Pay and benefits

The EAT has provided guidance on situations where deducting wages for training costs and accommodation expenses could put organisations in breach of minimum wage law. As outlined in the National Minimum Wage Act 1998 (NMWA), and clarified by the National Minimum Wage Regulations 2015 (NMWR), workers must be paid at least the current rate of the minimum wage as set by the government. The law does permit certain deductions to be made from wage calculations that do not place organisations in…

Discipline and grievance , Termination

The Employment Appeal Tribunal (EAT) has ruled that the ET erred by finding evidence from an external witness was unreliable and made a decision to dismiss unfair. Under the Employment Rights Act 1996, in order to demonstrate that the decision to dismiss an employee is fair, organisations need to clearly show the reason for the dismissal. It also needs to be established that their actions leading up to the decision to dismiss fell inside the ‘band of reasonable responses’ to the situation that…

Equality

The Employment Appeal Tribunal (EAT) has ruled that an employment tribunal (ET) was right to rely on medical evidence from a GP when it was contradicted by the claimant in a discrimination claim. Under the Equality Act 2010, a person, (A), discriminates against a disabled person (B), if A treats B unfavourably because of something arising in consequence of B’s disability and cannot show this treatment is a proportionate means of achieving a legitimate aim. For example, if an organisation…

Equality

The Employment Appeal Tribunal has ruled that a tribunal proceeded on a false basis by not requiring the disclosure of documents relating to the refusal of an employment opportunity due to potentially racist reasons. Under the Equality Act 2010, organisations are prohibited from discriminating against individuals on the basis of their race and religion. This includes denying them opportunity for promotion or new roles. During employment tribunal proceedings, a preliminary hearing may be held…

Termination

The Employment Appeal Tribunal (EAT) has ruled that a group of claimants were unfairly dismissed by a local authority when the school they worked in closed and they were unsuccessful in applying for positions at a new school in the same location. As outlined in the Employment Rights Act 1996 (ERA), a redundancy is a potentially fair reason for dismissal. However, when implementing a redundancy procedure, organisations need to ensure that it is fair and that they are able to justify the…

Business principles , Termination

The Employment Appeal Tribunal (EAT) has held that in TUPE situations, transfer-related contractual changes are void even if they benefit the employee and not just when they are detrimental. Aside from transfer of business ownership, TUPE transfers, and the laws that surround it, can also come into effect when where the provision of services ceases to be carried out by one contractor (known as the ‘transferor) and is allocated to another (known as the ‘transferee’). This is known as a ‘service…

Termination

The Employment Appeal Tribunal (EAT) has found that in claims of constructive dismissal, even if the ‘last straw’ act that led to a resignation is considered ‘innocuous’, claimants can still rely on prior actions from the organisation.   To establish constructive dismissal, claimants must show that the organisation’s actions amounted to a serious breach of contract that led to their resignation. However, this can be difficult to prove if they continue to work for the organisation after such an…

Employees and workers

The European Court of Justice (ECJ) has assessed whether a gig-economy worker who was able to provide substitutes when doing work for an organisation could still be classed as a ‘worker’ and not ‘self-employed’. UK law outlines that individuals classed as ‘workers’ are those who perform services personally for an organisation that is not considered their client or customer. Examples include casual, agency or freelance workers. In contrast, self-employed individuals are those who provide…

Equality

The Employment Appeal Tribunal (EAT) has ruled that a tribunal had erred by finding an organisation had harassed an employee despite also finding its officers had not been motivated by discrimination. Under the Equality Act 2010, direct discrimination occurs where a person is treated, or would be treated, less favourably ‘because of’ a protected characteristic compared with others in like-for-like circumstances. If the claimant establishes a case which at first sight indicates that…

Judgement published:
Terms and conditions , Business principles

The High Court has provided further clarity on how the Job Retention Scheme works during a situation of company insolvency. In situations where organisations become insolvent and therefore enter administration, administrators normally have 14 days following their appointment in which to dismiss that organisation’s workers. This is important to avoid liability for their employment and their wages. In March 2020, as a result of the coronavirus outbreak, the government introduced the Job…

