Employee relations

The EAT’s guidance in this case is useful as it sets out a range of factors which, together, will determine whether or not a trade union is truly independent.

Employee relations

Employment Appeal Tribunal - 1977 Staff consultative organisation failed in its bid for independence Facts The Blue Circle group of companies formed a staff consultative organisation which was initially under the control of the management, and received financial support from the company.   The staff consultative organisation wanted to move away from this control and so instituted a new set of rules and agreed a negotiating procedure with the management in a bid to achieve independence…

Termination

Employment Appeal Tribunal - 1978 What determines whether a dismissal is reasonable? Facts There were irregularities identified in staff purchases at a BHS store. To determine who was responsible for this, BHS took evidence from dockets relating to purchases that staff had made, and also took witness statements. The evidence suggested that Burchell was responsible for the irregularities and she was dismissed.   Burchell argued that BHS had not clearly established her guilt. EAT…

Termination

This case precedent is often referred to by employment tribunals when considering unfair dismissal claims. The employer does not need to establish proof in an employee’s guilt for a dismissal to be fair; instead the three principles from this case will be applied.

Business principles

Employment Tribunal - 1978 Requiring employee to work additional hours to complete his work was a breach of the time off rights Facts A lecturer's timetable was rearranged to leave him free on most afternoons to carry out his duties as a Borough councillor. However, he was still expected by the employer to carry out his full range of teaching and administrative duties,which meant that he had to do some work at home in the evenings and at weekends.   Ratcliffe complained to a tribunal…

Business principles

The right for an employee to take time off for public duties is a right to time off during working hours. It is not open to the employer to require the employee to work extra hours in order to make up the time or to complete his/her workload; the time taken must be out of actual working hours.

Terms and conditions

Court of Appeal - February 1978 Restrictive covenant not reasonable because geographical restriction was too wide Facts Greer was a director of the Sketchley dry cleaning business. At the time of this case, Sketchley operated only in the Midlands and the South of England. After Sketchley was taken over by new management, Greer proposed to leave and join a competitor.   Sketchley tried to stop him on the basis of a restrictive covenant in his contract of employment. This covenant…

Terms and conditions

If the terms of a restrictive covenant are not reasonable because of the time period and the geographical area over which the restrictions are to apply, a court may declare the entire covenant to be void.

Employee relations

Court of Appeal - 1979 Clear evidence of recognition required for collective bargaining Facts A trade association, of which Albury Brothers was a member, had agreed a number of collective agreements with the National Union of Gold, Silver & Allied Trades in relation to employees’ conditions of employment. Individual members of the trade association were not automatically or legally bound to observe or apply those collective agreements unless they made specific agreements with their…

Employee relations

While section 11(2) of the Employment Protection Act 1975 has been repealed, and section 29(1) of the Trade Union and Labour Relations Act 1974 was replaced by the relevant sections of the Trade Union and Labour Relations (Consolidation) Act 1992, the case remains relevant to the requirement to collectively consult on redundancies contained in section 188 of TULRCA. This is a useful case in setting the bar high as to when a union’s recognition will be inferred. Clear and unequivocal evidence of…

Termination

Court of Appeal - 1981 Resignation was unambiguous and so no dismissal occurred Facts The office manager of a law firm attended a partnership meeting and said 'I am resigning'. He later claimed that he did not mean to resign, and stated that he did not want to leave. However, the employer argued that he had resigned and hence his employment had terminated. He claimed unfair dismissal. Court of Appeal The Court of Appeal identified three situations in which an employer ought to…

Termination

In this case there were clear words of resignation. However, it is important to note the Court of Appeal guidance - that there are certain situations where an employer ought to investigate further before accepting a resignation. It is always recommended that a resignation should be confirmed in writing.

Employee relations

High Court - 1982 Requirement to disclose information to a union with negotiation rights Facts The ASTMS trade union (now part of Unite) was recognised by BTP Tioxide for: collective bargaining over employment terms and conditions for a specified class of employees, including general increases in salary scales, and payments for overtime, work done on statutory holidays, shifts and so on making representations on other terms and conditions making representations on individual and…

Employee relations

An employer is only required to disclose information to a trade union for the purposes of collective bargaining. The Court of Appeal made an important distinction here between: negotiations falling within the definition of collective bargaining (where information needed to be disclosed) negotiations on issues not falling within the definition of collective bargaining issues falling within the definition of collective bargaining in respect of which the union was not recognised matters on…

Termination

Employment Appeal Tribunal - January 1982 Principles that should be adopted when implementing redundancies EAT The Employment Appeal Tribunal (EAT) described the principles that a good employer should adopt when dismissing employees for redundancy. These principles include: the employer should give the trade union as much warning as possible of impending redundancies in order to enable the union to consider relevant facts and possible alternative solutions and, if necessary, alternative…

Termination

The EAT in this case stated that the above principles should be applied whenever an employer is carrying out redundancies, and that they should only be departed from where there is a sound reason to justify a departure.

