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Employment - From: 1970 To: 1979

This page lists 201 cases, and was prepared on 17 July 2015.


 
 Heaton -v- Bell; HL 1970 - [1970] AC 728
 
Construction Industry Training Board -v- Labour Force [1970] 3 All ER 220; (1970) 5 ITR 290
1970
QBD

Employment
In this industrial training levy case there was an appeal on a point of law against the imposition of the levy on a company, Labour Force Limited, which was engaged in the supply of labour to contractors in the construction industry, but not as an employment agency. The contractors paid Labour Force, who in turn paid the workers, but Labour Force exercised no control at all over the work done by them for the contractors, who had the right to terminate. Held: The Industrial Tribunal had correctly concluded that there was no contract of any kind between the contractor and the workman. Implied contracts of service were not considered. As for Labour Force, it was held that the contracts between Labour Force, as principal, and the workers to do work for a third party, the contractor, were not contracts of service. They were described as contracts sui generis
1 Citers


 
Home Counties Dairies -v- Skilton [1970] 1 WLR 526; [1970] All ER 1227
1970
CA

Employment
In construing an employee's restrictive covenant, a court should disregard fanciful hypotheses or arguments leading to a reductio ad absurdum.
1 Citers



 
 Smith and another -v- Blandford Gee Cementation Co Ltd; 1970 - [1970] 3 All ER 154
 
Marriott -v- Oxford and District Co-operative Society Ltd (No. 2) [1970] 1 QB 186
1970
CA
Winn LJ
Employment
After pointing out that the statutory definition of 'the relevant date' for redundancy payment purposes . . is the date of the expiry of the notice or (if there is no notice) the date on which the termination takes effect, Winn LJ said: "That is consistent with the whole concept that a contract of employment for the purposes of this statute is brought to an end, i.e., it is terminated, when it is so broken that no further full performance of its terms will occur."
1 Citers


 
Dunk -v- George Waller & Sons Ltd [1970] 2 QB 163
1970

Widgery LJ
Employment
"A contract of apprenticeship secures three things for the apprentice: it secures him, first, a money payment during the period of apprenticeship. . ." the range of remedies may be wider than under standard form of employment contact.
1 Citers



 
 Baker -v- Gill; QBD 6-Nov-1970 - [1970] EWHC QB 1; (1970) 10 KIR 61; [1971] ITR 61
 
Mumford -v- Boulton and Paul (Steel Constructions) Ltd [1970] EWCA Civ 1; (1971) 6 ITR 76
3 Dec 1970
CA
Lord Denning MR, Edmund Davies, Megaw LJJ
Employment

[ Bailii ]
 
Kleboe -v- Ayr County Council [1971] 7 ITR 20
1971


Employment
Meaning of 'work of a particular kind' in the context of redundancy.
1 Citers



 
 Edwards -v- SOGAT; CA 1971 - [1971] Ch 354

 
 Anglia Television -v- Oliver Reed; CA 1971 - [1972] 1 QB 60; [1971] 3 All ER 690
 
Young -v- Associated Newspapers (1971) 11 Knight Industrial Report 413
1971

Brightman J
Employment
Three journalists were dismissed on notice in circumstances where the redundancy provisions of their contract applied. Those provisions stated that the journalists should receive "any entitlement under the pension scheme". That scheme provided that "A member having at least 10 years of pensionable service and retiring with the consent of the company…shall be entitled to a deferred pension . .". The issue was whether the journalists had so retired "with the consent of the company". Held: The court discussed the authorities, and Brightman J said: "according to the ordinary use of language, an employee who is dismissed is not, prima facie, an employee who is retiring with the consent of those who dismiss him." and "Ought this prima facie meaning to be displaced in the present case by reference to the wording of other rules? First, there is the supposed anomaly of the post-pension age employee who stays on at the company's request and is (perhaps accidentally) deprived of his pension when ultimately the company gives notice to terminate his employment. Then there is the reference to the ex-Western Morning News journalist, who is "dismissed" without becoming entitled to a pension under the early retirement clause. Do these provisions provide a sufficient justification for departing, in the early retirement clause, from the prima facie meaning of the word "retiring"? "After weighing, as best I can, the arguments advanced on both sides, I feel reluctantly compelled to decide against the plaintiffs' claim. My reasons are as follows: (1) It would, in my judgment, be a misuse of language to describe a journalist who is given notice by the company as "retiring with the consent of the company". The expression "a member retiring" had it appeared on its own, would in my view, have prima facie excluded a case where the employee is dismissed. This is all the more so where it is coupled with the words "with the consent of the company", because a person cannot, in any meaningful sense be said to consent to his own act; he can only consent to the act of another. (2) It would be natural for the company, when establishing a non-contributory pension fund, to exclude a dismissed employee from a deferred pension…If the plaintiffs' argument is correct, the most delinquent employee would be entitled to the same reward in terms of a deferred pension as the most loyal employee…(3) I do not think that the plain meaning of the early retirement clause can be displaced by reference to the supposed anomaly under paragraph (ii) of rule C1 (the post-pension age employee). It may be that there is an anomaly under that provision which the company may wish to remedy under its power to alter the rules…"
1 Citers


 
Leary -v- National Union of Vehicle Builders [1971] Ch 34
1971

Megarry J
Employment, Natural Justice
The court faced questions on a trades union's decision as to the membership of the applicant. Held: As a general rule, a failure of natural justice could not be cured by a sufficiency of natural justice on appeal.
1 Citers


 
Malloch -v- Aberdeen Corporation [1971] 1 WLR 1578; [1971] 2 All ER 1278
1971
HL
Lord Reid, Lord Wilberforce
Employment, Damages
A common law action for wrongful dismissal can at most yield compensation measured by reference to the salary that should have been paid during the contractual period of notice. Lord Reid said: "At common law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid. The servant has no remedy unless the dismissal is in breach of contract and then the servant's only remedy is damages for breach of contract."
Lord Wilberforce said: "As a general principle, I respectfully agree: and I think it important not to weaken a principle which, for reasons of public policy, applies, at least as a starting point, to so wide a range of the public service. The difficulty arises when, as here, there are other incidents of the employment laid down by statute, or regulations, or code of employment, or agreement. The rigour of the principle is often, in modern practice, mitigated for it has come to be perceived that the very possibility of dismissal without reason being given - action which may vitally affect a man's career or his pension - makes it all the more important for him, in suitable circumstances, to be able to state his case and, if denied the right to do so, to be able to have his dismissal declared void. So, while the courts will necessarily respect the right, for good reasons of public policy, to dismiss without assigned reasons, this should not, in my opinion, prevent them from examining the framework and context of the employment to see whether elementary rights are conferred on him expressly or by necessary implication, and how far these extend." and
"The appellant has first to show that his position was such that he had, in principle, a right to make representations before a decision against him was taken. But to show this is not necessarily enough, unless he can also show that if admitted to state his case he had a case of substance to make. A breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give him a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain . ."
Lord Reid said: "At common law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid. The servant has no remedy unless the dismissal is in breach of contract and then the servant's only remedy is damages for breach of contract."
1 Citers


 
Armstrong Whitworth Rolls Ltd -v- Mustard [1971] 1 All ER 598
1971


Employment
An employee's duties and roll may evolve over time.
1 Citers



 
 National Dock Labour Board -v- John Bland and Company Ltd and others; HL 25-May-1971 - [1971] UKHL 4; [1971] 2 Lloyd's Rep 2; [1971] 2 All ER 779; [1972] AC 222; [1971] 2 WLR 1491; [1972] 14 KIR 137; [1971] ITR 152
 
McCreadie -v- Thomson & Macintyre (Patternmakers) Limited [1971] UKHL 5; [1971] 1 WLR 1193; 1971 SLT 242; [1971] 2 All ER 1135; 1971 SC(HL) 124
29 Jun 1971
HL

Scotland, Employment

Redundancy Payments Act 1965 2
[ Bailii ]
 
East Sussex County Council -v- Walker (1972) IITR 280
1972

Brightman J
Employment
(National Industrial Relations Court) Mrs Walker was a school cook, who was told that her services were no longer required. She was invited to resign, and did so. The court was asked to decide whether she had resigned or been dismissed. Held: She had been dismissed. Brightman J said: "In our judgment, if an employee is told that she is not longer required in her employment and is expressly invited to resign, a court of law is entitled to come to the conclusion that, as a matter of common sense, the employee was dismissed. Suppose that the employer says to the employee, "Your job is finished. I will give you the opportunity to resign. If you don't, you will be sacked". How, we would ask, is it possible to reach a conclusion other than that the employment is being terminated by the employer, even though the employee takes the first and more respectable alternative of signing a letter of resignation rather than being the recipient of a letter of dismissal? We feel that in such circumstances there really can be no other conclusion than the employer terminated the contract."
Redundancy Payments Act 1965 3(1)(a)
1 Citers


 
Marshall -v- Harland & Wolff Ltd [1972] ICR 101
1972
NIRC
Sir John Donaldson (President)
Employment
The doctrine of frustration can apply to contracts of employment. The Court looked at the situations in which it should extend time for an appeal to be filed: "Was the employee's incapacity, looked at before the purported dismissal, of such a nature, or did it appear likely to continue for such a period, that further performance of his obligations in the future would either be impossible or would be a thing radically different from that undertaken by him and agreed to be accepted by the employer under the agreed terms of his employment?"
1 Citers


 
Brindle -v- Smith [1972] IRLR 125
1972
CA
Lord Denning MR, Megaw LJ
Employment
A question arose as to the position of an employee wrongfully dismissed just before the end of his first 104 weeks of service where he would have qualified to have a right not to be unfairly dismissed if he had been given proper notice. Held: The dismissal took place when the contract was terminated, and that the termination took place when the notice expired or was due to expire. "I would add at this point that I do not think the Act can be got round by wrongfully dismissing a person summarily or by giving him a notice that is too short. No person should be able to take advantage of his own wrong in that way. If an employer should try to escape the Act by giving no notice at all or a notice that was too short, I should have thought that the tribunal, by means of a claim for wrongful dismissal (see s 113 of the Act), or by some such way, would see that the employee would get the same compensation as he would have done if he had been given notice of a proper length."
1 Citers


 
Global Plant Ltd -v- Secretary of State for Social Services [1972] 1 QBD 139
1972

Lord Widgery
Contract, Employment
Lord Widgery: "One must not overlook that the intention of the parties was that the relationship should be that of an independent contractor, and although the parties cannot by intention make a transaction into something which it is not, yet it is recognised that such intention is a factor for consideration in these cases."
1 Citers



 
 Heaton's Transport (St Helen's) Ltd -v- Transport and General Workers' Union; HL 1972 - [1973] AC 15; [1972] IRLR 25; [1972] 3 All ER 101

 
 Jones -v- Secretary of State for Social Services; Jones -v- Hudson; HL 1972 - [1972] 2 WLR 210; [1972] 1 All ER 145
 
Secretary of State for Employment -v- ASLEF (No 2) [1972] 2 QB 455
1972
CA
Lord Denning MR, Buckley LJ
Employment, Contract
Railway employees had been instructed by their unions to "work to rule" and more specifically to ban overtime, Sunday and rest day working. "Working to rule" meant giving an unreasonably literal construction to certain requirements of the railway rule book (such as satisfying oneself that the engine is in order) and ignoring others, such as the rule that one should make every effort to facilitate the working of the trains and prevent avoidable delay. And this course of conduct was pursued with the intention of bringing the system to a halt. The question was whether the conduct of the union amounted to industrial action. Held: The employees were not obliged to work on Sundays and rest days and refusing to do so, even for the purpose of being obstructive, was not a breach of contract. On the other hand, there was a limited obligation upon individual employees to work 9 hour shifts instead of 8 when rostered to do so and the ban on this overtime was a breach of contract. In addition, the "work to rule" was in breach of a reasonable construction of the rules. So the instructions involved breaches of contract by the employees.
Lord Denning MR said that what made the action a breach of contract was the motive with which it was done: “If [the employee], with the others, takes steps wilfully to disrupt the undertaking, to produce chaos so that it will not run as it should, then each one who is a party to those steps is guilty of a breach of his contract. It is no answer for any one of them to say ‘I am only obeying the rule book,’ or ‘I am not bound to do more than a 40-hour week.’ That would be all very well if done in good faith without any wilful disruption of services; but what makes it wrong is the object with which it is done. There are many branches of our law when an act which would otherwise be lawful is rendered unlawful by the motive or object with which it is done. So here it is the wilful disruption which is the breach."
As to the the words "if it appears to the Secretary of State" used in the statute there in question: "If the Minister did not act in good faith or he acts on extraneous considerations which ought not to influence him or if he plainly misdirects himself in fact or in law it may well be that a court would interfere."
Roskill LJ said: “In legal theory, performance or non-performance of a contract does not depend upon goodwill or lack of goodwill; a contractual obligation can be properly performed albeit without goodwill, it can equally be broken notwithstanding honest if unavailing and well intentioned attempts at performance. But I venture to doubt whether the dichotomy between mere withdrawal of goodwill and the non-performance of a contract is in practice as complete as Mr Pain eloquently urged upon us. Purported performance accompanied by lack of goodwill may all too easily cross the borderline between lawful performance without breach and purported performance in breach either of some express or some implied term in the contract."
Buckley LJ said that the "work to rule" involved "breaches of an implied term to serve the employer faithfully within the requirements of the contract. It does not mean that the employer could require a man to do anything which lay outside his obligations under the contract, such as to work excess hours of work or to work an unsafe system of work or anything of that kind, but it does mean that within the terms of the contract the employee must serve the employer faithfully with a view to promoting those commercial interests for which he is employed."
1 Citers


 
Lord Advocate -v- Babcock & Wilcox (Operations) Ltd [1972] UKHL 8; [1972] 1 WLR 488; [1972] 1 All ER 1130; [1972] SLT 103; [1972] SC (HL) 1; (1972) 12 KIR 329
15 Mar 1972
HL

Employment, Scotland

1 Citers

[ Bailii ]
 
Norton Tool Co Ltd -v- Tewson [1972] IRLR 86 NIRC; [1973] 1 WLR 45; [1972] ICR 501
30 Oct 1972
NIRC
Donaldson P
Employment, Damages
(National Industrial Relations Court) The court was asked to calculate damages on a dismissal, and particularly as to whether the manner of the dismissal should affect the damages. Held: The common law rules and authorities on wrongful dismissal are irrelevant. That cause of action is quite unaffected by the Act which has created an entirely new cause of action, namely, the "Unfair Industrial Practice" of unfair dismissal. The measure of compensation for that statutory wrong is itself the creature of statute and is to be found in the Act of 1971 and nowhere else.
Donaldson P said: “The amount to be awarded is that which is just and equitable in all the circumstances, having regard to the loss sustained by the complainant. “Loss” in the context of section of 116 does not include injury to pride or feelings. In its natural meaning the word is not to be so construed, and that this meaning is intended seems to us to be clear from the elaboration contained in section 116(2). The discretionary element is introduced by the words “having regard to the loss”. This does not mean that the court of tribunal can have regard to other matters, but rather that the amount of the compensation is not precisely and arithmetically related to the approved loss . . The circumstances of the dismissal were relevant only if they were such as to cause or to be likely to cause future loss. Injury to the employee’s pride or feelings is not loss and is irrelevant . . We need only consider whether the manner and circumstances of his dismissal could give rise to any risk of financial loss at a later stage by, for example, making him less acceptable to potential employers or exceptionally liable to selection for dismissal.” It was good industrial relations practice for an employer who dismisses without notice to make a payment in lieu of notice. Where such sums are paid, no credit has to be given by the employee for monies earned by the employee from other employers in the notice period. It was held that damages for unfair dismissal should therefore include full pay for the notice period without reduction for mitigation.
Industrial Relations Act 1971 116(1)
1 Cites

