Court of Appeal hands down judgment in Robinson v Al Qasimi


Re: Robinson v His Highness Sheikh Khalid Bin Saqr Al Qasim [2021] EWCA Civ 862

Last week the Court of Appeal handed down judgment in Robinson v Al Qasimi. This appeal concerned the defence of illegality in an employment context and the statutory interim relief regime in the context of alleged automatic unfair dismissal.

In relation to the illegality defence, the Court of Appeal held that the long-standing test of “knowledge plus participation” (applied consistently in the employment law field since the Court of Appeal’s decision in Hall v. Woolston Hall Leisure [2001] 1 WLR 225) was a necessary, but not a sufficient, criterion for the defence to succeed. It was necessary for an assessment of proportionality to be performed, having regard to the “trio of considerations” set out by Lord Toulson in the Supreme Court in Patel v Mirza [2017] AC 467 (see at [70] of the judgment).

As for interim relief, the Court of Appeal held that the EAT was not required to remit the question of interim relief (having found there was an error of law in the approach taken by the ET) in circumstances where the Claimant had failed in her automatic unfair dismissal claim at the substantive hearing. The Court of Appeal held that “the EAT would have made itself a party to an absurdity, as well as an injustice, if it had required the ET to close its eyes to what everyone by then knew, which was the outcome of the final hearing” (see at [138] of the judgment).

James Laddie QC and Mark Greaves, instructed by Jo Davis of BP Collins LP, acted for the Respondent.

A link to the judgment is available here.