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Court of Appeal

The Appointment of Litigation Friends

The Employment Appeal Tribunal held, in Jhuti v Royal Mail, that a rule can be applied into tribunal rules to provide for the appointment of a litigation friend.

Vulnerable individuals must be able to fully participate in proceedings, any decisions made without taking into account the need to safeguard and protect the welfare of a vulnerable person would be outside the law. In such a case where it is essential to involve a litigation friend directions can be made to allow their involvement during those parts of the hearing where it is necessary. This can be applied under the tribunal’s power to manage its own procedure. If this did not happen, there would be a breach of common law duty if a litigant was unable to make representations, give and test evidence or instruct a solicitor.

In Jhuti v Royal Mail, the Law Society made the decision to intervene in the case for the mentally vulnerable claimant who needed to appoint a litigation friend. It argued that this met the common law duty of fairness and right of access to the courts and also that it avoided placing the solicitor in conflict with the ethical duty that the client had capacity.
Coincidentally, in a case involving immigration tribunals in the Court of Appeal – AM (Afghanistan) v Secretary of State for the Home Department– the Court held an identical provision should be implied into the immigration rules despite no express provision existing for a litigation friend. Underhill LJ expressed, at para 48, a “strong provisional view” that a previous EAT ruling of his, holding the contrary, was incorrect.

Written by
Edward Aston
22nd August 2017

Sickness Absence and Holiday Pay

In the recent EAT case of Sood Enterprises v Healy it was held that additional annual leave cannot be carried forward into the next leave year, unless there is an agreement in place between the parties.

One of the difficult questions concerning the relationship between statutory holiday rights and long-term sick leave is the apparent incompatibility between regulation 13(9) of the Working Time Regulations 1998 and the Directive regarding carry-over of holiday for workers who have been unable to take the holiday due to sickness. In 2012, the Court of Appeal took the view in the case of NHS Leeds v Larner that it was possible to interpret the Working Time Regulations 1998 in line with the Directive so as to allow carry over of holiday of up to 4 weeks (i.e. 20 days) where a worker was on long-term sick leave. However, the court declined to decide whether the Directive requires the additional 1.6 weeks (i.e. 8 days) under regulation 13A to be treated in the same way as the four weeks’ leave under regulation 13.

In Sood Enterprises v Healy, the EAT have confirmed that the Working Time Directive does not require carry-over of the additional 1.6 weeks’ leave under regulation 13A of the Working Time Regulations 1998 where a worker is prevented from taking holiday due to long-term sickness absence.

So at the present time, if, for example, a worker is on long-term sick leave for the whole of 2013 and their holiday entitlement is the statutory minimum 28 days, then 20 of those days automatically carry forward into the next leave year (i.e. into 2014) and the remaining 8 days do not, unless there is an agreement between the employer and the worker for the 8 days to be carried forward. That is the position for the time being and will remain so unless and until a higher court rules otherwise or it is changed through legislation.

Written by
Edward Aston
6th August 2013

Holiday Pay – Court of Appeal rules on whether holiday can be carried over

The Court of Appeal has recently announced its decision in the case of NHS Leeds v Larner.

Mrs Larner had been employed by NHS Leeds for 20 hours a week and her contract of employment stated that during a period of sick leave she would accrue holiday but that she was only entitled to carry it over in exceptional circumstances.

Mrs Larner was on sick leave for the whole of the holiday year 2009/2010 and during this time took no holiday entitlement and neither did she ever request for it to be carried over into the 2010/2011 holiday year. During the early part of 2010/2011 holiday year NHS Leeds dismissed Mrs Larner.

As Mrs Larner had not requested to take any holiday nor asked to carry it over, NHS Leeds did not pay her any holiday pay in lieu of notice for the holiday year 2009/2010 having concluded that this holiday had been lost. Mrs Larner made a claim for unpaid holiday under the Working time Regulations 1998.

The Court of Appeal ruled that Mrs Larner was entitled to be paid for the annual leave in 2009/2010 that she had not been able to take due to her illness and that although no request had been made by Mrs Larner to carry over the holiday this was an automatic process. Although this decision was binding on the NHS which is an emanation of the state, the Court of Appeal held it would apply to private employers as well.

This ruling puts an end to the conflict between the two earlier Employment Appeal Tribunal (EAT) cases of NHS Leeds v Larner and the later decision of the EAT in Fraser v South West London St George’s Mental Health Trust. In the latter case the EAT had ruled that unless the employee requested to carry over the holiday the employer had no obligation to carry it over or pay it in lieu of notice. This is now overruled by the Court of Appeal.

Written by
Edward Aston
30th July 2012

Employer Liability for Violent Employees

The Court of Appeal has recently considered two cases regarding the issue of when an employer is liable for the conduct of an employee (known as vicarious liability) where that employee assaults another.

In Weddall v Barchester Healthcare an employee, Mr Weddall phoned another employee, Mr Marsh and asked him to work a night shift. Mr Marsh not only refused but turned up at his workplace and assaulted Mr Weddall, who them claimed damages from his employer (Barchester Healthcare) on the grounds that the latter was responsible for the actions of Mr Marsh.

The Court held that Mr Marsh was “acting personally for his own reasons” and he had used Mr Weddall’s request to come to work as a “pretext for an act of violence” unconnected with his work. As such, the employer was not vicariously liable for the assault.

In Wallbank v Wallbank Fox Designs Ltd, Mr Brown was responsible for loading items on to a conveyer belt which passed through an oven. His boss, Mr Wallbank was concerned by the lack of items which Mr Brown had loaded and he went to the conveyer belt to add more. He then summoned Mr Brown to help him whereupon Mr Brown assaulted Mr Wallbank by throwing him on to a table and injuring him.

The Court held that “the employer should bear vicarious liability for the spontaneous force by which the employee reacted to the instruction give to him”. Mr Brown assaulted Mr Wallbank “in immediate response to instructions given to him” and hence he was “acting in the course of his employment”. The employer was accordingly liable to pay damages to Mr Wallbank because of Mr Brown’s conduct.

Written by
Robin Aston

Employment status – Supreme Court ruling

Employment status has been in the headlines a lot over the years and particularly this year as there was a Supreme Court ruling on it in the case of Auto-Clenz Limited v Belcher and Others (2011) http://www.bailii.org/uk/cases/UKSC/2011/41.html.

In the case of AutoClenz, the Court of Appeal held in 2009 that the individuals in that case were employees despite the fact that they were accepted as self employed by the Revenue and had the right to substitute. The test formulated was essentially “what is the real state of affairs”. The paperwork was not so determinative as had been thought in previous cases.

This year the case was appealed to the Supreme Court who affirmed the Court of Appeal decision. However, the Supreme Court said that if a substitution clause exists and is “genuine” then its existence may negate an employment relationship even if it is never invoked. Notwithstanding this, to decide if a clause is genuine one still looks behind the wording of the contract and at the real state of affairs i.e. what is actually going on in practice.