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Our monthly newsletter will give you all the information you need about cases and changes in employment law to help you keep your finger on the pulse and save time in your working day.
At a glance, key developments this month
- 1. References: Employer liable for customer reference given negligently by employee
- 2. Employee failing to give contractual notice: Bound by terms of contract
- 3. Disability Discrimination : Injury to feelings in redundancy process
- 4. Discrimination: Redeployment interviews a disadvantage
- 5. TUPE: 3.5 mile relocation not a substantial change
- 6. TUPE: Continuity of client required
- 7. TUPE: Transfer date depends on facts
- 8. Illegal contract: Discrimination claim not defeated
- 9. Working time: Includes on call time for ambulance paramedics
- 10. Shared parental leave and pay: Government guidance issued including record keeping
- 11. Illegal Working: Home Office guidance on right to work checks and illegal working civil penalties
- 12. Zero hours contracts: Government consultation on preventing avoidance of the exclusivity clause ban in zero hours contracts
- 13. EHRC Call for evidence: The Equality and Human Rights Commission seeks evidence on religion or belief issues
- 14. Industrial disputes review: The Carr Review into the alleged use of extreme tactics in industrial disputes scaled back
Playboy Club London Ltd and others v Banca Nazionale del Lavaro  EWHC 2613: Rights at Work:General / Recruitment
The issue of a negligent reference given by an employee without actual authority to do so was considered in Playboy Club London Ltd v Banca Nazionale del Lavaro. Playboy casino claimed that Banco Nazionale del Lavaro (the Bank) was negligent when one of the Bank’s employees provided a reference to the casino for a customer, Mr Barakat. An employee of the Bank stated that Mr Barakat was trustworthy up to the extent of £1,600,000 in any one week. Mr Barakat’s cheques were therefore accepted by the casino, which allowed him to play. He made losses of around £1.25 million and his cheques bounced. The casino claimed that it relied on the Bank reference: the Bank owed a duty to exercise reasonable skill and care and failed to do so.
Sunrise Brokers LLP v Rogers  EWHC 2633: Termination of Employment
A repudiatory breach of the employment contract does not automatically terminate the contract without acceptance by the other party: this has been accepted law since Société Générale v Geys IRLR 122. In Sunrise Brokers LLP v Rodgers, a broker, Mr Rodgers, became dissatisfied with his employer, Sunrise, and accepted employment with a competitor, EOX. Despite being under a contractual obligation to advise Sunrise if he was offered alternative employment, he did not do so and in the meantime he disclosed confidential information to his new firm.
Dominique v Toll Global Forwarding Ltd UKEAT/0308/13: Equality Act 2010 & Discrimination/ Redundancy
Scoring employees in a redundancy exercise is a notoriously difficult process. It becomes even more complex where one of those in the pool is disabled. In Dominique v Toll Global Forwarding Ltd Mr Dominique, a long standing employee of Toll, suffered a stroke causing long term physical and mental impairments affecting mobility and cognitive skills.
London Borough of Southwark v Charles UKEAT/0008/14: Equality Act 2010 & Discrimination
Reasonable adjustments afforded to disabled employees can extend to making alternative arrangements for interview or even dispensing with interview altogether. In London Borough of Southwark v Charles the EAT held that an employer had failed to make reasonable adjustments when it required its employee, an environmental officer, whose job had disappeared following a reorganisation, to attend redeployment interviews. The EAT upheld the tribunal’s finding that Southwark Council should have dispensed with the need for such an interview and, in consequence it had placed Mr Charles, who suffered from ‘sleep paralysis agitans and depression’, at a substantial disadvantage. No attempt was made by the council to justify the treatment. Southwark Council was in breach of its duties under sections 15 and 20 Equality Act 2010.
Cetinsoy & others v London United Busways Ltd UKEAT/0042/14: TUPE
In the context of a relevant transfer under TUPE 2006 the question whether any change in terms and conditions can be said to be ‘substantial’ is a difficult one. In Cetinsoy and others v London United Busways Ltd UKEAT/0042/14 the EAT held that a three and a half mile relocation of the depot from which the bus drivers worked did not amount to a substantial change in their working conditions. Reg. 4(9) TUPE provides that an employee can treat himself as dismissed by the employer where a relevant transfer involves a substantial change in working conditions to his material detriment.
Horizon Security Services Ltd v Ndeze and another  UKEAT 0071_14_1905: TUPE
In order to show that there has been a service provision change for the purposes of TUPE 2006 there must be a continuity of client. The EAT in Horizon Security Services Ltd v Ndeze (mentioned in last month’s newsletter on the issue of tribunal fees) found no such continuity of client. PCS had been engaged to provide security at Alpha Business Centre (where Mr Ndeze worked for PCS as a security guard) by the management company,Workspace plc. Workspace told PCS that the business centre was closing, to be replaced with a supermarket. A new contract was up for tender directly with the owner of the complex, Waltham Forest Council (‘WF’). PCS’s tender was unsuccessful and a new contract was awarded by WF to Horizon. Mr Ndeze was told by PCS he would be employed by Horizon but Horizon refused to accept him as they had their own security guards.
Housing Maintenance Solutions Ltdv McAteer and others UKEAT/0440/13: TUPE
Transfers of businesses or services are often not straightforward: there is not always a clear and defined transfer date. It can often therefore be difficult to determine on what date the transferee employer takes responsibility for staff.
Hounga v Allen (née Aboyade-Cole) and another  UKSC 47: Equality Act 2010 & Discrimination
The Supreme Court has overturned the Court of Appeal’s decision in Hounga v Allen and has held that Miss Hounga, a Nigerian woman who gave a false affidavit to secure entry to the UK, was entitled to pursue her race discrimination claim against Mr and Mrs Allen who employed her as an au pair and live-in housekeeper for a period of time long after her falsely obtained visa had expired.
Truslove and another v Scottish Ambulance Service UKEAT/0053/13: Working Time, Holidays & Time Off Work
In Truslove v Scottish Ambulance Service, a Scottish EAT has held that ambulance paramedics who were required under the terms of their contracts to stay within a 3 mile radius of their designated ambulance station and to respond to calls within three minutes, were ‘working’ whilst on call.