Employment Law Case Update – April 2023
The devil is in the detail. This month’s case updates include recusing an EAT member for apparent bias to ensure impartiality, upholding a procedural system so that mass litigants could not be removed from an equal pay case, and taking a look at the detail of restrictive covenants, to reduce the effect where it was too fantastical to be valid.
- Tribunals: EAT lay member recused due to appearance of bias
- Equal Pay: 700 Sainsbury’s staff to remain in equal pay claim
- Restrictive Covenants: Is a restrictive covenant still valid if it unintentionally covers “fantastical” areas which were not contemplated, as well as what it set out to do?
Tribunals: EAT lay member recused due to appearance of bias
In Higgs v Farmor’s School and the Archbishops’ Council of the Church of England  EAT 45, the EAT allowed the appellant’s application for the recusal of a lay member from hearing the instant appeal against the respondent. The appellant had filed for an application for the recusal of the lay member, AM, from the hearing of the appeal based on apparent bias. It was alleged that AM’s former position as Assistant General Secretary of the National Education Union (NEU), when that entity was campaigning on matters of educational policy, had publicly expressed clear views, on the opposite side of a heated debate to the position of the appellant. The respondent did not consent to the application for recusal.
The court held, among other things, that a reasonable and well-informed observer would not see AM as an impartial judge for the appeal. Accordingly, applying the test of the fair-minded and informed observer (Porter v Magill), there was an appearance of bias such that the lay member should be recused from hearing the appeal.
Equal Pay: 700 Sainsbury’s staff to remain in equal pay claim
In Sainsbury’s Supermarkets Ltd v Clark  EWCA Civ 386 the Court of Appeal, Civil Division, dismissed the appeal brought by the appellant, a supermarket company, from a decision which had allowed the respondents’ appeal and reinstated their claims. In 2015 and 2016 a large number of employees working in supermarkets brought equal pay claims against their employers, who included the appellant and other well-known retailers. The case involves two separate but related equal pay claims against Sainsbury’s Supermarkets Ltd and Lloyds. One was brought by women seeking equal pay to male staff and another that would ensure men’s pay does not fall below the women’s if the first claim succeeds.
The claims had generally been brought on a multiple claim form, a type of document expressly permitted by rule 9 of the Employment Tribunals Rules of Procedure. The appellant alleged that the judge had erred in law in interpreting rules 10 and 12 of the Employment Tribunals Rules of Procedure 2013. It added that the employment tribunal should have rejected large numbers of those claims on the grounds that the claim forms did not contain the reference number of a certificate issued by the Advisory, Conciliation, and Arbitration Service relating to early conciliation (EC) of their claims.
The court held, among other things, that the judge’s construction of rule 10 was the correct one. A panel of three judges in the Court of Appeal unanimously ruled that the attempt by Sainsbury’s to remove the majority of claimants in the 865-person lawsuit because their names were not listed in early-stage paperwork was “highly technical” and lacked “any substantive merit”. 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. There was no suggestion the 700 workers had failed to follow the correct procedure, Lord Justice Bean held.
“It has been repeatedly stated that employment tribunals should do their best not to place artificial barriers in the way of genuine claim”’, Lord Justice Bean wrote. “The complaint is no more and no less than that the employment tribunal claim form did not give the appropriate certificate number”.
Tribunal rules requiring claimants to provide this information are a “preliminary filter” rather than an opportunity to strike out a claim, he added. “I do not accept…that the existence of the certificate should be checked before proceedings can be issued, still less to lay down that if the certificate number was incorrectly entered or omitted the claim is doomed from the star”’, Lord Justice Bean ruled.
Accordingly, the Court upheld the EAT’s decision in the respondents’ favour for a more fundamental reason relating to the structure and wording of the Rules of Procedure.
Restrictive Covenants: Is a restrictive covenant still valid if it unintentionally covers “fantastical” areas which were not contemplated, as well as what it set out to do?
The Court of Appeal in Boydell v (1) NZP Limited and (2) AI ICE (Luxembourg) Midco S.A.R.L.  EWCA Civ 373, was tasked with considering whether a restrictive covenant that covered what it needed to and what had been contemplated by the parties, but also unintentionally covered other areas (described as “fantastical”) and which had not been contemplated, can it still be valid?
Dr Boydell worked for NZP Ltd, a specialist pharmaceutical business covering a niche area of the pharmaceutical industry described in summary as the development, production and sale of bile acid derivatives for sale to pharmaceutical companies for use by them in their products and is part of the ICE Pharma Group of companies (the second defendant being the ultimate holding company). His contract of employment included a non-competition covenant preventing him from working in any capacity for any competing businesses of either NZP or any of its group companies.
NZP and ICE sought to enforce two sets of restrictive covenants. One set, contained in a variation to the Appellant’s employment contract, ran for one year from the termination of his employment. The other set, contained in a shareholder’s agreement ran for two years. The judge granted an interim injunction enforcing the one year covenants in the employment contract until the trial, with some modifications but refused to enforce the two year restrictions in the shareholder’s agreement (which the companies did not seek to appeal). In doing so, the Judge severed certain parts of the clause, including removing the reference to other group companies. This decision was appealed by NZP who argued that the Judge could not use severance to significantly change the effect of the restraints.
The Court of Appeal disagreed and held that if a clause covers what it needs to and what was contemplated but also unintentionally covers areas which are “fantastical” (Home Counties Dairies Ltd v Skilton) then it may still be valid. If there are two realistic constructions then the court should rely on the one which would result in a valid clause. This meant that, by severing the references to group companies (which were “fantastical”), the Judge had not significantly changed the overall effect of the clause.
Lord Justice Bean (at para.30) said, “The whole burden of the clause is directed to the specialist activities of NZP, which it lists at some length. The judge was entitled, at least at the interim injunction stage, to sever the words from the clause and grant an injunction on a more limited basis. There is a serious question to be tried as to whether other group companies have significant areas of business which are wholly distinct from the activities carried out by NZP. I would, however, refuse Ms Stone’s application for permission to cross-appeal against the judge’s decision to sever the relevant words from clause 3.1.”
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