Equality

The Supreme Court has ruled that Barclays were not liable for sexual assault committed by a GP on employees after the bank contracted him to conduct medical checks. Organisations can be liable for acts committed by their employees if it is found that their actions are sufficiently connected to their employment. However, this doctrine of vicarious liability has also extended beyond employment into other employment relationships, including those between an organisation and an independent…

Judgement published:
Business principles

The Supreme Court has overturned previous rulings, finding that Morrisons were not vicariously liable for the actions of an employee who illegally distributed personal data of nearly 100,000 staff. Organisations can be liable for acts committed by their employees if it is found that their actions are sufficiently connected to their employment. Since this doctrine was introduced, there have been numerous cases which established this liability. In Mohamud v Wm Morrison Supermarkets plc, the…

Pay and benefits

The EAT has overturned a previous ruling from the employment tribunal, finding that Middlesbrough FC had unlawfully deducted wages from their staff when taking money from salaries for season tickets. Under the National Minimum Wage Regulations 2015, employees are entitled to be paid at least the national minimum wage. There are certain deductions that can be made from their wage without going below the minimum, such as tax and National Insurance contributions. The Regulations also outline…

Business principles

The Employment Appeal Tribunal (EAT) has held that a claimant did not make protected disclosures and, therefore, was not subjected to a detriment in the eyes of whistleblowing law. Under the Employment Rights Act 1996, workers are protected from dismissal if the reason, or principal reason, for their dismissal is that they have made a 'protected disclosure'. They are also protected from being subjected to a detriment. In order for a complaint to be considered a protected disclosure, it needs…

Equality

The Employment Appeal Tribunal (EAT) has ruled that two officers suffered discrimination after a compensation payment, provided as part of a voluntary exit scheme, was capped due to their receiving deferred pensions. The Equality Act 2010 outlines that it is unlawful to treat a disabled person unfavourably because of something arising from, or in consequence of, this disability. It is, however, possible to justify such treatment if it can be shown to be a proportionate means of achieving a…

Termination

The Employment Appeal Tribunal (EAT) has held that it was reasonable for a charity to dismiss an long-service employee with criminal charges due to the potential for reputational damage. Under the Employment Rights Act 1996, there are five potentially fair reasons to dismiss an employee, which includes some other substantial reason (SOSR). Generally, these dismissals arise when there are fears that maintaining the employment of an individual could result in reputational damage for an…

Business principles

The Employment Appeal Tribunal (EAT) has ruled that an employee whose job offer was retracted when they refused to work Sunday hours was not automatically unfairly dismissed. The Employment Rights Act 1996 (ERA) provides shop and betting workers with the right to object to working on Sunday, in certain circumstances. Essentially, an employee in this situation can opt-out of Sunday working provided their contract of employment requires, or may require, them to work on Sundays and Sunday is not…

Equality

The Court of Appeal has upheld earlier decisions that a provision criterion or practice (PCP) can be established by one-off acts committed by an organisation, but not always. Under sections 20 and 21 of the Equality Act 2010, organisations have a legal duty to make reasonable adjustments to assist disabled employees where a PCP places them at a substantial disadvantage. If reasonable adjustments are not made, the organisation could be liable for a claim of disability discrimination. There is…

Business principles

The Court of Appeal has ruled that an organisation was not liable for the damage to a whistle blower’s reputation that came about as a result of them labelling his accusations as ‘without foundation’. Under the Employment Rights Act 1996, workers are prohibited from being subjected to any detriment because they have made a protected disclosure. What amounts to a detriment is not outlined in the Act and, historically, it has been up to tribunals to determine this through case law concerning…

Equality

The Employment Appeal Tribunal (EAT) has ruled that, when bringing a claim of disability discrimination, a claimant must show that their condition has a ‘long-term effect’ at the time of the alleged acts of discrimination. The Equality Act 2010 makes it unlawful to discriminate against an individual, directly or indirectly, due to their having a disability. The Act also prohibits victimisation, which is where an individual is subjected to a detriment as a direct result of bringing a complaint…

