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 280, April 2020

Division BI Pay

This Division has been updated generally to reflect the law as it stands on 1 January 2020. Case law added to this division includes: Jagex Ltd v McCambridge (BI [40.03] ff) (compensation; the character of contributory fault; relationship with gross misconduct); Gilham v Ministry of Justice, SC (BI [170.04]) (the meaning of 'worker'; the use of the term in the legislation; judicial officeholder); Okedina v Chikale, CA (BI [184.01]) (employees; illegality; statutory illegality; breach of immigration law); Stuart Deliveries Ltd v Augustine, EAT (BI [327.03]) (workers; 'employee' or 'worker'; position of couriers); Chief Constable of Northern Ireland v Agnew, NICA (BI [376.12]); and Bath Hill Court (Bournemouth) Management Co Ltd v Coletta, CA (BI [377]) (deductions from pay; bringing a claim; the two-year cap on back pay).

Division DI Unfair Dismissal

This Division has been updated generally to reflect the law as it stands on 1 January 2020. In López Ribalda v Spain (DI [1482.04] ff) the Grand Chamber of the ECtHR reversed the decision of the lower chamber (criticised in this Division) and held that art 8 was not infringed by limited covert camera surveillance of shop tills in order to stop thefts by staff. Two domestic decisions addressed questions of fair procedure in misconduct cases. In Sunshine Hotel Ltd v Goddard (DI [1492.01]) the EAT held that there is no rule of law that an employer must always hold an investigatory hearing in order to dismiss fairly; the relevant question is whether there was a fair investigation generally, in whatever form it took. On the other hand, in Sattar v Citibank NA (DI [1492.02], DI [1501.03]) the Court of Appeal re-emphasised the importance of the right of an accused employee to know the charges against him or her; this means the actual charges being relied on by the employer, not any others that might have been used. There is also coverage of Royal Mail v Jhuti, SC (DI [821.01]) (whistleblowing dismissal; establishing the reason in an organisation).

Division DII Detriment

This Division has been updated generally to reflect the law as it stands on 1 January 2020. In the industrial action case of Secretary of State for Justice v Prison Officers' Association (DII [88.01]) the High Court disapproved an argument for the union that the ban on action by officers in the Criminal Justice and Public Order Act 1994 has to be read subject to the right of employees generally not to suffer detriment for walking out in conditions of imminent danger (ERA 1996 s 44(1)(d)). In Royal Mail Group v Jhuti (DII [466.07]) the Supreme Court gave wide approval to taking into account (including in a detriment case) the motivation of an `Iago' manager who procures that detriment where the manager actually imposing it was ignorant of the true facts.

Division E Redundancy

This Division has been updated generally to reflect the law as it stands on 1 January 2020. Case law added to this division includes East London NHS Foundation Trust v O'Connor (E [112], E [201.01]) (renewed employment post-termination; statutory trial period; when it starts).

Division F Transfer of Undertakings

This Division has been updated generally to reflect the law as it stands on 1 January 2020. There is a new extended discussion of what the expression 'under a contract of employment or otherwise' in TUPE means, with reference to McCririck v Channel 4 Television Corpn and IMG Media Ltd, ET and Dewhurst v Revisecatch Ltd, ET (F [16.06] ff). Case law added to this division also includes: Guvera Ltd v Butler, EAT (F[22.01] ff); and ISS Facility Services NV v Sonia Govaerts, Euroclean NV, AG's Opinion (F [88.06] ff) (where there are multiple transferees).

Division M Trade Unions

This Division has been updated generally to reflect the law as it stands on 1 January 2020. Case law added to this division includes: Parlour v National Association of Schoolmasters Union of Women Teachers (M [1009]); Royal Mail Group Ltd v Communications Workers Union (M [1201]) (strike ballots; full, free and fair; interception of mail); and McFadden v Unite the Union, EAT (M [3409], M [4012.05]) (breach of rules; application to the Certification Officer; legality of further proceedings on the same matter).

Division NI Labour Relations

This Division has been updated generally to reflect the law as it stands on 1 January 2020. Case law added to this division includes: Royal Mail v Jhuti, SC (NI [432]) (whistleblowing dismissal; establishing the reason in an organisation); Hancock v Ter-Berg, EAT (NI [614]) (unfair dismissal; interim relief; use in whistleblowing cases; dealing with incidental matters); GMB and Shred-It Ltd (NI [1263.01]); National Union of Rail, Maritime and Transport Workers and CWind Ltd (NI [1263.01], NI [1318.02]) (prohibited conduct; justification of age discrimination); United Voices of the World and OCS Group Ltd (NI [1373]); and Secretary of State for Justice v Prison Officers Association (NI [3587]).

Division NII Industrial Action

This Division has been updated generally to reflect the law as it stands on 1 January 2020. Case law added to this division includes: Secretary of State for Justice v Prison Officers Association (NII [114.01], NII [235.02]) and Royal Mail Group Ltd v Communications Workers Union (NII [2791.01], NII [2793]) (strike ballots; full, free and fair; interception of mail).

Division NIII Employee Involvement

This Division has been updated generally to reflect the law as it stands on 1 January 2020. The chapter on transnational consultations (NIII [601] ff) has been comprehensively updated to reflect the implications of the departure of the UK from the EU for the European Works Council regime, and the Employment Rights (Amendment) (EU Exit) Regulations 2019 SI 2019/535. Case law added to this division includes: Vesuvius 1: Frank Mueller and Vesuvius PLC (NIII [821.03], NIII [852]); Vesuvius 2: Frank Mueller and Vesuvius PLC (NIII [385], NIII [881.01]); Princes Group European Works Council and Jonathan Clegg and The Central Management of Princes Group, CAC (NIII [652.02], NIII [811], NIII [814], NIII [825.01]); Verizon 1: Verizon European Works Council and Jean-Philippe Charpentier and The Central Management of the Verizon Group (NIII [825]); and Verizon 2: Verizon European Works Council and The Central Management of the Verizon Group (NIII [821.07]).

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 January 2020.

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 January 2020.

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
Adele Aspden, MA(Res), LLB, Employment Judge
HHJ Simon Auerbach MA, DPhil (Oxon), Senior Circuit Judge of the Employment Appeal Tribunal
Jonathan Brain BA, Employment Judge
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