Employment Case Law Update April 2023


Read on for our monthly digest for employers on upcoming employment law changes and key employment cases that have recently been decided.


Tribunal procedure

Ebury Partners UK Ltd v Acton Davis

The claimant brought claims to the Employment Tribunal for wrongful and constructive termination. The Tribunal found against the claimant, and the claimant did not appeal to the EAT. Instead, he requested that the Tribunal reconsider its decision. The application was based on substantive rather than procedural concerns.

Rules 70 to 73 of the Employment Tribunal Rules of Procedure 2013 outline the Tribunal’s ability to reconsider a decision. In accordance with the Rules, a Tribunal may, either on its own initiative or at the request of a party, reconsider any judgement if it is necessary to do so in the interests of justice. The original decision may be verified, modified, or reversed upon reconsideration. A reconsideration request is distinct from an appeal to the EAT.

At the reconsideration hearing, the Tribunal rejected the claimant’s reasons for reconsidering the decision. However, on his own initiative, the judge proceeded to reevaluate the case in its entirety. Contrary to the original judgment’s conclusion, he concluded that the respondent had in fact violated the implied duty of trust and confidence owed to the claimant.

The respondent appealed on the grounds that the Tribunal judge should not have conducted a reconsideration at all, and even if it had, it should not have reached the conclusion that it did. The claimant also filed a cross-appeal regarding the correct interpretation of his employment contract.

The Tribunal decided to reconsider its verdict and conducted a hearing with both parties participating.

The EAT granted the appeal while rejecting the cross-appeal. It considered the significance of finality in litigation. It may be appropriate to reconsider a decision if there has been a procedural error, but reconsideration should not be used to rectify an alleged error by the Tribunal after the parties have been afforded a fair and adequate opportunity to present their case. As there was no purported procedural error, the judge of the Tribunal should never have agreed to reconsider the decision. The claimant should have instead filed an appeal with the EAT to contest a substantive issue.

Even if it had been possible for the Tribunal to reconsider its original decision, the EAT ruled that there was no basis for the judge to conduct the broad reconsideration that he did.


Restrictive covenants

Boydell v NZP Pharma Limited

The claimant, Dr. Boydell, was employed by NZP, a niche pharmaceutical company, as a Head of Commercial. The claimant resigned to start work for NZP’s main competitor. NZP sought an injunction to prevent this.

The employment contract contained a non-compete clause prohibiting Dr Boydell from working in any capacity for a competitor of NZP or any of its group companies for 12 months.

Dr Boydell argued that the non-compete clause was drafted too widely, and was an unfair restraint on trade as it prevented him from working for any company which produced general pharmaceutical products. This, he argued, went beyond what was necessary to protect his former employer’s legitimate interests.

Instead of finding the entire non-compete to be unenforceable, the High Court held that some of the wording could be severed, including the wording referring to other group companies. This left the remaining parts of the non-compete enforceable, meaning the High Court granted the injunction.

Dr Boydell appealed.

The Court of Appeal held that a non-compete clause can still be found to be valid and enforceable where it covers what it needs to, as well as unintentionally covering areas which are “fantastical”. As such, by severing the “fantastical” references to group companies, the High Court had not significantly changed the overall effect of the clause.


Tribunal procedure

Sainsbury’s Supermarkets v Clark & others

In 2015 and 2016, a large number of employees working in supermarkets brought equal pay claims against their employers, including Sainsburys. The claims had generally been brought on a multiple claim form, as permitted by rule 9 of the Employment Tribunals Rules of Procedure.

Sainsbury’s, however, alleged that the judge had erred in law in interpreting the Employment Tribunals Rules of Procedure 2013. It added that the employment tribunal should have rejected over 700 of those claims because the claim forms did not contain the ACAS early conciliation reference number.

The Court of Appeal dismissed Sainsbury’s appeal and upheld the EAT decision.

The court held, among other things, that the judge’s construction of rule 10 was correct. While a claim form should contain the name and address of each claimant and each respondent, it was sufficient for it to contain the number of an EC certificate on which the name of one of the prospective claimants appeared. All of the original equal pay claims continue to be part of the ongoing group litigation.


Need assistance?

If you have a question about employment case law and the impact of tribunal and court decisions on your business, DavidsonMorris’ experienced employment lawyers can help. Working closely with our specialist human resource colleagues, we offer a holistic advisory and support service for employers encompassing both the legal and people risks of workforce management. Speak to our experts today for advice.

Last updated: 26 April 2023

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