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Oakland v Wellswood (Yorkshire) Ltd
Employment – Continuity – Transfer of trade, business or undertaking – Employee joining employer from employer’s predecessor – Employee complaining of unfair dismissal – Tribunal finding that regardless of employee status with the employer’s predecessor employee lacking sufficient service to bring claim against employer – Whether tribunal erring – Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246, regs 8(6),(7).
Employment – Continuity. Employment Appeal Tribunal: The employment tribunal’s construction of the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246 had been correct and it had been entitled to reach its conclusions rejecting the employee’s claim of unfair dismissal.
Communication Workers Union v Royal Mail Group Ltd
Employment – Continuity – Transfer of trade, business or undertaking – Employer having the belief that no employees would transfer despite agreeing franchise with third party – Union bringing test proceedings alleging employer in breach or duty – Whether employer failing to properly inform and consult – Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246, reg 13.
Employment – Continuity. Employment Appeal Tribunal: The appeal against the employment tribunal’s decision that the employer had failed properly to inform or consult, in breach of regulation 13 of theTransfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246, was upheld.
Juuri v Fazer Amica Oy (Case C-396/07)
European Community – Employment – Continuity of employment – Transfer of undertaking, business or part of business – Safeguarding of employees’ right – Collective agreement – Termination of contract of employment by employee – Financial compensation for which employer liable – Reference for preliminary ruling – Council Directive (EC) 2001/23, art 4(2).
European Community – Employment. Court of Justice of the European Communities: Gave a preliminary ruling concerning the financial compensation to which an employer was liable to following atransfer of undertakings in circumstances where an employee terminated their contract of employment.
Falcongate Freight Management v Zurich Insurance Company (trading as Zurich Commercial)
Practice – Summary judgment – Appeal – Transfer of undertakings – Defendant insurer refusing to indemnify claimant in respect of claim under employer liability policy – Judge granting claimant summary judgment on appeal – Whether judge erring.
Practice – Summary judgment. Court of Appeal, Civil Division: On the evidence before the courts, the claimant’s applications for summary judgment in respect of its claim for the payment of an indemnity purportedly due from the defendant insurer was not suitable for summary determination.
Vigano v Red Elite de Electrodomesticos SA and others (C-313/07)
European community – Employment – Protection of employees on employer’s insolvency – Insolvency proceedings – Transfer of undertakings – Safeguarding employees’ rights – Assignment of lease – Council Directive (EC) 2001/83, art 3(1).
European community – Employment. European Court of Justice: Where a company entered into a transferor of undertaking with a third party, the commercial lease did not have to be preserved.
Gutridge and others v Sodexo Ltd
Employment – Equality of treatment of men and women – Equality clause – Employees transferred to transferee – Employees claiming equal pay rights five years later relying on comparators who had not been transferred to the transferee – Transferee contending claims out of time – Employment tribunal finding employees entitled to bring claims – Whether tribunal erring – Equal Pay Act 1970, s 2ZA(3) –Transfer of Undertakings (Protection of Employment) Regulations 1981, SI 1981/1794.
Employment – Equality of treatment of men and women . Where the employees had been transferred pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 1981, SI 1981/1794, following which they claimed their equal pay rights five years later relying upon equal pay with comparators who had been employed by the transferor but who had not been transferred to the transferee, the transferee’s appeal would be allowed insofar as the transferor was in breach of the equality clause. Moreover, authority would apply so as to render out of time any claims against the transferor.
Vodafone 2 v Revenue and Customs Commissioners
Income tax – Corporation tax – European Community – Freedom of establishment – Taxpayer company submitting tax return to Revenue and Customs Commissioners – Taxpayer claiming imposition of tax in respect of profits made by its subsidiary amounting to unlawful restriction on freedom of establishment – Special Commissioners deciding relevant legislative provision capable of being construed as being in conformity with provisions dealing with freedom of establishment under Community law – Whether Special Commissioners erring in law – EC Treaty, art 43 – Income and Corporation Taxes Act 1988, s 748(3).
Income tax – Corporation tax. The provisions of s 748(3) of the Income and Corporation Taxes Act 1988 were unambiguous and its purposes were plain, namely, to defeat tax avoidance by parent companies resident for tax purposes in the United Kingdom, by channelling profits to foreign subsidiaries resident in foreign countries where those profits were taxed at a significantly lower level and where one of the main reasons of a UK parent company for doing so was to achieve such tax advantage. There were no words in s 748(3) which, using conventional rules of construction, were capable of being construed as limiting the operation of the sub-section so as to comply with the right to freedom of establishment set out in art 43 EC.
Kimberley Group Housing Ltd v Hambley and others Angel Services (UK) Ltd v Hambley and others
Employment – Continuity – Transfer of service provision – Transfer to more than one transferee – Proper approach to determining where rights duties and liabilities under contracts of employment falling – Whether legislative scheme not applying to transfer of service provision to more than one transferor – Whether liabilities under contracts of employment ought to be distributed proportionately between transferees – Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246, reg 3(1), 3(3), 4(1).
