Equality

Employment Tribunal – September 2018 The employment tribunal (ET) has ruled that an organisation’s failure to assist in the implementation of reasonable adjustments amounted to a breach of their duty In this case the employee, whose role as a clerical assistant involved a significant amount of keyboard and mouse work, was classed as disabled due to carpal tunnel syndrome and repetitive strain injury. Following the recommendation of an Occupational Health report the employee started to…

Equality

This case reaffirms that organisations must have control over any process to establish a reasonable adjustment. There is a legal duty to make reasonable adjustments when an employee has a disability and organisations must be able to demonstrate they showed full commitment to it. As was the case here, leaving the employee to their own devices is not acting reasonably and will be frowned upon in a tribunal. Any delay caused by a failure to do this can render the behaviour a breach of the…

Terms and conditions , Pay and benefits

Employment Appeal Tribunal – September 2018 The Employment Appeal Tribunal (EAT) has ruled that an employee was entitled to a written statement of terms despite only working for the organisation for six weeks. This case concerned three European claimants who were employed by a hotel as waiting staff and claimed they were poorly treated. Following a complaint to management about numerous issues, such as shortfalls in their wages, falsification of their wage slips and late payments, they were…

Terms and conditions , Pay and benefits

As seen here, failure to provide the SMT within the appropriate time frame can leave organisations liable to claims. As noted by the EAT, ensuring that SMTs are provided in a timely manner minimises the risk of ambiguity or misunderstanding of the terms that form the contractual basis of the employment relationship. It should be remembered that, although the two-month time frame currently exists, organisations can still meet their obligations provided they provide the SMT ‘before proceedings…

Terms and conditions , Pay and benefits

Employment Appeal Tribunal – September 2018 The Employment Appeal Tribunal (EAT) has ruled that an employee was entitled to a written statement of terms despite only working for the organisation for six weeks. This case concerned three European claimants who were employed by a hotel as waiting staff and claimed they were poorly treated. Following a complaint to management about numerous issues, such as shortfalls in their wages, falsification of their wage slips and late payments, they were…

Terms and conditions , Pay and benefits

As seen here, failure to provide the SMT within the appropriate time frame can leave organisations liable to claims. As noted by the EAT, ensuring that SMTs are provided in a timely manner minimises the risk of ambiguity or misunderstanding of the terms that form the contractual basis of the employment relationship. It should be remembered that, although the two-month time frame currently exists, organisations can still meet their obligations provided they provide the SMT ‘before proceedings…

Equality

Supreme Court – December 2018 The Supreme Court has agreed with the earlier decisions of the Court of Appeal (CA) and the Employment Appeal Tribunal (EAT) that an ill-health retirement pension scheme did not amount to unfavourable treatment despite it being potentially more advantageous to other employees.  This case concerned an employee who suffered from several psychological problems including Tourette’s Syndrome. Due to the progress of his illness, he had reduced his hours and salary to…

Equality

This judgement is a useful illustration of the burden of proof that is placed upon employees to demonstrate that their treatment was unfair in comparison with a non-disabled employee. Organisations should consider reviewing and possibly amending their schemes to limit the risk of future claims. As seen here, making reasonable adjustments which do result in a lowered salary could also affect pension provisions at a later date, which could potentially result in a claim being made.

Employees and workers

Court of Appeal – December 2018 The Court of Appeal (CA) has dismissed Uber’s appeal against the employment tribunal (ET) and Employment Appeal Tribunal’s (EAT) decision that drivers engaged by Uber were not self-employed contractors, but fell squarely within the legal definition of ‘worker’ under the Employment Rights Act 1996, the Working Time Regulations 1998 and the National Minimum Wage Act 1998. This case concerns the claim from two London-based Uber drivers that they should be…

Employees and workers

It is imperative that organisations correctly categorise those who work for them. Despite what the terms of a contract might say, tribunals have the ability to assess the reality of the situation. If the relationship between the parties does not reflect what is outlined in the contract, tribunals can determine that individuals are a different employment status and are determined to additional employment rights. This can leave an organisation liable for claims of holiday pay, the minimum wage,…

