Equality , Termination

19 October 2021 Summary The EAT held that a compulsory retirement age can be lawful, in limited circumstances. In these two cases, separate to each other but linked by the effects of the same policy, the employer argued that a compulsory retirement age of 68 was a proportionate means of achieving a legitimate aim.   Law The Equality act prohibits discrimination on the grounds of age under sections (5) and (13), unless it is a proportionate means of achieving a legitimate aim (section 13 (…

Equality

An employment tribunal has decided, for the first time, that indirect discrimination can occur even when the employee to whom the provision, criterion or practice has been applied does not have the relevant characteristic, where their associates does and this has the result of disadvantaging the employee. Under the Equality Act, section 19, (1), indirect discrimination is defined as:  “A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which…

Termination

The Employment Appeal Tribunal (EAT) has upheld an automatically unfair dismissal claim which was previously thrown out by the Employment Tribunal (ET) because at the time of her complaint to her employer, the breach had not occurred. If a dismissal is for one of the automatically unfair reasons, no qualifying service is required to bring a claim. Common examples include dismissals for: taking action on health and safety grounds. asserting statutory rights. reasons related to pregnancy or…

Termination

The Court of Appeal (CA) has upheld a decision 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…

Termination

The Employment Appeal Tribunal (EAT) has held that a claimant was not unfairly dismissed from the company he founded after not being offered the opportunity to appeal. Some other substantial reason (SOSR) is a category that provides a potentially fair reason for dismissal where the circumstances cannot be classed as one of the other potentially fair reasons. The following could amount to SOSR dismissals: the dismissal of a person employed as a temporary replacement for another employee taking…

Judgement published:
Termination

The Court of Session has ruled that a decision to dismiss a teacher for charges he faced (but not prosecuted on) was fair, and one that a reasonable employer would have made. For a dismissal to be fair under the Employment Rights Act 1996, it must be for one of the reasons listed in s98(1)(b) and be within the band of reasonable responses (s98 (4)). Facts A computer with indecent images of children on was found at the home of a teacher, where he lived with his son. They were both charged…

Equality , Termination

The Employment Tribunal (ET) has dismissed a series of claims concerning discrimination, unfair and wrongful dismissal, harassment, and more, in order to avoid encouraging ‘a culture of hyper-sensitivity’. Facts The claimant worked as a lawyer for PSI CRO UK, the respondent. She was offered a role at the company’s branch in Switzerland but was told that her age “will prevent [her] from commanding a higher salary”. Due to unrelated personal reasons, she declined the role. The claimant told…

Equality

The Employment Tribunal (ET) has held that an employee was not directly discriminated against on the grounds of religion or harassed by her employer. ‘Religion’ means any religion, or a lack of religion, and ‘belief’ means any religious or philosophical belief or a lack of belief. For ‘religion’ to be protected, it must have a clear structure and belief system. ‘Religious belief’ goes beyond beliefs about and adherence to a religion or its central articles of faith and may vary from person to…

Equality

The Supreme Court has affirmed the Court of Appeal’s decision in finding that claimants must provide evidence to the tribunal in discrimination claims. The Equality Act 2010 provides protection against unlawful direct and indirect discrimination, harassment and victimisation for the protected characteristic of 'race'. Employers are liable for acts of discrimination, harassment and victimisation carried out by their employees ‘in the course of employment’, whether or not the employer knows…

Equality , Termination

The Employment Appeal Tribunal (EAT) has decided that the Employment Tribunal had erred in law by relying on irrelevant medical records in a disability discrimination claim, and for not considering the claimant's challenge to the respondent’s justification defence. The Equality Act 2010 provides protection against unlawful discrimination, harassment and victimisation for the protected characteristic of disability. The core definition of ‘disability’ is a physical or mental impairment, which…

Equality , Termination

The Employment Tribunal (ET) has decided that an NHS receptionist, who was dismissed after telling her employer that she was scared to work in a public-facing role, was unfairly dismissed. 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 followed a fair procedure. In order to bring an unfair dismissal claim the employee must show that: he or she was employed for at…

Business principles

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. 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 the individual.…

Equality , Termination

An employment appeal tribunal (EAT) has upheld a claim of indirect sex discrimination because the employer had not considered the employee’s childcaring responsibilities. The Equality Act 2010 provides protection against unlawful direct and indirect discrimination, harassment, and victimisation for the protected characteristic of ‘sex’. Indirect sex discrimination occurs when a provision, criterion or practice (PCP) is applied universally and that PCP: puts, or would put, a group of people…

