Wednesday, 15 April 2015

Tupe: When are employees assigned to a service?

The EAT in London Borough of Hillingdon v Gormanley 12 November 2014 has affirmed that the key authority on the definition of assignment remains the CJEU decision in Botzen v Rotterdamsche Droogdok Maatschappij BV [1985] ICR 519. This ruling requires consideration of the contractual duties of employees and their role in the organisational framework of the putative transferor.

At para. 66 we are also reminded of when the EAT may make a costs order against a party:

66.               The Employment Appeal Tribunal Rules 1993 (as amended) provide:
“34A(2A) If the Appeal Tribunal allows an appeal, in full or in part, it may make a costs order against the respondent specifying the respondent pay to the appellant an amount no greater than any fee paid by the appellant under a notice issued by the Lord Chancellor”

Langstaff P gave guidance on the application of Rule 34A(2A) in Look Ahead Housing v Chetty UKEAT/0037/14.  At paragraph 53 he held:
“For the benefit of other cases which may follow, it seems to me that in a case in which an appeal is brought which is entirely rejected, there is no basis for any payment by the successful party to the Appellant.  Where there is an appeal which is partly successful, all will depend upon the particular facts.  The Rule does not permit the payment of the actual costs of litigation, apart from fees, from one party to another.  What the court centrally has to assess is whether it was necessary to incur the expense in order to bring the appeal – this includes asking whether the appeal, as in the present case, could have been avoided by the Appellant taking reasonable steps, or was made more likely to proceed by the behaviour of the Respondent to it; it should then recognise the fact, if it be the case, that an appeal has largely failed or for that matter largely succeed in deciding, in its discretion, exercised reasonably, whether it should award the full extent of the payment made by way of fees, or whether it should moderate that amount to a reasonable extent.  A reasonable extent includes making no award at all, though in circumstances in which an appeal has been partly successful this would have to be carefully justified and is likely to be rare.”

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