Equality

04 May 2022 Summary An Employment Tribunal (ET) has rejected claims for unfair dismissal and direct discrimination as a result of action taken following an employee’s tweets on the subject of religion and Pride month, however has upheld a claim for indirect discrimination on the basis that the actions taken were outside of work and working time. Law European Convention on Human Rights Article 9 the freedom of thought, conscience and religion. 1. Everyone has the right to freedom of…

Business principles

23 March 2022 Summary An employee who raised a protected disclosure regarding working conditions, lack of PPE and appropriate training during the pandemic, and was subsequently dismissed for poor performance, was found to have been unfairly dismissed and subject to a detriment as a result of their disclosure.    Law Employment Rights Act 1996 (ERA)  Section s.98 - In order to show that a dismissal was fair, the employer must show that the dismissal was for a potentially fair reason. It is…

Equality

1 February 2022 Summary The Employment Tribunal (ET) has held that a plumber called “half dead Dave” by his colleagues, and dismissed without warning by reason of redundancy, was both discriminated against on grounds of age and unfairly dismissed.   Law Employment Rights Act 1996 Section 98(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason (or, if more than one, the principal reason)…

Equality

19 May 2022 Summary A menopausal employee had her claim for disability and sex discrimination rejected by the Employment Tribunal (ET), despite the ET finding that her menopausal symptoms could be a disability.   Law Equality Act 2010 Section 9: (1) A person (P) has a disability if – (a) P has a physical or mental impairment; and (b) The impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities… (2) This Act (except part 12…

Equality

17 May 2022 Summary An employment tribunal has found that a police officer was the victim of harassment and victimisation, related to a disability, following a number of issues at work, including getting the nickname 'Dolly Parton' for his 9 - 5 working hours.  Law Equality Act 2010 Section 26 (harassment): (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the … effect of— (i) violating B's…

Equality

11 May 2022 Summary An employment tribunal has concluded that calling an employee “bald” amounts to unlawful harassment. LAW Equality Act 2010 Section 26: A person (A) harasses another (B) if— A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of— violating B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Two tests need to be met for the conduct to amount to…

Equality , Termination

10 May 2022 Summary An employment tribunal has upheld a claim for indirect sex discrimination and constructive unfair dismissal brought by a working mother, who had been required by her manager to start working weekend shifts, despite her lack of access to childcare at the weekend. Law Section 19 Equality Act 2010 (EqA) Indirect discrimination – (1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a…

Equality

Summary An employment tribunal has held that an employer failed to make reasonable adjustments for a disabled employee, whom they also discriminated against and victimised, after they asked for their specially adapted seat and desk not be used by others and was disciplined for doing so. Law Equality Act 2010 Section 39(2)(c)&(d): an employer must not discriminate against an employee by dismissing him or subjecting him to a detriment. Section 13 (1) - Direct discrimination: (1) A person…

Equality

13 April 2022 Summary In this case, the Employment Appeal Tribunal (EAT) had to consider the comparison pool to be used in indirect discrimination claims and whether or not a provision, criterion or practice (PCP) to work late Thursday shifts disadvantaged the claimant as a woman. Law Section 19 of the Equality Act 2010 prohibits indirect discrimination: (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in…

Termination

7 April 2022 White v HC-One Oval Ltd Summary The Employment Appeal Tribunal was called upon to assess whether or not an employee who volunteered for redundancy could pursue an unfair dismissal claim. Law Section 94 Employment Rights Act 1996 (“ERA”). (1)  An employee has the right not to be unfairly dismissed by his employer. Section 98 ERA: (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (…

Equality

20 April 2022 SUMMARY The employment tribunal recently found that an employee who returned to work from maternity leave on a part-time basis after having triplets was subject to sex discrimination, a failure to pay equal pay, and less favourable treatment compared to a full-time equivalent male worker. LAW Equality Act 2010 Section 13 (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably that A treats or would treat others…

