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Case Law Round Up

23 March 2023

Hope v British Medical Association (2022)

This case provides a degree of comfort for employers, in that it shows it’s possible to dismiss fairly where an employee is abusing the grievance procedure, but also reinforces the need to tread carefully and not rush to take disciplinary action against the employee.

Here the Employment Appeal Tribunal determined that the British Medical Association had acted reasonably after dismissing an employee who had raised seven grievances during a period of only 13 months. Mr Hope was dismissed on the grounds of gross misconduct for submitting multiple, vexatious grievances and failing to follow a reasonable management instruction by not attending a grievance meeting. As Pam Loch, identified in an article she wrote last year, employers are facing an ‘unprecedented’ increase in employees raising grievances and malicious grievances. Employers should continue to carefully assess the merits of each grievance raised by an employee. Contact us if you need help developing policies or carrying out investigations, managing grievances or disciplinary processes.


Lloyd v Elmhurst School Limited (2022)

In this unlawful deductions claim the EAT carried out an assessment of what the meaning of basic hours was for the purpose of Regulation 21 (3) of The National Minimum Wage Regulation. The EAT considered if a learning support assistant was entitled to receive the National Minimum Wage for unworked basic hours falling outside school terms. The EAT decided that in determining what is a worker’s basic hours for these purposes, you must focus on what the contract says. Basic hours, therefore, can include working hours which would not otherwise be working hours. In this case the drafting of the employee’s Employment Contract was not as detailed or precise as it could be. As a result the EAT held the Tribunal had erred and in dismissing the worker’s claim for unlawful deductions. The case was remitted to another Tribunal. This case reinforces the need to ensure your employment contracts are well drafted.


Benyatov v Credit Suisse (Securities) Europe Ltd (2022)

The Court of Appeal unanimously dismissed Mr Benyatov’s claim for $86m in loss of earnings. Mr Benyatov’s dismissal followed his arrest and conviction for commercial espionage and membership of an organised crime group, in connection with his advisory work on a utility privatisation in Romania in 2006. The Court held that Credit Suisse did not owe Mr Benyatov a duty of care to protect him from criminal conviction in the performance of his duties, or to compensate him pursuant to the implied duty to indemnify in his employment contract. Although employees are typically entitled to the repayment of any costs/expenses reasonably incurred in carrying out their duties, the Court found there is no implied contractual indemnity to cover all losses of any kind, including loss of earnings that an employee may suffer due to performing their job, notwithstanding any fault on the part of the employer.

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