Equality

The Employment Appeal Tribunal (EAT) has upheld a ruling that a pregnant police officer was discriminated against due to a policy that instructed pregnant officers to be transferred to a desk-based role. In situations where an employee notifies the organisation that they are pregnant, a risk assessment may deem it necessary to temporarily alter their usual duties or role in order to keep them safe during their pregnancy. This needs to be approached carefully by organisations in order to avoid…

Terms and conditions , Termination

The Employment Appeal Tribunal (EAT) has provided clarity on identifying the correct organisation that has employed a claimant when this is disputed. When a dispute arises regarding employment of an individual, such as the duties they are expected to complete and the rights available to them, the starting point for tribunals to look to is the contract. However, as outlined in the case of Autoclenz v Belcher, the contract may not reflect the true relationship between the parties. As a result of…

Termination

The Employment Appeal Tribunal (EAT) has assessed if a claim for redundancy pay was in time when considering conflicting evidence of the termination date. The Employment Rights Act 1996 outlines that when an employee’s employment is terminated, such as when they are made redundant, and this is without notice, the relevant date of termination is the date which it takes effect – for example the day they stop receiving work and/or pay. If an employee believes they should have received redundancy…

Equality

The Employment Appeal Tribunal (EAT) has ruled that in circumstances where there is no evidence of a disability on the date of an alleged act of discrimination, a tribunal is entitled to consider all evidence available from around this date and infer that a disability was present at the relevant time. Under the Equality Act 2010, a person is said to be disabled if they have a condition that is a physical or mental impairment, which has a substantial and long-term adverse effect on someone’s…

Termination

The Employment Appeal Tribunal (EAT) has held that there was a redundancy situation where the owner of an organisation absorbed the role of its Managing Director. A redundancy situation can exist where business, or part of it, is shut down completely, shut down at a specific location (even if moving to a new location) or the requirement for employees to do work of a particular kind has reduced or come to an end. Organisations need to keep this in mind when dismissing employees on the basis of…

Equality

The Court of Appeal has held that indirect age discrimination can potentially be justified on the basis of saving costs to balance company books. The Equality Act 2010 outlines that indirect age discrimination is when a provision, criterion or practice (PCP) is applied to everyone and is apparently age neutral, but which: disadvantages more people in one age group than in another causes an individual employee a disadvantage is not justifiable as ‘a proportionate means of achieving a…

Termination

The EAT has held that an employee refusing to return to work following the end of her maternity leave amounted to her acceptance of a repudiatory breach, meaning her claim for constructive dismissal could succeed. Claims for constructive unfair dismissal can be brought when an employee can demonstrate the organisation acted in a way that served to breach the implied term of mutual trust and confidence between them. This can amount to a breach of the employment contract but needs to be a…

Termination

The Employment Appeal Tribunal (EAT) has ruled that tribunals are entitled to reconsider a judgement under their own initiative, in compliance with tribunal rules, after it has been suggested they do so by another party. Under the Employment Tribunal Rules of Procedure, employment tribunals are able to reconsider a judgement where it is deemed necessary. They can make the decision to do this on their own initiative, at the request of the EAT or on the application of a party, which can be…

Business principles

The Supreme Court has considered whether the Home Office’s treatment of a skilled worker under the current tier 2 immigration system was unfair. Currently, until the end of 2020, migrants seeking to come and live in the UK from outside of the EEA and Switzerland need to do so through a tiered system. Tier 2 is for sponsored workers and intra-company transfers. Those seeking entry through Tier 2 need to meet a number of eligibility criteria, including being offered a job that cannot be filled…

Termination

The Employment Appeal Tribunal (EAT) has considered when a notice of dismissal is said to have been served to an employee if they do not receive it due to being on holiday. In a redundancy situation, it is crucial that a fair procedure is followed. This includes offering the right to appeal to all employees selected for redundancy when they are issued with a dismissal notice. They should also be provided notice pay as stipulated in their contract and, if they have worked for the company for at…