Terms and conditions

Court of Appeal - December 1985 Employees not told information was confidential Facts Fowler was a sales manager. He left Faccenda and set up an organisation in competition, selling chickens to customers in the same area. His eight recruits included five sales staff from Faccenda.   In setting up his business, Fowler used information that he had gained while employed at Faccenda, including names and addresses of customers, their usual requirements and the prices they were charged.…

Terms and conditions

This case makes it clear that the confidentiality of any information is best spelled out in the contract of employment.

Tupe

European Court of Justice - March 1986 All the circumstances of the transfer must be taken into account to determine whether Tupe applies Facts Spijkers was employed as an assistant manager at a slaughterhouse owned by Gebroeders Colaris Abbatoir BV (Colaris) in the Netherlands. When Colaris ceased trading, it sold the entire slaughterhouse to Benedik Abattoir. The new company took over all Colaris's employees, apart from Spijkers and one other employee, and carried on the same business…

Tupe

This case confirms that the determination of whether or not Tupe applies is not dependant on any single factor, but instead will depend on all the circumstances of the particular case.

Equality

It is well established now that excluding part-time employees from an occupational pension scheme just because they are part-time is likely to represent unlawful indirect discrimination against women and will not be justified.

Equality

European Court of Justice - May 1986 Excluding part-time employees from access to pension scheme was discriminatory Facts Weber was employed as a sales assistant. She initially worked full time, and then moved to part-time hours.   Bilka-Kaufhaus operated a pension scheme for employees. It was only open to those who worked part-time if they had also worked full-time for at least 15 years. As Weber had worked full-time for less than 15 years she was not entitled to join the pension…

Termination

House of Lords - November 1987 Any procedural shortfall will make a dismissal unfair Facts Polkey was one of four van drivers. There was a commercial need to cut costs and it was decided that the four van drivers would be replaced by three van salesmen. The employer decided that Polkey was not suitable for the role of van salesman, and hence it was decided to make him redundant. The first that Polkey knew about this was when he was handed a letter setting out the redundancy payment…

Termination

It is accepted by the courts that if an employer does not follow a fair procedure (or any procedure) prior to taking the decision to dismiss an employee, this is likely to be an unfair dismissal (unless the procedural deficiency is extremely minor). However, an employment tribunal can make a reduction to any compensation that is awarded if it is judged that the dismissal would have occurred anyway - this is known as a 'Polkey reduction'. An employment tribunal can even reduce compensation by as…

Pay and benefits

Employment Appeal Tribunal - 1990 Deduction not unlawful where agreement signed after the event Facts Smith was employed as a traffic office clerk. One day in August 1988, the company discovered that Smith’s takings for the previous day were missing. There was no suggestion that Smith had misappropriated the money, but that the money was not where it should have been indicated that he had not followed company procedures properly. A provision in a collective agreement which the employer…

Pay and benefits

A deduction from an employee’s wages will be lawful only where a contractual agreement authorising the type of deduction in question is in place before the incident or conduct in respect of which a deduction is made. Such an agreement can be oral or in writing. Additionally, however, the contractual basis on which the deduction is being made must be notified to the employee in writing prior to the date of the deduction. If one or both of these conditions are not met, the deduction will be…

Pay and benefits, Equality

European Court of Justice - May 2009 Operating different pension ages for men and women was unlawful Facts Barber was an employee of Guardian Royal Exchange and a member of its pension scheme. The scheme was non-contributory, with a normal pensionable age of 62 years for men and 57 years for women. If an employee was made redundant s/he would be entitled to an immediate pension income at the age of 55 years if a man and 50 years if a woman.   Barber was made redundant at the age of 52…

Pay and benefits, Equality

This case established for the first time that it is unlawful to operate occupational pension schemes which provide different benefits for men and women.

Pay and benefits, Equality

European Court of Justice - May 2009 Operating different pension ages for men and women was unlawful Facts Barber was an employee of Guardian Royal Exchange and a member of its pension scheme. The scheme was non-contributory, with a normal pensionable age of 62 years for men and 57 years for women. If an employee was made redundant s/he would be entitled to an immediate pension income at the age of 55 years if a man and 50 years if a woman.   Barber was made redundant at the age of 52…

Pay and benefits, Equality

This case established for the first time that it is unlawful to operate occupational pension schemes which provide different benefits for men and women.