Articles

In a recent judgment in the Employment Appeal Tribunal – Hampshire County Council v Wyatt UKEAT/0013/16 (13 October 2016) – Mrs Justice Simler DBE gave important presidential guidance on the questions which frequently arise in discrimination remedy hearings when tribunals consider claims for non-pecuniary damages and/or where there might be competing causes of injury. Karen Moss

Simon Tibbitts provides an employment case law update covering:

(1) Discrimination awards – all rise by 10%!: De Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879
(2) Conduct of an employee does not have to be culpable (whether negligent, reckless or dishonest) in order to constitute a potentially fair reason under s.98(2)(b) ERA 1996: JP Morgan v Ktorza (UKEAT/0311/16/JOJ)
(3) Privilege against self-incrimination and when it arises in the ET: Coletta v Bath Hill Court (Bournemouth) Management Company Ltd (UKEAT/0297/16/RN)
(4) Court of Appeal reminds us again that ‘because of’ is not to be equated with a simple ‘but for’ analysis: Greater Manchester Police v Bailey [2017] EWCA Civ 425
(5) Farmah and ors v Birmingham City Council (UKEAT/0286/15/JOJ)
(6) King v The Sash Window Workshop Ltd

3PB Family Barrister Rachael Goodall analyses the Court of Appeal's judgement in the appeal of JS v RS [2017] EWCA Civ 408, concerning the division of matrimonial assets following the dissolution of a marriage.

Rachael's analysis takes account of the jurisprudential relationship between Miller v Miller and McFarlane v McFarlane.

3PB Employment barrister Sarah Clarke provides a case law update covering the past month. Sarah's update includes: Dismissal connected to absence because of cancer treatment was not discrimination arising from disability: Charlesworth v Dransfields Engineering Services Ltd; If an employee working night shifts is required to 'sleep in' at the premises, are they entitled to NMW for this time? It depends, says the EAT in 3 conjoined appeals: Focus Care Agency Ltd v Roberts UKEAT/0143/16/DM; Frudd v The Partington Group Ltd UKEAT/0244/16/DM; and Royal Mencap Society v Tomlinson-Blake UKEAT/0290/16/DM; Where an employee works in more than one EU state, the employment contracts fall within the jurisdiction of the country where, or from which, the employee principally carries out their obligations: Nogueira and others v Crewlink Ltd C-168/16; Moreno Osacar v Ryanair, formerly Ryanair Ltd C-169/16.

Employment law barrister Thomas O'Donohoe examines the impact of the general election's result on employment cases. In the wake of the snap general election's result, employment law barrister Thomas O'Donohoe examines how employment cases may be affected.

Privilege under investigation: a commercial update by Charles Irvine. When will solicitor's working papers (as opposed to advice) attract privilege? And what is the scope of legal advice privilege ("LAP") and litigation privilege ("LP")?

Charles Irvine (call 2010) analyses the recent case of Director of the Serious Fraud Office v. Eurasian Natural Resources Corporation Ltd [2017] EWHC 1017 (QB), its impact on its impact for civil litigation.

The issue of the inadequate charge: Public Law and Regulatory Barrister Shruti Sharma examines if the panel should amend the charges after hearing evidence. 3PB's Shruti Sharma discusses the issue of late applications to amend charges and the approach that will be taken by adjudicating panels following the case of Doree.

Joe England considers the latest guidance provided by the Court of Appeal on 'unreasonableness' in relation to costs applications in the Small Claims Court, including the extent to which it could apply in Employment Tribunals. The analysis focuses on last month's case of Dammermann v Lanyon Bowdler LLP [2017] EWCA Civ 269.

Thomas Acworth on Essop & Ors Home Office and Naeem v Secretary of State for Justice. Thomas Acworth summarises an important decision given in Essop & Ors Home Office; Naeem v Secretary of State for Justice regarding indirect discrimination.

'Unreasonableness': costs applications in the Small Claims Court by Joe England. In what circumstance should a Court determine that a Party to proceedings has behaved unreasonably, for the purpose of awarding Costs in small claims court?

Joe England analyses the important decision from The Court of Appeal in Dammermann v Lanyon Bowdler LLP [2017] EWCA Civ 269, which provides guidance on the meaning of 'unreasonableness', in the context of costs applications in the Small Claims Court, and more general guidance on when costs on that track should be awarded.

Colin McDevitt examines what Pimlico Plumbers v Smith tells us about Employment Status. Colin McDevitt provides a useful analysis of the Pimlico Plumbers v Smith case, examining when the factors in a business/client relationship might amount to employment or worker status.

Evidence in Disability Cases: where are we now? By Matthew Curtis.
Matthew Curtis reviews some recent decisions regarding evidential issues in disability discrimination cases, with a particular focus on:
•Stress as a disability
•Principal's liability for acts of their agents
•Knowledge of disability, in particular who has to know for a claim to succeed?
•Indirect discrimination: the standard of evidence required
•Dismissing for long-term absence where there is late evidence from the employee