Archive for September, 2018

Employment contract: trade union membership



Trade union membership


Case  Oni v Unison Trade Union [2018] ICR 1111, EAT


Facts O was a nurse employed by a hospital trust and a member of Unison. From 2009 until 2011 she lodged complaints of discrimination and unfair dismissal against her employer and against the union. The complaints were dismissed. In 2016 she lodged further complaints against the union which alleged that it had breached her contract of membership in the handling of her claims against the trust. The ET struck out the claim on the basis that it had no jurisdiction because a breach of contract claim could only be made against an employer; and no ACAS early conciliation certificate had been obtained. O appealed to the EAT. She argued that her contract of membership with Unison amounted to a contract connected with employment.


Decision      1. The appeal was dismissed.

  1. Breach of contract claims in the ET were confined to claims by an employee against an employer.

3. Correspondence between ACAS and Unison in 2011 and 2012, relied upon by O, pre-dated the early conciliation regime and did not arise in the context of the union as a prospective respondent to relevant proceedings.

Employment Appeal Tribunal: time limit



Time limits for appeal

Case  Haydar v Penine Acute NHS Trust  [2018] EWCA Civ 1435

Facts           H brought proceedings against P. The ET upheld his claim for unfair dismissal, with a 50% deduction for contributory conduct, and dismissed his claims of discrimination. H wished to appeal the judgment.

He had until 27 May 2014 to appeal. He lodged a valid notice of appeal on 12 May 2014 but there was no record of the appeal being received by the EAT, and H received no acknowledgment. Five weeks later H realised he had heard nothing. He telephoned the EAT, and was told they had not received the appeal paperwork.  H resent the appeal paperwork, and it arrived on 7 July 2014. This was out of time and H applied for an extension.

This was refused and H appealed to the EAT. The appeal was dismissed and H was referred to a booklet called The Judgment” available online. This explains the appeal process, and the strict time limits. The booklet states as follows:

If you have not received an acknowledgment from the EAT within seven days of posting the notice of appeal, you should contact the EAT to confirm they have received your appeal”.

H appealed to the Court of Appeal.

Decision      1.The appeal was dismissed.

  1. H had not sought to obtain a copy of the booklet. He had made several appeals previously to the EAT, and was conversant with the process. The loss of the paperwork was a good reason for an initial delay, but there came a point where the onus was on the litigant to take the initiative and check that the package had been received.

Unfair dismissal: internal appeal procedure


Internal appeal procedure Case Patel v Folkestone Nursing Home Ltd [2018] EWCA Civ 1843


Facts P was dismissed by F in April 2014 following a disciplinary process which alleged that he had been asleep on duty and had falsified residents’ records, in relation to which F was notifying the Disclosure and Barring Service (DBS)). In June 2014 P successfully appealed against the dismissal decision However the letter allowing the appeal only dealt with the issue of sleeping on duty, and did not mention the falsification of records, which was a more pressing issue to P. P did not return to work following the successful appeal because he was not happy with the failure to respond over the falsification allegations and the DBS notification.

He brought claims of unfair dismissal and wrongful dismissal. The ET found that P was dismissed by the time of the claim in July 2014 because of the lack of clarity in F’s letter allowing the appeal. It decided that P had been unfairly dismissed. F appealed to the Court of Appeal.

The EAT allowed the appeal on the basis that the successful appeal had impliedly revived the contract of employment. P appealed to the Court of Appeal.

Decision      1. The appeal was dismissed.

  1. There was no express dismissal that allowed P to claim unfair dismissal. The letter of June 2014 might have been a breach of the implied duty of trust and confidence, and arguably P could have been justified in treating himself as dismissed. This argument was not raised in the current appeal, and P and F were invited to make written submissions on these grounds.
  2. In an addendum to the decision, published after written submissions, the court determined that the ET1 should have been read to include a complaint of constructive dismissal because of the unsatisfactory way in which the internal appeal had been conducted. In not dealing with the issues properly, F had acted in breach of the implied duty and therefore P was entitled not to return to work and to treat himself as constructively dismissed. The appeal in this respect was allowed and the case was remitted to the EAT.

