Equality

The employment tribunal (ET) has found that the BBC failed to demonstrate its actions in paying two presenters substantially different salaries was not related to their gender. Under the Equality Act 2010, male and female employees must receive equal pay for equal work. The work does not have to be related to the same role; it can be work which is the same or broadly similar and any differences are not of practical importance in relation to employment terms and conditions. This is known as ‘…

Equality

The employment tribunal has ruled that ethical veganism is a philosophical belief and, therefore, should be granted legal protections under the Equality Act 2010. Under the Equality Act 2010, employees are able to bring claims if they are subjected to forms of discrimination because of a ‘philosophical belief’.  In the case of Grainger v Nicolson, the Employment Appeal Tribunal (EAT) provided guidance on what could constitute as a ‘philosophical belief’. Amongst other criteria, they outlined…

Equality

The Employment Appeal Tribunal (EAT) has ruled that individuals who have been dismissed, but then later reinstated, can still claim that their dismissal amounted to a detriment under the Equality Act 2010. Under the Equality Act, an individual is victimised when they are subjected to a detriment because they have done, or it is believed they have done, a ‘protected act’. For example, if an individual brings a complaint that they have been discriminated against as a result of their disability…

Equality

The Employment Appeal Tribunal (EAT) has ruled a claim of direct sex discrimination, brought after an organisation failed to pay the claimant an additional London allowance whilst she was on maternity leave, did not require the establishment of a comparator to succeed. Under section 13 of the Equality Act 2010, when bringing a claim of direct discrimination, a claimant will need to demonstrate that they were treated less favourably as a result of a protected characteristic than a real or…

Termination

The Employment Appeal Tribunal (EAT) has ruled that it was incorrect for a tribunal to presume that only an act of gross misconduct could contribute to a dismissal.   In situations where a claimant successfully claims unfair dismissal, they can still be subject to deductions from their overall compensation award. Polkey deductions stem from the case of Polkey v AE Dayton Services Ltd. Under Polkey, if it is likely that the claimant would have been dismissed anyway had the organisation in…

Business principles , Discipline and grievance , Termination

The Employment Appeal Tribunal (EAT) has ruled that managers who disrupt normal proceedings by ‘meddling’ in them can lead to organisations facing successful unfair dismissal claims. Under the Trade Union and Labour Relations (Consolidation) Act 1992, it is automatically unfair to dismiss an employee on grounds related to trade union membership or activities. Facts In this case, the claimant was a senior gas engineer who had been employed by the organisation for 29 years and had an…

Termination

The Supreme Court has ruled that in situations where the real reason behind the decision to dismiss an employee is hidden from the decision-maker by an ‘invented reason’, it is the hidden, real reason that should be taken as the true reason for dismissal. When a worker makes a protected disclosure, section 47B of the Employment Rights Act 1996 (ERA) states they cannot suffer a detriment as a result. Section 103A of the ERA also provides that a dismissal for making such a disclosure is…

Pay and benefits

The Employment Appeal Tribunal (EAT) has held that an organisation was wrong to completely depend on a negative right to work check when deciding to withhold work, and pay, from the claimant.    If an individual does not have the right to live and work in the UK, an organisation cannot employ them. Such an action can result in a civil penalty fine of up to £20,000 per worker, alongside criminal charges. However, it is possible for a ‘statutory excuse’ to be used as a defence for this if…

Equality

The Court of Appeal has upheld earlier decisions that an employee’s belief in the right to own the copyright of ‘her own creative works and output’ did not amount to a philosophical belief. Under the Equality Act 2010, employees are able to bring tribunal claims if they are subjected to forms of discrimination because of a ‘philosophical belief’.  In the case of Grainger v Nicolson, the Employment Appeal Tribunal (EAT) provided guidance on what could constitute as a ‘philosophical belief’.…

Judgement published:
Termination

The Employment Appeal Tribunal (EAT) has provided further clarification on how statutory and contractual redundancy pay should be provided to employees. When an employee is made redundant they are entitled to receive statutory redundancy pay if they have at least two years’ continuous service. The payment is calculated on the basis of an employee's age, length of service and weekly pay, subject to a weekly maximum. In addition to this, organisations may also provide enhanced, or contractual,…

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Business principles

The Employment Appeal Tribunal (EAT) has held that a worker who was denied a rest break, and later threatened with dismissal when he refused to return to work as a result, was subjected to an unlawful detriment. Under the Working Time Regulations 1998 (WTR), adult workers who work more than a six-hour shift are entitled to a rest break of at least 20 minutes. If they are asked to comply with a request that breaches the provisions of the WTR and refuse, such as not taking their break, they are…

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Terms and conditions

In a landmark ruling, the Supreme Court has confirmed that unreasonably wide wording in a post-termination covenant can be removed, and the covenant still enforced, if this does not generate any significant change to the overall effect of the restraint. Despite the common myth, organisations are able to use and enforce non-compete restrictions in order to protect their business interests when employees leave the business. However, a restrictive covenant which serves to restrict trade needs to…

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Equality

The Employment Appeal Tribunal (EAT) has ruled that, when evaluating if an impairment should be classed as ‘long-term’, and therefore a disability, organisations should determine the likelihood of it recurring at the time of the potentially discriminatory act. The Equality Act 2010 protects all employees from discrimination on the grounds of a disability. For the purposes of the legislation, an employee will be disabled if they have a mental or physical impairment and that impairment has a…

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Discipline and grievance , Termination

The Employment Appeal Tribunal (EAT) has ruled that an employee was not unfairly dismissed despite content being removed from an investigation report into his conduct that expressed views in his favour. Before undertaking a disciplinary procedure into alleged misconduct, organisations must first carry out a thorough investigation into the allegations. Acas recommends that the report produced from any investigation should not, from the facts gathered, provide an opinion on what the outcome…

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Equality

The employment tribunal (ET) has held that a doctor’s ‘conscientious objection’ to refer to transgender patients in their chosen gender was ‘incompatible with human dignity’. Under the Equality Act 2010, employees are able to bring claims if they are subjected to forms of discrimination because of a ‘philosophical belief’.  In the case of Grainger v Nicolson, the Employment Appeal Tribunal (EAT) provided guidance on what could constitute as a ‘philosophical belief’. Amongst other criteria,…

Judgement published:
Equality

The Employment Appeal Tribunal (EAT) has ruled that whilst the act of massaging an employee’s shoulders amounted to unwanted conduct, it was not harassment. Under section 26 of the Equality Act 2010, sexual harassment occurs when an individual, A, engages in unwanted conduct with a person, B, that is of a sexual nature or related to their gender and has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. When…

Employees and workers

The Employment Appeal Tribunal (EAT) has ruled that an out-of-hours GP, who provided her services to the respondent through a separate service organisation, was a ‘worker’ and not ‘self-employed’. Determining the true relationship between an individual and an organisation, and whether the individual amounts to an employee, worker and someone who is self-employed, can be the cause of much confusion. When considering this issue, tribunals will focus on the particular facts of the case in order…

Equality

The Employment Appeal Tribunal (EAT) has ruled that, when determining injury to feelings compensation in discrimination cases, it is not only one-off acts that fall into the lower band.  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 Vento set out three bands to be used when…

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…

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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…

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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…

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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…

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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…

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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,…

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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…

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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…