Equality

17 March 2022 Summary Specific legal protection applies to those who are pregnant, new mothers and those who have suffered a miscarriage (two weeks after the miscarriage). The Employment Tribunal (ET) in this case had to assess a matter of potential sex discrimination associated with miscarriage, outside of the protected period. Law Section 13 of the Equality Act 2010 provides: Direct Discrimination (1)    A person (A) discriminates against another (B) if, because of a protected…

Terms and conditions , Termination

25 February 2022 Summary The Employment Appeal Tribunal was asked to consider whether or not the claimant was dismissed by the respondents’ actions in terminating his employment early during his notice period, which he was serving as a result of his resignation. Law Section 95 Circumstances in which an employee is dismissed Employment Rights Act (ERA) 1996 (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (a)the contract under…

Employee relations

24 March 2022 Summary The Court of Appeal was tasked in this case with determining the limit of protection against a sanction short of dismissal in relation to industrial action, and how industrial action, and actions taken in preparation for it, differ to the activities of a trade union. Law Trade Union and Labour Relations (Consolidation) Act 1992 ("TULRCA") Part III of TULRCA concerns rights in relation to union membership and activities. Section 146 "Detriment on grounds related to…

Employees and workers

22 December 2021 Summary The Employment Appeal Tribunal had to consider the status of owner driver franchisees in this case on employment status and consider once again the written agreement between the parties, the extent that represented the true relationship between the parties and the right of substitution found within it. Law Autoclenz v Belcher The Supreme Court ruled that the individuals in this case were employees, on the basis that substitution clauses in their contracts were…

Employees and workers

25 February 2022 Summary This Court of Appeal (CoA) decision involved worker status and whether or not a commitment to offer or accept a minimum amount of work was crucial to worker status for the purposes of claiming holiday pay. Law Working Time Regulations 1998 Regulation 2(1) of the Regulations defines a worker in the following way: ""Worker" means an individual who has entered into or works under (or, where the employment has ceased, worked under) –              (a) a contract of…

Business principles

12 January 2022 Summary In this decision on vicarious liability, the Court of Appeal was called upon to consider the employer's liability for an employee's practical joke that resulted in hearing loss for the contractor involved. In particular, they had to consider to what extent an injury is foreseeable when the employer's materials are used to inflict injury.   Law The law in this area comes from common law, i.e. the decisions made by the courts, which become binding on other courts and…

Employees and workers

18 January 2022 Summary In another status case, the Employment Appeal Tribunal was called upon to weigh the balance of the requirement to provide personal service against the degree of control held by the claimant, and decide which side of the self-employed / worker status debate this particular claimant fell. Law Section 230(3) of the Employment Rights Act (ERA) 1996 defines a worker as follows: (3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an…

Employees and workers

17 February 2022 Summary The Court of Appeal has confirmed that agency workers do not have the right to apply for a directly employed vacancy with the hirer. The Agency Worker Regulations adapt into UK law the Temporary Agency Workers Directive from the EU and is designed to ensure fair treatment of agency workers from both the agency and the end user. Law The case concerns the proper interpretation of two important provisions of the Agency Workers Regs 2010: Reg 13(1) providing that…

Equality , Termination

4 January 2022 Summary An Employment Tribunal has found that an older employee with dementia was constructively dismissed, discriminated against, and humiliated because of her condition, when she was repeatedly asked if she wanted to retire and not offered an occupational health referral prior to her return to work after shielding. Law Employment Rights Act 1996 Section 95(1) An employee is dismissed by his employer if the employee terminates the contract under which he is employed (…

Equality , Discipline and grievance , Termination

1 December 2021 Summary In this decision on unfair dismissal and discrimination, the Employment Tribunal (ET) had to consider if an academic, who claimed her race and sex lead to inherent characteristics of being naturally loud and argumentative, and her body language demonstrative, was unfairly dismissed and discriminated against for the way she dealt with PHD students. Law Section 98 Employment Rights Act 1998 provides: (1) In determining for the purposes of this Part whether the…