Discipline and grievance

The Employment Appeal Tribunal (EAT) has held that there can be circumstances where, when considering misconduct, a separate investigatory and disciplinary hearing is not required. Under section 98(4) of the Employment Rights Act 1996 (ERA), whether a dismissal is fair or unfair will depend on whether the organisation acted reasonably in treating the employee’s conduct as a sufficient reason for dismissing them. The case of British Home Stores v Burchell provides further clarification,…

Equality

The employment tribunal (ET) has found that the BBC failed to demonstrate its actions in paying two presenters substantially different salaries was not related to their gender. Under the Equality Act 2010, male and female employees must receive equal pay for equal work. The work does not have to be related to the same role; it can be work which is the same or broadly similar and any differences are not of practical importance in relation to employment terms and conditions. This is known as ‘…

Equality

The employment tribunal has ruled that ethical veganism is a philosophical belief and, therefore, should be granted legal protections under the Equality Act 2010. Under the Equality Act 2010, employees are able to bring claims if they are subjected to forms of discrimination because of a ‘philosophical belief’.  In the case of Grainger v Nicolson, the Employment Appeal Tribunal (EAT) provided guidance on what could constitute as a ‘philosophical belief’. Amongst other criteria, they outlined…

Equality

The Employment Appeal Tribunal (EAT) has ruled that individuals who have been dismissed, but then later reinstated, can still claim that their dismissal amounted to a detriment under the Equality Act 2010. Under the Equality Act, an individual is victimised when they are subjected to a detriment because they have done, or it is believed they have done, a ‘protected act’. For example, if an individual brings a complaint that they have been discriminated against as a result of their disability…

Equality

The Employment Appeal Tribunal (EAT) has ruled a claim of direct sex discrimination, brought after an organisation failed to pay the claimant an additional London allowance whilst she was on maternity leave, did not require the establishment of a comparator to succeed. Under section 13 of the Equality Act 2010, when bringing a claim of direct discrimination, a claimant will need to demonstrate that they were treated less favourably as a result of a protected characteristic than a real or…

Termination

The Employment Appeal Tribunal (EAT) has ruled that it was incorrect for a tribunal to presume that only an act of gross misconduct could contribute to a dismissal.   In situations where a claimant successfully claims unfair dismissal, they can still be subject to deductions from their overall compensation award. Polkey deductions stem from the case of Polkey v AE Dayton Services Ltd. Under Polkey, if it is likely that the claimant would have been dismissed anyway had the organisation in…

Business principles , Discipline and grievance , Termination

The Employment Appeal Tribunal (EAT) has ruled that managers who disrupt normal proceedings by ‘meddling’ in them can lead to organisations facing successful unfair dismissal claims. Under the Trade Union and Labour Relations (Consolidation) Act 1992, it is automatically unfair to dismiss an employee on grounds related to trade union membership or activities. Facts In this case, the claimant was a senior gas engineer who had been employed by the organisation for 29 years and had an…

Termination

The Supreme Court has ruled that in situations where the real reason behind the decision to dismiss an employee is hidden from the decision-maker by an ‘invented reason’, it is the hidden, real reason that should be taken as the true reason for dismissal. When a worker makes a protected disclosure, section 47B of the Employment Rights Act 1996 (ERA) states they cannot suffer a detriment as a result. Section 103A of the ERA also provides that a dismissal for making such a disclosure is…

Pay and benefits

The Employment Appeal Tribunal (EAT) has held that an organisation was wrong to completely depend on a negative right to work check when deciding to withhold work, and pay, from the claimant.    If an individual does not have the right to live and work in the UK, an organisation cannot employ them. Such an action can result in a civil penalty fine of up to £20,000 per worker, alongside criminal charges. However, it is possible for a ‘statutory excuse’ to be used as a defence for this if…

Equality

The Court of Appeal has upheld earlier decisions that an employee’s belief in the right to own the copyright of ‘her own creative works and output’ did not amount to a philosophical belief. Under the Equality Act 2010, employees are able to bring tribunal claims if they are subjected to forms of discrimination because of a ‘philosophical belief’.  In the case of Grainger v Nicolson, the Employment Appeal Tribunal (EAT) provided guidance on what could constitute as a ‘philosophical belief’.…