Equality

Employment tribunal – December 2018 The employment tribunal (ET) has ruled that the dismissal of an 88-year-old employee was unfair and ‘tainted by discrimination’. This case concerned an employee who had operated as a medical secretary under a consultant since 2005. Her duties involved the maintenance of a list of patients waiting for breast cancer and non-urgent surgery and to inform the consultant if their time on it was approaching 52 weeks. In 2015, training was arranged to assist the…

Equality

The Equality Act 2010 prohibits the discrimination of someone on the basis of their age but it can sometimes be justified if it can be shown the act was a proportionate mean of achieving a legitimate aim. However, it will be discrimination to dismiss someone because of fears they are getting ‘too old’. If an organisation does have concerns over the capability of an employee, they should approach this with their normal procedure and not treat them any differently because of their age. The…

Employees and workers, Termination

Employment tribunal – October 2018 The employment tribunal (ET) has ruled that dismissing an apprentice prior to the completion of their apprenticeship was in breach of contract. This case concerned an apprentice who entered into an arrangement with an organisation in Scotland, Express Joinery, under the auspices of the Construction Industry Training Board (CITB). This outlined an apprenticeship with an end date of January 2020. During his time working for Express Joinery the apprentice took…

Employees and workers, Termination

The nature of a contract of apprenticeship makes it very difficult for an apprentice to be dismissed before the end date unless it can be demonstrated that the apprentice committed serious misconduct. Whilst dismissing an apprentice in Scotland early can lead to a significant claim for damages, apprentices in England and Wales who are engaged on an apprenticeship agreement on par with a contract of employment can be dismissed for minor misconduct within the first two years. More information on…

Employees and workers, Termination

Employment tribunal – October 2018 The employment tribunal (ET) has ruled that dismissing an apprentice prior to the completion of their apprenticeship was in breach of contract. This case concerned an apprentice who entered into an arrangement with an organisation in Scotland, Express Joinery, under the auspices of the Construction Industry Training Board (CITB). This outlined an apprenticeship with an end date of January 2020. During his time working for Express Joinery the apprentice took…

Employees and workers, Termination

The nature of a contract of apprenticeship makes it very difficult for an apprentice to be dismissed before the end date unless it can be demonstrated that the apprentice committed serious misconduct. Whilst dismissing an apprentice in Scotland early can lead to a significant claim for damages, apprentices in England and Wales who are engaged on an apprenticeship agreement on par with a contract of employment can be dismissed for minor misconduct within the first two years. More information on…

Discipline and grievance , Termination

The tribunal’s finding that the behaviour of both employees here was ‘similar’ and not ‘identical’ is significant. The fact that the claimant’s actions were deemed to be more serious than that of his colleague’s meant that the different treatment he received by the organisation was not unfair. If employees commit similar acts of misconduct it does not necessarily mean an organisation’s response needs to be the same if it can be established that there was a good reason for the disparity of…

Discipline and grievance , Termination

Employment tribunal – October 2018 The employment tribunal (ET) has ruled that the decision to dismiss one employee and not another when their conduct was ‘similar’ was fair as their actions were not ‘identical’. The claimant in this case had been unhappy because the annual Christmas gift provided to employees was of less value than previous years. A colleague, Mr Minshull, posted a Facebook status criticising this and comparing management to Ronald McDonald. Commenting on the status, the…

Discipline and grievance , Termination

The tribunal’s finding that the behaviour of both employees here was ‘similar’ and not ‘identical’ is significant. The fact that the claimant’s actions were deemed to be more serious than that of his colleague’s meant that the different treatment he received by the organisation was not unfair. If employees commit similar acts of misconduct it does not necessarily mean an organisation’s response needs to be the same if it can be established that there was a good reason for the disparity of…

Discipline and grievance , Termination

Employment tribunal – October 2018 The employment tribunal (ET) has ruled that the decision to dismiss one employee and not another when their conduct was ‘similar’ was fair as their actions were not ‘identical’. The claimant in this case had been unhappy because the annual Christmas gift provided to employees was of less value than previous years. A colleague, Mr Minshull, posted a Facebook status criticising this and comparing management to Ronald McDonald. Commenting on the status, the…