Equality

The Employment Appeal Tribunal (EAT) has provided clarity on establishing the link between individual and group disadvantage when bringing a claim for indirect age discrimination. Under the Equality Act 2010, indirect age discrimination occurs when: a provision, criterion or practice (PCP) is applied to people of all ages, but the PCP disadvantages people of one age (or in a particular age group) more when compared with persons of a different age or age group the PCP causes an individual…

Business principles

The Employment Appeal Tribunal (EAT) has ruled that the imposition of a new contract was a one-off event, and not a continuing act, for the purposes of whistleblowing detriment. Whistleblowing is a term used to cover legal protections offered to certain groups of people who disclose information about the organisation they work for. In order for this protection to apply, the disclosure needs to be ‘protected’ under the law. There are two areas of protection: employees are protected from…

Employees and workers

The Employment Appeal Tribunal (EAT) has ruled that there was not a sufficient amount of control placed over a claimant in order to label him an employee of a company. The term 'employment status' is the arrangement under which an individual is engaged to work for an organisation. There are three labels: ‘employee’, ‘worker’ and ‘self-employed’. It is important to correctly label individuals who work for an organisation, as a false labelling could mean they are missing out on key employment…

Equality

The Employment Appeal Tribunal (EAT) has considered whether a claimant suffering from paranoid delusions had a disability for the purposes of the Equality Act 2010. Section 6 of the Equality Act 2010 outlines that a person is disabled if they have a physical or mental impairment that has a substantial long-term adverse effect on their ability to conduct day-to-day activities. Schedule 1 of the Act takes a closer look at what constitutes ‘long term’, outlining an impairment can be classed as…

Termination

The Employment Appeal Tribunal (EAT) has ruled that a tribunal had failed to consider if there had been a genuine redundancy situation, following a claim that new roles created afterwards were ‘essentially the same’. The burden of proof as to if a dismissal was for a fair reason lies with the respondent and in this case, the reason for dismissal being relied upon was redundancy. To test for redundancy, it must be shown that there was a potentially fair reason for the redundancy to take place…

Termination

The Employment Appeal Tribunal (EAT) has ruled that a dismissal for reputational risk, following the arrest of a teacher on suspicion of downloading inappropriate images of children, was unfair. Two of the five potentially fair reasons for dismissing an employee are ‘conduct’ and ‘some other substantial reason (SOSR)’. SOSR is a catch-all category which provides a potentially fair reason for dismissal where the circumstances cannot be classed as one of the other potentially fair reasons. A…

Employees and workers

The Employment Appeal Tribunal (EAT) has held that foster carers who operated under an agreement with a local authority were employees of that authority. The term 'employment status' is the arrangement under which an individual is engaged to work for an organisation. There are three main categories: employees, hired directly by the organisation workers (for example, casual, agency or freelance workers) the self-employed (for example, contractors). As employees are covered by the full range…

Equality

The Court of Appeal has ruled that, when considering a ‘material factor’ defence within an equal pay claim, organisations need to explain pay disparity, not justify it. Under the Equality Act 2010, men and women have the right to receive equal pay for equal work. Work is considered to be of ‘equal value’ where the value of a woman's work is equal to that of a man in terms of the demands made on her, for example, under such headings as effort, skill and decision-making. In effect the remit and…

Termination

The Employment Appeal Tribunal (EAT) has found that an employee was constructively dismissed when she was moved onto a different role instead of being subject to appropriate redundancy procedures.  Redundancies can arise when an organisation no longer requires a member of staff to conduct work of a particular kind. Consulting with staff in this situation is important as it allows organisations to justify why a redundancy is necessary and discuss if any other courses of action are available,…

Termination

The Employment Appeal Tribunal has ruled that a dismissal with no procedure was fair due to a breakdown in the working relationship. To avoid a claim for unfair dismissal an organisation needs to demonstrate a potentially fair reason to dismiss and that they followed a fair procedure. Potentially fair reasons are outlined in the Employment Rights Act 1996 and include Some Other Substantial Reason (SOSR). This can occur when there is a loss of mutual trust and confidence between the employee…

