, the fact that pay rates have been collectively bargained may be taken into account as “one factor among others” when justification is being assessed.

Geys v Société Générale, London Branch

 

Supreme Court

Termination of employment. An employee was employed until the date on which he was deemed to have received unequivocal communication of his employer’s decision to exercise its contractual right to summarily dismiss him by making a payment in lieu of notice.

Transport for London v O’Cathail

 

 

 

Court of Appeal

Employment Tribunals. The Court of Appeal overturned the EAT’s decision that a Tribunal erred in refusing an ill claimant’s application to postpone a hearing. The EAT substituted its own view for that of the Tribunal. A Tribunal’s case management powers are wide-ranging, and the Tribunal in this case had not exceeded those powers.

Dresdner Kleinwort Ltd and another v Attrill and others

 

Court of Appeal

Contracts of employment. The Court of Appeal dismissed an investment bank’s appeal against the finding that the announcement of a guaranteed minimum bonus pool created a contractually binding obligation to pay discretionary bonuses from the pool, dependent only on individual performance.

Anderson and others v London Fire & Emergency Planning Authority

 

 

 

Court of Appeal

Contracts of employment. A contractual provision in a collective agreement, which provided for two possible rates of pay, did not entitle the employer to choose the lower rate. The EAT had construed the clause as presenting two alternatives and found that the employer had fulfilled its contractual obligations by paying in accordance with one of them. However, this construction was “wholly improbable” and overly literal.

Readman v Devon Primary Care Trust

 

 

Court of Appeal

Redundancy. The Court of Appeal has reportedly allowed an appeal against the EAT’s decision that it was reasonable for an employee to reject an offer of alternative employment for personal reasons, despite the fact that it was found to be a suitable alternative role. The case has been remitted to the EAT for further directions.

 

R (T and others) v Chief Constable of Greater Manchester and others

 

Court of Appeal

Recruitment. The blanket disclosure of all convictions and cautions currently required by the statutory scheme for checking criminal records may unjustifiably interfere with an individual’s right to respect for private life under Article 8 of the European Convention on Human Rights.

Oasis Community Learning v Wolff

Employment Appeal Tribunal

Termination of employment. A history of mutual allegations of misconduct between an employee and employer did not render that employee’s re-engagement impracticable.

Thomson v Barnet Primary Care Trust

Employment Appeal Tribunal

Termination of employment. A district nurse, who was summarily dismissed and then reinstated following a successful appeal, with full back-pay, was constructively dismissed when she resigned over the terms of her return to work.

Romero Insurance Brokers Ltd v Templeton and another

High Court

Restrictive covenants. The High Court upheld a 12 month non-solicitation restrictive covenant in a senior insurance broker’s contract, and awarded damages and an injunction to his former employer for the remaining period of the covenant.

Seldon v Clarkson Wright & Jakes

 

 

Employment Tribunal

Discrimination. As at 31 December 2006, a law firm’s mandatory retirement age of 65 for partners was a proportionate means of achieving the legitimate aims of workforce planning and staff retention. Therefore, the retirement age was objectively justified and did not amount to direct age discrimination.

Bouabdillah v Commerzbank AG

 

 

 

Employment Tribunal

Discrimination. An Employment Tribunal upheld employee’s claim that she had been victimised, by being dismissed, because she had brought discrimination proceedings against her previous employer. It was the fact that the she had brought discrimination proceedings, rather than the fact that she had failed to disclose them during the recruitment process, which had led to the “emotionally driven” decision to dismiss.