Pay and benefits, Equality

Court of Appeal upholds decision that retail workers can compare pay terms to distribution workers due to common terms applying at the establishments. Facts Around 30,000 predominately female retail employees have submitted equal pay claims against the organisation, alleging there are not receiving equal pay in comparison to the pay terms afforded to predominantly male distribution employees. As set out within s79(4)(c) of the Equality Act 2010, claimants can rely on comparators where “…

Pay and benefits, Equality

It is a rare occurrence that a preliminary issue such as this one reaches the higher stages within the tribunal appeals process. This matter, however, is one of extreme importance to the employer as a failure at this stage would have led to the entire equal pay claim failing at the first hurdle. There are, however, still two more stages for the employees to successfully navigate. They will first be required to show that they were carrying out “work of equal value” in comparison to distribution…

Pay and benefits, Equality

Court of Appeal upholds decision that retail workers can compare pay terms to distribution workers due to common terms applying at the establishments. Facts Around 30,000 predominately female retail employees have submitted equal pay claims against the organisation, alleging there are not receiving equal pay in comparison to the pay terms afforded to predominantly male distribution employees. As set out within s79(4)(c) of the Equality Act 2010, claimants can rely on comparators where “…

Pay and benefits, Equality

It is a rare occurrence that a preliminary issue such as this one reaches the higher stages within the tribunal appeals process. This matter, however, is one of extreme importance to the employer as a failure at this stage would have led to the entire equal pay claim failing at the first hurdle. There are, however, still two more stages for the employees to successfully navigate. They will first be required to show that they were carrying out “work of equal value” in comparison to distribution…

Equality , Discipline and grievance

The Employment Appeal Tribunal (EAT) has ruled that a failure to consider how a disability can be the operative cause of an employee’s misconduct amounted to unfair dismissal. This case concerned a lorry driver who suffered from type 2 diabetes. After a period of driving he returned to the organisations’ premises, parked near a loading bay to the store and felt an extreme need to urinate. Not believing he would make it to the building’s facilities in time, he urinated in the yard. The…

Equality , Discipline and grievance

A thorough disciplinary investigation must be conducted before reaching any conclusion that the actions of an employee amounts to gross misconduct. Managers should be able to demonstrate that they have a genuine reasonable belief, based on reasonable grounds, that the employee has committed the act of alleged misconduct. Therefore, care should be taken not to rely on evidence that could potentially be unreliable, such as unclear CCTV footage. In situations where the evidence available could be…

Equality , Discipline and grievance

The Employment Appeal Tribunal (EAT) has ruled that a failure to consider how a disability can be the operative cause of an employee’s misconduct amounted to unfair dismissal. This case concerned a lorry driver who suffered from type 2 diabetes. After a period of driving he returned to the organisations’ premises, parked near a loading bay to the store and felt an extreme need to urinate. Not believing he would make it to the building’s facilities in time, he urinated in the yard. The…

Equality , Discipline and grievance

A thorough disciplinary investigation must be conducted before reaching any conclusion that the actions of an employee amounts to gross misconduct. Managers should be able to demonstrate that they have a genuine reasonable belief, based on reasonable grounds, that the employee has committed the act of alleged misconduct. Therefore, care should be taken not to rely on evidence that could potentially be unreliable, such as unclear CCTV footage. In situations where the evidence available could be…

Termination

The Acas code of practice on disciplinary and grievance procedures does not apply to SOSR dismissals. However, dismissal procedures in SOSR situations should still be fair and follow a fair procedure, including the right to be accompanied, giving an outcome and the right to appeal. Any internal procedural requirements outlined within the organisation's disciplinary policy will also have to be followed.

