Judgement published:
Terms and conditions

This case involved a contractual dispute outside of employment law, and was dealt with by the civil courts, rather than through the employment tribunal system. It provides important learning points on restraint of trade and clawback provisions, which are a tool used by some employers to aid retention of talented staff. Summary A clawback provision can disincentivise an employee to resign, but this is not the same as a restraint of trade. Law The restraint of trade principle, which comes…

Judgement published:
Business principles

Summary Whistleblowing protection does not extend to external job applicants. Law The Employment Rights Act 1996 (ERA) sections 47B and 48 give protection to employees and workers following a public interest disclosure. It does not, however, extend that protection to job applicants. Under the Human Rights Act 1998 section 3(1), primary legislation has to be read, so far as possible, in a way that is compatible with the European Convention on Human Rights (ECHR), including the status of…

Judgement published:
Equality

Summary Anti-Zionist beliefs found to be a protected philosophical belief, and dismissal for manifesting them was direct discrimination and a disproportionate response. The Law The Equality Act 2010 prohibits discrimination against others on the basis of their philosophical belief. Discrimination can take the form of less favourable treatment on the basis of that belief, such as dismissal or some other detriment. The case of Grainger v Nicholson set down five elements that a belief must…

Judgement published:
Employees and workers

Summary When determining an individual’s employment status, it is always important to return to the tests set down in the law. Law Employment status has been the subject of much debate over the years, and a number of significant cases have been brought in an effort to determine where the line lies when it comes to employees, workers, and those not in an employment relationship. The legal definition of the various status’ can be found in the Employment Rights Act 1996 (ERA 1996). Section…

Judgement published:
Family friendly and flexible working rights

Summary When rejecting a flexible working request to work remotely, it’s important to build a detailed picture of the employees job role and why it is not suitable for remote work. Law Under section 80F of the Employment Rights Act 1996 qualifying employees can apply for a change in the terms and conditions of their employment, including where, as between their home and a place of business of the employer, they are required to work. Where such a request is made, the employer is required by…

Judgement published:
Termination

Summary When deciding whether a contract has been affirmed in a constructive unfair dismissal case, the time between the last straw that prompted the resignation and the resignation itself is not determinative of affirmation. Instead, the employees conduct during that time should be assessed for evidence of express or implied affirmation. Law In cases of constructive unfair dismissal, the starting point to consider is whether the employer has committed what is known as a repudiatory breach…

Judgement published:
Equality , Termination

Summary When dealing with an employee on their use of an offensive word or phrase, the context within which it was said is a key factor in determining if dismissal is a reasonable response. Law The test for unfair dismissal is set out in section 98 of the Employment Rights Act 1996. This section requires there to be a fair reason for the dismissal, which falls within the ‘fair’ reasons laid out in the section (in this case, conduct). Secondly, employers must act reasonably in dismissing…

Judgement published:
Equality

Summary Failing to take the necessary steps provide auxiliary aids that have been recommended by a medical practitioner can be a discriminatory act.   Law The Equality Act 2010 (EqA), section 39(2) provides that employers should not discriminate against their employees. Section 20 requires employers to make reasonable adjustments, which include the duty to provide auxiliary aids that are deemed necessary in order to remove the substantial disadvantage the disabled person is placed in, in…

Judgement published:
Equality

Summary Employers must ensure anti-harassment policies are fully utilised in the workplace, and managers and staff trained on what they are, what is prohibited, and how to raise and deal with a complaint. Law Section 26 of the Equality Act 2010 (EqA) defines harassment as where a person engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or…

Judgement published:
Equality

Summary Where comments relating to an employee’s disability have the effect that the employee feels their condition is being minimalised, and fail to take into account the details of the condition. This can be direct discrimination. Law Under section 136 of the Equality Act 2010, where the facts of the case are such that, in the absence of any other explanation, they show that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. In Hewage v…

Judgement published:
Discipline and grievance , Termination

Summary When determining whether a requirement put in place by an employer that led to dismissal is reasonable, the tribunal must focus on the reasonableness of the requirement itself and whether the employee’s refusal to follow it was a deliberate and wilful contradiction of the terms of their employment. Law The right not to be unfairly dismissed is found in section 94 of the Employment Rights Act 1996 (“ERA”). Section 98 ERA deals with the fairness of a dismissal and provides that…

Judgement published:
Equality

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…

Judgement published:
Termination

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…

Judgement published:
Equality

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.…

Judgement published:
Termination

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…

Judgement published:
Equality

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…

Judgement published:
Equality

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…

Judgement published:
Equality

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…

Judgement published:
Termination

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…

Judgement published:
Business principles

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…

Judgement published:
Equality

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…

Judgement published:
Equality

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…

Judgement published:
Equality

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…

Judgement published:
Equality

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…

Judgement published:
Tupe

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…

Judgement published:
Equality

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…

Judgement published:
Equality

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…

Judgement published:
Termination

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…

Judgement published:
Termination

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…

Judgement published:
Equality , Termination

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…