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…

Judgement published:
Terms and conditions , Business principles

The High Court has provided further clarity on how the Job Retention Scheme works during a situation of company insolvency. In situations where organisations become insolvent and therefore enter administration, administrators normally have 14 days following their appointment in which to dismiss that organisation’s workers. This is important to avoid liability for their employment and their wages. In March 2020, as a result of the coronavirus outbreak, the government introduced the Job…

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Business principles

The Supreme Court has overturned previous rulings, finding that Morrisons were not vicariously liable for the actions of an employee who illegally distributed personal data of nearly 100,000 staff. Organisations can be liable for acts committed by their employees if it is found that their actions are sufficiently connected to their employment. Since this doctrine was introduced, there have been numerous cases which established this liability. In Mohamud v Wm Morrison Supermarkets plc, the…

Business principles

The Employment Appeal Tribunal (EAT) has held that a claimant did not make protected disclosures and, therefore, was not subjected to a detriment in the eyes of whistleblowing law. Under the Employment Rights Act 1996, workers are protected from dismissal if the reason, or principal reason, for their dismissal is that they have made a 'protected disclosure'. They are also protected from being subjected to a detriment. In order for a complaint to be considered a protected disclosure, it needs…

Business principles

The Employment Appeal Tribunal (EAT) has ruled that an employee whose job offer was retracted when they refused to work Sunday hours was not automatically unfairly dismissed. The Employment Rights Act 1996 (ERA) provides shop and betting workers with the right to object to working on Sunday, in certain circumstances. Essentially, an employee in this situation can opt-out of Sunday working provided their contract of employment requires, or may require, them to work on Sundays and Sunday is not…

Business principles

The Court of Appeal has ruled that an organisation was not liable for the damage to a whistle blower’s reputation that came about as a result of them labelling his accusations as ‘without foundation’. Under the Employment Rights Act 1996, workers are prohibited from being subjected to any detriment because they have made a protected disclosure. What amounts to a detriment is not outlined in the Act and, historically, it has been up to tribunals to determine this through case law concerning…

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…

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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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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…

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…

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…

Business principles

Court of Appeal – March 2019 The Court of Appeal has ruled that shorter breaks can be aggregated to satisfy entitlements to a 20 minute rest break period, overturning the previous decision of the Employment Appeal Tribunal. Under Regulation 12, workers are entitled to an uninterrupted rest break lasting at least 20 minutes if their daily working time is more than six hours. Regulation 21(f) states workers in railway transport roles carrying out activities relating to the continuity and…

Business principles

Court of Appeal – July 2018 The Court of Appeal (COA) has ruled that the EU Working Time Directive (WTD) does not outline any obligation in the Working Time Regulations 1998 to provide compensation for ‘injury to feelings’ when an employer fails to facilitate rest breaks. Facts and Employment Tribunal The employee, Santos Gomes, made a claim that her employer was not affording her the requisite rest breaks which was having an impact on her health and wellbeing. The Employment Tribunal…

Business principles

European Court of Justice – February 2018 ECJ finds restrictions placed on the worker meant time spent at home on-call was ‘working time’ under the Working Time Directive. The Working Time Directive (2003/88/EC) defines “working time” as any time where a worker is working, at the employer’s disposal and carrying out their activity or duties. In contrast, any time not classed as working time will be categorised as a “rest period”. Facts Matzak was a Belgian volunteer firefighter in the…

Business principles , Dispute resolution

Employment Appeal Tribunal - January 2018 The EAT has ruled there are exceptional circumstances where employees can bring whistleblowing claims against co-workers in the employment tribunal even though the detriment took place outside Great Britain. s47B(1A) of the Employment Rights Act 1996 provides protection for workers against detrimental treatment from co-workers due to making protected disclosures. If an employee successfully presents a claim against their co-workers under this…

Equality , Business principles

European Court of Human Rights – January 2018 Were employees’ rights to privacy breached by covert surveillance set up to monitor suspected thefts? Under Article 8 of the European Convention of Human Rights, individuals have a right to respect for their private and family life that extends to the workplace. The right is a qualified right so employers can place restrictions on privacy rights to achieve a legitimate objective, so long as their methods are proportionate and necessary. Facts…

Business principles

Can shorter breaks be aggregated to satisfy a worker's entitlement to a 20 minute rest break under the Working Time Regulations? Note: This decision has been appealed and overturned by the Court of Appeal. Under Regulation 12, workers are entitled to an uninterrupted rest break lasting at least 20 minutes if their daily working time is more than six hours. Regulation 21(f) states workers in railway transport roles carrying out activities relating to the continuity and regularity of…

