Share on LinkedIn Tweet This Share on Facebook Share Tweet Share Employment Newsletter February 2013 Welcome to the February edition of the Employment Newsletter. In this edition Morayo Fagborun Bennett and Emily Betts interview Barbara Hewson who was recently awarded an honorary fellowship for services to law by the University of Westminster. Morayo provides a roundup of the recent case law on Article 8 ECHR, contract of employment, employment status, unfair dismissal, TUPE, working time, equal pay, disability discrimination and race discrimination. Emily considers the implications for employment lawyers in the recent Supreme Court decision on legal professional privilege. What we have been up to ... Gemma Witherington and Zeeshan Dhar joined SGH Martineau as speakers at a half day breakfast seminar discussing TUPE. The four topics discussed were chosen in a poll by LinkedIn TUPE Professionals UK Group members prior to the seminar. Gemma discussed problem clauses and transferring rights in contracts while Zeeshan spoke of the issues concerning part SPC transfers. The seminar was attended by over 60 delegates which included HR specialists and solicitors. This was the fifth seminar in the TUPE series. The next TUPE seminar will be in Birmingham on 22 March 2013. Please join the LinkedIn TUPE Professionals UK group if you would like to attend. Gemma also acted in a costs hearing for a Respondent. The Judge awarded the full costs that the Respondent had incurred in the trial. She relied upon the case of Daleside Nursing Home Ltd v Mathew UKEAT/0519/08; that where a Judge makes a central finding of dishonesty in respect of the Claimant's evidence at the conclusion of a trial; it would be perverse not to find that this was unreasonable behaviour. Sarah Malik has been advising on committal proceedings for breach of an injunction concerning restrictive covenants. She has also been busy with a seven-day trial for a Respondent charity involving numerous allegations of race and disability discrimination. Simon Hale was again led in the High Court by Robert Howe QC of Blackstone Chambers, in a further hearing in their confidential information/covenants matter. Having accepted the employee's repudiatory breaches of contract in mid January, the Standard Life Health Care Ltd v Gorman  EWCA Civ 1292 question as to the implied right to place on garden leave has been replaced by efforts to enforce a post-termination non-solicitation covenant. A key issue now in play is whether, by reference to Dentmaster (UK) Ltd v Kent  IRLR 636 (CA) the covenant is to be upheld despite the absence of a backward restraint period in relation to the clients dealt with whilst in employment. Simon has also been advising a senior sales director of a multi-national computer software manufacturer in relation to a claim for unpaid commission due on sales made prior to a voluntary redundancy. Simon has been instructed to go to the EAT on behalf of a nurse in the Haematology and Oncology Unit of a hospital trust, who brought a claim for unfair dismissal after the employer dismissed for alleged gross misconduct. Simon's grounds of appeal include that the Tribunal erred in law in failing to apply the test set out in John Lewis v Coyne  IRLR 129 correctly in relation to allegedly dishonest actions and the evidence for them. Stephen Lennard has been defending a school against a constructive dismissal claim for non deduction of pension contributions for two days in Kent. Stephen has also been providing representation under the ELAAS scheme on a rule 3(10) application. Morayo Fagborun Bennett has been advising and assisting a civil servant on successfully negotiating her exit in a redundancy / breach of contract situation. Comment Emily Betts Legal professional privilege and employment law In R (on the application of Prudential Plc and another) v Special Commissioner of Income Tax and another  UKSC 1 a majority of the Supreme Court held that legal advice privilege does not extend to protect legal advice given by professionals who are not lawyers and that it is for Parliament, not the courts, to decide whether and how the privilege should be extended. This decision provides an opportunity to review briefly the principles of the law of privilege in the context of employment law.Read Emily Betts' article Employment case law update: February 2013 Morayo Fagborun Bennett R (on the application of T) (Appellant) v (1) Chief Constable Of Greater Manchester (2) Secretary Of State For The Home Department (3) Secretary Of State For Justice (Respondents) & (1) Liberty (2) Equality And Human Rights Commission (Interveners)  EWCA Civ 25, 29 January 2013 T and W sought to appeal rulings justifying statutory schemes permitting the disclosure of cautions and other offences to potential employers. Societe Generale London Branch v Geys  UKSC 63, 19 December 2012 The Supreme Court considered the question whether a repudiation of a contract of employment by the employer which took the form of an express and immediate dismissal automatically terminated the contract, or whether the normal contractual rule that the repudiation had to be accepted by the other party applied equally