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.
Issue 310, October 2023
Division AI Categories of Worker
This Division has been updated generally to reflect the law as it stands on 1 July 2023. Three important EAT cases are included in this Issue: Fire Brigades Union v Embury (AI [14.03]) (the `one employer' rule meant that a firefighter seconded to work for the union remained the employee of the fire brigade, and was not the employee of the union); Plastic Omnium Automotive Ltd v Horton (AI [83.02]) (a person providing his services through a service company could not be a `worker' because there was no contract between him and the putative employer); Manning v Walker Cripps Investment Management (AI [87.04]) (a trader allowed to make a certain number of personal trades did not fall foul of the business/profession exception to the definition of a `worker'); and in R (ASLEF) v Secretary of State for Business and Trade (AI [182.03]) the Administrative Court struck down as unlawful the removal of the long-standing ban on the use of agency workers to counter strike action.
Division AII Contract of Employment
This Division has been updated generally to reflect the law as it stands on 1 July 2023. In Secretary of State for the Home Department v Cox the Court of Appeal ruled on the issue (before the EAT on several occasions) of the removal of a contractual right for employees to have their union dues deducted at source. One aspect of the judgment raised an old but hitherto little discussed issue as to whether a change in contractual terms operates only as a variation of the existing contract or can be so fundamental as to constitute the substitution of a new contract; this issue is now covered specifically in a new section at AII [94.01] ff. Other cases in this issue include: X v Transcription Agency and Master James (AII [194.223]); RW v Österreichische Post AG, ECJ (b>AII [194.229]); UI v Österreichische Post AG, ECJ (AII [194.245]); Boydell v NZP Ltd, CA (AII [224.01]) (restraint of trade; injunction; severance); Verition Advisors (UK Partners) LLP v Jump Trading International Ltd, CA (AII ); Jump Trading International Ltd v Couture, CA (AII ); and Meaker v Cyxtera Technology Ltd, EAT (AII ).
Division BII Taxation of Employment Income
The Division has been updated generally to reflect the law as it stands on 1 July. Cases discussed in this issue include HMRC v Kunjur(BII )
Division CI Working Table
This Division has been updated generally to reflect the law it stands on 1 July 2023. Cases discussed in this issue included IH v MAV-START Vasuti Szemelyszallito Zrt ECJ(CI ) (daily rest; rest; weekly rest periods; relationship between them); and Connor v Chief Constable of the South Yorkshire Police, EAT (CI) (holiday pay; payment in lieu when leaving employment; relevant agreement).
Division CII Time Off Work
This Division is up to date 1 July 2023.
Division CIII Whistleblowing
This Division has been updated generally to reflect the law as it stands on 1 July 2023. In Kealy v Westfield Community Development Association (CIII , CIII ) the EAT considered the requirements for a protected disclosure to a `specific authority', in particular the importance of the subjective element. Also reported is Alcedo Orange Ltd v Ferridge-Gunn, EAT (CIII [126.03]) which is a potentially difficult case on the evolving law on whether, in a whistleblowing dismissal case, the motivation of a person other than the dismissing officer can be taken into account.
Division G Insolvency of Employer
This Division is up to date to 1 July 2023.
Division H Continuity of Employment, etc
This Division has been updated generally to reflect the law as it stands on 1 July 2023. There is discussion of the Employment (Allocation of Tips) Act 2023 (H  ff).
Division J Family Matters
This Division has been updated generally to reflect the law as it stands on 1 July 2023. The text has been updated for the Neonatal Care (Leave and Pay) Act 2023 (J  ff), Protection from Redundancy (Pregnancy and Family Leave) Act 2023 (J  ff) and Carer’s Leave Act 2023 (J  ff).
Division K Equal Pay
This Division has been updated generally to reflect the law as it stands on 1 July 2023. Cases discussed in this issue include Thukalil v Puthenveettil, EAT (K [58.02], K [541.01]) (national minimum wage; family member/domestic worker exemption; disapplication); and CSC Computer Science Ltd v Hampton, EAT (K [207.01] ff, K ).