Termination

Employment Appeal Tribunal – October 2018 The Employment Appeal Tribunal (EAT) has held that not holding a meeting with an employee before making a decision to dismiss for SOSR did not amount to unfair dismissal. In this case, the employee operated as a voluntary reservist with the Royal Marines whilst maintaining his role within an organisation. As he needed additional time off for this commitment he had successfully negotiated a further week of unpaid leave upon acceptance of the role.…

Equality

Employment tribunal – September 2018 The employment tribunal (ET) has ruled that an organisation’s failure to assist in the implementation of reasonable adjustments amounted to a breach of their duty In this case the employee, whose role as a clerical assistant involved a significant amount of keyboard and mouse work, was classed as disabled due to carpal tunnel syndrome and repetitive strain injury. Following the recommendation of an Occupational Health report the employee started to…

Equality

This case reaffirms that organisations must have control over any process to establish a reasonable adjustment. There is a legal duty to make reasonable adjustments when an employee has a disability and organisations must be able to demonstrate they showed full commitment to it. As was the case here, leaving the employee to their own devices is not acting reasonably and will be frowned upon in a tribunal. Any delay caused by a failure to do this can render the behaviour a breach of the…

Terms and conditions , Pay and benefits

Employment Appeal Tribunal – September 2018 The Employment Appeal Tribunal (EAT) has ruled that an employee was entitled to a written statement of terms despite only working for the organisation for six weeks. This case concerned three European claimants who were employed by a hotel as waiting staff and claimed they were poorly treated. Following a complaint to management about numerous issues, such as shortfalls in their wages, falsification of their wage slips and late payments, they were…

Terms and conditions , Pay and benefits

As seen here, failure to provide the SMT within the appropriate time frame can leave organisations liable to claims. As noted by the EAT, ensuring that SMTs are provided in a timely manner minimises the risk of ambiguity or misunderstanding of the terms that form the contractual basis of the employment relationship. It should be remembered that, although the two-month time frame currently exists, organisations can still meet their obligations provided they provide the SMT ‘before proceedings…

Terms and conditions , Pay and benefits

Employment Appeal Tribunal – September 2018 The Employment Appeal Tribunal (EAT) has ruled that an employee was entitled to a written statement of terms despite only working for the organisation for six weeks. This case concerned three European claimants who were employed by a hotel as waiting staff and claimed they were poorly treated. Following a complaint to management about numerous issues, such as shortfalls in their wages, falsification of their wage slips and late payments, they were…

Terms and conditions , Pay and benefits

As seen here, failure to provide the SMT within the appropriate time frame can leave organisations liable to claims. As noted by the EAT, ensuring that SMTs are provided in a timely manner minimises the risk of ambiguity or misunderstanding of the terms that form the contractual basis of the employment relationship. It should be remembered that, although the two-month time frame currently exists, organisations can still meet their obligations provided they provide the SMT ‘before proceedings…

Equality

Supreme Court – December 2018 The Supreme Court has agreed with the earlier decisions of the Court of Appeal (CA) and the Employment Appeal Tribunal (EAT) that an ill-health retirement pension scheme did not amount to unfavourable treatment despite it being potentially more advantageous to other employees.  This case concerned an employee who suffered from several psychological problems including Tourette’s Syndrome. Due to the progress of his illness, he had reduced his hours and salary to…

Equality

This judgement is a useful illustration of the burden of proof that is placed upon employees to demonstrate that their treatment was unfair in comparison with a non-disabled employee. Organisations should consider reviewing and possibly amending their schemes to limit the risk of future claims. As seen here, making reasonable adjustments which do result in a lowered salary could also affect pension provisions at a later date, which could potentially result in a claim being made.

Employees and workers

Court of Appeal – December 2018 The Court of Appeal (CA) has dismissed Uber’s appeal against the employment tribunal (ET) and Employment Appeal Tribunal’s (EAT) decision that drivers engaged by Uber were not self-employed contractors, but fell squarely within the legal definition of ‘worker’ under the Employment Rights Act 1996, the Working Time Regulations 1998 and the National Minimum Wage Act 1998. This case concerns the claim from two London-based Uber drivers that they should be…

Employees and workers

It is imperative that organisations correctly categorise those who work for them. Despite what the terms of a contract might say, tribunals have the ability to assess the reality of the situation. If the relationship between the parties does not reflect what is outlined in the contract, tribunals can determine that individuals are a different employment status and are determined to additional employment rights. This can leave an organisation liable for claims of holiday pay, the minimum wage,…