Judgement published:
Equality

The Employment Appeal Tribunal (EAT) has held that organisations can potentially avoid liability for acts of discrimination committed by employees if it is clearly established that the act complained of took place outside of work. Under section 109 of the Equality Act 2010, organisations are liable for acts of discrimination and harassment committed by employees ‘in the course of employment’ and it does not matter whether that act is done with the organisation’s knowledge or approval. In…

Judgement published:
Business principles

The Employment Appeal Tribunal (EAT) has held that, when considering if a disclosure of information amounts to a protected disclosure, tribunals should assess if the individual reasonably believes the disclosure is in the public interest. Under Section 103A of the Employment Rights Act 1996 (ERA), an employee will have been unfairly dismissed if the reason for the dismissal is that they made a protected disclosure. Section 43B of the ERA defines such a disclosure as information which, in the…

Judgement published:
Equality

The Employment Appeal Tribunal (EAT) has found that direct discrimination claims resting on the discriminator’s protected characteristic will not succeed at tribunals.   Direct religion or belief discrimination takes place where an employer treats an employee less favourably than they would treat others because of their religion or belief (or lack of). Indirect discrimination occurs when an organisation applies a provision, criterion or practice (PCP) that places a person with a protected…

Judgement published:
Termination

The Court of Appeal has upheld the earlier decision of the EAT that the doctrine of illegality did not render an employment contract unenforceable due to the immigration status of the employee, as the employee had been unaware that she was no longer able to work in the UK. An employee or a worker who has been working under an illegal contract can be prevented from successfully bringing claims to an employment tribunal (ET) if they rely on said illegal contract to bring their claim. This is…

Judgement published:
Pay and benefits

Court of Appeal – August 2019 The Court of Appeal has held that holiday pay for permanent staff who only work part of the year, such as term time workers, should be calculated using average earnings over a 12-week period and not pro-rated. Article 7 of the EU’s Working Time Directive (WTD) outlines that workers in Member States should be provided at least four weeks of paid annual leave in one leave year. In Great Britain, the Working Time Regulations 1998 (WTR) provide workers a minimum of…

Judgement published:
Employee relations

The Employment Appeal Tribunal (EAT) has upheld a decision by the Certification Officer not to register an association set up for foster carers as a trade union on the basis that the carers are not workers. Under section 3 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), trade unions are entitled to apply to the Certification Officer (CO) in order to be entered onto the list of registered unions. However, to be successful in their application, the union must consist…

Equality

The Employment Appeal Tribunal (EAT) has ruled that organisations should focus on the particular disadvantage suffered by an employee when making reasonable adjustments. Facts In this case, an employee suffered from ulcerative colitis, a condition which could manifest itself in a sudden, unpredictable need for a bowel movement and could be aggravated by stress. In 2012, an occupational health (OH) report stated that the employee would benefit from a dedicated parking space in order to avoid…

Judgement published:
Equality

The Employment Appeal Tribunal (EAT) has ruled that an organisation did not have constructive knowledge of a disability as the employee would have likely continued to conceal her impairment despite any further enquiries into her health. Section 15 of the Equality Act 2010 outlines that is unlawful to treat a disabled person unfavourably because of something arising from, or in consequence of, the disability, such as the need to take a period of disability-related absence. It is, however,…

Judgement published:
Terms and conditions , Discipline and grievance

The Employment Appeal Tribunal (EAT) has ruled that an employee who covertly recorded a meeting did not automatically break the implied term of mutual trust and confidence. In a contract of employment, there exists an implied term of mutual trust and confidence between the organisation and its employee. This means that if either party conducts themselves in such a way that undermines or destroys the employment relationship, the other party can regard their actions as a fundamental breach of…

Judgement published:
Termination

  The Court of Appeal (CA) has reinforced the notion that the successful appeal of a dismissal means that continuality of employment is preserved, thereby meaning the employee's dismissal is considered to have 'vanished'.   Facts Mr Patel, who worked as a healthcare assistant, was dismissed for gross misconduct in April 2014 for sleeping on duty and falsifying residents’ records, the latter of which he was told would result in him being reported to the care home regulator for putting…