Employees and workers

This decision shows the operation of the Autoclenz decision where tribunals will look beyond the contractual documentation to evaluate how the relationship operates in practice. A number of cases on employment status have been working their way through the employment tribunal system recently, with these applying the same employment status tests and factors to the individual facts of the case. As there was an obligation on the drivers to do work when they were logged into the system, they have…

Employees and workers

Employment Appeal Tribunal – November 2018 Were private-hire drivers classed as workers when logged into an app? Facts Private-hire drivers for the organisation took on work under a driver contract which expressly stated they were “independent contractors” and would act as sub-contractors for Addison Lee (AL) where bookings were made by AL account holders. The contract went on further to state that there was no obligation on the organisation to offer work to the driver, or for the driver…

Pay and benefits, Termination

Employment Appeal Tribunal – November 2018 Contractual term preventing ill-health capability dismissal whilst receiving PHI benefits implied by EAT. Facts The employee worked as a security agent under a contract entitling him to a long-term disability benefit plan, which expressly stated that the benefits would cease if his employment was terminated. In October 2012, the employee commenced sick leave due to depression and his employment was subsequently outsourced to ICTS under the…

Pay and benefits, Termination

This case reiterates previous decisions whereby a contractual term preventing employers from capability dismissals for those receiving PHI benefits will be implied. Organisation are, therefore, reminded of the greater obligation they will be placed under when looking to carry out a capability dismissal when the employee receives a permanent health insurance benefit. This is because the aim of the scheme, to pay the employee for the period of their incapacity until a certain date or event, will…

Pay and benefits, Termination

Employment Appeal Tribunal – November 2018 Contractual term preventing ill-health capability dismissal whilst receiving PHI benefits implied by EAT. Facts The employee worked as a security agent under a contract entitling him to a long-term disability benefit plan, which expressly stated that the benefits would cease if his employment was terminated. In October 2012, the employee commenced sick leave due to depression and his employment was subsequently outsourced to ICTS under the…

Pay and benefits, Termination

This case reiterates previous decisions whereby a contractual term preventing employers from capability dismissals for those receiving PHI benefits will be implied. Organisation are, therefore, reminded of the greater obligation they will be placed under when looking to carry out a capability dismissal when the employee receives a permanent health insurance benefit. This is because the aim of the scheme, to pay the employee for the period of their incapacity until a certain date or event, will…

Equality

Employment Appeal Tribunal – September 2018 The Employment Appeal Tribunal (EAT) has confirmed that a tendency to steal is not a disability for the purposes of bringing disability discrimination claims. Facts In this case the employee, who worked as an Anti-Social Behaviour Officer for Durham Council, left a Boots store without paying for some items in a bag he was carrying. Although he was arrested and later cautioned for this event following a signed admission statement, he did not…

Equality

It should be remembered that certain conditions are expressly stated to not be impairments under the provisions of the Equality Act. This includes ‘tendency to steal’, ‘tendency to set fires’, exhibitionism and voyeurism. Despite this, impairments that are caused by an excluded condition (such as depression) may amount to a disability. If this does occur, dismissing an employee for any resulting impairment could give rise to a discrimination claim. When dismissing an employee in relation to an…

Equality

Employment Appeal Tribunal – August 2018 The Employment Appeal Tribunal (EAT) has ruled that office cultures are important when considering potentially harassing comments. Facts In this case, the employee suffered from type 1 diabetes, which he believed had led to him being overweight. He also had close ties to the travelling community, although this was not common knowledge within the respondent’s organisation. Following his dismissal for poor performance, the employee brought a…

Equality

In order for any comments made to amount to harassment, employment tribunals will consider the perception of the claimant and whether it was reasonable for them to feel harassed in that situation. In situations such as this, the overall office culture and behaviour of the individual themselves will be assessed to establish whether the unwanted conduct had the required purpose or effect and, if it did, whether it was reasonable for this to occur. Unwanted conduct is unlikely to amount to…

