Kerry Underwood


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Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

Kerry Underwood is a former Employment Tribunal Judge.

This selection of key cases is taken from the Senior President of Tribunals’ Annual Report 2020 which is an invaluable and free resource dealing with all aspect of the work of tribunals as well as setting out these summaries of key cases.

The whole report can be accessed here.


Curless v Shell International Ltd [2019] EWCA Civ 1710

the Court of Appeal explores the application of the iniquity principle in the context of the admissibility of emails in ET proceedings to which legal advice privilege might otherwise have attached.


The right to rest breaks under the Working Time Regulations was considered by the Court of Appeal in

Network Rail Infrastructure Ltd v Crawford [2019] EWCA Civ 269.

It is not necessary for an equivalent period of compensatory rest to amount to an uninterrupted period of 20 minutes.

Whether the rest afforded was equivalent is a matter for the informed judgment of the specialist employment tribunal.



BMC Software Ltd v Shaikh [2019] EWCA Civ 267

the Court of Appeal rules that, while the Employment Appeal Tribunal (EAT) can require an ET to state its reasons for a judgment under appeal at the sift stage or at a preliminary hearing (the Burns/Barke procedure), it cannot do so as part of its final disposal of the appeal.


An equal pay claim is a claim for arrears of pay, permitting an employee to make a claim for an unpaid debt against the National Insurance Fund in the context of insolvency, ruled the Court of Appeal in

Graysons Restaurants Ltd v Jones [2019] EWCA Civ 725.


Important guidance on the application of rule 50 and the Sexual Offences (Amendment) Act 1992 when restricted reporting orders are sought in connection with allegations of sexual offences made in claims before an employment tribunal is provided by the EAT in

A and B v X and Times Newspapers Ltd [2019] IRLR 620.


It is not unlawful sex discrimination for employers to pay men on shared parental leave less than women on statutory maternity leave:

Capital Customer Management Ltd v Ali; Chief Constable of Leicestershire Police v Hextall [2019] EWCA Civ 900   (Court of Appeal).



Kuteh v Dartford & Gravesham NHS Trust [2019] EWCA Civ 716

the central issue was whether a Christian nurse was unfairly dismissed for alleged gross misconduct in initiating religious discussions with patients despite reassuring management that she would not do so.

Was her conduct protected by article 9, European Convention on Human Rights (ECHR)?

The Court of Appeal held that it was not, drawing a distinction between the manifestation of a religious belief and the inappropriate promotion of that belief.


The Court of Appeal decision in

FCO v Bamieh [2019] EWCA Civ 803

is an unusual illustration of whether the employment tribunal had extraterritorial jurisdiction in an international law context of two co-workers seconded to the EULEX mission in Kosovo and where the claim by one co-worker against the other derived from the whistleblowing provisions of the Employment Rights Act 1996.

It did not.


How should an employment tribunal accommodate the needs of a disabled person participating in its proceedings?

Helpful guidance on this difficult issue is beginning to emerge from the higher courts, not least in the Court of Appeal decisions in

J v K [2019] EWCA Civ 5


Anderson v Turning Point Eespro Ltd [2019] EWCA Civ 815.


East of England Ambulance Service NHS Trust v Flowers [2019] EWCA Civ 947

explores whether voluntary overtime should be accounted for in the calculation of holiday pay against the background of a collective agreement (the NHS Agenda for Change).

The effect of the collective agreement was to ensure a contractual entitlement to holiday pay based on voluntary overtime. The Court of Appeal also grapples with counter-intuitive language on voluntary overtime in the CJEU decision in Hein.

Section 145B of the Trade Union & Labour Relations (Consolidation) Act 1992 is an example of an area of the ET’s jurisdiction that spills over into collective labour law. It is concerned with “inducements relating to collective bargaining”.


The Court of Appeal overrules both the ET and the EAT in their interpretation of the section in

Kostal UK Ltd v Dunkley [2019] EWCA Civ 1009.


The Court of Appeal confirms that the recast definition of direct discrimination in the Equality Act 2010 has the effect that a disability discrimination claim can be brought by a claimant who is perceived to be disabled even though she is not:

Chief Constable of Norfolk v Coffey [2019] EWCA Civ 1061.


In a case originating in an unfair dismissal claim in the ET arising from a complaint of harassment the European Court of Human Rights (ECrtHR) considers the application of article 8 ECHR privacy rights to evidential material relating to the employee’s mobile phone, email and WhatsApp messages provided to the employer by the police:

Garamukanwa v UK [2019] IRLR 853.


On the first occasion that the Court of Appeal has considered regulation 5(1) of the Agency Workers Regulations, it holds that the Regulations do not entitle agency workers to work the same number of contractual hours as a comparator:

Kocur v Angard Staffing Solutions Ltd [2019] EWCA Civ 1185.


The defence of statutory illegality in relation to employment contractual claims, and where reliance was placed by the employer on the Immigration, Asylum and Nationality Act 2006, was considered by the Court of Appeal in

Okedina v Chikale [2019] EWCA Civ 1393.



McNeil v HMRC [2019] EWCA Civ 1112

the Court of Appeal reviews how the principles of indirect discrimination apply in equal pay claims.

The appeal is of particular interest because of how the court addresses the arguments based upon statistical analysis that were presented to it.



L v Q Ltd [2019] EWCA Civ 1417

the Court of Appeal rules that the ET has no power in its procedural rules (apart from national security cases) to prohibit the online publication of a judgment.


The Court of Appeal in

Harpur Trust v Brazel [2019] EWCA Civ 1402

decides that there is no basis for calculating holiday pay on a pro rata basis for a part-time worker who worked part of the year.


The putative status of judges as workers under employment rights legislation is explored by the Supreme Court in

Gilham v Ministry of Justice [2019] UKSC 44.


The difficulty of establishing a philosophical belief as a protected characteristic under the Equality Act 2010 (here belief in the statutory and moral right to copyright) is illustrated in

Gray v Mulberry Company (Design) Ltd [2019] EWCA Civ 1720.


In an unfair dismissal claim where there is both an invented reason and a hidden reason for dismissal, it is the hidden reason that falls to be tested says the Supreme Court:

Royal Mail Group Ltd v Jhuti [2019] UKSC 55.


The latest guidance on the application of disciplinary procedures in the workplace is provided by the Court of Appeal in

Sattar v Citibank NA [2019] EWCA Civ 2000.


In whistleblowing claims the test of whether a disclosure was made “in the public interest” is a two-stage test which must not be elided. The claimant must (a) believe at the time that he was making it that the disclosure was in the public interest and (b) that belief must be reasonable:

Ibrahim v HCA International Ltd [2019] EWCA Civ 2007.


A claimant in a whistleblowing case must be able to show that they have suffered a detriment in the employment field and not, for example, as a resident vis-à-vis a council’s powers as a local authority rather than as an employer:

Tiplady v City of Bradford [2019] EWCA Civ 2180.


When does time limitation start to run in the judicial pensions litigation? From the date of retirement when a pension might otherwise fall due to be paid, rules the Supreme Court in

Miller v Ministry of Justice [2019] UKSC 60.

Written by kerryunderwood

August 19, 2020 at 8:27 am

Posted in Uncategorized

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