Division L Equal Opportunities
This Division has been updated generally to reflect the law as it stands on 1 July 2023. There is discussion of the Retained EU Law (Revocation and Reform) Act 2023 (L –L [94.05]). The section on freedom to hold a belief and freedom to manifest a belief (L –L [214.12]) has been rewritten and restructured. Cases discussed in this issue include: Secretary of State for Work and Pensions v Beattie, EAT (L [94.04]); Morris v Lauren Richards Ltd, EAT (L [165.05]) (definition of disability; likely to last 12 months; effect of dismissal); Higgs v Farmor’s School and the Archbishops’ Council of the Church of England (L [212.07], L [213.05]) (religion or belief; causal relationship); For Women Scotland Ltd v Scottish Ministers, CSOH (L ); Alcedo Orange Ltd v Ferridge-Gunn, EAT (L [274.05]) (direct discrimination; cause or reason; assessing the reason in the case of a corporation); Imperial College Healthcare NHS Trust v Matar, EAT (L ); Glover v Lacoste UK Ltd, EAT (L [309.03]) (indirect discrimination; provision, criterion or practice (PCP); whether has to be applied); Cook v Gentoo Group Ltd, EAT (L [347.05]) (age discrimination; justification; cost or cost-plus); Pipe v Coventry University Higher Education Corporation, EAT (L ); Greasley-Adams v Royal Mail Group Ltd, EAT (L [423.01]) (harassment; general guidance; knowledge of claimant); Ligebehandlingsnævnet (acting on behalf of A) v HK/Danmark and JK v TP SA, ECJ (L [536.13] ff) (discrimination protection not confined to subordinate workers); The Royal Parks Ltd v Boohene, EAT (L  ff) (special cases; contract workers); and Edward v Tavistock and Portman NHS Trust, EAT (L ) (remedies; compensation; mitigation).
The following cases have been added to the quantum awards and recommendations chapter: Creasey v VPS PVT Ltd (L [993.09]); Ms M Forstater v CGD Europe (L , L [1250.01]); and Walker v South Tees Hospital NHS Foundation Trust (L ).
Division PI Practice and Procedure
This Division has been updated generally to reflect the law as it stands on 1 July 2023. The section on bias and the appearance of bias (PI  ff), and privacy and restrictions on disclosure (b>PI  ff) have been heavily revised and restructured. Cases discussed in this issue include: Concentrix CVG Intelligent Contact Ltd v Obi, EAT (PI [281.04]) (just and equitable extension of time; length of and reasons for delay; prejudice to other party); Owen v Network Rail Infrastructure Ltd, EAT (PI [281.10]); The Sports PR Company Ltd v Cardona, EAT (PI [289.26]); Minnoch v Interservefm Ltd, EAT (PI , PI [420.03]) (case management; unless orders); Tanase v Barchester Healthcare Ltd, EAT (PI ); Mohammed v Guy’s and St Thomas’ NHS Foundation Trust, EAT (PI [404.02], PI [420.03]) (case management; unless orders; result of material non-compliance); Rojha v Zinc Media Group Ltd, EAT (PI [404.03]) (case management; unless orders); Bi v E-ACT, EAT (PI [417.02], PI [420.01]) (unless orders; relief; interests of justice); Sually v HMRC, EAT (PI [632.04]); Williamson v The Bishop of London, CA (PI [675.03]) (employment tribunals; civil proceedings orders); Habib v Dave Whelan Sports Ltd, EAT (PI ); Lycatel Services Ltd v Schneider, EAT (PI ) (postponement; high court proceedings pending; test to be applied); Aspect Windows (Western) Ltd v Retter, EAT (PI ) (apparent bias; conduct of members); Clifford v Millicom Services UK Ltd, CA (PI , PI  ff, PI [944.01], PI [946.03]) (privacy and restrictions on disclosure; anonymity orders); Phipps v Priory Education Services Ltd, CA (PI , PI [1149.02]) (reconsideration of judgments; error by a representative); Ebury Partners UK Ltd v Davis, EAT (PI [1144.05], PI ) (reconsideration of judgments; limits on scope of reconsideration); Palihakkara v The English Sport Council, EAT (PI [1447.04]) (appeal to the EAT; time limit; extension of time; effect of mental illness); Matovu v 2 Temple Gardens, EAT (PI [1462.05]); F v J, EAT (PI [1579.09]); and EasyJet PLC v EastJet European Works Council, CA (PI [2106.02]). The following documents have also been added: Presidential Guidance – Employment Tribunal awards for injury to feelings and psychiatric injury following De Souza v Vinci Construction (UK) Ltd  EWCA Civ 879 – Sixth Addendum to Presidential Guidance Originally Issued on 5 September 2017 (PI [2562.03]); and Presidential Guidance — Alternative Dispute Resolution (PI ).