Employment – Continuity. If one was looking at reg 3(1)(b) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/XXX, having excluded reg 3(1)(a) of those Regulations, the first question for the tribunal was to identify the relevant activities or relevant activity. It was only when that had been done that the tribunal could see whether or not those activities came within reg 3(1)(b)(ii). When considering where the rights, duties and liabilities under a contract of employment fell where there was more than one transferee in respect of such a transfer, the link between the employee and the work or activities that were performed was to be focussed on, which might involve very difficult questions of fact. There was no warrant in statute or common law for adopting a proportionate approach between the transferees, nor was it the effect of the 2006 Regulations that one transferor could not transfer his undertaking or the provision of a service to more than one transferee.
Turner v Sandham (t/a Wasteaway Skip Hire) and others
Employment tribunal – Procedure – Striking out – Unreasonable or scandalous behaviour – Employee attempting to influence settlement negotiations by threat of disclosing documents showing tax evasion – Employment tribunal striking out action – Whether sanction excessive
The employment tribunal had erred in striking out the employee’s claim based on the latter’s engaging in scandalous and unreasonable conduct (namely, attempting to blackmail the respondents in settlement negotiations with documents purportedly showing tax evasion by cash-only transactions). A fair hearing was possible, the appropriate sanction being to debar the employee from relying on the documents or any allegations relating to them, and to order the return of the documents to the respondents.
Lindley v Perry’s Motor Sales Ltd and another
Employment – Continuity – Transfer of trade, business or undertaking – Unfair dismissal – Employee previously employed by first appellant – Employee bringing tribunal proceedings in relation to that employment – Employee subsequently employed by second appellant – First appellant purchasing business of second appellant – First appellant procuring dismissal of employee prior to transfer taking effect – Employment tribunal finding first appellant unfairly dismissing employee on account of previous tribunal proceedings – Whether tribunal erring – Employment Rights Act 1996, s 104 – Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/24, regs 4(1), 4(2), 4(3).
Regulations 4(2)(a) and (b) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246 fell to be be construed separately. The transferor, by its actions prior to the transfer, could, by virtue of reg 4(2)(b), cause to be crystallised, on the transfer, a liability in the transferee, whose actions they were deemed to be, which was not a liability of the transferor prior to the transfer, which did not transfer under reg 4(2)(a), but which, nonetheless, was a liability of the transferee as the employer of the employee.
BRB (Residuary) Ltd v Connex South Eastern Ltd (formerly South Eastern Train Company Ltd)
Fatal accident – Damages – Contribution – Widow claiming damages for death of husband relating to work-based exposure to asbestos – Claimant admitting liability – Claimant mistaken as to existence of indemnity by defendant – Claimant seeking contribution from defendant – Whether defendant liable to contribute to damages.
Irrespective of whether the claimant had been liable to a widow, in her claim for damages to which the defendant had been the correct defendant, once it had accepted liability and judgment had been entered against it, the judgment itself gave rise to a liability on the part of the claimant. That judgment established the claimant’s liability alongside the defendant’s liability. Further, the claimant had entered into a bona fide settlement with the widow to settle the matter. Accordingly, the claimant could claim a contribution from the defendant under s 1(1) and (4) of the Civil Liability (Contribution) Act 1978.
King and others v Howitt Ltd
Employment – Continuity – Transfer of trade, business or undertaking – Employment tribunal chairman finding that there had been a material transfer of undertaking to employer – Whether chairman’s decision perverse – Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246, reg 3(1).
The employer’s appeal against the employment tribunal’s determination that there had been a material transfer of an economic entity that retained its identity, on the basis that the tribunal chairman had failed to properly consider or apply reg 3(1)(a) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246, had failed to interpret or apply the material authorities and that the determination that he had made had been perverse, was dismissed as, on the facts, the chairman had permissibly reached his conclusions, applying the law to the facts he had found.
Amicus and others v Dynamex Friction Ltd and another
Employment – Contract of service – Termination – Transfer of undertaking – Whether employees’ dismissal for economic reasons – Whether tribunal erring – Transfer of Undertakings (Protection of Employment) Regulations 1981 – Council Directive (EEC) 77/187, art 4.
In the instant case, where the employment tribunal had found that the dismissal of the claimant employees had been for economic reasons rather than as a device to defeat the Transfer ofUndertakings (Protection of Employment) Regulations 1981 (TUPE), on the evidence, the Employment Appeal Tribunal had erred in holding that the tribunal had failed to make certain findings of fact as the tribunal had had those aspects well in mind; and, in all the circumstances, it was an inevitable conclusion from the facts that the reason for the employees’ dismissal was economic.
Hopkinson v Ministry of Defence and another
Damages – Personal injury – Ankle and leg – Claimant sustaining major injuries to both legs whilst working as able seaman on board ship owned and operated by defendants – Defendants admitting liability – Court determining level of general damages for pain, suffering and loss of amenities – Whether claimant entitled to compensation in respect of loss of free victuals and loss of ability to perform DIY tasks.
Where the claimant, who had been employed as an able seaman, had suffered serious leg injuries necessitating in excess of 20 operations and leaving him with an increased risk of developing arthritis in an incident which had occurred on board a vessel owned by the first defendant and operated by the second defendant, it was held, inter alia, that the claimant was entitled to recover damages in the sum of £45,000 in respect of general damages for pain, suffering and loss of amenities. Furthermore, he was entitled to recover in respect of loss of congenial employment, loss of free victuals and the loss of his ability to perform DIY tasks.