1 Citers

[ Bailii ]
 
M & W Grazebrook Ltd -v- Wallens [1973] ICR 256
1973

Sir John Donaldson
Employment, Litigation Practice
Communications between the client and his non-lawyer representative, and communications between that representative and third party witnesses, are privileged despite the fact that the representative may have no professional qualification. Sir John Donaldson said: "Before industrial tribunals it is the rule, rather than the exception, for parties to be represented by persons other than lawyers. Indeed, it is the policy of Parliament to encourage such representation. If the law to be applied to industrial tribunals were not as stated in the note in the county court rules: "Communications not only with legal advisers, but with other agents, with an actual view to the litigation in hand, and the mode of conduct of it, also are privileged"], the position would arise that, for example, a personnel officer, when examining as a witness a works foreman, could, at the end of the works foreman's evidence, be called upon to hand over the proof of evidence from which he had been examining the witness. Obviously, that would be a wholly untenable situation."
1 Citers



 
 Heath and Another -v- JP Longman (Meat Salesman) Limited; 1973 - [1973] LCR 407
 
Dedman -v- British Building and Engineering Appliances [1973] IRLR 379; [1974] 1 All ER 520; [1974] ICR 53; [1974] 1 WLR 171
1973
CA
Lord Denning MR, Scarman LJ
Employment
The claimant sought to bring his claim under a provision which required a complaint to the industrial tribunal to be made within four weeks of the dismissal unless the employment tribunal was satisfied that this was not "practicable". He did not meet the limit. Held: Time limits in all statutory tribunals are jurisdictional in nature, though Lord Denning gave examples of time limits which did not go as to jurisdiction. Where there was an immediate dismissal with salary in lieu of notice, the effective date of termination was the date of the dismissal and not the expiry of the period in respect of which the salary in lieu was paid. Where a Claimant instructs solicitors and does so with full knowledge of the facts giving rise to his complaint and through their default the originating application is not presented in time the Tribunal will normally consider that it was reasonably practicable for the claim to have been presented within the time limit.
Lord Denning MR said: "Ignorance of his rights – or ignorance of the time limit – is not just cause or excuse, unless it appears that he or his advisers could not reasonably have been expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and they must take the consequences . . It is difficult to find a set of words in which to express the liberal interpretation which the English Court has given to the escape clause. The principal thing is to emphasise as the statute does `the circumstances'. What is practicable `in the circumstances'? If in the circumstances the man knew or was put on enquiry as to his rights and as to the time limit, then it was `practicable' for him to have presented his complaint within the four weeks and he ought to have done so. But if he did not know and there was nothing to put him on enquiry then it was `not practicable' and he should be excused . . the time limit is so strict that it goes to the jurisdiction of the tribunal to hear the complaint. By that I mean that, if the complaint is presented to the tribunal just one day late, the tribunal has no jurisdiction to consider it. Even if the employer is ready to waive it and says to the tribunal: “I do not want to take advantage of this man. I will not take any point that he is a day late”; nevertheless the tribunal cannot hear the case. It has no power to extend the time: see Westward Circuits Ltd v Read [1973] ICR 301 and Rogers v Bodfari (Transport) Ltd. [1973] ICR 325”
Scarman LJ said: "On the point of construction of "the escape clause" I agree with Lord Denning MR. The word "practicable" is an ordinary English word of great flexibility: it takes its meaning from its context. But, whenever used, it is a call for the exercise of common sense, a warning that sound judgment will be impossible without compromise. Sometimes the context contemplates a situation rarely to be achieved, though much to be desired: the word then indicates one must be satisfied with less than perfection: see, for example, its use in s 5 of the Matrimonial Proceedings and Property Act 1970. Sometimes, as is submitted in the present case, what the context requires may have been possible, but may not for some reason have been "practicable". Whatever its context, the quality of the word is that there are circumstances in which we must be content with less than 100 per cent: and it calls for judgment to determine how much less."
1 Cites

1 Citers


 
Singh -v- Post Office [1973] ICR 437
1973
NIRC
Sir John Brightman
Employment
Sir John Brightman said that a court, asked about whether an out if time claim could have been presented in time, should read the word "practicable" as the equivalent of "feasible" and ask colloquially and untrammelled by too much legal logic - "was it reasonably feasible to present the complaint to the tribunal within the relevant three months?"
1 Citers


 
Stepek (J) Ltd -v- Hough [1973] 8 ITR 516 NIRC
1973
NIRC

Employment, Damages

1 Cites

1 Citers


 
Sutcliffe -v- Hawker Siddley Aviation Limited [1973] ICR 560
1973
NIRC
Sir John Donaldson
Employment
Though the 1971 Act made no reference to it, nonetheless there could be an unfair dismissal deriving from a constructive dismissal. An argument that the converse interpretation should be adopted because earlier legislation (the 1965 Act) had defined dismissal expressly so as to include constructive dismissal was roundly rejected: "That comparison points, it is said, to Parliament having intended that there should be no room for an 'unfair constructive dismissal'. We entirely reject that contention. We consider that the omission arose solely because the draftsman thought it unnecessary to include the subsection. We have no doubt that there can be constructive unfair dismissals and that any amendment of the 1971 Act to include a subsection (c) equivalent to that contained in the 1965 Act would have no effect other than to dispose of a misconstruction of the Act."
Industrial Relations Act 1971 - Redundancy Payments Act 1965 3(1)(c)
1 Citers


 
Rogers -v- Bodfari (Transport) [1973] IRLR 172
1973
NIRC
Sir John Donaldson
Employment
Time limits in the context of unfair dismissal claims go to jurisdiction, and that jurisdiction cannot be conferred on a tribunal by agreement or waiver. However, There is nothing to prevent the time bar issue in relation to a particular act being determined after a full hearing. Here, the point on jurisdiction was not heard until after the tribunal had considered the merits of the case.
Sir John Donaldson said: "Mr Mitchell, for the appellant, has given us every possible assistance. He has considered this matter very carefully and finally come up with two arguments, and they are these. First, in his submission, once a tribunal has reached a conclusion as to whether a man has been fairly or unfairly dismissed, it is too late to raise the time bar point. As to that, the major difficulty in his way is the decision of this Court in Westward Circuits Ltd v Read [1973] IRLR 138. There the Court held that bearing in mind the wording of para. 5 of the Sixth Schedule to the 1971 Act, the time limit must be regarded and interpreted as a jurisdictional provision – which of course the parties cannot waive – and not as a limitation provision which they can waive or may be stopped from taking"
1 Citers


 
Robert Normansell (Birmingham) Ltd -v- Barfield [1973] 8 ITR 171
1973

Donaldson P
Employment
The court refused to award damages for non-economic loss after a dismissal, and particularly in this case for loss of job satisfaction.
1 Cites

1 Citers


 
Wellman Alloys Ltd -v- Russell [1973] ICR 616
1973


Employment, Damages
Only economic losses are recoverable following a dismissal.
1 Cites

1 Citers


 
Stekel -v- Ellice [1973] 1 WLR 191
1973
ChD
Megarry J
Company, Employment
The question of whether persons are in partnership is a question of substance and not form: the label which the parties choose to give to their relationship is not determinative.
Megarry J considered the status of a salaried partner: "Certain aspects of a salaried partnership are not disputed. The term 'salaried partner' is not a term of art, and to some extent it may be said to be a contradiction in terms. However, it is a convenient expression which is widely used to denote a person who is held out to the world as being a partner, with his name appearing as a partner on the notepaper of the firm and so on. At the same time, he receives a salary as remuneration, rather than a share of the profits, though he may, in addition to his salary, receive some bonus or other sum of money dependent upon the profits. Quoad the outside world it often will matter little whether a man is a full partner or a salaried partner; for a salaried partner is held out as being a partner, and the partners will be liable for his acts accordingly. But within the partnership it may be important to know whether a salaried partner is truly to be classified as a mere employee, or as a partner.
I have found it impossible to deduce any real rule from the authorities before me, and I think that, while paying due regard to those authorities, I must look at the matter on principle. It seems to me impossible to say that as a matter of law a salaried partner is or is not necessarily a partner in the true sense. He may or may not be a partner, depending on the facts. What must be done, I think, is to look at the substance of the relationship between the parties, and there is ample authority for saying that the question whether or not there is a partnership depends on what the true relationship is, and not on any mere label attached to that relationship. A relationship that is plainly not a partnership is no more made into a partnership by calling it one than a relationship that is plainly a partnership is prevented from being one by a clause negativing partnership. If, then, there is a plain contract of master and servant, and the only qualification of that relationship is that the servant is being held out as being a partner, the name ‘salaried partner’ seems perfectly apt for him, and yet he will be no partner in relation to the members of the firm. At the other extreme, there may be a full partnership deed under which all the partners save one take a share of the profits, with that one being paid a fixed salary not dependent on profits. Again, ‘salaried partner’ seems to me an apt description of that one. I do not see why he should not be a true partner at all events if he is entitled to share in the profits of a winding-up .”
Partnership Act 1890
1 Citers


 
Steckel -v- Ellice [1973] 1 WLR 191
1973

Megarry J
Employment, Company
A salaried partner can be a true partner. Megarry J said that of a salaried partner that "I do not see why he should not be a true partner, at all events if he is entitled to share in the profits on winding up" . . and "Certain aspects of a salaried partnership are not disputed. The term “salaried partner” is not a term of art, and to some extent it may be said to be a contradiction in terms. However, it is a convenient expression which is widely used to denote a person who is held out to the world as being a partner, with his name appearing as a partner on the notepaper of the firm and so on. At the same time, he receives a salary as remuneration, rather than a share of the profits, though he may, in addition to his salary, receive some bonus or other sum of money dependent upon the profits. Quoad the outside world it often will matter little whether a man is a full partner or a salaried partner; for a salaried partner is held out as being a partner, and the partners will be liable for his acts accordingly. But within the partnership it may be important to know whether a salaried partner is truly to be classified as a mere employee, or as a partner . . It seems to me impossible to say that as a matter of law a salaried partner is or is not necessarily a partner in the true sense. He may or may not be a partner, depending on the facts. What must be done, I think, is to look at the substance of the relationship between the parties; and there is ample authority for saying that the question whether or not there is a partnership depends on what the true relationship is, and not on any mere label attached to that relationship."
1 Citers


 
Hebden -v- Forsey & Son [1973] ICR 60
1973
NIRC
Sir Hugh Griffiths
Employment
The court referred to the test for frustration set down in Marshall and added: "This is a test to enable the court to determine whether the incapacity is of such a nature that it strikes at and destroys the root of the contract and thus the relationship of employer and employee, for it is only then that the contract is frustrated."
1 Cites

1 Citers


 
Vokes Ltd -v- Bear [1974] ICR 1; [1973] IRLR 363
1973

Sir Hugh Griffiths
Employment
The court discussed whether, having found errors in the employer's dismissal of the emploee, the tribunal can take into account other circumstances to say that the employee might have been dismissed in any event. Held: Sir Hugh Griffiths said: "We are unable to accept the submission that 'the circumstances' are limited to those directly affecting the ground of dismissal, in the sense submitted by [counsel for the employers], 'The circumstances' embrace all relevant matters that should weigh with a good employer when deciding at a given moment in time whether or not he should dismiss his employee. The subsection [section 24(6) of the Industrial Relations Act 1971] is focusing the tribunal's attention upon 'the dismissal', that is, the dismissal on March 2. The question they have to ask themselves is whether on March 2 the employers were acting reasonably in treating redundancy as a sufficient reason for dismissing the employee on that date. The tribunal are entitled to take into account all the circumstances affecting both the employers and the employee at the time of the dismissal. In the present case, no doubt the time would have come when the employers would have to dismiss the employee for redundancy for the good of the company as a whole, but the tribunal were fully entitled to take the view that that moment had not yet arrived by March 2. The employers had not yet done that which in all fairness and reason they should do, namely, to make the obvious attempt to see if the employee could be placed somewhere else within this large group. The position is somewhat analogous to the case of a warning. An employer may have good grounds for thinking that a man is not capable of doing his job properly, but in the general run of cases it will not be reasonable for him to regard that lack of capability as a sufficient reason for dismissing him until he is given a warning so that the man has a chance to show if he can do better. So in this case there was a redundancy situation but there was no compelling reason why the axe should fall until the employers had done their best to help the employee. It is therefore with satisfaction that we find that there is nothing in the wording of section 24(6) of the Act of 1971 which compels us to take the view that behaviour which we think most people would consider manifestly unfair is nevertheless to be deemed fair under the Act. If the employers had made all reasonable attempts to place the employee in the group and had failed, then the time might have come when it would be reasonable for them to regard the redundancy as a sufficient reason for the dismissal, but until that moment had come the tribunal were entitled to take the view that it was not reasonable to dismiss for redundancy and accordingly that it was unfair."
Industrial Relations Act 1971 24(6)
1 Citers


 
Earl -v- Slater & Wheeler (Airlyne) Ltd [1973] 1 WLR 51
1973

Sir John Donaldson
Employment
Sir John Donaldson said: "With respect to the tribunal, we think that it erred in holding that an unfair procedure which led to no injustice is incapable of rendering unfair a dismissal which would otherwise be fair. The question in every case is whether the employer acted reasonably or unreasonably in treating the reason as sufficient for dismissing the employee and it has to be answered with reference to the circumstances known to the employer at the moment of dismissal. If an employer thinks that his accountant may be taking the firm's money, but has no real grounds for so thinking and dismisses him for this reason, he acts wholly unreasonably and commits the unfair industrial practice of unfair dismissal, notwithstanding that it is later proved that the accountant had in fact been guilty of embezzlement. Proof of the embezzlement affects the amount of the compensation, but not the issue of fair or unfair dismissal."
1 Citers


