Harvey on Industrial Relations and Employment Law

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Commentary

Harvey on Industrial Relations and Employment Law is the definitive narrative on industrial relations and employment law and practice. It analyses the law, clarifies obscure passages and points of difficulty and fills in the practical background. The texts of all the relevant statutes and statutory instruments are set out in full, with detailed annotations. A comprehensive division of precedents completes this work.

SOURCE CURRENCY

Issue 276, September 2019

Division AI Categories of Worker

This Division has been updated generally to reflect the law as it stands on 1 July 2019. In Kocur v Angard Staffing Solutions Ltd (AI [210.02]) the Court of Appeal held that the reference to equality of `duration of working time' does not mean that an agency worker can demand the same weekly hours of work as a comparable permanent worker. The chapter on the Modern Slavery Act 2015 (AI [364] ff) has been revised throughout, looking in particular at the Final Report of the Independent Review of the Modern Slavery Act and the Government’s July 2019 response.

Division AII Contract of Employment

This Division has been updated generally to reflect the law as it stands on 1 July 2019. The principal case reported in this issue is Tillman v Egon Zehnder Ltd (AII [196], AII [223.01], AII [225], AII [236] ff) in which the Supreme Court reconsidered the law on the power of a court to sever a void part of a restraint of trade clause in a contract of employment, as a means of preserving the rest of the clause. In doing so, they overruled the previous leading case that had stood for 99 years. In addition, in Argus Media Ltd v Halim (AII [194.24]) the Queen's Bench validated the accessing by an employer of the employee's emails during a period of garden leave, on the basis that the employee had had due notice of this possibility. In Forse v Secarma Ltd (AII [171.02], AII [265]) the Court of Appeal gave guidance as to the granting of springboard injunctions in breach of confidence cases. Other case law added to this division includes: North West Anglia NHS Foundation Trust v Gregg, CA (AII [309.24], AII [313.09] ff, AII [527.11]) (duty to pay wages; effect of suspension); Base Childrenswear Ltd v Lomana Otshudi, EAT (AII [365.03]) (remedies; compensation; injury to feelings; avoidance of double counting); and Lone v Secretary of State for Education (AII [443.10]).

Division BII Taxation of Employment Income

This Division has been updated generally to reflect the law as it stands on 1 July 2019. The text has been updated to include draft provisions for the Finance Bill 2019 (BII [340.01], BII [365]).

Division CI Working Time

This Division has been updated generally to reflect the law as it stands on 1 July 2019. Case law added to this division includes: Flowers v East of England Ambulance Trust, CA (CI [3.01], CI [192], CI [193.11]) (statutory holidays; holiday pay; inclusion of voluntary overtime); Mears Homecare Ltd v Bradburn, EAT (CI [91.02]) (National Minimum Wage; requirement to keep records; effect of a TUPE transfer); Terveys-ja sosiaalialan neuvottelujarjesto (TSN) ry v Hyvinvointial ry, AG (CI [126], CI [144]); and Chief Constable of the Police Service of Northern Ireland v Agnew, NICA (CI [160.01], CI [193.04], CI [193.23], CI [197.02], CI [238.06]) (time limits and back pay; statutory holiday pay; what is meant by a series of deductions?). There is also discussion of the Agricultural Wages (Wales) Order 2019 (CI [61.02]).

Division CII Time Off Work

This Division has been updated generally to reflect the law as it stands on 1 July 2019. Case law added to this division includes Grange v Abellio London Ltd, EAT (CII [25]) (rest breaks; enforcement; compensation).

Division CIII Whistleblowing

This Division has been updated generally to reflect the law as it stands on 1 July 2019. In Arjomand-Sissan v East Sussex Healthcare NHS Trust (CIII [55]) the EAT settled a difference of approach in previous cases as to how specific the whistleblowing employee must be in identifying the alleged breach of duty by the employer, holding that it depends on the stage of proceedings at which the question arises.