Pay and benefits

European Court of Justice (ECJ) – November 2018 The ECJ has ruled that domestic law does not prohibit the right for employees to be paid in lieu for untaken annual leave at termination of employment. Facts The ECJ was asked to consider two separate cases from Germany that concerned workers who, when their employment was to terminate, had requested an allowance in lieu for annual leave that they not taken. The first worker had not taken any annual leave at all during the last five…

Pay and benefits

Although this is a EU case, it remains relevant for organisations based in the UK in relation to the 4 weeks' holiday leave imposed by EU law. It should be remembered that UK legislation, the Working Time Regulations, require payments to be made in lieu of statutory annual leave accrued, but not taken, on the termination of employment. To avoid disputes arising later, annual leave entitlements should be monitored in order to ensure that employees are taking the holidays entitled to them and…

Equality

The Employment Appeal Tribunal (EAT) has examined when a disability meets the statutory requirement of having a ‘long-term’ adverse effect. The Equality Act 2010 outlines that a person has a disability if the impairment has a ‘substantial’ and ‘long-term’ adverse effect on their ability to carry out normal day-to-day activities. For a condition to be classed as ‘long-term’, it needs to have been ongoing for at least 12 months or be ‘likely’ to last at least 12 months. Facts In this…

Equality

Employers should bear in mind that where an employee is showing signs of ill-health, it may be possible to establish that they meet the statutory definition of being ‘disabled’ at a later date.  Additionally, although an employee may not have been showing signs that they have been adversely affected for a period of 12 months, they could still meet the definition if they can prove that the effect is likely to last this length of time. Employers must be careful to explore ways in which an…

Equality

Employment tribunal – January 2018 The employment tribunal (ET) has ruled that it is not enough to have a race discrimination policy – organisations need to make sure they are putting it into practice.   Facts A contact centre for Her Majesty's Revenue and Customs ('HMRC') maintained a zero tolerance policy against race discrimination whilst using cleaning staff through an outside contractor, G4S. A written agreement stated that all G4S staff required the centre’s approval to work…

Equality

Although only a first instance tribunal decision, this case is a useful reminder that organisations who claim they maintain a zero tolerance stance on discrimination will need to ensure they follow this in practice, and can evidence this implementation; it is not enough to simply have a policy. It can be difficult for organisations to defend their actions when they claim to have no scope to take action against a third-party employee. They should consider the context of commercial arrangements…

Termination

Employment Appeal Tribunal – November 2018 Employment tribunal failed to consider employer’s breach of contractual obligation to provide a trial period when determining fairness of redundancy dismissal. Facts In a case which had already been remitted to the employment tribunal twice previously, since 2003 the employee worked as one of six Library Managers responsible for two libraries. In 2011, facing funding cuts, the council decided to close half of their libraries and reduce the…

Termination

Although this case was remitted back to the tribunal to determine the fairness of the dismissal, the EAT’s guidance on this matter appears that they are of the view that a failure to provide a contractual trial period means the redundancy dismissal is unlikely to be fair. When discussing the matter, the EAT highlighted the benefits of providing employees with a trial period, in cases where there is no contractual obligation to do so, which include seeing whether the person is able to work in…

Employees and workers

Court of Appeal – November 2018 Appeal against finding that part-time worker was treated less favourably is dismissed and case is remitted to the tribunal to determine whether the treatment was objectively justified. Facts Pinaud was employed as a crew member by British Airways from 1985 on a full time basis but began working a part-time shift pattern in 2005. Full-time workers worked a “6/3 pattern” which provided for six days on and three days off. In total, over the course of a…

Employees and workers

The Court confirmed that the case will be remitted back to the employment tribunal to determine whether the employer could rely on the justification defence. If not, then the tribunal will have to consider remedy which, the Court confirmed, is compensation that the tribunal considers is just and equitable in all the circumstances having regard to the loss attributable to the infringement. Whilst the organisation was concerned with the tribunal's comment that the employee should receive a pay…