 
Tarmac Roadstone Holdings Ltd -v- Peacock [1973] ICR 273
1973
CA
Lord Denning MR
Employment
Overtime hours are not part of normal working hours when calculating redundancy payments unless they are obligatory on both sides, that is, contractually guaranteed by the employer and compulsory for the employee.
Lord Denning MR said: "First, where there is a fixed number of compulsory working hours, and thereafter overtime is voluntary on both sides - so that the employer is not bound to employ the man for any overtime and the employee is not bound to serve it - then, although the overtime is worked regularly each week, nevertheless, being voluntary, it does not count as part of the normal working hours. Such a situation is covered by paragraph 1(1).
Second, when there is a fixed number of compulsory working hours and in addition a fixed period of overtime which is obligatory on both sides - so that the employer is bound to provide that overtime and the employee bound to serve it - then that fixed period of overtime is added to the fixed period of compulsory working hours so that the total number counts as the normal working hours. Such a situation is covered by paragraph 1(2). In short, "guaranteed overtime" counts as part of normal working hours.Third, where there is a fixed number of compulsory working hours, and overtime is obligatory on the man if asked but not on the employer - so that the employer is entitled to call on the man to work overtime but is not bound to call upon him to do so, then the overtime does not come within the normal working hours. Such a case seems to me to come within paragraph 1(1). It comes within the words "the employee is entitled to overtime pay when employed for more than a fixed number of hours in a week..." It does not come within the words of paragraph 1(2), because the contract of employment does not "fix" the number of hours of employment. The overtime is not fixed but is at the option of the employer."
1 Citers


 
Chapman -v- Goonvean and Rostowrack China Clay Co Ltd (1973) ICR 310; [1973] EWCA Civ 1; [1973] 2 All ER 1063; [1973] ICR 310; [1973] 1 WLR 678; (1974) 9 ITR 379
16 Apr 1973
CA
Lord Denning MR, Buckley, Orr LJJ
Employment
Several of the company's employees were given transport to work as part of their contract. After redundancies, the remaining number of employees so entitled made the service uneconomic, and the company withdrew it. The seven appellants had to leave being unable to get to work. The court was asked whether these dismissals were also for redundancy. Held:
[ Bailii ]
 
Malloch -v- Aberdeen Corporation [1973] ScotCS CSIH_2
1 Jun 1973
SCS

Scotland, Employment

1 Cites

[ Bailii ]
 
Stenhouse Australia Ltd -v- Phillips [1974] AC 391; [1973] UKPC 1; [1974] 1 All ER 117; [1974] 2 WLR 134
2 Oct 1973
PC
Lord Wilberforce
Employment, Commonwealth
(Australia) An employer's claim for protection from competition by a former employee under a restrictive covenant must be based upon the identification of some advantage or asset inherent in the business which can properly be regarded as, in a general sense, his property, and which it would be unjust to allow the employee to appropriate for his own purposes, even though he, the employee, may have contributed to its creation.
Lord Wilberforce said: "The employer's claim for protection must be based upon the identification of some advantage or asset inherent in the business which can properly be regarded as, in a general sense, his property, and which it would be unjust to allow the employee to appropriate for his own purposes, even though he, the employee, may have contributed to its creation." and
"The question is not how long the employee could be expected to enjoy, by virtue of his employment, a competitive edge over others seeking the clients' business. It is, rather, what is a reasonable time during which the employer is entitled to protection against solicitation of clients with whom the employee had contact and influence during employment and who were not bound to the employer by contract or by stability of association. This question, secondly, their Lordships do not consider can advantageously form the subject of direct evidence. It is for the judge, after informing himself as fully as he can of the facts and circumstances relating to the employer's business, the nature of the employer's interest to be protected, and the likely effect on this of solicitation, to decide whether the contractual period is reasonable or not. An opinion as to the reasonableness of elements of it, particularly of the time during which it is to run, can seldom be precise, and can only be formed on a broad and common sense view."
1 Citers

[ Bailii ]
 
Langston -v- Amalgamated Union of Engineering Workers [1973] EWCA Civ 7; [1974] ICR 180; [1974] 1 All ER 980; [1974] 1 WLR 185,
19 Dec 1973
CA
Lord Denning MR
Employment
Unless there is an express provision for this an employer must provide work to an employee when there is available work to be done
1 Citers

[ Bailii ]

 
 Broome -v- Director of Public Prosecutions; HL 20-Dec-1973 - [1973] UKHL 5; [1974] I All ER 314; [1974] 2 WLR 58; [1974] ICR 84; [1974] AC 587

 
 Jones -v- Freeman; 1974 - [1974] IRLR 325
 
Harold Fielding Ltd -v- Mansi [1974] ICR 347
1974
NIRC
Sir John Donaldson
Employment
An employee had been employed by two partners and later by one of them. Held: Mr Mansi could not bring himself within the provision because: "Where one of two partners leaves the partnership, there are no partners, but only a sole proprietor, after the change. Paragraph 9(5) does not cover the situation although perhaps it should."
Contracts of Employment Act 1972 Sch 1 Par 9
1 Citers


 
Gardiner -v- Newport County Borough Council [1974] IRLR 262
1974


Employment

1 Citers


 
Cocking -v- Sandhurst (Stationers) Ltd [1974] ICR 650
1974
NIRC
Sir John Donaldson P
Employment
The Appellant employee had applied for leave to amend his first application by substituting the name of the parent company. The Tribunal held that the rules of procedure relating to time limits went to their jurisdiction and that the amended application would be allowed but would bear the date of the amendment and would accordingly be out of time. They were satisfied that it would have been reasonably practicable for the second complaint to have been presented in time and both complaints were dismissed. Held: The appeal was allowed. The rules of the court do not require that the complaint as presented should be free of all defects or should be in the form in which it finally comes before the tribunal for adjudication.
At a hearing before an Employment Tribunal, an application for leave to substitute a fresh Respondent relates back to the date of the original application.
The Court set out seven general propositions as to the correct approach in cases of amendments "changing the basis of the claim or . . adding or substituting respondents".
Sir John Donaldson said: "In every case in which a tribunal is asked to amend a complaint by changing the basis of the claim or by adding or substituting respondents they should proceed as follows.
(1) They should ask themselves whether the unamended originating application complied with rule 1 of the Schedule to the Regulations of 1972: see, in relation to home-made forms of complaint, Smith v. Automobile Proprietary Ltd [1973] ICR 306.
(2) If it did not, there is no power to amend and a new originating application must be presented."
(3) (4) if the new claim sought to be advanced was out of time at the date of the original application there was no discretion in the Employment Tribunal to allow the amendment. However, if it was then in time the Tribunal has a discretion to allow the amendment.
(5) It was essential too consider whther the proposed addition would be used to elide a statutory time bar
(6) In deciding whether or not to exercise their discretion to allow an amendment which will add or substitute a new party, the tribunal should only do so if they are satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause reasonable doubt as to the identity of the person intending to claim or, as the case may be , to be claimed against.
"(7) in deciding whether or not to exercise their discretion to allow an amendment, the Tribunal should in every case have regard to all of the circumstances of the case. In particular they should consider any injustice or hardship which may be caused to any of the parties including those proposed to be added, if the proposed amendment were allowed or, as the case may be, refused."
1 Citers


 
Maurice Graham Ltd -v- Brunswick [1974] 16 KIR 158
1974


Contract, Employment

1 Citers



 
 Dada -v- Metal Box Co Ltd; NIRC 1974 - [1974] ICR 559
 
Hilti (Great Britain) Ltd -v- Windridge [1974] ICR 352; [1974] IRLR 53
1974
EAT
Lord Justice Griffiths
Employment, Damages
EAT The employer appealed against the tribunal's decision to make an award to compensate the respondent for the loss of entitlement to an extended statutory notice period. Held: The award was upheld. Lord Justice Griffiths said: "This is a very speculative matter and as we say it is a novel one. But it appears to us to be a principle permissible as a head of damage although we would not expect it to attract other than a very small award in the average case."
1 Cites

1 Citers


 
E T Marler Limited -v- Robertson [1974] ICR 72
1974

Sir Hugh Griffiths
Employment
A frivolous claim is one that has no substance in it and is bound to fail or on the face of it is so manifestly misconceived that it has no prospect of success: "If the employee knows that there is no substance in his claim and that it is bound to fail, or if the claim is on the face of it so manifestly misconceived that it can have no prospect of success, it may be deemed frivolous and an abuse of the procedure of the tribunal to pursue it."
The court commented on the uncertainty of litigation: "Ordinary experience of life frequently teaches us that that which is plain for all to see once the dust of battle has subsided was far from clear to the contestants when they took up arms".
1 Citers


 
Bessenden Properties Limited -v- Corness [1977] ICR 821
1974
CA
Lord Justice Stamp
Employment
The court considered selection procedures in redundancy situations. Stamp LJ said: "It may be hard on employers in the embarrassing situation in which Mr Benfield [the employer] found himself in this case to have the matter so largely removed out of their control and left to the discretion of the so-called industrial jury. But once the case falls within [Section 98(4)] then the tribunal is entitled to take everything into account."
and "but it does not in the least follow . . that when coming to consider under subsection (6) whether the employers had acted reasonably or unreasonably in the circumstances, it is not open to the tribunal to take into account as one of the matters affecting that question that fact that if the employers had to make a painful choice between selecting one employee or another for dismissal, it is, other things being equal, generally regarded as fair to retain the services of that employee who has been longest in service."
Trade Union and Labour Relations Act 1974 98(4)
1 Citers


 
S & U Stores Ltd -v- Wilkes [1974] IRLR 283
1974
NIRC
Sir John Donaldson
Employment
The tribunal was asked as to the determination of an employee's "average weekly rate of remuneration" in a particular period of 12 weeks for the purpose of calculating a redundancy payment, and whether a weekly sum which the employee was paid to cover the expenses he incurred in carrying out his duties should be included in the calculation of his "weekly rate of remuneration". Held: The tribunal identified two categories of payment (categories (1) and (3)) that would ordinarily be regarded as part of an employee's weekly remuneration; and one type of benefit (category (2)) that would not. It depended on whether the sum "represents a profit or surplus in the hands of the employee", and to the extent that it did it formed part of his remuneration. Indeed, the court went further and said that any sum "which is paid as a wage or salary without qualification is part of the employee's remuneration". Benefits in kind are not pay.
1 Citers


 
Alexander Machinery (Dudley) Ltd -v- Crabtree [1974] ICR 120; [1974] IRLR 56
1974
CA
Donaldson LJ
Employment
Donaldson LJ discussed the level of detail to be given by a tribunal when giving its reasons: "It is impossible for us to lay down any precise guidelines. The overriding test must always be: is the tribunal providing both parties with the materials which will enable them to know that the tribunal has made no error of law in reaching its findings of fact? We do not think that the brief reasons set out here suffice for that purpose."
1 Citers


 
Abernethy -v- Mott Hay & Anderson [1974] ICR 323; [1974] IRLR 213
1974
CA
Cairns LJ, Lord Denning MR
Employment, Discrimination
A reason for the dismissal of an employee is a set of facts known to the employer, or it may be a set of beliefs held by him, which cause him to dismiss the employee.
Lord Cairns said: "A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee. If at the time of his dismissal the employer gives a reason for it, that is no doubt evidence, at any rate as against him, as to the real reason, but it does not necessarily constitute the real reason. He may knowingly give a reason different from the real reason out of kindness."
1 Citers


 
Lees -v- Arthur Greaves (Lees) Limited [1974] 2 All ER 393; [1974] ICR 501; [1974] 3 IRLR 93
1974
CA
Lord Denning MR and Scarman LJ, Stamp LJ
Employment
The employee was dismissed in October but given six months notice. It was agreed that he should work out that notice until March. However, on 28 January 1972 the employee was persuaded to finish, accepting two months pay in lieu of working during February or March. He received his holiday pay, insurance cards and P45 on 28 February and he signed on at the employment exchange sometime after 31 March. He claimed unfair dismissal. The employer argued that if the effective date of any termination was 28 January. Section 23(2) referred to the effective date of termination refered to "the date on which that notice expires" while the present legislation refers to "the date on which the notice expires". Held: The agreement simply waived the duty to work and the contract remained in force until 31 March 1972. Lord Denning said of the employee "he was still employed but not required to work for the remaining period from 28th January to 31st March"
. Stamp LJ dissented holding that the contract was effectively terminated on 28 January 1972.
Industrial Relations Act 1971 23(2)
1 Citers


 
Vaughan -v- Weighpack Ltd [1974] ICR 261
1974
NIRC
Sir Hugh Griffiths
Employment, Damages
(National Industrial Relations Court) In a claim for compensation for unfair dismissal, the employee should be treated as having suffered a loss in so far as he received less than he would have received in accordance with good industrial practice. However, the court applied the principle as it had been applied in earlier cases to hold that the employee who had been entitled to 3 months notice was entitled to recover earnings for that period, without deduction of post dismissal earnings, as 'an irreducible minimum' compensatory award. The court would not award damages for non-economic loss after wrongful termination of employment. The loss of wages during the notice period was "the irreducible minimum" to which an employee was entitled.
1 Cites

1 Citers


 
Everwear Candlewick Ltd -v- Isaac [1974] ICR 525
2 Jan 1974
EAT
Sir John Brightman
Employment
Sir John Brightman referred to Norton Tool, Stepek and Hilti and then said: "The principle behind these three cases is clear. If an employee is unfairly dismissed without due notice and without pay in lieu of notice, he is prima facie entitled to compensation equal to his net pay for the proper period of notice. No deduction is to be made for anything which the employee may earn elsewhere, for example, from another employer, during the period for which he should have received notice."
1 Cites

1 Citers


 
Gascol Conversions Ltd -v- Mercer [1974] EWCA Civ 11; [1974] ITR 282; [1974] IRLR 155; [1974] ICR 420; [1975] KIR 149
29 Jan 1974
CA

Employment

[ Bailii ]
 
Sanders & Others -v- Ernest A Neale Limited [1974] ITR 395; [1974] ICR 565; [1974] 3 All ER 327; [1974] EW Misc 1; [1974] IRLR 236; [1975] KIR 77
5 Jul 1974
NIRC
Sir John Donaldson P
Employment
The applicants appealed dismissal of their claims for redundancy payments. Held: The Court considered the time of acceptance by an employee of an employer's repudiatory actions. Sir John Donaldson P set out the principle which he regarded as well established in the field of employment represented an exception to the general rule of the law of contract allowing the innocent party to elect whether to accept the repudiation or affirm the contract.
1 Citers

[ Bailii ]
 
Van Binsbergen -v- Bedrijfsvereniging Voor De Metaalnijverheid [1974] ECR 1299 [13]:; C-33/74
3 Dec 1974
ECJ

European, Employment
A Member State cannot be denied the right to take measures to prevent the exercise by a person providing services whose activity is entirely or principally directed towards its territory of the freedom guaranteed by Article 59 [on freedom to provide services] for the purpose of avoiding the professional rules of conduct which would be applicable to him if he were established within the State.
[ Europa ]

 
 Van Duyn -v- Home Office; ECJ 4-Dec-1974 - (1975) 1 CMLR 1; C-41/74; [1974] ECR I 1337; R-41/74; [1974] EUECJ R-41/74; [1975] Ch 358; [1974] ECR 1337

 
 BBC -v- Ioannou; CA 1975 - [1975] 1 QB 781; [1975] 2 All ER 999

 
 Scott -v- Formica Ltd; 1975 - [1975] IRLR 104
 
Pascoe -v- Hallen & Medway [1975] IRLR 116
1975


Employment
The applicant worked in a factory. She was told that if she did not resign she would be dismissed. She left but then claimed to have been dismissed. Held: She had been dismissed.
1 Citers