Death of five-year old girl in lift: two companies fined

Death of five-year old in lift: two companies prosecuted [remove for onine]

Health and Safety Executive v Synergy Housing Ltd and Orona Ltd (2018) Bournemouth Crown Court, August 23

Statutory reference: s.3 of the Health and Safety at Work, etc., Act 1974 (HSWA)

Two companies have pleaded guilty to charges under section 3 of HSWA following the death of a child in a lift.

The facts

  • In August 2015 Alexys Brown, a five-year old girl, used a lift at her home in Weymouth. She put her head through a damaged vision panel. The lift moved upwards and her head was trapped between the lift and the ground floor ceiling. She suffered fatal injuries.

The decision

Both companies pleaded guilty and are due to be sentenced at a later date.

Health and safety: fatal hotel fall: partnership liability



Death fall from hotel window




Case  R v Lear and Lear [2018] EWCA Crim 69, Court of Appeal

Facts L and L were husband and wife partners in a hotel business. A hotel guest fell to his death from a bedroom window. the local authority prosecuted L and L under section 3 of the Health and Safety at Work, etc., Act 1974 (HSWA) on the basis that the window created a risk of falling and if L and L had conducted a suitable risk assessment, they would have installed devices to restrict the opening of the windows and reduce the risk of falling. L and L applied for permission to appeal against the judge’s conclusions at a preparatory hearing that there was a case to answer under section 3 and that L and L had been properly charged as individual partners because they were joint employers and therefore potentially jointly and severally liable for the actions of the business.


Decision      1. The application was refused.

  1. It was a question of fact whether the risk was reasonably foreseeable. All the circumstances were relevant, including the window’s proximity to the bed and the height of the opening.
  2. The fact that a partnership could be prosecuted did not provide authority for the proposition that only the partnership could be prosecuted. L and L were employers and they had a duty under section 3 in relation to the overall running of the hotel.
  3. There was no reason partners should be more favourably treated than directors when they were likely to have more control.
  4. The expression “undertaking” in section 3 was to be interpreted widely so that where the undertaking was the running of a hotel, it was the hotel enterprise as a whole. The employer might be the partnership, an individual partner, or any or all of them.

Disability discrimination: discriminatory reference



Discriminatory reference


Case  South Warwickshire NHS Foundation Trust v Lee  (2018) UKEAT/0287/17/DA

Facts L, a nurse, suffered from arthritis, a disability which led to absences and issues at work. She left her job at S to take up a role with a private healthcare provider. She left this post soon after and was offered a role with South Warwickshire NHS Foundation Trust.  This took up references from both former employers, and both were unsatisfactory – one for the ability to do the work, and one which highlighted sickness absence issues. The offer was withdrawn and L brought claims of disability discrimination.

The ET found that the reference received from S was imbalanced and negative, and both the reference and the withdrawal of the job offer were unfavourable treatment, and were “something arising in consequence of” her disability. The burden of proof had shifted to S to show there was no discrimination, and that burden had not been discharged. The Trust had constructive knowledge of L’s disability, and the burden of proof in that case had also passed to the Trust to show that the withdrawal of the job offer had nothing to do with the references. The Trust relied on the fact that the decision was justified in that there was a legitimate aim to recruit an employee who was capable in all respects of carrying out the role. The ET was not satisfied that withdrawing the offer was a proportionate means of achieving a legitimate aim. The Trust appealed to the EAT.


Decision      1.The appeal was dismissed.

  1. The withdrawal of the offer was at least in part due to a discriminatory reference, and the reference had tainted the decision making. The Trust could have addressed the issues raised by making further efforts to speak to S, or by making reasonable adjustments.

Human rights: declaration of incompatibility: widowed parents allowance: Supreme Court decision


Declaration of incompatibility

Widowed parent’s allowance

Case  In re McLaughlin (2018) The Times, September 10, Supreme Court

Facts M and her partner had lived together for 23 years until the partner’s death. They had four children. They did not marry because he had promised his first wife that he would not remarry. He had made sufficient national insurance contributions so that M would be entitled to widowed parent’s allowance if she had been married to him. The widowed parent could only claim if she was married to, or civil partner of, the deceased. At first instance, a declaration of incompatibility was made. This decision was reversed by the Northern Ireland Court of Appeal. M appealed to the Supreme Court.