Division PIII Jurisdiction
This Division has been updated generally to reflect the law as it stands on 1 July 2023. Cases discussed in this issue include Bathgate v Technip UK Ltd, EAT (PIII ).
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 2023. The Employment Relations (Flexible Working) Act 2023 (Q ) have been added.
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 2023.
|The Right Honourable Lord Justice Elias||Consultant editor|
|KATE TEMPLE-MABE, BA, MA, LLB, of Inner Temple, Barrister||Editor|
|SURESH PATEL, Associate, Mishcon de Reya LLP||Editor|
|THOMAS CORDREY, MA of Inner Temple, Barrister||Editor|
|JOSEPH ENGLAND, LLB, of Lincoln's Inn, Barrister||Case notes editor|
|CARYS THOMPSON, LLB Partner, Shakespeare Martineau LLP||Editor|
|MATTHEW WOOD Associate, Mishcon de Raya LLP||Editor|
|JULIAN ALLSOP, LLB, LLM, of Lincoln's Inn, Barrister||Editor|
|BARNABY LARGE, LLB, of Inner Temple, Barrister||Case notes editor|
|ADAM TURNER Partner, Mishcon de Reya LLP||Editor|
|ELAINE BANTON, MA, LLB, Barrister,7BR Chambers||Editor|
|IAN SMITH MA, LLB of Gray’s Inn, Barrister; Emeritus Professor of Employment Law at the Univer- sity of East Anglia||General editor|
|JEFFREY JUPP, BA Inner Temple, Barrister||Editor|
|ADELE ASPDEN, MA, LLB, Employment Judge||Editor|
|SUSANNAH KINTISH Partner, Mishcon de Reya LLP||Editor|
|ÅSA WARNING Partner, Mishcon de Raya LLP||Editor|
|BRIAN W NAPIER KC, MA, LLB, PhD Advocate of the Scottish Bar; of the Middle Temple, Barrister||Editor|
|DAVID GREEN, MA of Inner Temple, Barrister||Editor|
|MARTINA MURPHY LLB, LLM of Gray’s Inn, Barrister||Editor|
|SUSANNAH McGLONE, BA, Legal Director, didlaw||Editor|
|NAEEMA CHOUDRY, MA, LLM Solicitor; Partner, Eversheds Sutherland (International) LLP; a fee paid employment judge||Editor|
|COLM KELLY, LLB, LLM, of Lincoln's Inn, Barrister||Editor|
|STEPHEN C MILLER, LLB, Partner, Clyde & Co||Editor|
|JONATHAN BRAIN, BA Employment Judge; Recorder (civil)||Editor|
|OWEN WARNOCK, MA, Solicitor; formerly a partner in Eversheds Sutherland; Emeritus Professor of Employment Law, University of East Anglia||Editor|