 
 Ivory -v- Palmer; CA 1975 - [1975] ICR 340

 
 Woods -v- Olympic Aluminium Ltd; 1975 - [1975] IRLR 356
 
Flint -v- Eastern Electricity Board [1975] ICR 395
1975
EAT
Phillips J
Employment
The employee had failed to mention at the hearing of his claim for a redundancy payment a fact which was arguably highly material to the issue of whether his refusal of alternative employment was reasonable; and his claim had been dismissed. He applied for a review. Held: The court was asked whether, and in what circumstances, where the rules precluded a review on the ground that new evidence was available, a review based on the availability of fresh evidence might be open. The later rule had to be considered to be "keeping an eye" on the terms of the prior rule 13(1)(d). The interests of justice ground for review was restrictively construed, and in deciding what the interests of justice require, the Tribunal should look not only at the interests of the employee, but also at the interests of the employer and of the general public. Philips J said: "But I do think it necessary . . to find some other circumstances, some mitigating factor, to make it such that the interests of justice require such a review. What are they? First of all, there are the interests of the employee . . One also has to consider the interests of employers, because it is in their interests that once a hearing which has been fairly conducted is complete, that should be the end of the matter. Although this is a case where one's sympathy is with the employee, because it is his claim for a redundancy payment and the employers have more money than he has, it has to be remembered that the same principles have to applied, either way because one day a case may arise the other way round. So plainly, their interests have to be considered.
But over and above all that, the interests of the general public have to be considered too. It seems to me that it is very much in the interests of the general public that proceedings of this kind should be regarded as final as possible; that is should only be in unusual cases that the employee, the applicant before the tribunal, is able to have a second bite at the cherry."
Phillips J upheld the tribunal's refusal, saying: "The difficulty comes in the relationship between paragraphs (d) and (e) of rule 12 (1). The conclusion I reach is that paragraph (d) cannot be regarded as exhaustive of cases where the ground of the application is the desire to call fresh evidence. It does not, for example, deal with circumstances where, although the evidence could be foreseen, or indeed reasonably or actually known, it was for some reason or another not available. I think that paragraph (e) is intended to be a residual category of case, designed to confer a wide discretion on industrial tribunals. But I do not think that it can embrace a case where the application is on the ground of the desire to call fresh evidence, where it was obvious that that evidence was available and there is no additional factor to be taken into account. In other words, if I may summarise it, paragraphs (d) and (e) are not mutually exclusive, but paragraph (e) at all events must be applied in practice with some regard to the kind of case which is intended to come within paragraph (d). And ordinarily speaking, a case which would be put forward under paragraph (d), and which failed under paragraph (d), would fail under paragraph (e) also. Paragraph (e), I think, exists for the case which, although it may be put forward under paragraph (d), has in it some special additional circumstance which leads to the conclusion that justice does require a review."
Having pointed out that a claim under head (d) was hopeless because the Claimant knew the fact in question and had simply failed to appreciate its materiality, he said: "If the case were to succeed, in my judgment, it would have to be under rule 12 (1) (e), that "the interests of justice require such a review". Well, now, what are the interests of justice in a case like this? One view is expressed by the majority of the tribunal; another view is expressed by the dissenting member. It is necessary, it seems to me, to weigh a number of matters, bearing in mind first of all that paragraph (e), in a case of this kind. has to be applied with one eye on paragraph (d). I put it that way. I have said, I do not regard them as mutually exclusive. But I do think that it is necessary, in a case which otherwise falls within paragraph (d) - when I say "falls within" paragraph (d), I mean a case which would be put forward under paragraph (d) - to find some other circumstance, some mitigating factor, to make it such that the interests of justice require such a review. What are they? First of all, they are the interests of the employee. Plainly from his point of view it is highly desirable that the evidence should be given, because it follows, from what I have already said, that there is at least some, perhaps good, chance that if it is given his case will succeed. One also has to consider the interests of the employers, because it is in their interests that once a hearing which has been fairly conducted is complete, that should be the end of the matter. Although this is a case where one's sympathy is with the employee, because it is his claim for a redundancy payment and the employers have more money than he has, it has to be remembered that the same principles have to be applied either way because one day a case may arise the other way round. So, plainly, their interests have to be considered. But over and above all that, the interests of the general public have to be considered too. It seems to me that it is very much in the interests of the general public that proceedings of this kind should be as final as possible; that is should only be in unusual cases that the employee, the applicant before the tribunal, is able to have a second bite at the cherry. It certainly seems to me, hard though it may seem in the instant case, that it would not be right that he should be allowed to have a second bite at the cherry in cases which are perfectly simple, perfectly straightforward, where the issues are perfectly clear and where the information that he now seeks leave at a further hearing to put before the tribunal has been in his possession and in his mind the whole time. It really seems to me to be a classic case where it is undesirable that there should be a review."
Industrial Tribunals (Industrial Relations Etc) Regulations 1972 Sch, r12
1 Citers



 
 Lomax -v- Ladbroke Racing Limited; 1975 - [1975] IRLR 363

 
 Chappell & Others -v- The Times Newspapers Ltd & others; CA 1975 - [1975] IRLR 90

 
 Grundy -v- Willis; 1976 - [1976] ICR 323

 
 Charles Letts & Co -v- Howard; EAT 1976 - [1976] IRLR 248
 
Sorbie -v- Trust House Forte Hotels [1976] IRLR 371
1976
EAT
Phillips J
Employment, Discrimination
Phillips J considered an alteration to the terms of an employment contract, saying: "One then goes on to see what the effect as prescribed is, and it is that that term, so identified, in the appellants' contracts shall be treated, as so modified, as not to be less favourable. It seems to us that the way it is treated, as so modified, as to strike out 85p and to substitute 97 1/2p . . In other words, once the section is applied and the contract is modified, there is then a contract providing remuneration at that rate. It seems to us that the true way of looking at it is that that contract remains so modified until something else happens, such as a further agreement between the parties, a further collective agreement, or a further statutory modification by reason of a further operation of the equality clause."
A claim for equal pay is a claim in respect of breach of contract.
1 Citers


 
Shell -v- Lovestock [1976] 1 WLR 1187
1976

Lord Denning (dissenting)
Employment

1 Citers


 
Bugden & Co -v- Thomas [1976] IRLR 174
1976


Employment
The failure to have a hearing with the person responsible for the dismissal was held to be unfair.
1 Citers



 
 Watling -v- William Bird & Son Contractors Limited; EAT 1976 - [1976] 1 ITR 70

 
 Spencer -v- Paragon Wallpapers Ltd; 1976 - [1976] ICR 301; [1976] IRLR 373
 
Gilbert -v- Goldstone Ltd [1976] IRLR 257
1976
EAT
Kilner-Brown J
Employment
Unreasonable conduct by an employer was sufficient to amount to constructive dismissal, regardless of whether it involved a breach of contract by the employer.
1 Citers


 
Ahmad -v- Inner London Education Authority [1976] ICR 461
1976
EAT

Employment, Human Rights
The appellant was a moslem junior school teacher. The Authority appealed an acceptance of his claim for unfair dismissal, having left his employment because he was not given time off to attend the mosque on Fridays. The Tribunal considered whether, despite his contract of employment, ILEA should have accommodated him and adjusted his time-table accordingly and found on balance that ILEA had not been unreasonable. Following that hearing, ILEA did agree to re-engage the applicant, as requested, on a four-and-a-half day week. Held: The tribunal's decision was upheld.
1 Citers


 
Blackwell -v- GEC Elliott Processes [1976] IRLR 144
1976


Employment, Damages

1 Cites

1 Citers



 
 Bentley Engineering Co Ltd -v- Crown and Another; QBD 5-Mar-1976 - [1976] EWHC QB 1; [1976] FCR 225; [1976] IRLR 146; [1976] ICR 225; [1976] ITR 50
 
Thompson and others -v- Eaton Ltd [1976] UKEAT 24_76_1404; [1976] IRLR 308; [1976] ICR 336; [1976] 3 All ER 384
14 Apr 1976
EAT
Phillips J P
Employment
The management introduced a new machine. The appellants left the premises and did not return. They were dismissed. They now appealed a finding that they had not been unfairly dismissed. Held: The appeal failed. Whether the employer had through his behaviour contributed to the industrial action was not relevant.
Trade Union and Labour Relations Act 1974
1 Cites

[ Bailii ]
 
Mills -v- EIB (Judgment) C-110/75; [1976] EUECJ C-110/75; [1976] EUECJ C-110/75
15 Jun 1976
ECJ

European, Employment
Europa By its use of the words 'any dispute between the community and its servants' article 179 is not restricted exclusively to the institutions of the community and their staff but also includes the bank as a community institution established and with legal personality conferred by the treaty. Under this article the court thus has jurisdiction in any dispute between the bank and its servants.
The system adopted for the relations between the bank and its employees is contractual. The contract may be repudiated and terminated by either of the parties on the conditions laid down both in the regulations and in the contract itself.
If the contract is terminated contrary to the provisions of the individual contract or of the staff regulations of the european investment bank which are deemed to be an integral part thereof the party having illegally terminated the contract must be ordered to compensate the other party for the material and non-material damage occasioned to the latter by such illegality.
Both the provisions of the contract and the general principles of the law of master and servant impose limits on the intention of the parties. Termination of a contract which exceeds those limits may be void and it will be for the court having jurisdiction, in this case the court of justice, to make a declaration to that effect.
[ Europa ] - [ Bailii ] - [ Bailii ]
 
George Whiley Ltd -v- Anderson [1977] ICR 167
1 Jul 1976


Employment

1 Cites

1 Citers


 
Moon -v- Homeworthy Furniture (Northern) Ltd [1976] UKEAT 177_76_1307
13 Jul 1976
EAT

Employment
Challenge to the validity of the redundancy process.
[ Bailii ]

 
 Ferguson -v- John Dawson & Partners (Contractors) Ltd; CA 22-Jul-1976 - [1976] 1 WLR 1213; [1976] EWCA Civ 7; [1976] 3 All ER 817
 
Brack -v- Insurance Officer C-17/76
29 Sep 1976
ECJ

European, Benefits, Employment
Europa The provision in paragraph 1 of point I (United Kingdom) of annex V to Regulation no 1408/71, far from restricting the definition of the term 'worker' as it emerges from clarify the scope of subparagraph (ii) of this paragraph vis-a-vis British legislation. A person who:- was compulsorily insured against the contingency of ' sickness ' successively as an employed person and as a self-employed person under a social security scheme for the whole working population; - was a self-employed person when this contingency occurred; - at the said time and under the provisions of the said scheme, nevertheless could have claimed sickness benefits in cash at the full rate only if there were taken into account both the contributions paid by him or on his behalf when he was an employed person and those which he made as a self-employed person;

constitutes, as regards british legislation, a 'worker' within the meaning of article 1(a)(ii) of regulation no 1408/71 for the purposes of the application of the first sentence of article 22(1)(ii) of that regulation.
[ Europa ]

 
 Capper Pass Ltd -v- Lawton; EAT 19-Oct-1976 - [1976] UKEAT 346_76_1076; [1977] 2 WLR 26; [1977] QB 852; [1976] IRLR 366; (1976) 11 ITR 316; [1977] 2 All ER 11
 
Dugdale -v- Kraft Foods Ltd [1976] UKEAT 277_76_1076; [1976] 1 WLR 1288; (1979) 11 ITR 309; [1977] 1 All ER 454; [1977] IRLR 160
28 Oct 1976
EAT

Employment, Discrimination

[ Bailii ]

 
 Littlewoods Organisations Ltd -v- Harris; CA 1977 - [1977] 1 WLR 1472; [1978] 1 All ER 1026
 
102 Social Club and Institute Ltd -v- Bickerton [1977] ICR 911
1977

Phillips J
Employment
Philips J set out the consequences of the 1971 Act: 'Before 1971 there was perhaps a tendency to find in contracts of employment elements of a public character which would enable the court to extend to the employee the protection flowing from "the right to be heard" enjoyed by the holders of an office. Since the fundamental change of the law brought about by the Industrial Relations Act 1971, which for the first time created the right of an employee not to be unfairly dismissed, the problem has arisen, which previously was not of much importance, of defining the circumstances in which an office-holder was said to be employed. Previously, it was a case of defendants seeking to deny an office-holder a right of complaint on the ground that he was party to a "pure contract of service"; now it is a question of defendants seeking to deny employees the right not to be unfairly dismissed on the ground that in reality they are not employees but "pure office-holders".'
Industrial Relations Act 1971
1 Citers


 
Ahmad -v- Inner London Education Authority [1978] QB 36; [1977] ICR 490
1977
CA
Lord Denning MR, Scarman LJ (dissenting
Employment, Human Rights
The appellant said that his human rights were infringed when, as a moslem, he was refsued time off from his work as a primary school teacher to attend prayers at the mosque on Fridays. He had subsequentlly been re-instated part-time, but complained that this affected his pension rights. Held: Lord Denning MR said that whilst the European Convention on Human Rights was not part of English law, the courts would do their best to see that their decisions were in conformity with it. Nevertheless, care should be taken to avoid special privileges, with resultant discontent and even resentment, in the name of religious freedom, and: "The school time-table was well known to Mr Ahmad when he applied for the teaching post. It was for the usual teaching hours from Monday to Friday, inclusive. If he wished to have every Friday afternoon off for his prayers, either he ought not to have applied for this post: or he ought to have made it clear at the outset and entered into a 4.5 -day engagement only. This was the sensible thing for him to do. Instead he undertook full-time work without making any disclosure that he wanted Friday afternoon off for prayers. I think that section 30 can be applied to the situation perfectly well by reading it as subject to the qualification "if the school time-table so permits". So read, it means that he is entitled to attend for religious worship during the working week if it can be arranged consistently with performing his teaching duties under his contract of employment . . I have no doubt that all headmasters will try to arrange their time-table so as to accommodate devout Muslims like Mr Ahmad: but I do not think they should be compelled to do so, if it means disrupting the work of the school and the well-being of the pupils."
. . and "I see nothing in the European Convention to give Mr Ahmad any right to manifest his religion on Friday afternoons in derogation of his contract of employment: and certainly not on full pay."
Orr LJ: "Nor, in my judgment, can the answer to the question raised by this appeal be that a Muslim teacher has a right to absent himself for Friday prayers if his doing so will cause only a small inconvenience in the school. This solution would have some attraction because in the present case one of the headmasters concerned, Mr Foley, was able to accommodate Mr Ahmad's absence and it may be that others might have done so but for the policy adopted by the ILEA. But such a solution, quite apart from the grave practical disadvantage that it would involve detailed investigation in each case as to the degree of difficulty involved, is in my judgment unacceptable in principle since absence without leave in school hours would be a breach of contract even if the inconvenience were slight."
Scarman LJ (dissenting) observed that society had changed since 1944, as had the legal background in terms of the UK's international obligations and the acknowledged importance of eliminating discrimination of all kinds. He would therefore have been willing to give to section 30, which was admittedly incorporated into Mr Ahmad's contract, a broad construction designed to avoid discrimination on the ground of religious observance, so that timetabling arrangements would be required to enable attendance at religious worship consistent with the duty of full-time service: all that Mr Ahmad had needed, on the facts, was a leeway of 45 minutes, which could and should have been accommodated.
European Convention on Human Rights 9(1)
1 Cites

1 Citers


 
National Union of Taylors & Garment Workers -v- Charles Ingram & Company Ltd [1977] ICR 530
1977
EAT
Phillips J
Employment
The Union said that it had been recognised by the employers even though there was no written agreement. Held: Phillips J said: "Recognition" plainly, we think, implies agreement - which, of course, involves consent. That is to say, it is a mutual process by which the employers recognise the union, which obviously agrees to be recognised and it may come about in a number of different ways. There may be a written agreement that the union should be recognised. There may be an express agreement not in writing. Or, as we think, it is sufficient if neither of those exists but the established facts are such that it can be said of them that they are clear and unequivocal and give rise to the clear inference that the employers have recognised the union. This will normally involve conduct over a period of time.
Of course, the longer that state of facts has existed, the easier it is in any given case to reach a conclusion that a proper interpretation of them inevitably leads to the conclusion that the employers have recognised the union. Against that test, it has not been suggested here that there is any formal document by which the employers recognised the union. It is necessary to look at the facts. As we said, they seem to us to lead inescapably to the conclusion that these employers treated this union at the material time as being recognised for the purposes in question."

