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 Office 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…

Discipline and grievance , Termination

When deciding an unfair dismissal claim, an employment tribunal will examine whether the investigation was fair and reasonable in all the circumstances, with a higher threshold of reasonableness applied in cases where the outcome of a disciplinary procedure could be career-ending for a professional employee, as in Roldan and Crawford. The investigating officer is required to collect all relevant information on the disciplinary matter, including any information which goes against, or supports,…

Discipline and grievance , Termination

Employment Appeal Tribunal – June 2018 The EAT have examined whether an investigation which did not include statements from witnesses who had not seen the alleged incident was a reasonable investigation. Facts Pupil A made a report against a long-standing teacher that he had been grabbed, pushed against a wall and then had two fingers pushed against his throat. A second pupil, B, corroborated A’s story and named other potential witnesses as pupils OB, EB and GK. Pupil OB was interviewed…

Discipline and grievance , Termination

When deciding an unfair dismissal claim, an employment tribunal will examine whether the investigation was fair and reasonable in all the circumstances, with a higher threshold of reasonableness applied in cases where the outcome of a disciplinary procedure could be career-ending for a professional employee, as in Roldan and Crawford. The investigating officer is required to collect all relevant information on the disciplinary matter, including any information which goes against, or supports,…

Discipline and grievance , Termination

Employment Appeal Tribunal – June 2018 The EAT have examined whether an investigation which did not include statements from witnesses who had not seen the alleged incident was a reasonable investigation. Facts Pupil A made a report against a long-standing teacher that he had been grabbed, pushed against a wall and then had two fingers pushed against his throat. A second pupil, B, corroborated A’s story and named other potential witnesses as pupils OB, EB and GK. Pupil OB was interviewed…

Equality

Employment Appeal Tribunal – July 2018 The Employment Appeal Tribunal (EAT) has ruled that establishing a causal connection for discrimination arising in consequence of a disability can involve several links  Facts In this case, the employee, who originally worked as a Professor in Edinburgh University’s School of Engineering, was absent from work due to work-related stress and depression. Discussions were held regarding her return to work, where the employee asked to move to a…

Equality

This case highlights that there may be several links in a chain of consequences when determining if unfair treatment arises because of 'something arising in consequence' of a disability. Employers should always explore what adjustments might be reasonable in circumstances where an employee is taking a prolonged period of time away from work. All decisions must be justifiable and made in order to achieve a legitimate aim.  

Tupe

Employment Appeal Tribunal – October 2017 The Employment Appeal Tribunal (EAT) has highlighted that a Tupe transfer cannot be used as a way of getting rid of ‘problem’ employees. Facts The employee was a cashier at a company which was facing significant financial difficulties. The transferee (the new employer) agreed to purchase the company and would take over the existing employees under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘Tupe’). However,…

Tupe

This case reminds employers that the Tupe Regulations provide an automatic right for employees to transfer over provided they meet certain criteria. Employers are not able to simply ‘pick and choose’ which employees they wish to take, and management concerns or workplace difficulties will have to be managed by the new employer once the transfer takes place. Employees do, however, maintain a right to object to the transfer. If they exercise this right, they are treated as having resigned from…

Equality

Court of Appeal – October 2018 The Court of Appeal have overturned the High Court’s decision that an employer was not vicariously liable for an assault carried out by the organisation’s Managing Director at an impromptu drinking session after the company Christmas party. Employers are liable for acts of discrimination and harassment committed by employees ‘in the course of employment’ under the Equality Act 2010 where there is a sufficiently close connection between the act and the…

Equality

Although, in this case, the Court of Appeal found that the employer was vicariously liable for the acts that occurred at a separate non-work organised event, the Court did express that this was based on the unusual facts of this case. They gave the example that a social round of golf between junior and managerial colleagues, where work is spoken about, will not lead to vicarious liability where all participants are voluntary and attending as equals. Alternatively, if one manager engaged their…

Termination

Employment Appeal Tribunal – June 2018 The Employment Appeal Tribunal (EAT) has ruled that the intentions behind a letter of resignation should be clarified to correctly confirm if the employee does intend to leave the company.  Facts In this case, the employee had worked in the records department for her employer for around 10 years. She had recently experienced issues with an employee and had applied for a position in the employer’s radiology department, for which she had received a…

Termination

This decision reminds employers that they should always clarify with the employee what their intentions are when they resign, especially if there is any uncertainty or ambiguity. It is a good idea to arrange a follow-up meeting and speak to them to ascertain this. If the employer would prefer that the employee leave the company, they should not just jump on the chance to get them out because it may result in a claim for unfair dismissal. Employers do not have to allow an employee to retract a…