Overtime payments in the absence of an agreementThe court will imply an agreement | |||
Driver v Air India Ltd [2011] EWCA Civ 830 | |||
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10/08/2011
The Court of Appeal with Lord Justice Rix presiding in Driver v Air India Ltd decided whether a court may imply a contractual payment to be applied when the parties have made no prior agreement. Mr Driver claimed he was contractually entitled to be paid for ad hoc overtime by his employer Air India. The contract however stated that overtime payment provisions were published in "notices and circulars issued by Air India from time to time". But no such notices had been published although overtime had in fact been previously paid to the Claimant. The respondent Air India argued that as there notices or circulars had not been issued no contractual duty to pay for overtime existed. However the previous payments needed explanation, which was not forthcoming. The Court found that even though the contract will not be construed by subsequent conduct, previous overtime payments may be persuasive. The Court of Appeal's judgment found in favour of the Claimant that in the absence of a contractual payment being specified a reasonable sum will be implied. |
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| Transcript of the judgement:- Driver v Air India Ltd [2011] EWCA Civ 830 |
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| 2011 Overtime payments in the absence of an agreement - Driver v Air India Ltd [2011] EWCA Civ 830 Mere suspicion that a representative was acting for profit was not enough for imposing wasted costs - Jackson v Cambridgeshire County Council & Ors (Practice and Procedure : Costs) [2011] UKEAT 0402_09_0806 Muslim guard disallowed from leaving his work to pray at a mosque was not discriminated against - Cherfi v G4S Security Services Ltd (Religion or Belief Discrimination) [2011] UKEAT 0379_10_2405 Judicial proceedings immunity applies to all types of discrimination including victimisation - Parmer v East Leicester Medical Practice (Victimisation Discrimination) [2011] UKEAT 0490_10_0103 An abused worker's unfair dismissal and race discrimination claim was refused for illegality - Allen (Nee Aboyade-Cole) v Hounga & Anor [2011] UKEAT 0326_10_3103 Pay protection may be a proportionate means of achieving a legitimate aim provided that sums awarded don't result from past discrimination. - Audit Commission v Haq & Ors [2011] UKEAT 0123_10_1803 Provided a claimant does part of the work in the UK an ET may hear a race or age discrimination claim. - British Airways Plc v Mak & Ors [2011] EWCA Civ 184 TUPE transfers apply where the transferor was in administration - OTG Ltd v. Barke & Ors [2011] UKEAT 0320_09_1602 The Court of Appeal limits the scope of employers to break strikes using interim injunctions - National Union of Rail, Maritime & Transport Workers v Serco Ltd (t/a Serco Docklands) [2011] EWCA Civ 226 Employment Tribunal Written Reasons must contain sufficient detail to understand the decision - Greenwood v. NWF Retail Ltd [2011] UKEAT/0409/09/JOJ Employer's justice - the worker had his hours cut and suffered racial discrimination yet the Court of Appeal finds his dismissal 'equitable' and 'fair' - Orr v Milton Keynes Council [2011] EWCA Civ 62 Failing to consider a reasonable offer of settlement or to make a counter offer can lead to an employment tribunal making a costs order. - G4S Services v Rondeau [2009] UKEAT 0207/09/DA Where an employee alleges unlawful conduct by his employer to his employer's own solicitor this is not defamatory. - Wallis & Anor v Meredith [2011] EWHC 75 (QB) Pay protection should have been extended to female staff (after withdrawal of bonuses to males)under the Equal Pay Act 1970 - Bury MBC v Hamilton and Sunderland City Council v Brennan [2011] UKEAT Under the RRA76 the employer was not vicariously liable for race discrimination by third party employees (the Equality Act 2010 section 40 changes this) - Conteh v. Parking Partners Ltd [2010] UKEAT 