 
Simmons -v- Hoover Ltd [1977] 1 All ER 775; [1976] 3 WLR 901; [1977] ICR 61; [1977] QB 284
1977
EAT
Phillips J
Employment
The claimant had been absent through sickness. When he recovered to be able to return, his co-employees were on strike. He joined the strike. All the strikers were dismissed. Held: At common law, by going on strike, employees commit repudiatory breaches of their contracts of employment. It is on the employer to decide whether to accept the breach as an end to the contract or to allow the contract to continue despite the breach.
Phillips J said: "One of the matters considered at length by the Donovan Commission was the effect of strikes on the contract of employment . . it was clearly the view of the commission that at common law a contract cannot be terminated unilaterally and that if an employee refuses to carry on working under his contract of employment, his employer has the option either to ignore the breach of contract and to insist upon performance of it, or alternatively to accept such a fundamental breach as a repudiation of the contract and to treat himself as no longer bound by it. In our judgment this view was in accordance with general principle and supported by authority. In short, refusal to work during a strike did not involve "self dismissal" by the strikers but left the parties to the contract hoping that the strike would one day be settled and the contract be alive unless and until the employer exercised his right to dismiss the employee."
1 Cites



 
 Nash -v- Ryan Plant International Limited; 1977 - (1977) ICR 560
 
David -v- New England College of Arundel [1977] 1 ICR 6
1977


Employment, Contract

1 Citers


 
Egg Stores (Stamford Hill) Limited -v- Leibovici [1977] ICR 260
1977
EAT
Phillips J
Employment
Referring to the test set out in Marshall: "That is helpful, but one needs to know in what kind of circumstances can it be said that further performance of his obligations in the future will be possible? It seems to us that an important question to be asked in cases such as the present - we are not suggesting that it is the only question - is: "has the time arrived when the employer can no longer reasonably be expected to keep the absent employee's post open for him?""
and "Among the matters to be taken into account in such a case in reaching a decision are these: (1) the length of the previous employment; (2) how long it had been expected that the employment would continue; (3) the nature of the job; (4) the nature, length and effect of the illness or disabling event; (5) the need of the employer for the work to be done, and the need for a replacement to do it; (6) the risk to the employer of acquiring obligations in respect of redundancy payments or compensation for unfair dismissal to the replacement employee; (7) whether wages have continued to be paid; (8) the acts including the dismissal of, or failure to dismiss, the employee; and (9) whether in all the circumstances a reasonable employer could be expected to wait any longer."
1 Cites

1 Citers


 
Chesham Shipping Ltd -v- Rowe [1977] IRLR 391
1977


Employment

1 Citers


 
Lowndes -v- Specialist Heavy Engineering Ltd [1977] ICR 1
1977


Employment

1 Citers


 
British Broadcasting Corporation -v- Hearn [1977] 1 WLR 1004; [1977] ICR 685
1977
CA
Denning MR, Roskill LJ
Employment
Union members working for the BBC threatened to refuse to transmit its television signal to a satellite over the Indian Ocean during the Cup Final because the satellite broadcast would be receivable in South Africa. The refusal followed a union policy of opposing apartheid. Held: Roskill LJ: The use of a composite expression in a statute, in this case 'a trade dispute'; showed that it was to be interpreted with a broad meaning. Lord Denning MR: "Terms and conditions of employment may include not only the contractual terms and conditions but those terms which are understood and applied by the parties in practice, or habitually, or by common consent, without ever being incorporated into the contract." and "To become a trade dispute, there would have to be something of the kind which was discussed in the course of argument before us: 'We would like you to consider putting a clause in the contract by which our members are not bound to take part in any broadcast which may be viewed in South Africa because we feel that is obnoxious to their views and to the views of a great multitude of people. We would like that clause to be put in, or a condition of that kind to be understood.' If the BBC refused to put in such a condition, or refused to negotiate about it, that might be a trade dispute."
1 Citers


 
Watts -v- Rubery Owen Conveyancer Limited [1977] 2 All ER 1
1977
EAT
Kilner Brown J
Employment
The claimant sought a redundancy payment. The employer said that his employment had not yet finished. Held: Kilner Brown J said: "The effect of these cases is that where an application is made to an Industrial Tribunal before the act of dismissal has taken place it is a premature application and the Industrial Tribunal has no jurisdiction".
1 Citers



 
 Amies -v- Inner London Education Authority; EAT 1977 - [1977] ICR 308
 
Industrial Rubber Products -v- Gillon [1977] IRLR 389
1977


Employment
The Government had imposed restrictions on employees' wages being raised. Held: The level of remuneration is a fundamental element in any contract of employment, and a reduction in payments may amount to a repudiation founding a constructive dismissal. Even so, a constructive dismissal is not necessarily an unfair one.

 
Dorothy Perkins Ltd -v- Dance [1977] IRLR 226
1977

Kilner Brown J
Employment
The court considered the difficulties in categorising and comparing employments: "Having then identified the parties, having then acquainted themselves with the nature of the contractual employment, the next thing that has to be done is to look at the position in very broad general terms. The old saying that it is sometimes difficult to see the wood because of the trees is particularly applicable in this type of investigation . . look at the wood . . if it sees one tree which is outstandingly different from the rest . . see whether or not . . [they] . . are doing something which may be significantly different."
Equal Pay Act 1970
1 Citers


 
Turner -v- London Transport Executive [1977] ICR 952
1977
CA

Employment

1 Cites

1 Citers


 
Oxford -v- Department of Health and Social Security [1977] ICR 885
1977

Philips J
Employment
The tribunal had declined a submission of no case to answer ""It seems to us that that the [decision] was a very proper course to have adopted, and we recommend it as being the course which is in most circumstances the right course to adopt. It further seems to us that, while the burden of proof lies upon the applicant, it would only be in exceptional or frivolous cases that it would be right for the Industrial Tribunal to find at the end of the applicant's case that there was no case to answer and that it was not necessary to hear what the respondent had to say about it."
1 Citers


 
Electrolux -v- Hudson [1977] FSR 31
1977


Employment, Intellectual Property
A clause in a storekeeper's contract giving inventions to employer was held invalid because it was in unreasonable restraint of trade.

 
Nelson -v- British Broadcasting Corporation [1977] IRLR 148
1977
CA
Roskill LJ, bUxton LJ
Employment, Contract
Mr Nelson was employed as a producer but had in fact been engaged in the Caribbean Service of the BBC in terms of the work which he had actually been doing. The contract of employment expressly provided that he should serve wherever and however he might be required. Held: The closure of the BBC service in the Caribbean did not involve a redundancy since he was expressly not employed to perform his services there.
Roskill LJ said: "The corporation's case before the industrial tribunal was simplicity itself: 'This man was employed for the purpose of the Caribbean Service. The Caribbean Service was being shut down as a result of Treasury demands for economy. Therefore we could no longer keep him there; his services were not required; and therefore he became redundant; and because he became redundant he cannot claim to have been unfairly dismissed.' The industrial tribunal, as I said at the beginning of this judgment, accepted that argument and rejected the claim. They went into the matter with very great care. They held that Mr Nelson had become redundant. They reached that conclusion because of an argument that was apparently put forward that it was a term of Mr Nelson's employment that he should be employed for, and for all practical purposes only for, programmes for the Caribbean. That emerges very clearly from the industrial tribunal's reasons. It was said that, notwithstanding the very wide words of clause 8 of the agreement none the less: "We think it was a term of Mr Nelson's contract of employment, arising by necessary implication or inference from the primary facts, that he was employed for the purposes of broadcasts to the Caribbean." With great respect to the tribunal, that seems to me to be an impossible conclusion as a matter of law, for this reason: it is a basic principle of contract law that if a contract makes express provision (as clause 8 did) in almost unrestricted language, it is impossible in the same breath to imply into that contract a restriction of the kind that the industrial tribunal sought to do." The employers were not allowed to amend their pleadings to allege dismissal for some other reason, and they had failed to establish a potentially fair reason for dismissal, so that the employee was entitled to succeed.
1 Citers


 
Peake -v- Automotive Products Ltd [1977] UKEAT 443_76_1702
17 Feb 1977
EAT

Employment, Discrimination

[ Bailii ]
 
East Lindsey District Council -v- Daubney [1977] UKEAT 7_77_2004
20 Apr 1977
EAT

Employment
"Unless there are wholly exceptional circumstances, before an employee is dismissed on the ground of ill health it is necessary that he should be consulted and the matter discussed with him, and that in one way or another steps should be taken by the employer to discover the true medical position . . Discussions and consultations will often bring to light facts and circumstances of which the employers were unaware, and which will throw new light on the problem. Or the employee may wish to seek medical advice on his own account, which, brought to the notice of the employers' medical advisers, will cause them to change their opinion. There are many possibilities."
1 Citers

[ Bailii ]
 
W Devis & Sons Ltd -v- Atkins [1977] IRLR 314; [1977] AC 931; [1977] ICR 662; [1977] UKHL 6; [1977] 3 All ER 40; [1977] 3 WLR 214; (1978) 13 ITR 71; 8 BLR 57
6 Jul 1977
HL
Viscount Dilhorne, Lord Simon of Glaisdale
Employment
The 'just and equitable' test warranted the reduction or extinction of compensation for an employee who has been unfairly dismissed and then found to have been liable to summary dismissal. "The paragraph does not, nor did s. 116 of the Act of 1971, provide that regard should be had only to the loss resulting from the dismissal being unfair. Regard must be had to that, but the award must be just and equitable in all the circumstances, and it cannot be just and equitable that a sum should be awarded in compensation when in fact the employee has suffered no injustice by being dismissed."
Trade Union and Labour Relations Act 1971
1 Cites

1 Citers

[ Bailii ]
 
British United Shoe Machinery Co Ltd -v- Clarke [1977] UKEAT 64_77_1107; [1978] ICR 70; [1977] IRLR 297
11 Jul 1977
EAT

Employment
The respondent had been employed in a senior position by the appellant. He had complained that when being made redundant, the appellant had failed to make reasonable efforts to find him alternative employment.
1 Citers

[ Bailii ]
 
Price -v- Civil Service Commission and others [1977] UKEAT 1_77_1507
15 Jul 1977
EAT

Employment

[ Bailii ]

 
 Gouriet -v- Union of Post Office Workers; HL 26-Jul-1977 - [1978] AC 435; [1977] UKHL 5; [1977] 3 All ER 70

 
 Bluebell Apparel Ltd -v- Dickinson; SCS 14-Oct-1977 - [1977] ScotCS CSIH_4; 1978 SC 16; 1980 SLT 157

 
 Massey -v- Crown Life Insurance Company; CA 4-Nov-1977 - [1977] EWCA Civ 12; [1978] 1 WLR 676; [1978] ICR 590
 
Smith -v- Macarthys Ltd Unreported, 14 December 1977
14 Dec 1977
EAT

Discrimination, Employment
Mrs Smith was employed by the respondents, wholesale dealers in pharmaceutical products, as a warehouse manageress at a weekly salary of £50. She complained of discrimination in pay because her male predecessor whose post she took up after an interval of four months, received a salary of £60 per week. She brought proceedings before the industrial tribunal on the basis of the 1970 Act. The tribunal held that the applicant was employed on like work with her predecessor and ordered Macarthys to pay the applicant a salary equal to his salary. Held: The employer's appeal was dismissed.
Equal Pay Act 1970 - Council Directive 75/117/EEC
1 Cites

1 Citers


 
Association of Patternmakers & Allied Craftsmen -v- Kirvin Ltd [1978] IRLR 318
1978
EAT
Lord McDonald
Employment, Scotland
The court discussed the punitive nature of a protective award made where a company failed to consult on redundancies: "A Tribunal, however, is specifically enjoined to determine the [protected] period and so the amount of the award by paying regard to the seriousness of the employer's default. This introduces a punitive element into the jurisdiction of an Industrial Tribunal and in contrast with eg, the calculation of a compensatory award which is based upon what is just and equitable having regard to the loss sustained."
1 Citers


 
Blackpole Furniture Ltd -v- Sullivan [1978] ICR 559
1978
EAT

Employment
The EAT considered whether there was any impropriety in an Industrial Tribunal considering an application for review even though their decision was under appeal to the EAT. Held: There was no impropriety in so doing. In giving their reasons the EAT said: 'One of the reasons why it is not necessarily undesirable to carry on with the application for a review is that experience shows that very often we have appeals perhaps related to compensation or matters of that kind where the real complaint is that some trivial error has been made - perhaps in computation, calculation or something of that sort – and where all we can do, if we are satisfied that it has, is to remit the matter to be reheard on that particular point.'
1 Citers


 
D G Moncrieff (Farmers) -v- MacDonald [1978] IRLR 112
1978
EAT

Employment
The ability of a tribunal to revisit its own judgments, the review procedure, was only appropriate for use in exceptional circumstances.
1 Citers


 
Retarded Childrens Aid Society -v- Day [1978] 1 WLR 763; [1978] ICR 437
1978
CA
Lord Russell of Killowen, Lord Denning MR, Eveleigh LJ
Employment
Lord Russell of Killowen said: "The function of the Employment Appeal Tribunal is to correct errors of law where one is established and identified. I think care must be taken to avoid concluding that an experienced industrial tribunal by not expressly mentioning some point or breach has overlooked it." It should not examine the tribunal decision with a 'fine-tooth comb'.
Lord Denning MR said: "So reading between the lines, it seems to me that, although not explicitly stated in the Reasons, this Tribunal very probably did have all the considerations in mind which it is not suggested they may not have had."
1 Citers



 
 Bentley Engineering Co Ltd -v- Mistry; EAT 1978 - [1979] ICR 47; [1978] IRLR 436
 
Notts County Council -v- Bowley [1978] IRLR 252
1978


Employment
The public employee had been cautioned for gross indecency, and dismissed for a subsequent conviction. Held: The dismissal was fair.
1 Citers


 
Walls Meat Company Limited -v- Khan [1979] ICR 52; [1978] IRLR 499
1978
CA
Brandon LJ, Dennning L MR
Employment
Brandon LJ said: "With regard to ignorance operating as a similar impediment, I should have thought that, if in any particular case an employee was reasonably ignorant of either (a) his right to make a complaint of unfair dismissal at all, or (b) how to make it, or (c) that it was necessary for him to make it within a period of three months from the date of dismissal, an industrial tribunal could and should be satisfied that it was not reasonably practicable for his complaint to be presented within the period concerned.
For this purpose I do not see any difference, provided always that the ignorance in each case is reasonable, between ignorance of (a) the existence of the right, or (b) the proper way to exercise it, or (c) the proper time within which to exercise it. In particular, so far as (c), the proper time within which to exercise the right, is concerned, I do not see how it can justly be said to be reasonably practicable for a person to comply with a time limit of which he is reasonably ignorant.
While I do not, as I have said, see any difference in principle in the effect of reasonable ignorance as between the three cases to which I have referred, I do see a great deal of difference in practice in the ease or difficulty with which a finding that the relevant ignorance is reasonable may be made. But, where a person is reasonably ignorant of the existence of the right at all, he can hardly be found to have been acting unreasonably in not making enquiries as to how, and within what period, he should exercise it. By contrast, if he does not know of the existence of the right, it may in many cases at least, though not necessarily all, be difficult for him to satisfy an industrial tribunal that he behaved reasonably in not making such enquiries."
Dennning L MR said: "It is simply to ask this question:- Had the man just cause or excuse for not presenting his complaint within the prescribed time? Ignorance of his rights – or ignorance of the time limit – is not just cause or excuse, unless it appears that he or his advisers could not reasonably have been expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and they must take the consequences."

