Case watch: postponements; holiday pay; TUPE; appeal

Under the Employment Tribunal Rules of Procedure, tribunals have a discretion to postpone or adjourn any hearing. In Eastwood v Winckworth Sherwood, the EAT has held that a pre-hearing review should have been adjourned where the respondent had not provided the claimant with sufficient documentation in time for him to properly prepare for the hearing.

In AD Bly Construction Limited v Cochrane the EAT overturned the decision of the tribunal and found that a self-employed construction worker was not entitled to receive holiday pay because he did not satisfy the definition of ‘worker’ under the Working Time Regulations 1998 because there was not sufficient mutuality of obligations between the parties.

The EAT in Balfour Beatty & another v Wilcox & others has held that an outsourcing contract which did not contain any guarantee of the amount or the continuation of work could still be a stable economic entity capable of a TUPE transfer. Also, where the undertaking was reliant on significant plant and equipment, the fact that the plant and equipment was leased and therefore could not transfer did not prevent there being a transfer of the undertaking.

In Piscitelli v Zilli Fish Limited the EAT has decided that a solicitor’s letter before action had not raised an appeal against dismissal under the Dispute Resolution Regulations 2004. The employee did not therefore have reasonable grounds for believing an internal appeal procedure was under way and his claim was therefore out of time.

Since Sharp, the Court of Appeal in Armstrong and others v Newcastle Upon Tyne NHS Hospital Trust has taken a different view but without taking account of relevant EU case law. The law in this area will now remain uncertain until the matter comes again before the Court of Appeal or the House of Lords.

Bess Sturman and Richard Port are associates in the employment group at Addleshaw Goddard

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