0288_10_1712 Discrimination against gay customers was also unlawful sex orientation discrimination against the claimant employee - Lisboa v. Realpubs Ltd & Ors [2011] UKEAT 0224_10_1101 Employment tribunal under no obligation to transfer unfair dismissal, racial discrimination, religious discrimination and sums due case to the tribunal nearest the workplace - Faleye & Anor v UK Mission Enterprise Ltd & Ors [2010] UKEAT 0359_10_0809 Contractual bonuses and pay in lieu of notice (PILON) - Locke v Candy and Candy Ltd [2010] EWCA Civ 1350 Where there is no unfair dismissal or otherwise termination of employment the tribunal may not consider breach of contract claims - Southern Cross Healthcare Co Ltd v Perkins & Ors [2010] EWCA Civ 1442 Trying to re-argue the facts at appeal on the grounds of bias or perversity is no easy task - Clarke v Zurich UK General Services Ltd [2010] EWCA Civ 1333 A distinction is made between treatment on the grounds of a person's beliefs and on the grounds of the manifestation of those beliefs - Power v. Greater Manchester Police Authority [2010] UKEAT 0087_10_0810 The "nature, gravity and effect" of misconduct must be taken into account when deciding whether to make (and if so the amount of) a costs award - Yerrakalva v. Barnsley Metropolitan Borough Council & Anor [2010] UKEAT 0231_10_0812 The effective date of termination does not change just because the employee has been allowed to leave early - South Manchester Abbeyfield Society Ltd v Hopkins & Anor [2010] UKEAT 0079_10_3011 Under the National Minimum Wage Act and National Minimum Wage Regulations workers may only claim for hours they are awake for the purpose of working. - South Manchester Abbeyfield Society Ltd v Hopkins & Anor [2010] UKEAT 0079_10_3011 When less favourable treatment amounting to a detriment follows a protected disclosure the employer must prove it was "in no sense whatsoever on the ground of the protected disclosure" - Fecitt & Ors v. NHS Manchester [2010] UKEAT 0150_10_2311 Establishing a contract of service and thence unfair dismissal remains a tall order for an agency worker - Tilson v Alstom Transport [2010] EWCA Civ 1308 The duty of fidelity and fiduciary obligations must remain separate and are in any case not imposed on employees; fidelity does not extend to reporting one's own or fellow employees' misconduct - Lonmar Global Risks Limited v West and Others [2010] EWHC 2878 (QB) Employers don't need to justify age discriminatory behaviour in terms of "legitimate social policy objectives" - Seldon v. Clarkson Wright & Jakes [2010] Court of Appeal A2/2009/0149 Those seeking to profit out of the discrimination legislation will face costs - Berry v. Recruitment Revolution [2010] UKEAT 0190_10_0610 Court of Appeal re-interprets clause of BA contract to avoid 'disastrous' consequences for the firm (the employees must work harder and more stressful shifts) - Malone & Ors v British Airways Plc [2010] EWCA Civ 1225 EAT questions 'cost plus' approach to justification in discrimination - Woodcock v Cumbria Primary Care Trust [2010] UKEAT 0489_09_1211 Workers whose employment contract was made with a company that did not actually employ them are still entitled to TUPE protections upon transfer. The "Transferor" is the company in the group that they actually worked for - Albron Catering BV v FNV Bondgenoten C-242/09 Being incorrectly summarily dismissed for misconduct still amounted to a fair but wrongful dismissal - Weston Recovery Services v Fisher [2010] UKEAT 0062_10_0710 Not unfair dismissal despite having occurred during the protected consultation period contrary to s. 188 TULRCA s.188(8) - Hammonds LLP & Ors v Mwitta [2010] UKEAT 0026_10_0110 The Court of Appeal refers the timing of worker consultation under TUPE to the ECJ - United States of America v Nolan [2010] EWCA Civ 1223 A redundancy consultation means explaining the scoring to the employee and seriously considering his comments - Pinewood Repro Ltd v. Page [2010] UKEAT 0028_10_1310 |
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