 
Palmanor Ltd -v- Cedron [1978] ICR 1008
1978


Employment
The use of foul language can undermine a contract of employment and be a foundation for a claim for constructive dismissal.
1 Citers


 
Talke Fashions Ltd -v- Society of Textile Workers [1978] 1 WLR 558
1978
EAT
Kilner Brown J, Brian Sirs
Employment
The employer announced the closure of two factories and the redundancy of the workforce, at one factory in 15 days' time and, at the other, in 63 days' time. There was no consultation. The employer appealed a 60 day protective award. Held: (Majority) Appeal allowed in part. The ET were misled into thinking that the statutory provisions were merely penal.

Mr Sirs (dissenting) thought that the ET came to the right answer because, once the ET decided to make an award, it should be of the maximum period unless the employer could show mitigating factors, and there was none.
Kilner Brown J: "In linking the maximum period of a protective award with the period of notice and consultation required before dismissing for redundancy the legislation would appear to contemplate an award of compensation commensurate with the loss suffered by an employee who has been given short shrift in a redundancy situation. This is consistent with the whole spirit of both the Redundancy Payments Act 1965 and, more particularly, the Trade Union and Labour Relations Act 1974." and "The other factor which has to be considered when reaching an answer which is just and equitable is the seriousness of the employer's default. The wording seems to us to be singularly unfortunate. Does this import an element of punishment for a bad breach of industrial relations? We are told that many industrial tribunals do so regard it. Indeed, in this instant case Mr. Lisle, the well known and much respected general secretary of the trade union involved, made no bones about it. In a submission reminiscent of a (foreign) public prosecutor calling for a maximum punishment, he maintained that it was a penal clause and a bad case of default called for the maximum period of award against the employer. If this interpretation and this approach be right, then this part of this subsection is wholly inconsistent with the spirit of the Trade Union and Labour Relations Act 1974."
1 Citers


 
Clarks of Hove Ltd -v- Bakers' Union [1978] 1 WLR 563
1978
EAT

Employment
Protective award - redundancy consultation. Kilner Brown J discussed what was meant by special circumstances by comparison with disqualification as a driver and the Road Traffic Acts where "special reasons" have been held to mean "special to the facts of the case".
1 Cites

1 Citers


 
TGWU -v- Gainsborough Distributors [1978] IRLR 460
1978
EAT

Employment
Redundancy consultation - protective award
1 Cites

1 Citers


 
Nothman -v- Barnet London Borough County Council [1978] 1 WLR 220; [1979] 1 All ER 142; [1978] ICR 336
1978
HL
Lord Salmon
Employment
The normal retiring age for an employee is to be found by looking exclusively at the conditions of employment applicable to the group of employees holding his position.
Lord Salmon said: "If a woman’s conditions of employment provide that her retiring age shall be 65, I can find no sensible or just excuse nor any words in paragraph 10(b) to deprive her of her rights to compensation should she be unfairly dismissed by her employers after she reaches the age of 60 but before she attains the age of 65. Before the unfair dismissal she would probably have planned and arranged her life on the basis that she would continue in her employment until she retired. To be unfairly dismissed before that time, say when she was 61 years old, must surely be a cruel blow. Her plans for her future would be overturned. The chance of finding fresh employment would be minimal and her pension would probably be diminished."
1 Cites

1 Citers



 
 Barley -v- Amey Roadstone Corporation Ltd (No.2); EAT 1978 - [1978] ICR 190
 
Cartiers Superfoods Ltd -v- Laws [1978] IRLR 315
1978
EAT
Philips J
Employment
The EAT considered whether the claimant had acted frivolously under the Rules which referred to awarding costs where a party had acted frivolously or vexatiously, and the Employment Appeal Tribunal took account of pre-proceedings conduct. Held: For a costs order to be made against a party in an employment claim, it would seem that the party must at least know or to be taken to have known that his case is unmeritorious. Claimants had a responsibility to ascertain whether or not their claims were properly based and justifiable.
1 Citers


 
National Union of Gold, Silver & Allied Trades -v- Albury Brothers Ltd [1978] IRLR 504; [1978] ICR 62
1978
EAT
Phillips J
Employment
The tribunal was asked whether the employer had recognised the Trades Union even though there was nothing formal in place. Held: Phillips J said: "First, the question of recognition is a mixed question of fact and law. Secondly, recognition requires mutuality, that is to say that the employer acknowledges the role of the union for the relevant purposes and the union assents to that acknowledgment. Thirdly, such a process requires agreement, which may be express or implied. Fourthly, if it is said to be implied, the acts relied upon must be clear and unequivocal, and (usually) involve a course of conduct over a period of time. Fifthly, the words "to any extent" in section 11(2) ["see now section 178(3) of the Act of 1992"] do not refer to the strength or conviction of the recognition but to the subject or areas to which it relates. In other words there may be partial recognition; that is, recognition in certain respects but not in others."
1 Citers


 
Gorman -v- London Computer Training Centre [1978] IRLR 22
1978
EAT

Employment
It was not necessary for an employer to 'plead' some other substantial reason in the full technical sense of the word to defend an allegation of unfair dismissal.
1 Citers


 
Adams -v- Charles Zub Associates Ltd [1978] IRLR 551
1978


Employment

1 Citers



 
 British Home Stores Ltd -v- Burchell; EAT 1978 - [1980] ICR 303; (1978) IRLR 379; [1978] UKEAT 108_78_2007; (1978) 13 ITR 560
 
Naqvi -v- Stephens Jewellers Ltd [1978] ICR 631
1978
EAT

Employment
The parties had reached an agreement not to continue unfair dismissal proceedings, but the defendant now complained of the claimant's attempt to do so. Held: The section renders void an agreement to withdraw a claim already made to the Tribunal: "We find ourselves constrained by those considerations to regard the phrase 'bringing any proceedings before an industrial tribunal' as being intended to be wide enough to comprehend proceeding with a complaint which has been presented [under paragraph 17]…"
Employment Protection (Consolidation) Act 1978 140(1)
1 Citers


 
Ridley -v- GEC Machines Ltd [1978] 13 ITR 195
1978

Philips J
Employment
The claimant asserted constructive dismissal. Held: "The argument has revolved around the fact that because of the invitation to the respondent employers to call no evidence their side of the story was never given and so the case was never fully investigated. At first sight that might sound odd because, of course, the onus of proof lay upon Mr Ridley as claimant to show that he was dismissed, and it may be asked, why was it necessary for him in order to do that to be able to pray in aid evidence other than himself and any witnesses he chose to call? But in reality the position is somewhat different in this class of case, where what is being alleged is constructive dismissal. In effect the claimant is saying that he was driven out by the conduct of the employer. The test varied from time to time, but is now firmly established. However it is put, in order to understand the whole position it is very often necessary to see what is said on the employer's side. Only then can the whole picture be seen. Furthermore, as the Appeal Tribunal has said more than once in different classes of case, the cases which are heard by Industrial Tribunals, are very different from the ordinary case heard by regular courts, and the litigation of necessity takes – or certainly at all events ought to take – something of the form of an inquiry: so that ordinary customary legal procedures need to be applied with that requirement in mind. It is really essential that at the end of the day the parties should feel that the whole of the facts have been investigated. Particularly of course is that so in a case such as this where the complaint is one of constructive dismissal. ... It seems to us that in all the circumstances of this case [stopping the case at the end of Mr Ridley's evidence] was not a satisfactory approach, and they would have been wiser to have heard what the employers had to say."
1 Citers


 
Parsons (C A ) & Co Ltd -v- McLoughlin [1978] IRLR 65 EAT
1978
EAT

Employment

1 Citers


 
Walker -v- Josiah Wedgwood & Sons Ltd [1978] ICR 744
1978

Arnold J
Employment
"The general approach, as we think, must be that in cases concerned with unfair dismissal, whether it be constructive dismissal or direct dismissal, the conception of submission of no case to answer is somewhat out of place."
1 Citers


 
Barratt Developments (Bradford) Ltd -v- UCATT [1978] ICR 319
1978
EAT

Employment
The Industrial Tribunal had been entitled to conclude that 14 separate construction sites linked by telephone to the Company's headquarters constituted one establishment for the purpose of redundancy consultation with the trade union under Part IV of the 19754 Act, as opposed to each site constituting a separate establishment.
Employment Protection Act 1975 Part IV
1 Citers



 
 Kumchyk -v- Derby County Council; EAT 1978 - [1978] ICR 1116
 
Wells -v- Derwent Plastics Limited [1978] ICR 424
1978
EAT
Bristow J
Employment, Constitutional
Bristow J said: "Where the legal right or obligation with which you are concerned is not a common law right or obligation but is created by statute, what the statute says, and nothing else, is the law. The judges cannot add to or subtract from the law as you find it expressed in the statute, the instrument by which the will of the people through the ordinary constitutional method of Parliamentary process becomes the law. If what the statute says is intelligible and unambiguous it is for the judges to apply it, not to refine it or add to it frills of their own."
1 Citers


 
Massey -v- Crown Life Insurance Co [1978] ICR 590
1978


Employment

1 Cites

1 Citers



 
 Western Excavating (ECC) Ltd -v- Sharp; CA 1978 - [1978] QB 761; [1978] ICR 221; [1977] EWCA Civ 2; [1978] 1 All ER 713; [1978] IRLR 27; [1978] 13 ITR 132; [1978] 2 WLR 344
 
Joshua Wilson & Bros Ltd -v- USDAW [1978] ICR 614
1978


Employment
Redundancy consultation - protective award
1 Cites

1 Citers


 
Priddle -v- Dibble [1978] ICR 149
1978
EAT

Employment
The reasons available to an employer under section 98(1)(b) are not limited to reasons of the same kind as those spelt out in section 98(2), nor do they require consideration of the fairness of the dismissal, which falls to be considered under section 98(4) rather than at the prior stage of identifying the reason for dismissal.
Employment Rights Act 1996 98(1)(b) 98(2) 98(4)
1 Citers


 
Nottinghamshire County Council -v- Bowly [1978] IRLR 252
1978


Employment

1 Citers


 
Gale Ltd -v- Gilbert [1978] ICR 1149
1978
EAT
Arnold J
Employment
The claimant had worked for the employer for many years. There was a disagreement, and the employee said "I am leaving, I want my cards". He claimed unfair dismissal. Held: The EAT upheld the employer's appeal against a finding of unfair dismissal. although it was undesirable for an employer to accept a resignation of long serving employee without giving him a chance to reconsider his decision nevertheless where the words were clear and unambiguous the employer was entitled to accept the resignation. Arnold J: "But we do not think there is anything in industrial law which could be employed to reverse the conclusion that there was here a resignation merely by reason of the reservation which we have about the desirability from the point of view of general industrial relations of accepting finally without any invitation to reconsider a resignation which comes out in this way."
1 Citers


 
Turner -v- D T Kean Ltd [1978] IRLR 110
1978


Employment

1 Citers


 
Open University -v- Triesman [1978] ICR 524
1978
EAT
Phillips J
Employment
An employee was employed under a contract for a fixed term of 18 months. 3 months before that period expired she was offered and accepted further employment for 7 months subject to a waiver clause. Held: The judgments in BBC -v- Ioannou were applied "not only because they are of high persuasive authority, but because .... we respectfully agree with them". There were three considerations: the validity or otherwise of exclusions of that character should so far as possible be easy to determine, and it would not be if it was necessary to distinguish between reengagement under a new contract and renewal and extension of an existing contract; it did not necessarily follow that because a second or subsequent contract of employment was a renewal of an earlier one, it was correct to say that together they constituted a fixed term of a length equivalent to their cumulative length, though Phillips J. acknowledged that one could so describe it; and because the contract referred to a fixed term of two years or more which was renewed, the renewal must also be of two years or more
1 Cites

1 Citers


 
Robinson -v- British Island Airways Ltd [1978] ICR 304
1978
EAT
Phillips J
Employment
The claimant was a flight operations manager answerable to a general manager, operations and traffic. The employer re-organised abolishing both posts to one job of operations manager, with different tasks, new responsibilities and enhanced status for the occupant. Both post holders were dismissed. The employer paid appropriate redundancy pay but the employee complained he had been unfairly dismissed. Held: The case was not a case of unfair dismissal but of redundancy. It could not be right that, if a dismissal had been caused by re-organisation, the reason could not be redundancy. Phillips J: "In truth a re-organisation may or may not end in redundancy; it all depends on the nature and effect of the re-organisation." The work of the new post was different in kind from that done by either of the two previous employees: "Thus in our judgment it can truly be said that the dismissal of the employee was attributable to the fact that the requirements of the business for employees to carry out work of a particular kind had ceased or diminished and that each was redundant."
1 Citers



 
 Wilson -v- Maynard Shipbuilding Consultants AB; CA 1978 - [1978] ICR 376; [1978] QB 665
 