Equality

The Employment Appeal Tribunal (EAT) has ruled that the tribunal did not err by finding a claimant had not demonstrated clear evidence that her ‘mixed personality’ disorder had a substantial adverse effect on her day-to-day activities. Under section 6 of the Equality Act 2010, a person is deemed to have a disability if they have an impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. If this can be established, an employee…

Employees and workers

The employment tribunal (ET) has ruled that a hairdresser was an employee, not self-employed, due to the level of control asserted on her by an organisation. ‘Employment status’ refers to the arrangement under which an individual is engaged to work for an organisation. There are three main categories of employment status; employees, workers and the self-employed. Distinguishing between these three labels is important; whilst employees and workers are entitled to a number of employment rights,…

Employees and workers

The Employment Appeal Tribunal (EAT) has upheld an earlier decision from the employment tribunal (ET), finding a worker supplied from one company to another met the definition of ‘agency worker’ as defined in the law. The rules governing the supply and use of agency workers from one organisation to another (the end-user) are found in the Agency Worker Regulations 2010. Regulation 3 defines an ‘agency worker’ as an individual who is supplied by a ‘temporary work agency to work temporarily for…

Pay and benefits

The EAT has provided guidance on situations where deducting wages for training costs and accommodation expenses could put organisations in breach of minimum wage law. As outlined in the National Minimum Wage Act 1998 (NMWA), and clarified by the National Minimum Wage Regulations 2015 (NMWR), workers must be paid at least the current rate of the minimum wage as set by the government. The law does permit certain deductions to be made from wage calculations that do not place organisations in…

Discipline and grievance , Termination

The Employment Appeal Tribunal (EAT) has ruled that the ET erred by finding evidence from an external witness was unreliable and made a decision to dismiss unfair. Under the Employment Rights Act 1996, in order to demonstrate that the decision to dismiss an employee is fair, organisations need to clearly show the reason for the dismissal. It also needs to be established that their actions leading up to the decision to dismiss fell inside the ‘band of reasonable responses’ to the situation that…

Equality

The Employment Appeal Tribunal (EAT) has ruled that an employment tribunal (ET) was right to rely on medical evidence from a GP when it was contradicted by the claimant in a discrimination claim. Under the Equality Act 2010, a person, (A), discriminates against a disabled person (B), if A treats B unfavourably because of something arising in consequence of B’s disability and cannot show this treatment is a proportionate means of achieving a legitimate aim. For example, if an organisation…

Equality

The Employment Appeal Tribunal has ruled that a tribunal proceeded on a false basis by not requiring the disclosure of documents relating to the refusal of an employment opportunity due to potentially racist reasons. Under the Equality Act 2010, organisations are prohibited from discriminating against individuals on the basis of their race and religion. This includes denying them opportunity for promotion or new roles. During employment tribunal proceedings, a preliminary hearing may be held…

Termination

The Employment Appeal Tribunal (EAT) has ruled that a group of claimants were unfairly dismissed by a local authority when the school they worked in closed and they were unsuccessful in applying for positions at a new school in the same location. As outlined in the Employment Rights Act 1996 (ERA), a redundancy is a potentially fair reason for dismissal. However, when implementing a redundancy procedure, organisations need to ensure that it is fair and that they are able to justify the…

Business principles , Termination

The Employment Appeal Tribunal (EAT) has held that in TUPE situations, transfer-related contractual changes are void even if they benefit the employee and not just when they are detrimental. Aside from transfer of business ownership, TUPE transfers, and the laws that surround it, can also come into effect when where the provision of services ceases to be carried out by one contractor (known as the ‘transferor) and is allocated to another (known as the ‘transferee’). This is known as a ‘service…

Termination

The Employment Appeal Tribunal (EAT) has found that in claims of constructive dismissal, even if the ‘last straw’ act that led to a resignation is considered ‘innocuous’, claimants can still rely on prior actions from the organisation.   To establish constructive dismissal, claimants must show that the organisation’s actions amounted to a serious breach of contract that led to their resignation. However, this can be difficult to prove if they continue to work for the organisation after such an…