Judgement published:
Pay and benefits

  Ruling confirms that collective agreements cannot be used to reduce minimum holiday pay Facts During 2015, the employee was placed on short-time working for a total period of 26 weeks. Over the course of 2015 and 2016, the employee took 30 days’ annual leave. According to German domestic law, pay for annual leave is calculated using a worker’s average earnings during a 13-week reference period. Within this legislation, there is a provision stating that earning reductions caused by a loss…

Judgement published:
Equality

  The Employment Appeal Tribunal (EAT) has ruled that a director’s removal, after giving high-profile interviews on his religious opinion, was not religious discrimination. Article 9 of the European Convention on Human Rights (ECHR) provides that everyone has the right to freedom of religion and to manifest this religion. Article 10 outlines that everyone has the right to freedom of expression. The Equality Act 2010 protects against discrimination on the grounds of religion. The Act also…

Judgement published:
Equality

  The Employment Appeal Tribunal (EAT) has ruled that the side effects from the treatment of a visual impairment did not need to be considered when assessing the employee’s disability. The Equality Act 2010 outlines that an individual will be disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Generally, an impairment will still be treated as having an adverse effect if measures…

Judgement published:
Discipline and grievance

European Court of Human Rights – June 2019 The European Court of Human Rights (ECHR) has ruled that an organisation relying on evidence provided by the police during a disciplinary procedure did not breach an employee’s right to privacy. Article 8 of the European Convention of Human Rights provides that everyone has the right to respect for their private and family life, their home and their correspondence. It goes on to outline that there shall be no inference by a public authority with the…

Judgement published:
Equality

The Employment Appeal Tribunal (EAT) has ruled that a disability disclosed during an appeal hearing gave the employer actual or constructive knowledge of a disability.   Section 15 of the Equality Act 2010 outlines that an organisation discriminates against a disabled employee if they treat them unfavourably because of something arising in consequence of their disability, and they cannot show that the treatment is a proportionate means of achieving a legitimate aim. The section goes on to…

Pay and benefits, Business principles

Court of Appeal – June 2019 In a landmark judgement, the Court of Appeal has ruled that voluntary overtime does need to be taken into account when calculating holiday pay if it is ‘sufficiently regular and settled’.  The Working Time Directive (WTD) is EU legislation that gives all workers in Member States the right to at least four weeks (20 days) paid leave per year for workers who work five days a week. This is adapted into UK law through the Working Time Regulations 1998 (WTR), which…

Equality

Employment Appeal Tribunal – May 2019 The Employment Appeal Tribunal (EAT) has ruled that a one-off act of discrimination does not limit tribunals to making an award in the lower Vento band for injury to feelings compensation. In the case Vento v Chief Constable of West Yorkshire Police, guidelines were given on how an employment tribunal (ET) should determine the amount of money to be awarded for injury to feelings in successful discrimination claims. As a result, the Court of Appeal in…

Equality

Court of Appeal – March 2019 The Court of Appeal has ruled that a disabled employee was not discriminated against when his international job posting was blocked after a medical assessment deemed him ‘high risk’. Direct disability discrimination occurs where a person is treated less favourably ‘because of’ their disability compared with others who do not share the protected characteristic but are otherwise in circumstances that are not materially different. Indirect disability discrimination…

Judgement published:
Family friendly and flexible working rights , Equality

Court of Appeal – May 2019 In a conjoined appeal with Ali v Capita Customer Management, the Court considered whether enhancing maternity pay policies, but not shared parental leave policies, was sex discriminatory. Section 66 of the Equality Act 2010 operates to automatically insert a sex equality clause in contracts of employment which have the effect of inserting corresponding terms into a contract where their terms are less favourable than the terms in place for an employee of the…

Judgement published:
Family friendly and flexible working rights , Equality

In a straight-forward decision, the Court of Appeal confirmed that it is not direct sex discrimination to offer enhanced maternity pay but only statutory shared parental pay. Whilst this decision may bring relief to many organisations who offer these types of family friendly leave and can continue to do so lawfully, there are cultural calls for family friendly pay to be equalised to ensure all working parents are not required to make child caring decisions based on financial incentives or…

