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 278, December 2019

Division BI Pay

This Division has been updated generally to reflect the law as it stands on 1 September 2019. Case law added to this division includes: Mears Homecare Ltd v Bradburn, EAT (BI [243.02]) (National Minimum Wage; requirement to keep records; effect of a TUPE transfer); Antuzis v DJ Houghton Catching Services Ltd (BI [247.02]); Chief Constable of the Police Service of Northern Ireland v Agnew, NICA (BI [327.04], BI [376.06], BI [376.14] ff, BI [381.12]) (time limits and back pay; statutory holiday pay; what is meant by a series of deductions?); and Okedina v Chikale, CA (BI [395] ff) (employees; illegality; statutory illegality; breach of immigration law). There is also discussion of the following BEIS consultations: `Good Work Plan: Consultation on measures to address one-sided flexibility’ (BI [186.03]); and `National Minimum Wage: Consultation on Salaried Workers and Salary Sacrifice Schemes’ (BI [230.01]).

Division DI Unfair Dismissal

This Division has been updated generally to reflect the law as it stands on 1 September 2019. In Kelly v Royal Mail Group Ltd (DI [1196], DI [1265.01]) the EAT holds that a termination originating in ill health may constitute a 'some other substantial reason' dismissal when defended before a tribunal, if there are further factors, such as lack of co-operation by the employee in trying to deal with the position. In Canning v National Institute for Health and Care Excellence (DI [1701.02]) the EAT held that objectivity is not an absolute requirement in a redundancy selection exercise; there may well need to be a level of subjective judgment by managers, though important evidence will be whether the employer has taken steps to ensure that it is exercised fairly.

Division DII Detriment

This Division has been updated generally to reflect the law as it stands on 1 September 2019. In the law protecting employees from detriment because of exercising working time rights, there has been a conflict of authority as to the meaning of that employee 'refusing' to comply with a requirement that would breach the Working Time Regulations. This is resolved in Pazur v Lexington Catering Services Ltd (DII [135.01]; DI [1953.01]) where the EAT held that there must be an actual, explicit refusal; it is not enough that the employee merely failed to comply with the illegal requirement.

Division E Redundancy

This Division has been updated generally to reflect the law as it stands on 1 September 2019. Ugradar v Lancashire Care NHS Foundation Trust (E [685]) considers for the first time at EAT level the relationship between contractual/statutory redundancy payments on the one hand and the £25,000 limit on a claim under the Extension of Jurisdiction Order 1994 (where that is used to claim the due payments.

Division F Transfer of Undertakings

This Division has been updated generally to reflect the law as it stands on 1 September 2019. Case law added to this division includes: Cátia Correia Moreira v Município de Portimão, ECJ (F [16.05], F [128.04]) (type of worker who is protected by the Acquired Rights Directive); Ellinika Nafpigeia AE v Panagiotis Anagnostopoulos, ECJ (F [29.01], F [48.05]) (whether there was a transfer of an economic entity and whether loss of organisational autonomy affected this); Dodič v Banka Koper, ECJ (F [33.02]) (relevant transfer under reg 3(1)(a); application to the financial sector); Grafe and Pohle v Südbrandenburger Nahverkehrs GmbH, OSL Bus GmbH, ECJ (F [61]) (transfer of significant tangible assets precluded by the existence of legal, technical and environmental constraints); and Mears Homecare Ltd v Bradburn, EAT (F [128.08]) (National Minimum Wage; requirement to keep records; effect of a TUPE transfer).

Division M Trade Unions

This Division has been updated generally to reflect the law as it stands on 1 September 2019. Case law added to this division includes: National Union of Professional Foster Carers v Certification Officer, EAT (M [42], M [48.02], M [256.01]) (listing; definition of ‘worker’; not applicable to foster carers); Confederazione General Italiana del Lavoro v Italy, ECSR (M [275]); and The Musicians’ Union v Kelly, EAT (M [525.04]) (interpreting the rules; general approach; reasonable interpretation).

Division NI Labour Relations

This Division has been updated generally to reflect the law as it stands on 1 September 2019. Case law added to this division includes: Confederazione General Italiana del Lavoro v Italy, ECSR (NI [351.08], NI [903.03]); Kostal UK Ltd v Dunkley, CA (NI [795]); National Union of Professional Foster Carers v Certification Officer, EAT (NI [902.15], NI [1003.01] ff) (listing; definition of ‘worker’; not applicable to foster carers); UNISON and BAWSO, CAC (NI [1121]); and USDAW and Pearsalls Ltd, CAC (NI [1203]).

Division NII Industrial Action

This Division has been updated generally to reflect the law as it stands on 1 September 2019. Case law added to this division includes: British Airways Plc v British Airline Pilots Association, CA (NII [2654.01]); and Virgin Atlantic Airways Ltd v PPU (NII [2654.02]).

Division NIII Employee Involvement

This Division has been updated generally to reflect the law as it stands on 1 September 2019. Case law added to this division includes: Hewlett Packard Enterprise Special Negotiating Body and Hewlett Packard Ltd, CAC (NIII [632]); and Hinrichs v Oracle Corporation UK Ltd, EAT (NIII [816]) (transnational consultations; content of consultation; no need to wait for EWC opinion). There is also discussion of the Employment Rights (Amendment) (EU Exit) Regulations 2019 with regard to the European Works Council regime (NIII [605.03]).

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 September 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 September 2019.

Division S Codes of Practice

This Division is up to date to 1 September 2019. The July 2019 revision to the Cabinet Office’s `Guidance on Settlement Agreements, Special Severance Payments on Termination of Employment and Confidentiality Clauses’ (S [3020]) has been included.

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
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