At a glance - key developments this month
- Whistleblowing complaint was ‘in the public interest’
- Zero hours worker receives large pay-out for injury to feelings
- School mentor’s appointment as mayor was ‘SOSR’
- No implied contract between blacklisted agency worker and end user
- Costs award made to claimants whose fees were paid by union
- Settlement Agreement could not be re-opened on later discovery of misrepresentations
- Circumstances when an extended restricted reporting order is appropriate
- Applications for fee remission after submission of claims were in time
- Warning given in bad faith could not be relied upon
- Costs award against claimant who was unable to pay
Chesterton Global Ltd and anor v Nurmohamed UKEAT/0335/14
The EAT has given useful appellate guidance on the meaning of the words ‘in the public interest’. These words were introduced by the Enterprise and Regulatory Reform Act 2013 into the whistleblowing provisions of the Employment Rights Act 1996 to exclude from its ambit claims based on the breach of an employee’s contract of employment.
Southern v Brittania Hotels Ltd and another ET/1800507/14:
A tribunal has awarded £19,500 compensation for injury to feelings to a zero hours worker who claimed harassment by Mr Nkoroi, her line manager, who asked intrusive and offensive questions about her sex life. The Hotel carried out its initial investigation in a cursory fashion (the line manager to whom she complained described Ms Southern’s complaint as ‘going in one ear and out the other’). The harassment worsened and eventually Ms Southern complained to the hotel manager, whilst voicing her concern that she would lose shifts. No detailed particulars were taken and a corroborative witness was not fully interviewed. No disciplinary action was taken.
Anderson v Chesterton High School UKEAT/0206/14:
One of the potentially fair grounds for dismissal is ‘some other substantial reason of a kind as to justify the dismissal’ (SOSR). In Anderson v Chesterfield High School UKEAT/0206/14 the EAT held that a politician who had been employed by Sefton Borough Council at Chesterfield High School but had ceased carrying out his duties there since he was elected as Leader of Liverpool City Council, had been fairly dismissed for SOSR when he was then elected Mayor.
Smith v Carillon (JM) Ltd and another  EWCA Civ 209: Contracts of Employment/ Categories of Worker & Working Relationships
In Smith v Carillon (JM) Ltd the Court of Appeal has ruled that Mr Smith, an agency worker, could not bring a claim against Carillon (previously ‘Mowlem’ prior to a TUPE transfer) in connection with alleged disclosures by Mowlem about Mr Smith’s union and health and safety activities. Mr Smith brought claims under section 146 Trade Union and Labour Relations (Consolidation) Act 1992(the right not to suffer detriment for trade union activities) and section 44 Employment Rights Act 1996 (the right not to be subjected to a detriment in relation to health and safety functions). In order to succeed, Mr Smith had to show that he was employed pursuant to an employment contract with Mowlem.
Legge and others v Prestige Homecare Ltd (in administration) and others ET/2401324/14:
Last month we reported on an EAT decision (Goldwater v Sellafield Ltd) where no costs order was made in relation to the issue and hearing fees that had been paid by the union GMB. In Legge and others v Prestige Homecare Ltd an ET allowed a costs order in relation to the issue and hearing fee funded by Unison and paid by the claimants’ solicitor under a loan agreement. The agreement provided that the money loaned under the agreement was repayable by the claimants in the event that the claims were successful.
Hayward v Zurich Insurance Company plc  EWCA Civ 327:
A settlement agreement, like any agreement, is subject to contract law and can only be set aside in a narrow set of circumstances. In Hayward v Zurich Insurance Company plc  EWCA Civ 327 Mr Hayward suffered an injury at work and brought a claim against his employer. His claim was supported by expert evidence from an orthopaedic surgeon. The employer’s defence was conducted by their insurers, Zurich who argued that he had exaggerated the extent of his injuries. Zurich relied on video surveillance evidence showing him carrying out heavy work at home.
EF and another v AB (Debarred) and others UKEAT/0525/13:
The EAT in EF and another v AB (Debarred) and others have granted an extended restricted reporting order (RRO) under Rule 50 of the 2013 ET Rules in a case where AB made allegations of sexual abuse against EF and his wife, explicit photographs of EF’s wife were circulated by AB and there were threats to escalate matters ‘to the next level via all different media available’.
Deangate Ltd v Hatley and others UKEAT/0389/14: Enforcement:
Mr Hatley and others completed forms of application for fee remission some days after submitting their claims on line. Rule 11(1) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, Schedule 1 provides: “The Tribunal shall reject a claim if it is not accompanied by a Tribunal fee or a remission application.” In practice form EX160 (which is not prescribed by legislation) is used for applications for fee remission.
Way v Spectrum Property Care Ltd  EWCA Civ 381:
The Court of Appeal in Way v Spectrum Property Care Ltd had to determine whether a warning given in bad faith could be relied upon for the purpose of determining whether there is sufficient reason to dismiss an employee.
In 2010 Mr Way was given a final written warning in relation to the inappropriate appointment of an individual by him in his capacity as recruitment manager.