Pay and benefits

1 February 2022 Summary Previously responsible for establishing the proper interpretation of substitution clauses, and therefore bringing many into the scope of ‘worker’ status in the gig economy, Smith has again successfully challenged his ex-employer, this time in relation to unpaid holiday pay for the entirety of his employment with them. Law The Working Time Regulations 1998 Regulation 13 - Entitlement to annual leave (1)    Subject to paragraph (5), a worker is entitled to four…

Equality , Business principles

18 January 2022 Summary In this decision on unfair dismissal, the Employment Tribunal (ET) had to consider if a contractual vaccination requirement was reasonable, and if a dismissal as a result of it was fair. It also had to consider the position when religious beliefs were asserted in connection with vaccine refusal. Law Section 98 Employment Rights Act 1998 provides: (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the…

Equality

7 October 2019 Summary In this decision on discrimination on the grounds of religion or belief, the Employment Tribunal (ET) had to consider if a doctor was discriminated against for refusing to address transgender patients by their chosen pronoun whilst performing their role carrying out health assessments. Law The Equality Act 2010: Section 10 (1) Religion means any religion and a reference to religion includes a reference to a lack of religion. (2) Belief means any religious or…

Business principles , Termination

6 December 2021 Summary In this decision on unfair dismissal related to health and safety, as a result of an employee’s refusal to attend the workplace due to fear of serious or imminent danger from Covid, the Employment Tribunal had to consider if ‘something more’ than merely the existence of Covid was required for an employees refusal to attend work to be reasonable and protected from dismissal. It also had to decide if the employer’s actions in dismissing rather than discussing the matter…

Family friendly and flexible working rights

9 December 2021 Summary In this decision on flexible working decision periods, the Employment Appeals Tribunal (EAT) had to decide if the Tribunal was correct in deciding that the three-month decision-making period under the flexible working rules had been extended by retrospective agreement, and therefore the claim before the Employment Tribunal (ET) was premature and as such outside of its jurisdiction to hear.    Law Part 8A of the Employment Rights Act 1996 ("ERA") and the Flexible…

Discipline and grievance , Termination

21 December 2021 Summary In this decision on unfair dismissal and subsequent remedy hearing, the Employment Tribunal (ET) had to consider whether or not the actions of the employer in this case were designed to “exit the claimant out of the business”, and that if targeting the claimant for behaviour that would otherwise been ignored in better performing stores was fair. It also had to consider how much the claimant contributed to the actions of the employer.   Law Employment Rights Act…

Equality

22 December 2021 Summary In this decision on protected beliefs under the Equality Act 2010, the Employment Tribunal (ET) was asked to decide if a fear of catching Covid was sufficiently held to be protected under the legislation, and if a decision to withhold pay for refusal to return to the office due to this belief was an act of unlawful discrimination. Law Section 10(2) Equality Act 2010 (2) Belief means any religious or philosophical belief and a reference to belief includes a…

Discipline and grievance , Termination

15 December 2021 Summary In this decision on unfair dismissal, the Employment Appeal Tribunal (EAT) had to consider whether or not the Employment Tribunal (ET) conclusions were perverse in a case where numerous and vexatious grievances were found to be a fair reason for dismissal, and if it had erred in failing to consider whether the conduct relied upon was capable of amounting to gross misconduct in the contractual sense and that the ET’s Law Employment Rights Act 1996 (ERA) Section 98…

Equality

1 December 2021 Summary In this decision on race discrimination, the Employment Tribunal (ET) had to consider whether or not a black employee had been treated differently to a hypothetical white employee. Whilst no evidence of malice was found, it was felt by the court that unconscious bias had impacted on the decision making of the all-white panel involved in her disciplinary process.   As an ET decision, this is not binding authority. However, it is reflective of the direction the courts…