instrumental in, and essential to the attainment of the objectives which the directive pursues and to the enjoyment of the rights which it confers on individuals."
Although the Advocate General's opinion is not binding, it is usually followed by the CJEU.
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TUPE and unfair dismissal 1 March 2019
In a 'TUPE transfer', the Court of Appeal has held that a dismissal for purely 'personal' reasons, cannot prevent a dismissal from being automatically unfair for being related to a transfer.
In the case Hare Wines v Kaur the Claimant and a colleague had long-standing difficulties working with each other.
That colleague was to become a director of a company that was taking over the wine wholesaler that employed the Claimant in a TUPE transfer. Before the transfer, the outgoing employer dismissed the Claimant. The tribunal held that the dismissal was for a reason related to the transfer and so automatically unfair. The tribunal found that the Claimant was dismissed because the transferee employer did not want her, so it did not wish the Claimant’s employment to transfer to it, therefore the reason for dismissal was the transfer. The Court noted that dismissals for economic, technical or organisational ‘ETO’ reasons connected with transfers can be fair, but the law does not recognise any category of ‘personal’ reason for dismissal as stopping a transfer-related dismissal from being automatically unfair.
With thanks to Daniel Barnett's Employment Law Bulletin for its coverage of this case.
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Worker Status 14 March 2019
Can an individual who is paid a quarterly 'exclusivity' payment be an employee?
Yes, held the EAT in Exmoor Ales Ltd & Another v Herriot.
The Claimant provided accountancy services for the brewery for 27 years. She submitted invoices in the name of her partnership (with her husband). The brewery then paid her a quarterly payment of £1,000 from 2011 onwards. She brought a number of claims including unfair dismissal and discrimination when the working relationship ended. The brewery denied that she was a worker or employee. The tribunal held that the Claimant was an independent contractor until 2011 when she became an employee. It preferred her evidence that the quarterly payment required her to work exclusively for the brewery, and that she had no right to appoint a substitute in her absence. The brewery appealed that decision on the basis that the tribunal had not looked at all the relevant factors on employment status, including her tax arrangements, and that she had prepared employment contracts for other staff but not herself, and was not a member of the employee share scheme. The EAT rejected the appeal. It held that Tribunal had been aware of the tax arrangements and the other factors but these had been overridden by other factors including mutuality of obligation, control and substitution. These factors, and the exclusivity obligation, were decisively in the Claimant's favour.
With thanks to Daniel Barnett’s employment law bulletin for providing this case summary.
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The Chartered Institute of Payroll Professionals
Payroll: need to know
cipp.org.uk
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