British Midland Airways Limited -v- Lewis [1978] ICR 782
1978
EAT
Phillips J
Employment
An airline pilot complained that he had been unfairly dismissed and the Industrial Tribunal, without considering whether or not they had jurisdiction to hear the complaint on the ground that the employee might ordinarily work abroad, found that the dismissal was unfair. The case had been listed before the Industrial Tribunal upon the jurisdictional question but in the event nobody adverted to it. Paragraph 9(2) provided that paragraph 4 of the Schedule did not apply to any employment where under the contract of employment the employee ordinarily worked outside Britain. Paragraph 4(1) provided that: "in every employment to which this paragraph applies every employee shall have the right not to be unfairly dismissed by his employer and the remedy of an employee so dismissed for breach of that right shall be by way of complaint to an Industrial Tribunal under part three of this Schedule and not otherwise". Held: Phillips J stated:- "This being a question as to jurisdiction, the Industrial Tribunal should have taken the point themselves even if the parties did not; and they cannot merely by silence confer upon themselves a jurisdiction which they do not have".
"It seems to us that in a case like this where, as the law then was, a mistake may have been made and the matter has come to light, it is desirable for the Industrial Tribunal, if there is an application for review, to correct the matter even if it involves overturning the original decision of the Industrial Tribunal. From time to time we have appeals sometimes in relation to small matters of compensation, sometimes in relation to matters where there has been a slip or an error of law of some sort or another and the mistakes have come to light quite soon after the hearing of the Industrial Tribunal. It seems to us that the convenient course is for such mistakes, when they occur and are recognised, to be corrected by review rather than by appeal because the appeal takes much longer and is much more expensive."
Trade Union and Labour Relations Act 1974 1 Sch 1
1 Citers


 
Dixon -v- BBC [1978] QB 438
1978
CA
Lord Denning
Employment
The fact that a term of employment is determinable by notice does not preclude the term being a fixed term.
1 Cites

1 Citers


 
Wynne -v- Hair Control [1978] ICR 870
1978


Employment
A sole proprietorship gave way to a partnership of which the previous sole proprietor was a member. The employee's continuous employment was broken.
1 Cites

1 Citers


 
Robert Whiting Designs Ltd -v- Lamb [1978] ICR 89
1978
EAT
Kilnour-Brown J
Employment
Alleged contributory conduct towards his dismissal on the part of an employee may be considered by a Tribunal even if the employer had put up a bogus reason for the dismissal.
Kilnour-Brown J said: "In our view the proper approach is to decide first what was the real reason for dismissal and then to see whether the employee's conduct played any part at all in the history of events leading to dismissal. In some cases, set against the real reason, it may be apparent that the employee's conduct, even if reprehensible, was of no relevance whatsoever and made no impact on the situation. In the present case the employers made great use of the employee's conduct in the process of dismissal. They had every justification for so doing, for the conduct was extremely reprehensible. The employee's conduct certainly contributed to his dismissal in the sense that it was a factor in the minds of the employers. Put another way, the real reason for dismissal was not exclusive of all other matters and a bogus reason does not necessarily shut out the employer completely if there was material to support the reason relied upon. We conclude, therefore, that the employee's conduct ought to be considered not only with reference to incompetence but also with reference to misconduct. In our view the weight to be given to the employee's conduct ought to be decided in a broad common sense manner."
1 Citers


 
Smith -v- Hayle Town Council [1978] IRLR 413; [1978] ICR 996
1978
CA
Eveleigh LJ, Sir David Cairns, Lord Denning MR dissenting
Employment
In a case on the issue of sufficiency of qualifying service for bringing an ordinary case of unfair dismissal, the court considered the allocation of the burden of proof in employment cases. Held: The burden is upon he who is seeking to rely upon the exception to bring himself within it. The court also considered the weight to be given to notes of a disciplinary meeting.
Eveleigh LJ said: "So one comes to consider whether the facts in this case did entitle the industrial tribunal to come to the conclusion that it did, I would have been inclined to think that, when one asks for the reason for corporate action, the action of all concerned in arriving at that decision should be considered and the court should make up its mind, from all the material available, what the corporate mind was thinking. In this particular case certainly one voter voted because of an anti-union prejudice. But can it be said that that should be regarded as the principal reason, or must one be driven to the conclusion – for that is the kind of test we have to apply – that that was the principal reason? It seems to me that, as emphasis is laid in various parts of this Act upon the words 'principal reason', the schedule contemplates that there can be other reasons that operate, but they may not be the principal one. From that it follows that there may be some form of anti-union prejudice that could exist, but nonetheless that would not so cloud the issue as to make an anti-union sentiment the principal reason. In my view, bearing in mind the right of appeal is in law only, it is not possible here to say there are no grounds on which an industrial tribunal could come to the conclusion that it did."
Sir David Cairns said: "I think it would be permissible to look at what was said at the meeting in order to see what actuated the minds of those who voted in favour of the resolution. That was done here by the tribunal, and it appears to me that, upon the evidence they had before them, not only was there no compelling evidence that the principal reason for the dismissal was an inadmissible reason but, indeed, the evidence showed that that was not the principal reason. It cannot be that the reason in the mind of one particular man was the principal reason even though his vote may have been decisive."
Lord Denning MR (minority) said that that the burden lay on the employer.
Trades Union and Labour Relations Act 1974
1 Citers


 
Wetherall (Bond Street W1) Ltd -v- Lynn [1978] 1 WLR 200
1978


Employment
The court considered a claim of constructive dismissal against a claim by an employee that the employer had failed to meet its duty of care to protect an employee against bullying or ill treatment by other members of staff.
1 Citers



 
 Todd -v- British Midland Airways; CA 2-Jan-1978 - [1978] ICR 959

 
 Australian Mutal Provident Society -v- Allan and Chaplin; PC 14-Mar-1978 - [1978] UKPC 7

 
 Maria Frangiamore -v- Office National De L'Emploi.; ECJ 15-Mar-1978 - R-126/77; [1978] EUECJ R-126/77
 
Mulcahy -v- Commission C-110/77; [1978] EUECJ C-110/77
1 Jun 1978
ECJ

European, Employment
Europa Officials - recruitment - consideration of applications - professional experience - equivalence to university degree - appraisal (staff regulations, article 5) in the matter of promotion it is for the appointing authority to appraise whether professional experience is equivalent to university education evidenced by a degree.
[ Europa ] - [ Bailii ]
 
Defrenne -v- Sabena Airlines [1979] ECR 1365; C-149/77; R-149/77; [1978] EUECJ R-149/77
15 Jun 1978
ECJ

European, Employment, Discrimination
LMA Ms Defrenne was an air hostess employed by SABENA, a Belgian airline company. She brought an action against the airline based on Art.119 [now141] EC. Ms Defrenne claimed that in paying their male stewards more than their air hostesses, when they performed identical tasks, Sabena were in breach of Art.119EC. The question to the ECJ was whether, and in what context, Art.199EC was directly effective. The ECJ held "the prohibition on discrimination between men and women applies not only to the action of public authorities but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals"
Europa Article 119 of the EEC Treaty, which is limited to the question of pay discrimination between men and women workers, constitutes a special rule, whose application is linked to precise factors. It cannot be interpreted as prescribing, in addition to equal pay, equality in respect of the other working conditions applicable to men and women. The fact that the fixing of certain conditions of employment - such as a special age-limit - may have pecuniary consequences is not sufficient to bring such conditions within the field of application of article 119, which is based on the close connection which exists between the nature of the services provided and the amount of remuneration.
Fundamental personal human rights form part of the general principles of community law, the observance of which the court has a duty to ensure. The elimination of discrimination based on sex forms part of those fundamental rights. However, it is not for the court to enforce the observance of that rule of non-discrimination in respect of relationships between employer and employee which are a matter exclusively for national law.
1 Cites

[ Europa ] - [ Bailii ]
 
Taplin -v- C Shippam Ltd [1978] UKEAT 117_78_0707; [1978] ICR 1068; [1978] IRLR 450; (1978) 13 ITR 532
7 Jul 1978
EAT
Slynn J
Employment

[ Bailii ]
 
Dixon -v- British Broadcasting Corporation [1978] EWCA Civ 4; [1979] ICR 281; [1979] QB 546; [1979] 2 WLR 647; [1979] 2 All ER 112
5 Oct 1978
CA

Employment

[ Bailii ]
 
Sheffield -v- Oxford Controls Co Ltd [1979] ICR 396; [1979] IRLR 133
18 Dec 1978
EAT
Arnold J
Employment
The company had been owned equally by Mr. Sheffield and Mr. Raison. The Raisons gained effective control of the company on the issue of shares. Mr. and Mrs. Sheffield had been employed, but after a row, she was told she would have to go. This prompted Mr Sheffield to say: "Well, if she goes, I go." The same day, Mr Raison asked Mr Sheffield how much he wanted in order to go, and was told £10,000. The company could not pay all at once. Mr Raison prepared draft heads of agreement, which they discussed further, before the heads were initialed to show agreement. Mrs Sheffield then signed her 'resignation letter'. The tribunal was asked whether Mr Sheffield's resignation in the agreement was something which terminated the contract of employment on the initiative of Mr Sheffield, or whether, it was made from a threat that he would be dismissed if he did not resign with a result that that was a dismissal by the company notwithstanding the intermediate negotiation. Held: He had resigned.
Arnold J said: "It is plain, we think, that there must exist a principle, exemplified by the four cases to which we have referred, that where an employee resigns and that resignation is determined upon by him because he prefers to resign rather than be dismissed (the alternative having been expressed to him by the employer in terms of the threat that if he does not resign he will be dismissed), the mechanics of the resignation do not cause that to be other than a dismissal. The cases do not in terms go further than that. We find the principle to be one of causation. In cases such as that we have just hypothesised, and those reported, the causation is the threat. It is the existence of the threat which causes the employee to be willing to sign, and to sign, a resignation letter or to be willing to give and to give the oral resignation. But where that willingness is brought about by other considerations and the actual causation of the resignation is no longer the threat which has been made but is the state of mind of the resigning employee, that he is willing and content to resign on the terms which he has negotiated and which are satisfactory to him, then we think there is no room for the principle to be derived from the decided cases. In such a case he resigns because he is willing to resign as a result of being offered terms which are to him satisfactory terms on which to resign. He is no longer impelled or compelled by the threat of dismissal to resign, but a new matter has come into the history, namely that he has been brought into a condition of mind in which the threat is no longer the operative factor of his decision; it has been replaced by the emergence of terms which are satisfactory. Therefore we think that the finding that Mr Sheffield had agreed to terms upon which he was prepared to agree to terminate his employment with the company — terms which were satisfactory to him — means that there is no room for the principle and that it is impossible to upset the conclusion of the Tribunal that he was not dismissed."
1 Citers


 
Zarczynska -v- Levy [1979] ICR 184; [1978] IRLR 532
1979


Discrimination, Employment
A white barmaid was dismissed for refusing to turn away black customers. She claimed in race discrimination. Held: Treating people less favourably not because of their race but because of the race of others is also discrimination on grounds of race. The black customers were not in fact treated less favourably, as the white employee refused to carry out the unlawful order to treat them less favourably. It was the white employee who was treated less favourably "on racial grounds" because he was dismissed for refusing to carry out his employer's racially discriminatory policy or practice to discriminate against others on racial grounds.
1 Citers


 
Bastick -v- James Lane (Turf Accountants) Ltd [1979] ICR 778
1979

Crane J
Employment, Litigation Practice
The court considered an appeal against a refusal of an adjournment of proceedings before the industrial tribunal when criminal proceedings on the same issues were pending. Held: The court refused to interfere with the exercise of his dicretion by the industrial tribunal chairman. Crane J said: "Now we think that when we, in this appellate tribunal, approach a consideration of the validity of a decision by an industrial tribunal, or by the appropriate officer of an industrial tribunal, upon a matter of discretion, we must look for two things, the discovery of either of which would be sufficient to entitle us to overturn the exercise of that discretion. Either we must find, in order so to do, that the tribunal, or its chairman, has taken some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised; or, alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion, was so far beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse."
1 Citers


 
Hugh-Jones -v- St John's College, Cambridge [1979] ICR 848
1979

Slynn J
Employment
An office holder can agree to execute work or labour without becoming an employee.
1 Citers


 
Courtaulds Northern Textiles Ltd -v- Andrew [1979] IRLR 84
1979
EAT
Mr Justice Arnold
Employment
There is implied into a contract of employment a term that the employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee. When considering a breach of an employment contract, the court must look at whether the breach is with respect to a fundamental term of the contract, or a fundamental breach of the contract itself. If the likely consequences of the breach will damage or destroy the relationship of trust and confidence between employer and employee, it must be something which goes to a fundamental breach of the contract, which is really fundamental in its effect on the contractual relationship. Any conduct by an employer which was likely to destroy or to damage seriously the relationship of confidence and trust between employer and employee was conduct going to the root of the contract so as to justify the employee terminating the contract on the grounds of the employer’s repudiation.
Arnold J said: "Now it is of course true, applying the Court of Appeal's test, that in order to decide that the conduct is sufficiently repudiatory to justify a conclusion of constructive dismissal one has to consider whether the conduct complained of constitutes either a fundamental breach of the contract or a breach of a fundamental term of the contract: two somewhat elusive conceptions which figure in our modern contract law. But there is not much room, as we think, for that inquiry in a case in which the test, within the terms of the contractual obligation, is one which involves considering whether the consequences, or the likely consequences, are to destroy or seriously damage the relationship of confidence and trust between employer and employee; because it does seem to us that any conduct which is likely to destroy or seriously to damage that relationship must be something which goes to the root of the contract, which is really fundamental in its effect upon the contractual relationship."
1 Cites

1 Citers


 
Barthope -v- Exeter Diocesan Board of Finance [1979] ICR 900
1979
EAT
Slynn J
Employment
A stipendiary lay reader claimed for unfair dismissal. The respondent denied there was any contract of service. Held: The Tribunal rejected a submission that the claimant was an office holder and, as such, that it followed he was not employed under a contract of service: "Merely to say that someone holds an office does not seem to us to decide the question which has to be decided under [the 1974 Act]. Some office holders may well not be employed under a contract of service. It does not follow that an office holder cannot be employed under a contract of service. The question . . is whether the office he holds is one the appointment to which is made by, or is co-existent with, a contract of service. If it is, then he is entitled to the protection of the Act of 1974." and "It may be difficult to establish who is the other contracting party, but we are not satisfied that clergy when working within the framework of the Church cannot be engaged under a contract. It may well be that the contract, if it exists, is for services rather than of service."
Trade Union and Labour Relations Act 1974
1 Citers


 
Migwain Limited (In Liquidation) -v- Transport and General Workers Union [1979] ICR 597
1979

Slynn J
Employment
Section 26 of the Interpretation Act 1889 applied to the receipt of notice of the proceedings leading to a decision of the Industrial Tribunal. The presumption as to receipt only arose where it was first established that the correspondence in question had been properly addressed.
Interpretation Act 1889 26
1 Citers


 
Green -v- Hampshire County Council [1979] ICR 954
1979


Employment
A decision of an Employment Tribunal on a particular issue is capable of establishing an issue estoppel between the parties as to that issue.
1 Citers


 
Hollister -v- National Farmers Union (NFU) [1979] IRLR 238; [1979] ICR 542
1979
CA
Lord Denning MR
Employment
The correct approach for the Industrial Tribunal looking at a company re-organisation is to make a finding as to the advantages to the employers of a proposed re-organisation and whether it was reasonable for them to implement it by terminating existing contracts and offering employees new ones. If there is a sound good business reason for the particular reorganisation the unreasonableness or reasonableness of the employer's conduct has to be looked at in the context of that re-organisation.
It is not right to go through the reasoning of Tribunals with a toothcomb to see if some error can be found. The findings of a Tribunal should be looked at by the EAT "broadly". If it appeared that they had applied the right test and that their conclusion was broadly reasonable it should not be interfered with.
Lord Denning MR said: "The question which is being discussed in this case is whether the reorganisation of the business, which the National Farmers' Union felt they had to undertake in 1976, coupled with Mr Hollister's refusal to accept the new agreement, was a substantial reason of such a kind as to justify the dismissal of the employee. Upon that there have only been one or two cases. One we were particularly referred to was the case of Ellis v Brighton Co operative Society Ltd [1976] IRLR 419, where it was recognised by the Court that reorganisation of business may on occasion be a sufficient reason justifying the dismissal of an employee. They went on to say: 'Where there has been a properly consulted-upon reorganisation which, if it is not done, is going to bring the whole business to a standstill, a failure to go along with the new arrangements may well -it is not bound to but it may well constitute "some other substantial reason".' Certainly, I think, everyone would agree with that. But in the present case Mr Justice Arnold expanded it a little so as not to limit it to where it came absolutely to a standstill but to where there was some sound, good business reason for the reorganisation. I must say I see no reason to differ from Mr Justice Arnold's view on that It must depend in all the circumstances whether the reorganisation was such that the only sensible thing to do was to terminate the employee's contract unless he would agree to a new arrangement. It seems to me that that paragraph may well be satisfied, and indeed was satisfied, in this case, having regard to the commercial necessity of rearrangements being made and the termination of the relationship with the Cornish Mutual, and the setting up of a new relationship via the National Farmers' Union Mutual Insurance Limited."
1 Citers


 
National Union of Gold, Silver & Allied Trades -v- Albury Brothers Ltd [1979] ICR 84
1979
CA

Employment
The appeal failed.

