Summary Trade union activities in prior employment and automatic unfair dismissal Facts Fitzpatrick was a known union activist following her participation in trade union activities undertaken while working at British Telecom and Ford. She was dismissed soon after starting new employment with British Rail, on the grounds that she had been untruthful in her application (having failed to mention nine days of employment with Ford, when she was dismissed because of bad references) and the…

Summary Requiring an employee to work excessive hours breaches employer’s implied duty of care Facts Johnstone was a senior house officer in a hospital. His contract gave a standard working week of 40 hours, and he had to be available on call for an average of 48 hours each week.   There is an implied term in every employment contract that the employer will take reasonable care of the employee's health and safety. The terms of Johnstone’s contract meant that it was possible for him to…

Summary Deduction not lawful where agreement reached after the event Facts Potter took an HGV driving course that was paid for by the agency he worked for. The agency placed him with Hunt Contracts, which decided to take him on as a permanent employee. As part of the deal with the agency, Hunt Contracts refunded the cost of the HGV training course. An agreement was drawn up with Potter that he would repay Hunt Contracts for the £545 cost of the course at the amount of £22 a month. One…

Court of Justice of the European Union - November 1990 Refusal to employ a woman for reasons related to pregnancy was direct sex discrimination Facts Dekker, who was pregnant, applied for a post as a training instructor with a youth centre run by an organisation in the Dutch public sector. She informed the selection committee that she was pregnant. Although Dekker was the most suitable candidate for the post and had been recommended for appointment by the selection committee, she was…

Summary 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 years, and did not receive…

Summary 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 asserted was incorporated…

Summary 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 that he was due and asked…

Summary 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 scheme.   Weber challenged the…

Summary 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 activities as before, using…

Summary 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. Faccenda brought an action…

Summary 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 employment elsewhere in the…

Summary 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 collective…

Summary 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 investigate…

Summary 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 own employees.…

Summary 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 restricted Greer from working…

Summary 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 that such an…

Summary 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 The EAT stated that there…

Summary 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.   Five months after…