Business principles , Termination

Employment Appeal Tribunal – November 2017 Did a failure to produce right to work documents justify a statutory illegality dismissal? Facts As a Jamaican national, Baker had the right to live and work in the UK under the Immigration Act 1971. He was employed as a bus driver from July 2012. In 2015, an audit was carried out by the organisation in to their employees’ right to work. They asked Baker to produce one of a list of documents that included a passport. He explained that he had…

Business principles , Termination

Court of Appeal - October 2017 Is a dismissal automatically unfair when the decision maker had no knowledge of protected disclosures, and was intentionally misinformed by the employee’s line manager? Facts Jhuti was employed on a six month trial period in the organisation’s MarketReach department. She noticed irregularities in the way colleagues were offering incentives to customers and believed these breached OFCOM guidance. Jhuti twice reported this to her line manager, by email in…

Business principles

Court of Appeal – July 2017 The Court of Appeal has decided that blowing the whistle about the alleged wrongdoing of an employer with regard to one’s own and colleagues’ contracts of employment can amount to a protected disclosure.   Nurmohamed, the director of a London office of an international firm of estate agents, alleged that the company had awarded lower bonuses to himself and 100 other senior managers than they would otherwise have received by deliberately misstating £2-3 million…

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Business principles

Court of Appeal - May 2017 The Court of Appeal has allowed an appeal from a trainee doctor claiming whistleblower protection against the NHS’s national training body even though he was employed by an NHS trust.   The whistleblowing laws are contained in the Public Interest Disclosure Act 1998, the Employment Rights Act 1996 and the Enterprise and Regulatory Reform Act 2013. The original legislation only protected employees and workers, but the ERRA extended the protection against…

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Business principles

Employment Appeal Tribunal – April 2017 In this case, a ‘sleep-in’ night worker was found to be entitled to national minimum wage and not just an allowance for the duty This case was heard alongside two others, also dealing with whether sleeping during on-call time counted as working time for the purposes of the national minimum wage requirements. Roberts was an hourly paid care worker for an agency providing a ‘supported living service’ paid for by local authorities or by the clients…

Judgement published:
Business principles

Employment Appeal Tribunal – November 2016 This EAT decision closes a loophole in the UK’s working time rules that allowed employers to be considered not to be refusing a worker a rest break if the worker had not requested one – an approach not in keeping with the spirit of the directive which is aimed at protecting workers’ health and safety. Under the Working Time Regulations 1998, workers are entitled to a rest break of 20 minutes if they work for more than six hours (regulation 30).…

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Business principles

Employment Appeal Tribunal – August 2016 Here the EAT clarifies how employment contract terms can determine which employer – the agency or the end-user – will be liable when an agency worker makes a whistleblowing claim The Employment Rights Act 1996 protects agency workers who blow the whistle. This protection specifically covers health service workers if their terms are substantially determined by the organisation they are working for, by their agency, or both (this is because NHS…

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Business principles

Employment Tribunal: January 2016 The impact of the Bribery Act 2010 stretches beyond the criminal realm. In the case of Blake v Home an employment tribunal had to whether an immigration officer had been fairly dismissed for gross misconduct for accepting a bribe.   It became apparent that the immigration officer had accepted money from an individual involved in the immigration process. The officer returned the money, thought to be around £200, and reported the bribe. On the facts, there…

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Business principles

Employment Appeal Tribunal: October 2015 In this case, the EAT decided that it may be possible for an employee to claim whistleblowing protection against dismissal arising from a dispute between a small group of employees and their employer about their own contractual terms.   For a whistleblowing claim to succeed, the complaint must be a ‘protected disclosure’. There is also a requirement for the employee to have a reasonable belief that raising it is ‘in the public interest’, so…

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Business principles

Court of Justice of the European Union: September 2015 In Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL, the Court of Justice of the European Union (CJEU) had to consider whether journeys made by workers without a fixed place of work, between their homes and the first and last customers of the day, constitute working time.   This case involved technicians with no fixed place of work, employed by a Spanish company to install and maintain…

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Business principles

Advocate General (CJEU) – June 2015 A legal opinion for the European court has said that mobile workers’ time spent travelling to the first and home from their last call of the day is ‘working time’ under the directive.   The case involved Spanish technicians installing and maintaining security equipment in homes and business premises.   They were assigned to the employer’s central office in Madrid, but also to geographical areas in Spain. Their daily travel varied and could sometimes…

Judgement published:
Business principles

Employment Appeal Tribunal – May 2015 In this case, the Employment Appeal Tribunal decided that a health and safety rep and a shop steward attending meetings during the day, when they were working night shifts, should be considered as ‘working time’.   Under the Working Time Regulations 1998, ‘working time’ is “any period during which the worker is working, at his employer’s disposal and carrying out his activities or duties”. All three elements of the definition must be met.   The two…