Summary The law does not require a formal mental health diagnosis to have been made for stress to be a disability, as long as the condition meets the definition of a disability under the Equality Act 2010. Law Section 6 of the Equality Act 2010 (EqA) defines a disability as a physical or mental impairment, that has a substantial and long term effect on a person’s ability to carry out normal day to day activities. J v DLA Piper (EAT) (2010) There is no requirement for a mental condition…

Summary Where a resignation has been clearly and unequivocally given, and the employer deems it to have been seriously meant, it is not necessary to allow it to be retracted to avoid an unfair dismissal claim. Law In order to bring a claim for unfair dismissal, an employee must first be dismissed under section 95 of the ERA 1996. That section provides that dismissal occurs where: (a)    the contract under which they are employed is terminated by the employer (whether with or without…

Summary Where a particular work requirement triggers a mental impairment, but that work requirement is not necessarily a day-to-day activity, but the employee is unable to return unless it is removed, does this mean they are disabled for the purposes of the Equality Act 2010? Law The Equality Act 2010 (EqA) defines a disability as a physical or mental impairment, which has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities.…

Summary When an employee has agreed to the mutual termination of their employment, an employer’s final confirmation letter stating “dismissal” will not change that agreement, so long as evidence shows that the employee freely consented and was fully informed about that termination. Law To bring a claim for unfair dismissal there must be a “dismissal” for the purposes of section 95 of the Employment Rights Act 1996.  A dismissal takes place when “ … the contract under which [the employee] is…

Summary Failing to put into place adequate support for a transitioning employee, resulting in deadnaming and less favourable treatment from those within and external to the organisation, can amount to direct discrimination by reason of gender reassignment. Law Section 13 of the Equality Act 2010 (EqA) focuses on whether an individual has been treated ‘less favourably’ because of a protected characteristic. The unfavourable treatment must be “because of” the protected characteristic. The…

Summary Creative accounting arrangements that permitted a bespoke pay cut arrangement favouring male over female managers can both be discriminatory and contrary to the law on equal pay. Law Direct discrimination is defined within section 13 Equality Act 2010 (EqA). When considering the question of direct discrimination, an ET must identify whether, because of the protected characteristic, the respondent has treated the claimant less favourably than it has treated or would treat others. As…

Summary The employment tribunal had to consider whether the reasons for the claimant’s refusal to wear a Covid mask amounted to a philosophical belief. Law Section 10 of the Equality Act 2010 details that religion or belief, or lack of religion or belief, are protected characteristics under that Act. In Grainger plc v Nicholson [2010], five principles were established by the Employment Appeal Tribunal that must be met for a religion or belief to be afforded protection under the Equality Act…

Summary The refusal of suitable alternative employment during redundancy removes the need to pay statutory redundancy pay; this cannot be restored post dismissal if the employee changes their mind. Law Redundancy payment Under section 141 of the Employment Rights Act, an employee who is made redundant can lose their entitlement to a redundancy payment if their employer makes them an offer of alternative employment that is suitable for them, and they unreasonably refuse it. Section 141…

Summary Does a tribunals failure to properly consider an employee’s human rights and the balance of those rights against an employer’s aims, where those aims have the potential to infringe on their human rights, make its dismissal of unfair dismissal claims wrong in law?   Law The Human Rights Act 1998 is the means through which the ECHR is applicable in the UK. However, it does not give employees of private organisations the ability to make claims under this for breach of their human rights…

Summary Where reasonable adjustments are identified that would assist a disabled employee, these should be planned out and put in place without undue delay. ‘Aspirational’ adjustments alone are not enough to satisfy this duty.   Law Section 6 of the Equality Act 2010 defines disability as a physical or mental impairment, that has a substantial or long term effect on an individuals ability to carry out normal day to day activities. Long term is deemed as anything that has lasted or is…

Summary When an employer is in breach of the duty to make reasonable adjustments, when does the time limit to bring a claim run from, where the failure is the employers omission to act? Law The duty to make reasonable adjustments Under section 20 of the Equality Act 2010 (EqA), employers are under a duty to make adjustments for disabled persons in specific circumstances. This duty comprises three requirements, two of which are relevant to this case. These are:   1. A requirement, where a…

Summary Employers are under a duty to make reasonable adjustments for disabled employees, and should take care to fully assess whether or not those adjustments are required before deciding against them.   Law The claims of particular interest in this case came from the Equality Act 2010 (EqA), specifically an employer’s duty to make reasonable adjustments, under section 39(5) EqA and the right not to be treated unfavourably because of something arising in consequence of the individual’s…

Summary In situations where the duty to make reasonable adjustments applies, the onus is on the employer to use various means to find out how a disability is affected by a provision, criterion or practice they have imposed, and if that information is not provided, to take appropriate actions to make reasonable adjustments where they aware of the nature of the disability.  Law The Equality Act 2010 (EqA), under section s 39(5), places employers under a duty to make reasonable adjustments for…

Summary In this case, the EAT had to consider if a Share Incentive Plan (SIP) not mentioned in the contract of employment still transferred under a TUPE transfer, and if the transferee was therefore required to provide a replacement scheme of substantial equivalence Law Regulation 4 of Transfer of Undertakings (Protection of Employees) 2006 (TUPE) regulations: Effect of relevant transfer on contracts of employment (relevant extracts) 4.—(1) … a relevant transfer shall not operate so as to…

Summary  Where a job is advertised in a potentially discriminatory manner, less favourable treatment only arises where the potential candidate has a genuine intention of applying for and taking on the role. Law In order to claim for unlawful sex discrimination, there must be some form of less favourable treatment. The case of Keane v Investigo (EAT) [2009] established that there is no less favourable treatment if the claimant has no genuine intention of applying for the role. In other words…

