Jurisdiction; EU rights; directly effective EU rights can be enforced in the UK even if the employment is outside Great Britain. [Summary checked against a practitioner text, not the judgment.]
Jurisdiction; territorial scope; teachers employed by the UK government in European Schools were within UK jurisdiction. [Summary checked against a practitioner text, not the judgment.]
Res judicata; taxonomy. Lord Sumption's restatement (paras 17-26), with which Lord Toulson agreed [42]: 'res judicata' is a portmanteau term for six principles with different origins [17]: cause of action estoppel; the rule that a successful claimant may not sue again on the same cause of action for more (Conquer v Boot); merger of the cause of action in the judgment; issue estoppel; the rule in Henderson v Henderson against raising matters that could and should have been raised earlier; and the general rule against abusive proceedings. Henderson v Henderson is part of the law of res judicata as well as an abuse-of-process rule [24]-[25]. The standard starting point for any relitigation argument, in the ET as elsewhere.
Cited by
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Res judicata; issue estoppel; dismissal for want of jurisdiction. No estoppel arises from an ET's dismissal of a discrimination claim as out of time where there has been no adjudication of any substantive issue: the claimant could pursue a personal injury claim in the High Court on the same facts. A jurisdictional dismissal is not automatically incapable of founding an estoppel — it binds as to any issue actually decided — but where the tribunal never engaged with the merits there is nothing on which an estoppel can bite.
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Holiday pay; Working Time Regulations 1998; non-guaranteed overtime; series of deductions. Conjoined EAT appeals with Hertel (UK) Ltd v Woods and Amec Group Ltd v Law. Pay for non-guaranteed overtime the worker is required to work counts as normal remuneration for the four weeks' leave under reg 13, and a gap of more than three months between underpayments breaks a 'series of deductions' for s.23 ERA 1996. The three-month rule was overruled by the Supreme Court in Chief Constable of the Police Service of Northern Ireland v Agnew [2023] UKSC 33. [Summary not yet checked against the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Holiday pay; unlawful deductions; series of deductions. A 'series' of deductions is not automatically broken by a gap of three months or more between underpayments, nor by an intervening lawful payment: whether deductions form a series is a question of fact, and underpayments linked by a common fault — here the systematic calculation of holiday pay at basic pay rather than normal pay — can constitute a series despite such gaps. Disapproves the three-month-gap rule derived from Bear Scotland v Fulton.
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Discrimination; time limits; conduct extending over a period (s.123(3) EqA 2010). The EAT held that conduct extending over a period need not all relate to the same protected characteristic or type of prohibited conduct, but this may be harder to establish. Crucially, it is not enough that incidents are linked (e.g. arising from the same restructuring); there must be an 'ongoing situation or a continuing state of affairs' that is discriminatory (Hendricks). Where incidents involve different people, different characteristics, and substantial gaps in time, the tribunal must clearly identify the continuing discriminatory conduct.
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Jurisdiction; state immunity; administrative staff of a diplomatic mission. The EAT dismissed Malaysia's cross-appeal against a finding that it had no immunity under s.16(1)(aa) SIA 1978 in a wages claim by a High Commission employee. Applying Benkharbouche, Costantine and Alhayali, whether the employment of administrative and technical staff is an exercise of sovereign authority turns on the proximity of the employee's functions to the governmental functions of the mission, an evaluative judgment for the tribunal [41]-[47]; that the work assists the mission is not enough [56]. A claim for pay under an alleged past agreement did not engage sovereign authority: it sought compensation for past treatment, not appointment or reinstatement, so did not restrict the state's right to choose its staff [72]-[74]. Immunity may still attach where a claim engages sovereign interests, such as dismissal for reasons of state security or a challenge to recruitment policy [30], [38]. [Summary not yet checked against the judgment.]