Division G Insolvency of Employer

This Division has been updated generally to reflect the law as it stands on 1 July 2019. Case law added to this division includes Ince Gordon Dadds LLP v Tunstall, EAT (G [111]).

Division H Continuity of Employment, etc

This Division has been updated generally to reflect the law as it stands on 1 July 2019. Case law added to this division includes: Flowers v East of England Ambulance Trust, CA (H [871.16]) (statutory holidays; holiday pay; inclusion of voluntary overtime); Foreign and Commonwealth Office v Bamieh, CA (H [1109.01], H [1110.18] ff) (excluded employments; territorial jurisdiction; the Lawson v Serco principles); Ravisy v Simmons & Simmons LLP, EAT (H [1110.17], H [1111], H [1112.04]); Bosworth v Arcadia Petroleum Ltd, ECJ (H [1112.02]) (officeholders; company directors; test of employee status in EU law); and Merinson v Yukos International UK BV, CA (H [1112.03]). There is also discussion of the Transfer of Undertakings (Protection of Employment) (Transfer of Police Staff to the National Crime Agency) Regulations 2019 (H [484.03]).

Division J Family Matters

This Division has been updated generally to reflect the law as it stands on 1 July 2019. Case law added to this division includes: South West Yorkshire Partnership NHS Trust v Jackson, EAT (J [134.01]) (discrimination; pregnancy and maternity; causal connection); and Hextall v Chief Constable of Lincolnshire Police, CA (J [883] ff).

Division K Equal Pay

This Division has been updated generally to reflect the law as it stands on 1 July 2019. Case law added to this division includes McNeil v Commissioners for HMRC, CA (K [9], K [20.02], K [501], K [505.01] ff, K [566]) (material factor defence; provision, criterion or practice; disparity within a pay band).

Division L Equal Opportunities

This Division has been updated generally to reflect the law as it stands on 1 July 2019. Case law added to this division includes: Cresco Investigation GmbH v Achatzi, ECJ (L [77], L [93.02]); Chief Constable of Norfolk v Coffey, CA (L [131], L [136.02], L [136.05], L [146.05], L [148], L [162.03]) (disability; progressive conditions; application of perceived disability); Kuteh v Dartford and Gravesham NHS Trust, CA (L [214]) (misconduct; refusal to obey a reasonable order; religious proselytising at work); Gan Menachem Hendon Ltd v de Groen (L [274.03]) (religion or belief; freedom to hold or manifest a belief; must be the employee’s belief, not the employer’s); Olalekan v Serco Ltd (L [274.05]) (the reason for less favourable treatment; involvement of different managers); Lord Chancellor v McCloud; Ministry of Justice v Mostyn, CA (L [304.01], L [357]) (age discrimination; justification; application of the test); Horgan v Minister for Education and Skills, ECJ (L [306.03]); Owen v Amec Foster Wheeler Energy Ltd, CA (L [307], L [392.01]) (direct discrimination, indirect discrimination and reasonable adjustments; overseas posting); McNeil v Revenue and Customs Commissioners, CA (L [310]) (material factor defence; provision, criterion or practice; disparity within a pay band); Sargeant v London Fire and Emergency Planning Authority, CA (L [338], L [359]); Heskett v Secretary of State for Justice, EAT (L [347.03]) (indirect discrimination; justification; cost or cost-plus?); City of Oxford Bus Services Ltd v Harvey, EAT (L [352]) (indirect discrimination; justification; proportionate means); iForce Ltd v Wood, EAT (L [374.04]) (discrimination arising from disability; arising in consequence; causal link); Baldeh v Churches Housing Association of Dudley & District Ltd, EAT (L [374.08]) (disability discrimination; discrimination arising from disability; employer knowledge); Linsley v Revenue and Customs Commissioners, EAT (L [389.02]) (disability; reasonable adjustments; significance of employer’s policy); Ahmed v The Cardinal Hume Academies, EAT (L [414.01]) (harassment; general guidance; related to the prohibited grounds; direct discrimination; because of the disability); Aston v The Martlet Group Ltd, EAT (L [474.03]) (victimisation; protected act; relationships that have ended; judicial proceedings immunity); Ministry of Justice v O'Brien, ECJ (L [839.03]) (part-time workers; excluded classes; judicial officeholders; retrospectivity of pension); First Greater Western Ltd v Waiyego, EAT (L [862]) (remedies; compensation; contributory fault); and Base Childrenswear Ltd v Otshudi, EAT (L [886], L [887.01]) (remedies; compensation; injury to feelings; avoidance of double counting).