Summary Relying on a mistaken belief to treat a disabled employee unfavourably can be discrimination because of something arising in consequence of that disability, where that mistaken belief has arisen because of a circumstance created by the disability.   Law Under section 15 of the Equality Act 2010, a person discriminates against a disabled person where they treat them unfavourably because of something arising in consequence of the disabled person disability. This section of the law…

Summary In gross misconduct cases, employers should be able to show that an employee was aware that their conduct could result in dismissal, either by forewarning them, providing for it in a written policy, training or otherwise. Law Section 98 of the Employment Rights Act 1996 requires employers to have one of the fair reasons specified in the Act (such as conduct, as in this case) for this dismissal, and to also follow a fair and reasonable process in coming to that dismissal. Where…

Summary Extending a decision to dismiss seven times, and over the course of a year, does not necessarily mean the decision falls outside of the range of reasonable responses, where the employer has taken all appropriate action to assist the employee in returning to work. Law  Section 98 of the Employment Rights Act 1996 (ERA) requires an employment tribunal (ET) to decide two things: was there a fair reason to terminate employment and did the employer act reasonably in doing this. The…

Summary The duty to make reasonable adjustments applies to the right to be accompanied at a formal hearing, particularly in cases where an employee has been suspended and prohibited from contacting their colleagues. Law Under the Employment Rights Act 1996, section 98, employers must have a fair reason for dismissal as well have followed a fair and reasonable process in coming to that dismissal. The case of British Home Stores v Burchell [1978] provides the following tests to be applied in…

Summary It is not always necessary for the disciplinary decision maker to personally hold the disciplinary hearing, although it would be an imperfection in the process. Such imperfections however can be resolved via a properly considered appeal.   Law The Employment Rights Act 1996, section 98, protects qualifying employees from unfair dismissal by requiring employers to have both a fair reason for the dismissal and to have followed a reasonable process when dismissing for that reason.…

Summary Discrimination can arise when a complaint of sexual assault and a grievance are mismanaged and not taken seriously, when the reason for this is the protected characteristic of the aggrieved employee. Law The Equality Act 2010 prohibits discrimination in employment and defines it as when a person (A) treats another (B) less favourably than A treats or would treat others, because of a protected characteristic. In this case, the protected characteristic was sex. Facts Whilst…

Summary In order to succeed in a claim for philosophical belief discrimination on the basis of ethical veganism, it must be shown that the belief is genuinely held, for example by showing that the individuals lifestyle has been modified or structured around the belief. Law NOTE The facts of this case took place when it was mandatory for all care home employees to either be vaccinated against covid or be medically exempt. The Equality Act 2010 prohibits discrimination against others on the…

 Summary A unilateral change of contractual terms should not be treated as having implied consent, even where employees have continued to work for some years under the changed terms, unless the employer can show unequivocal acceptance of that variation by those employees. Law This case relies on the principles of contract law, and was heard in a civil court, rather than in the employment tribunal system. Facts Under various staff handbooks and the civil service Code of pay and…

Summary It is permissible for employers to use evidence taken from an employees Facebook page in disciplinary proceedings where there is not a reasonable expectation on the employees’ part that their posts would always be private. Law Law relevant to this case includes unfair dismissal (section 98 of the Employment Rights Act 1998), contributory fault deductions under the case of Polkey v AE Dayton, race discrimination under the Equality Act, and the European Convention on Human Rights (…

Summary It is not race discrimination to tell a speaker with a strong accent that they haven’t been understood, where a health condition makes processing speech harder. It is however disability discrimination to question an employee absent on sick leave in a way that implies distrust and disbelief.  Law Under the Equality Act 2010, section 6, disability is identified as a protected characteristic. Section 13 of that same act outlines what is meant by ‘direct discrimination’ where it says, “…

Summary The fact that a mental health impairment (anxiety) arises as a result of issues centred on the workplace does not preclude that impairment from being a disability simply because the individual is no longer employed in that workplace. Law Paragraph 2 of Schedule 1 to the Equality Act 2010 (EqA) provides: “The effect of an impairment is long-term if— (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest…

Summary A relevant agreement that calculates final holiday entitlement and pay owed under the Working Time Regulations 1998 (WTR) cannot be used to pay less than an employee is owed under the WTR. Law Note that at the time of this case, the EU Working Time Directive and its case law were applicable, notwithstanding Brexit, pursuant to the European Union (Withdrawal) Act 2018, in the absence of regulations disapplying the same. The Working Time Directive 2003/88/EC provides at Article 7:…

Summary The EAT has held that when deciding on a comparator pool for the purposes of indirect discrimination,  this should not be drawn too small as to exclude other affected groups. Law The Equality Act 2010 (EqA) 19 Indirect discrimination (so far as is relevant) (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 relevant protected characteristic of B's. (2)For the purposes of subsection (1), a…

Summary When an employee is already being given a substantial benefit of guaranteed pay of 75% of salary during extended sickness absence, it is not disability discrimination to fail to pass on pay rises to their salary and thereby increase the amount of guaranteed pay. Law Equality Act 2010 13 Direct discrimination (1)A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. (2)If the…

Summary When making redundancies in the course of a restructure, employers must establish that the ‘work of a particular kind’ has genuinely ceased or diminished before concluding that a redundancy is necessary. It is not sufficient evidence to show the amalgamation of teams and the addition of functions to an existing post; employers must show there is less work of a particular kind.   Law Section 139 Employment Rights Act 1996 (ERA) (as is relevant to this case): (1)For the purposes of…