Decision      1. The provisions regarding the payment of widowed parent’s allowance were discriminatory and incompatible with the right to family life insofar as they precluded any entitlement to that allowance by a surviving unmarried partner of the deceased.

  1. The purpose of the allowance was to diminish the financial loss caused to families with children by the death of a parent. That loss was the same whether or not the parents were married to or in a civil partnership with one another.
  2. The children should not suffer disadvantage because their parents chose not to marry. That unjustified discrimination in the enjoyment of a Convention right was enough to ground s declaration of incompatibility.
  3. The fact that the law had changed was not a reason for refusing to make a declaration of incompatibility. The old law would remain relevant for deaths before March 2017 for a very long time,

Kent County Council fined for asbestos exposure risk

Asbestos exposure: local authority fined

Health and Safety Executive v Kent County Council (2018) Canterbury Crown Court, August 32

Statutory reference: regulation 10 of the Control of Asbestos Regulations 2012 (CAR)

Kent County Council has been fined after asbestos was disturbed at a primary school

The facts

  • In November 2014 an environmental health officer was carrying out a routine food inspection at Lansdowne Primary School.
  • It was noticed that what appeared to be an asbestos rope was hanging from a ceiling.
  • A prohibition notice was served on the educational trust responsible for the school. An investigation found that the asbestos rope and a flue were disturbed when the school was controlled by Kent County Council.
  • The flue and rope were attached to a steriliser unit which had been removed by a caretaker. Neither the caretaker nor the head teacher had any asbestos management or awareness training.
  • The local authority had failed to effectively prevent exposure and failed to provide suitable training to those liable to be exposed to asbestos.

The decision

Kent County Council was fined £200,000 plus £21,000 costs under regulation 10 of CAR.

Tata Steel fined £450,000 after worker fell into unguarded pit

Tata Steel fined £450,000 following fall of worker into pit [remove for online]

Health and Safety Executive v Tata Steel UK Ltd (2018) Sheffield Crown Court, September 3

Statutory reference: s.2 of the Health and Safety at Work, etc., Act 1974 (HSWA)

Tata Steel has been fined for safety breaches after a worker fell into an open pit.

The facts

  • In February 2014 Steven Ayres was working at the company’s plant in Stockbridge. He was emptying a skip at the bottom of an open pit, 3 to 4 metres deep. Working with an overhead crane, he removed floor plates from the pit, emptied the skip and began to replace the plates.
  • As the plates were being removed, Ayres stepped back and fell into the pit. He suffered injuries which included damage to his kidney and ribs.
  • A risk assessment completed 16 months before the incident had identified the need to provide a barrier around the pit when the floor plates had been removed. This was not implemented.

The decision

The company was fined £450,000 plus £32,000 costs under s.2 of HSWA.

An HSE inspector commented after the case that a fall from this height into a pit containing various metal objects could easily have resulted in a fatality. Companies should act swiftly if and when risks are identified and relevant control measures should be put in place when working at height.

Working time: rest breaks: opting out


Rest periods


Case  R (on the application of the Fire Brigades Union v South Yorkshire Fire and Rescue Authority (2018) Morning Star, September 7, High Court

Facts S introduced a CPC shift system at four fire stations in March 2012. The system involved 96 hours continuous duty with compensatory rest if crew members were called out at night. Anyone who volunteered for the system had to sign an opt-out from regulation 4 of the Working Time Regulations (WTR). Those who volunteered received extra pay. The FBU applied for judicial review, arguing that the CPC system breached regulations 6 and 10 of WTR.

Regulation 6 of WTR states that a night worker’s hours should not exceed eight hours in each 24 hour period. Workers cannot opt-out, nor bring tribunal proceedings for a breach of the regulation.

Regulation 10 states that workers are entitled to a rest period of not less than 11 consecutive hours in each 24 hour period of work.

Decision      1. Regulation 6 had been breached but the court would not grant relief because to do so would be to declare that the conduct of S was criminal.

  1. In relation to regulation 10, the position of S was untenable. The breach was blatant and obvious. The court granted a declaration that the CPC shift system was contrary to the rights of firefighters under regulation 10.