The quantum awards and recommendations chapter has been updated with the following cases: Loughlin v Broadgate Voice and Data Ltd (L [937], L [1048.04]); Gay v Leeds Warehouse Solutions Ltd (L [992.05]); Olayemi v Aspers (Stratford City) Ltd (L [1030.02]); and Base Childrenswear Ltd v Otshudi, EAT (L [1034.02]).

Division PI Practice and Procedure

This Division has been updated generally to reflect the law as it stands on 1 July 2019. The early conciliation section has been revised throughout (PI [286]PI [290.36]). Case law added to this division includes: E.ON Control Solutions Ltd v Caspall, EAT (PI [288.02], PI [289.01] ff, PI [290.23]) (rejection of the claim; substantive defects; incorrect EC information); Hossaini v EDS Recruitment Ltd (t/s J&C Recruitment) (PI [1591.03]); and BMC Software Limited v Shaikh (PI [1711.02], PI [1716.04]) (remedies; distinction between equal pay and sex discrimination; no overlap).

Division PII European Materials

This Division is up to date to 1 July 2019. The following legislation has been added: Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union (PII [1430]); and Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers (PII [1460]).

Division Q Statutes

This Division has been updated for developments set out in the Harvey bulletin or other recent case law to reflect the law as it stands on 1 July 2019.

Division R Statutory Instruments

This Division has been updated for developments set out in the Harvey bulletin or other recent case law to reflect the law as it stands on 1 July 2019.

Index

A new supplementary index is provided in this issue.

AUTHOR INFORMATION

General Editor
Ian Smith, MA, LLB, of Gray’s Inn, Barrister; Emeritus Professor of Employment Law at the University of East Anglia

Consultant Editor
The Right Honourable Lord Justice Elias

Contributing Editors
HHJ Simon Auerbach MA, DPhil (Oxon), Senior Circuit Judge of the Employment Appeal Tribunal
Timothy Brennan QC, BCL, MA, Atkin Scholar of Gray’s Inn, Barrister
Thomas Cordrey, MA (Cantab), of Lincoln’s Inn, Barrister
The Honourable Mrs Justice Jennifer Eady, Justice of the High Court
John McMullen, MA, PhD (Cantab), FCIPD, FRSA Partner, Stone King LLP; Visiting Professor of Law, Leeds University Business School, Centre for Employment Relations, Innovation and Change
Helen Milgate, MA (Cantab), LLM, LLB, Formerly an Employment Judge
Brian W Napier QC, MA, LLB, PhD, Advocate of the Scottish Bar; of the Middle Temple, Barrister; Digital Professor of Law, Queen Mary and Westfield College, London
Akash Nawbatt QC, MA, of Gray’s Inn, Barrister
HHJ Mary Stacey, Visiting Circuit Judge of the Employment Appeal Tribunal, and Deputy High Court Judge in the Queen’s Bench Division
Rebecca Tuck, MA (Oxon), of Gray’s Inn, Barrister
Peter Wallington QC, MA, LLM, of Gray’s Inn, Barrister
Owen Warnock, MA (Cantab), Solicitor; formerly a partner in Eversheds Sutherland; Emeritus Professor of Employment Law, University of East Anglia
Charles Wynn-Evans, LLB (Bris), BCL (Oxon) Solicitor; Partner, Dechert LLP; a fee paid employment judge; a deputy chair of the Central Arbitration Committee
Jonathan Brain BA, Employment Judge