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…

  Summary The Court of Appeal (CoA) has upheld an ET and EAT judgment that an employee was not automatically unfairly dismissed following their refusal to come into work during the first Covid-19 lockdown. Law and context Employees must have worked for an organisation for at least a period of two years in order to bring a claim of unfair dismissal. However, they can claim automatic unfair dismissal from day one of their employment in certain, prescribed circumstances. Section 100(1)(d) or…

Summary The Court of Appeal has upheld a decision where an employer successfully defended a claim for automatic unfair dismissal in relation to whistleblowing, by showing that the dismissal was genuinely due to the conduct of the individual, and not the protected disclosure.   Law Employment rights act 1996 (ERA) Section47B Protected disclosures. 1 A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the round…

Summary The Employment Tribunal once again demonstrates the vital importance of having relevant policies and procedures in place, finding against the respondent in a matter of unfair dismissal where these were not. The Employment tribunal also found that the act of liking and sharing a Facebook post can amount to a protected disclosure under whistleblowing laws. Law Unfair dismissal Employment Rights Act 1998 (ERA) Section 98(1): In determining for the purposes of this Part whether…

Summary An employee who raised a protected disclosure regarding working conditions, lack of PPE and appropriate training during the pandemic, and was subsequently dismissed for poor performance, was found to have been unfairly dismissed and subject to a detriment as a result of their disclosure.    Law Employment Rights Act 1996 (ERA)  Section s.98 - In order to show that a dismissal was fair, the employer must show that the dismissal was for a potentially fair reason. It is sufficient that…

Summary In this decision on unfair dismissal, the Employment Tribunal (ET) had to consider if a contractual vaccination requirement was reasonable, and if a dismissal as a result of it was fair. It also had to consider the position when religious beliefs were asserted in connection with vaccine refusal. Law Section 98 Employment Rights Act 1998 provides: (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show…

  Summary In this decision on vicarious liability, the Court of Appeal was called upon to consider the employer's liability for an employee's practical joke that resulted in hearing loss for the contractor involved. In particular, they had to consider to what extent an injury is foreseeable when the employer's materials are used to inflict injury.   Law The law in this area comes from common law, i.e. the decisions made by the courts, which become binding on other courts and must be…

  Summary In this decision on unfair dismissal related to health and safety, as a result of an employee’s refusal to attend the workplace due to fear of serious or imminent danger from Covid, the Employment Tribunal had to consider if ‘something more’ than merely the existence of Covid was required for an employees refusal to attend work to be reasonable and protected from dismissal. It also had to decide if the employer’s actions in dismissing rather than discussing the matter with the…

  Summary An employment tribunal (ET) has decided that, for the period that the claimant was on furlough, he was not a worker for the purposes of the Working Time Regulations 1998 and therefore did not accrue annual leave during that time. Law Workers are separate from employees. Workers agree under a contract – which can be oral or written, expressed or implied – to personally perform services for another party, who is not a client or customer of any profession or business carried on by…

Summary The employment tribunal (ET) has ruled that an agency worker was entitled to receive accrued holiday pay when furloughed. Generally, agency worker agreements work through an agency supplying workers to an ‘end-user’ for a period of time on an assignment. The length of the assignment should be clearly specified at its commencement and agreed between the agency, the end-user and the worker. During this assignment, it is the agency that usually pays the worker’s wages. Under the Working…

Summary An employment tribunal (ET) has held that an employer unfairly dismissed their employee who refused to agree to proposed employment contract changes due to coronavirus. To avoid a claim for unfair dismissal an employer must have a potentially fair reason to dismiss, acted reasonably in treating this reason as sufficient to justify dismissal, and followed a fair procedure. For a dismissal to be fair, the employer must show that the employee was dismissed for one of the following five…

The employment tribunal has evaluated the calculation of notice pay whilst furloughed before the law was changed in July 2020. The Job Retention, or furlough, Scheme, was introduced in March 2020 to assist businesses suffering downturn as a result of the coronavirus pandemic and associated lockdown restrictions. The scheme involved placing employees on ‘furlough’, meaning they remained on company books but did no work for that company, and the government covered 80 per cent of their wages.…

Summary An employment tribunal (ET) has held that an organisation fairly dismissed their employee who refused to wear a facemask on a client’s site. For a dismissal to be fair, employers must show that the employee was dismissed for one of the following five permitted reasons: capability conduct redundancy statutory illegality some other substantial reason (SOSR). The burden of proof is on the employer to show that one of the five permitted reasons was the true reason for the…

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…

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…

Summary 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…

Summary 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…

Summary 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…

Summary 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,…

Summary 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…

Summary 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…

Summary 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…

Summary 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…

Summary 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…

Summary 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 also grants an…

Summary 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 public interest’ set out in the…

Summary 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 exercise his right to be accompanied but…

Summary 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 regularity of timetables…

Summary 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 agreed and awarded her…

Summary 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 town of Nivelles since 1981 (…