Discipline and grievance , Termination

Court of Appeal – March 2019 The Court of Appeal has ruled that a nurse was fairly dismissed on allegations she had engaged in inappropriate discussions with patients about religion. Article 9 of the European Convention on Human Rights (ECHR) provides that everyone has the right to freedom of religion and to manifest this religion. It also explains that this should only be subjected to limitations in the interests of public safety or protection of public order, health, morals or the rights…

Discipline and grievance , Termination

Employment Appeal Tribunal – April 2019 The Employment Appeal Tribunal (EAT) has ruled it was a breach of the implied duty of trust and confidence to serve an ‘informal improvement’ notice without first holding a meeting, as required under the disciplinary procedure. Facts The claimant, a nurse working for the Trust, was asked to switch on incubators in readiness for a procedure the following day. However, she had to leave work early due to a suspected mini-stroke and did not do this. The…

Discipline and grievance

Employment Appeal Tribunal – November 2018 The Employment Appeal Tribunal (EAT) has ruled that a dismissal was fair despite further investigations not being held into a late submission of alcohol dependence. Section 98(4) of the Employment Rights Act 1996 (ERA) provides that in order for a dismissal for misconduct to be fair, the organisation needs to clearly outline that they acted reasonably in treating the misconduct as a sufficient reason for dismissal. Section 57A of the ERA also…

Equality

Employment Appeal Tribunal – January 2019 The Employment Appeal Tribunal (EAT) has ruled that a person who was otherwise a suitable comparator in a direct discrimination claim was not rendered unsuitable merely because a different decision maker was involved. Section 23 of the Equality Act 2010 instructs that an employee who claims race discrimination will need to show that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially…

Judgement published:
Dispute resolution

Employment Appeal Tribunal The Employment Appeal Tribunal (EAT) has ruled that a claim for unfair dismissal was submitted out of time despite being posted before the limitation deadline as the tribunal did not receive it until one day after the deadline. Section 111(2) of the Employment Rights Act (ERA) outlines that, when bringing a claim against an organisation, claimants have a period of three months from their effective date of termination in which to submit this claim to the employment…

Dispute resolution

Employment Appeal Tribunal – January 2019 The Employment Appeal Tribunal (EAT) has ruled that tribunals will only have the power to remove a judgement from the online register, and that anonymity will only be granted, in very limited circumstances Rule 67 of the Employment Tribunals Rules of Procedure 2013 outlines that tribunal judgements and written reasons should be entered onto the public register subject to certain exceptions. Since February 2017, all judgements on the public register…

Equality

Employment Appeal Tribunal – March 2019 The Employment Appeal Tribunal (EAT) has ruled in this case that there was no causal connection between an employee’s mistaken belief and her disability in order to prove discrimination arising from a disability, although this may not always be the case. Facts This case concerned a warehouse worker who was classed as disabled for the purposes of the Equality Act 2010 due to osteoarthritis. The employee believed that her condition was worsened in damp…

Judgement published:
Equality

Employment Appeal Tribunal – March 2019 The Employment Appeal Tribunal (EAT) has outlined that the ‘reason why’ an organisation committed an act must be considered when establishing a claim for pregnancy discrimination. Facts In this case the employee, along with several colleagues, was aware she could be at risk of redundancy. An email was sent to them that confirmed they were being put on an ‘At Risk Register’ and instructed them to fill out a redeployment document. As the employee was…

Business principles

Employment Appeal Tribunal – September 2018 The Employment Appeal Tribunal (EAT) has ruled that a complaint of defamation of character could be considered a protected disclosure. Section 43B(1) of the Employment Rights Act 1996 defines a qualifying disclosure as any disclosure of information which, in the reasonable belief of the worker making the disclosure, is in the public interest and tends to show one or more specified types of wrongdoing. Whilst there is no definition of ‘in the…

Business principles , Discipline and grievance

Employment Appeal Tribunal – October 2018 The Employment Appeal Tribunal (EAT) has ruled protection against unfair dismissal following the assertion of a statutory right requires an allegation of an actual breach. In this case the employee, who has less than two years’ service, was dismissed following a disciplinary procedure that had considered, and upheld, allegations against him of sexual harassment and assault. At the disciplinary meeting, the employee claimed that he had tried to…