 
Pritchard-Rhodes Limited -v- Boon and Milton [1979] IRLR 19
1979
EAT

Employment
An application to the Industrial Tribunal for a redundancy payment was not effective because it failed to comply with the statutory requirements which, on their true construction, provided that an application could not be effectively made to an Industrial Tribunal for redundancy payment earlier than the date of termination of the contract. The application was not made in proper time because they were made before the date of termination.
1 Cites

1 Citers


 
Sun and Sand Ltd -v- Fitzjohn [1979] IRLR 154
1979

Arnold J
Employment, Damages
The EAT considered the deduction of sickness benefit from the compensatory award. Arnold J said: "The appellants before us say that that amount of sickness benefit should be deducted from the amount awarded within the compensatory award for the 13 weeks of pay between the date of dismissal and the date of new employment. The matter for consideration seems to us to depend upon whether the amount of the loss sustained by Miss Fitzjohn in consequence of her dismissal was the whole amount of lost pay or was the amount of lost pay less the sickness benefit. If the applicant was entitled to retain the sickness benefit to which she was justly entitled, so long as her employment continued, in addition to receiving her pay, the loss would in our judgment be the net pay lost without any deductions; but if either she was obliged to accept some reduced amount of pay by reference to the sickness benefit she had received or so long as she was being paid under a continuing contract of employment was disentitled from receiving sick benefit at all, then in either of those cases it seems to us that the compensatory award for lost pay should be reduced by the amount of the sickness benefit which she received. It is not contended by the appellants that so long as her contract of employment continued she would have been obliged to accept any deduction from her wages by reference to the amount of sickness benefit she had received or otherwise obliged to account to her employers for the amount of that sickness benefit. They do however submit that the applicant was not in fact entitled to receive sickness benefit so long as her contract of employment continued and that therefore all that she lost, if she had received no more than she was justly entitled to, would have been the net pay and it would follow from that that, since during the period of unemployment she received in fact sickness benefit, then her loss would be the amount of net pay less the amount of sickness benefit. For this proposition the appellants rely on the language of s.14(1)(b) of the Social Security Act 1975; the relevant part of the sub-section reads thus:
'A person shall be entitled to unemployment benefit in respect of any day of unemployment which forms part of a period of interruption of employment and to sickness benefit in respect of any day of incapacity for work which forms part of such a period'
and they point out that 'such a period' plainly means a period of interruption of employment. So they say she is entitled to sickness benefit only during a period of unemployment since this is what 'interruption of employment' means, so that if she had continued to be employed by the appellants she would not, so long as that employment continued, notwithstanding that she was off work for sickness, be entitled to sickness benefit. The answer to that proposition is in our judgment plainly contained in the definition which is to be found in s.17(1)(c) of the Social Security Act 1975, which provides that the expression 'day of interruption of employment' means a day which is a day of unemployment or incapacity for work. It follows from this, in our judgment, that where a person suffers from an incapacity for work such as that from which Miss Fitzjohn suffered during the relevant period it matters not that she has the benefit of a current contract of employment, in relation to her entitlement to sickness benefit.
1 Citers



 
 British Railways Board -v- Natarajan; EAT 1979 - [1979] ICR 326
 
Wigan Borough Council -v- Davies [1979] ICR 411
1979
EAT
Arnold J
Employment, Contract
The court considered that an employer owed a duty of care and under the contract of employment to employees to protect them against ill treatment or bullying. The plaintiff sued for breach of contract.
Arnold J said: "We do not think that it is an outrageous or inconvenient conclusion that where a party has an obligation to take reasonable steps to achieve something, and is found to have taken no step or no significant step at all, towards that end, the obligation of demonstrating that there was no reasonable step which could have been taken should be found to lie upon that party. And we do not think that in the circumstances of a case such as this it is possible to say that this industrial tribunal were wrong in the conclusion reached upon that topic: or to put it another way, that the absence of evidence would justify us in overturning the decision of the industrial tribunal."
1 Citers


 
Hamish Armour (Receiver of Barry Staines Ltd) -v- ASTMS [1979] IRLR 24; [1979] IRLR 24
1979


Employment
Where an employer is contemplating making collective redundancies, it may be appropriate to disclose the information required under a confidentiality agreement. In order to demonstrate a "special circumstances" defence an employer must show "something out of the ordinary, something uncommon".
1 Citers


 
Knight -v- Attorney General [1979] ICR 194
1979


Employment, Legal Professions
A judge's status does not bring her within the scope of the 1975 Act as an 'employee'.
Sex Discrimination Act 1975
1 Citers


 
Syed -v- Ford Motor Co [1979] IRLR 335
1979


Employment
The actions and failures of a trade union representative can be attributed to the claimant.
1 Cites

1 Citers



 
 Fisher -v- York Trade Leco Ltd; 1979 - [1979] IRLR 386
 
Pillinger -v- Manchester Area Health Authority [1979] IRLR 430
1979


Employment
The claimanat said his dismissal had not been a redundancy, since the person who replaced him did the same work. Held: The dismissal must have been for some other reason. It was not a redundancy. The court discussed the meaning of the phrase 'work of a particular kind' in redundancies. Qualifications are not relevant the relevance except in so far as they imply special skills, attributes or knowledge.
1 Citers


 
British Labour Pump Co Ltd -v- Byrne [1979] ICR 347; [1979] IRLR 94
1979
EAT
Slynn J
Employment
The respondent had been dismissed for misconduct on the morning of the day on which he was dismissed. There had been previous misbehaviour but the industrial tribunal held that the case had to be determined on the basis of what had happened on that morning and that the employers had acted reasonably and had fairly dismissed the employee even though they had not warned him about his previous misbehaviour or given him an opportunity to explain his conduct on that morning. It decided that even had there been an investigation the employee would still have been dismissed because on the balance of probabilities the employers would not have accepted his explanation and the dismissal was therefore fair. Held: Even though in the then context the employer's decision to dsmiss the employee was not reasonable because of a failure to follow a fair procedure, the dismissal may still be fair if, on the facts proved before the industrial tribunal, the industrial tribunal comes to the conclusion that the employer could reasonably have decided to dismiss if he had followed a fair procedure.
1 Citers


 
Riley -v- Tesco Stores Ltd [1979] ICR 223
1979


Employment

1 Citers



 
 Khanum -v- Mid Glamorgan Area Health Authority; EAT 1979 - [1979] ICR 40
 
Pirelli General Cable -v- Murray [1979] IRLR 19
1979


Employment

1 Citers



 
 Spillers French (Holdings) Ltd -v- Union of Shop, Distributive and Allied Workers (USDAW); EAT 1979 - [1980] ICR 31; [1979] IRLR 339
 
NWL Ltd -v- Woods [1979] 1 WLR 1294; [1979] ICR 867; [1979] 3 All ER 614
1979
HL
Lord Scarman, Lord Diplock
Employment, Litigation Practice
The phrase "trade dispute" was defined by reference to (i) the parties to it and (ii) the subject matter. Lord Scarman referred to the legislative history of attempts to regulate strike actions by trades unions: "It is wrong to attempt to construe any section or subsection of these Acts without reference to their legislative purpose. And it is also necessary to have regard to the history of the statute law and the case law since 1906 for a full understanding of them. This history I would summarise as a shifting pattern of Parliamentary assertions and judicial responses—a legal point counter-point which has been more productive of excitement than of harmony."
Lord Fraser considered the basis for granting interlocutory injunctions. The strength of the prima facie case is one a factor of which to take account in weighing the competing considerations.
Lord Diplock spoke of the basis for granting interlocutory injunctions: ". . . when properly understood, there is in my view nothing in the decision of this House in American Cyanamid Company v. Ethicon Limited to suggest that in considering whether or not to grant an interlocutory injunction the judge ought not to give full weight to all the practical realities of the situation to which the injunction will apply. American Cyanamid Company v. Ethicon Limited, which enjoins the judge on an application for an interlocutory injunction to direct his attention to the balance of convenience as soon as he has satisfied himself that there is a serious question to be tried, was not dealing with a case in which the grant or refusal of an injunction at that stage would, in effect, dispose of the action finally in favour of which ever party was successful in the application, because there would be nothing left on which it was in the unsuccessful party's interest to proceed to trial. . ."

Cases of this kind are exceptional, but when they do occur they bring into the balance of convenience an important additional element. In assessing whether what is compendiously called the balance of convenience lies in granting or refusing interlocutory injunctions in actions between parties of undoubted solvency the judge is engaged in weighing the respective risks that injustice may result from his deciding one way rather than the other at a stage when the evidence is incomplete. On the one hand there is the risk that if the interlocutory injunction is refused but the plaintiff succeeds in establishing at the trial his legal right for the protection of which the injunction has been sought he may in the meantime have suffered harm and inconvenience for which an award of money can provide no adequate recompense. On the other hand there is the risk that if the interlocutory injunction is granted but the plaintiff fails at the trial the defendant may in the meantime have suffered harm and inconvenience which is similarly irrecompensable. The nature and degree of harm and inconvenience that are likely to be sustained in these two events by the defendant and the plaintiff respectively in consequence of the grant or the refusal of the injunction are generally sufficiently disproportionate to bring down, by themselves, the balance on one side or the other; and this is what I understand to be the thrust of the decision of this House in American Cyanamid v. Ethicon Limited. Where, however, the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other".
And
"Where ... the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial, is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other."
1 Cites

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Secretary of State for Employment -v- Globe Elastic Thread Co Ltd [1980] AC 506; [1979] IRLR 327
1979
HL
Lord Wilberforce
Employment
The employee worked for Company A from 1948 to 1970. In 1970 he accepted employment with a related Company B, on the understanding that his employment with A would be treated as continuous. Upon his dismissal by B in 1975 on grounds of redundancy, he claimed a redundancy payment on the basis of continuous service since 1948. Held: He could only count service with B from 1970 for the purposes of his redundancy entitlement. The reason was that under the statute A and B were not associated employers. Accordingly there was no continuity of service following the change of employer. A personal estoppel cannot extend the statutory jurisdiction of the Indistrial Tribunal or create a jurisdiction which the statute did not in fact confer
1 Citers


 
Coral Squash Clubs Ltd -v- Matthews [1979] IRLR 390; [1979] ICR 607
1979

Slynn J
Employment
Slynn J said: "We do not think there is a rigid rule of the kind which Mr Brooke first contended for [viz, that a submission of no case should never be allowed except perhaps if there was an error of law]. It is clear that in many cases it is of great importance to hear both sides. We think that would be the normal position. This tribunal has already said in cases alleging race or sex discrimination that it is right normally to hear both sides. It has been said also that where constructive dismissal is alleged, in the ordinary case it is important to call upon both sides to give evidence . . But as we understand it, this tribunal has never said that the Industrial Tribunal cannot stop a hearing at the end of the case of the party whose evidence and submissions come first. It is clearly a power which must be exercised with caution but if the tribunal is satisfied that the party upon whom the onus lies and who goes first has clearly failed either in law or fact to establish what he set out to establish, then it seems to us that the tribunal is entitled to decide the case at that stage."
1 Citers


 
Carter -v- Credit Change Ltd [1979] IRLR 361; [1979] ICR 908
2 Jan 1979
CA
Stephenson LJ
Employment
There are restricted circumstances in which the tribunal can interfere on appeal with the tribunal's exercise of its discretion. Stephenson LJ said: "All the reasons which he gave seem to me to be good reasons for the decision to which he came; many important issues are indeed the same in both proceedings; and if it were necessary for me to express my agreement with his exercise of discretion I do not think I would find any difficulty in doing it; but I do not regard it as the function of this court, or the function of the appeal tribunal, to approve the exercise of the industrial tribunal's discretion to postpone. All the appeal tribunal has to do is to see whether there is any error in law, and they can only do that, it seems to me, in accordance with the guidance given by the precedents of the appeal tribunal in other cases: they must look to see whether there is anything wrong in law with the decision, and whether it is so surprising that something must have gone wrong with it and that it could be characterised as perverse or a decision which no reasonable tribunal could have come to."
1 Cites

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 Calvin -v- Carr; PC 15-Jan-1979 - [1979] UKPC 1; [1979] 2 All ER 440; [1980] AC 574; [1979] 2 WLR 755
 
Claudino Rossi -v- Caisse de compensation pour allocations familiales des regions de Charleroi et Namur C-100/78
6 Mar 1979
ECJ

European, Employment

[ Europa ]

 
 Crowley -v- Ashland (UK) Chemicals Ltd; EAT 20-Apr-1979 - [1979] EAT 31/79; Unreported, 20 April 1979
 
Gozdzik and Scopigno -v- Chlidema Carpet Co Ltd [1979] UKEAT 598_78_2604
26 Apr 1979
EAT
Talbot J
Employment
The claimants appealed against rejection of their claims for unfair dismissal. Held: The appeals failed. The ET was entitled on the evidence to find that the two appellants had not met the standard of work required by the employer.
Trade Union and Labour Relations Act 1974
[ Bailii ]

 
 Science Research Council -v- Nasse; BL Cars Ltd (formerly Leyland Cars) -v- Voias; HL 1-Nov-1979 - [1979] ICR 921; [1979] 3 All ER 673; [1980] AC 1028; [1979] 3 WLR 762; [1979] UKHL 9
 

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