to that situation. West London Mental Health Trust v Chhabra  EWCA Civ 11, 25 January 2013The Court of Appeal held that an NHS trust had been entitled to treat admitted breaches by a doctor of patient confidentiality resulting from reading notes and discussing patients whilst on public transport as gross misconduct and to refer the matter for a disciplinary hearing. Hudson v Department for Work and Pensions  EWCA Civ 1416 , 7 November 2012 CA held that fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, reg 18 excluded period of employment under a fixed term contract awarded under a government training scheme when calculating the length of continuous employment under reg 8. X v Mid Sussex Citizens Advice Bureau  UKSC 59, 12 December 2012 The Supreme Court ruled that the activities of a volunteer advice-worker did not constitute an "occupation" for the purposes of Directive 2000/78 art 3 (1)(a). Quashie v Stringfellow Restaurants Ltd  EWCA Civ 1735; 21 December 2012The Court of Appeal held that the nature of the contractual obligations between a nightclub and a lap dancer, who worked for the club on a rota basis, were not such as to render it a contract of employment. Turner v East Midlands Trains  EWCA Civ 1470, 16 November 2012 is a recent decision on unfair dismissal.Band of reasonableness test used in unfair dismissal cases complied with the procedural requirement of article 8 ECHR. Hunter v McCarrick  EWCA Civ 1399, 30 October 2012 is a recent transfer of undertakings case of note. The Court considered the working time provision in Williams v British Airways plc  UKSC 43, 17 October 2012. The Supreme Court held in Birmingham City Council v Abdulla  UKSC 47, 24 October 2012 that the High Court would not be required, under the Equal Pay Act 1970 s 2(3), to strike out a claim in respect of the operation of an equality clause if the claimant failed to provide a reasonable explanation for her failure to present her claim in time to the employment tribunal. Haq v Audit Commission  EWCA Civ 1621, 6 December 2012The Court of Appeal held that the Employment Appeal Tribunal had been wrong to overturn an employment tribunal's decision that significant pay disparities between male and female employees resulting from the employer's application of a pay protection policy upon a re-structuring exercise amounted to a prima facie case of indirect discrimination.Charles v Kuehne & Nagel, Appeal No. UKEAT/0363/12/SM,17 October 2012 is a recent decision on disability discrimination and late amendments of claim.Pasab Ltd t/a Jhoots Pharmacy v Woods  EWCA Civ 1578, 24 October 2012Held EAT correct to dismiss complaint of victimisation where reason of dismissal was a racist comment made by employee. Okoro v Taylor Woodrow Construction  EWCA Civ 1590, 4 December 2012The Court of Appeal held that an employer's ban on a certain group of agency workers being engaged on its site was a one-off act which was "the act complained of" for the purposes of the Race Relations Act 1976 s.68(1). Bijlani v Stewart, Fenwick, Powell and Wiseman  UKEAT/0228/11/RN, 20 December 2012Case for detriment was not made out because factor related to Bijani or defined ethnic group of which she was a member had not been shown to have operated on the minds of the 3 heads of chambers or the senior clerk. Hackney London Borough Council v Natasha Sivanandan & Ors  EWCA Civ 22The Court of Appeal held that an employment tribunal's decision not to apportion the compensation payable between the parties was legally correct, although for the reason that the tribunal had no power in law to make an apportionment rather than because there was no case for apportionment on the instant facts (see paras 81-84, 88-89, 101 of judgment).Go to the Employment case law update... Upcoming events 12 March 2013 - Employment Tribunals: The new law and procedure - Revolution, evolution or convolution?22 March 2013 - TUPE Seminar: Part 6 Hardwicke unrobed Barbara Hewson Barbara Hewson in profile As a fellow alumni of Westminster University, I wonder what are your memories of your time studying there? Older than I care to admit!Did the award come as a surprise? Completely. To what extent do you feel this was in recognition of your high profile human rights and EU related cases? I like to think they played a part.You are often involved in cases concerning reproduction rights...? Yes, I have one just kicking off now (if that is the right expression!).What is the most bizarre employment case that you've been involved in? It involved the sacking of a Kenyan music teacher after a children's concert. The school was in England, the case heard in Wales and the claimant greeted the tribunal in Welsh! It ran for days and days.What can we expect next from you, Barbara? My Supreme Court debut in October. Contact us This edition of the Employment Newsletter was edited by Morayo Fagborun Bennett & Emily Betts. If you would like to discuss any of the topics in this newsletter, please contact a member of our Practice Management Team: Paul Adams, Senior Practice ManagerElizabeth Bousher, Practice ManagerTo find out more about our Employment team and their work, visit the Employment page on our website.