Employee relations

An employment appeal tribunal (EAT) has held that employees cannot face a detriment for taking part in industrial action, even if the detriment is not dismissal. The law relating to industrial action can be complicated. Under section 145A of Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), it is unlawful for organisations to make an offer to a worker where the sole or main purpose is to persuade the individual: not to be or become a member of an independent trade union;…

Equality

An employment tribunal (ET) has held that a pregnant woman was not discriminated against by her employer after she was sent home during the coronavirus pandemic for health and safety reasons. The Equality Act 2010 prohibits discrimination and victimisation relating to the protected characteristic of ‘pregnancy and maternity’. Discrimination will occur under section 18 of the 2010 Act when an individual is treated unfavourably during the protected period because: of her pregnancy of an…

Termination

An employment tribunal (ET) has held that a driver who was sacked after he was spotted drinking in a pub while he was off sick was unfairly dismissed. 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 permitted reasons:…

Terms and conditions , Business principles , Termination

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 permitted…

Business principles

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 Time…

Termination

The Employment Appeal Tribunal (EAT) has held that a tribunal’s decision to reduce compensation awarded in an unfair dismissal claim was not perverse as the claimant’s argument, that he would have avoided dismissal if provided opportunity to change his behaviour, was not substantiated. Unfair dismissal claims can arise when the procedure which led to a decision to dismiss an employee is flawed. For example, the employee’s reason for dismissal may be specified as one thing, but the conduct they…

Termination

The Employment Appeal Tribunal (EAT) has held that once there has been a fundamental breach of an employment contract, an organisation cannot seek to ‘cure’ this breach in order to avoid a constructive dismissal claim. Constructive dismissal claims occur when an employee resigns due to the conduct of the organisation as they feel there has been a breakdown in the mutual trust and confidence between them. To establish constructive dismissal, the employee must show that the organisation has…

Employees and workers

The Court of Appeal has refused to hear an appeal against a decision which found that private-hire drivers were ‘workers’ and not ‘independent contractors’. The term 'employment status' is the arrangement under which an individual is engaged to work for an organisation. The Employment Rights Act 1996 defines a worker as someone who has “entered into or works under a: contract of employment or any other contract, whether express or implied and (if it is express) whether oral or in writing,…

Employees and workers

The Court of Appeal has ruled that a union comprising of foster carers should be eligible to be included in the official list of recognised unions as those operating under a Foster Care Agreement could be considered 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, which gives the union access to increased rights such…

Business principles , Termination

The employment tribunal (ET) has held that an employee was not automatically unfairly dismissed following their refusal to come into work during the first Covid-19 lockdown. 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. One of these circumstances is outlined in s44 of the Employment Rights…

Family friendly and flexible working rights

The Employment Appeal Tribunal (EAT) has held that a man on shared parental leave (SPL) being paid less than a woman on adoption leave (AL) was not sex discrimination. Direct sex discrimination occurs where a person is treated, or would be treated, less favourably ‘because of’ sex compared with others in like-for-like circumstances. Direct discrimination can never be justified, no matter how well-intentioned the motive. To bring a successful claim, a claimant needs to establish a comparator,…

Business principles

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.…

Equality

The Supreme Court has upheld a previous Court of Appeal decision that retail workers can compare pay terms for the purposes of an equal pay claim to distribution workers, due to common terms applying at the establishments. The right of men and women to receive equal pay for equal work is contained in the Equality Act 2010. In order to bring a claim for equal pay, the claimant must identify comparators of the opposite sex that are conducting equal work to them but are being paid more for doing…

Pay and benefits

The Supreme Court has held that ‘sleep-in’ carers are not entitled to receive national minimum wage (NMW) for the hours they spend asleep and are thus not working. The definition of ‘work’ includes 'salaried hours work', 'time work', 'output work' and 'unmeasured work', according to the National Minimum Wage Regulations 2015. The 2015 Regulations provide that, in general, time when workers are required to be available at or near their employer’s place of business for the purposes of working…

Termination

The Employment Tribunal (ET) has ruled that a claimant was not unfairly dismissed after being made redundant and having their bumping request denied. A redundancy situation exists where organisations shut down a business or part of it completely; shut down at a specific location (even if you are moving to a new location); or the requirement for employees to do work of a particular kind has reduced or come to an end. It is crucial that an organisation is fair in how those who are to be made…

Termination

The Employment Tribunal (ET) has ruled that the claimant was unfairly dismissed after posting his frustrations with his employer on social media. In this case, the ET examined the laws contained within section 10 of the Employment Relations Act 1999 and section 98 of the Employment Rights Act 1996. Section 10 of the 1999 Act creates a right for staff to be accompanied to a grievance and/or disciplinary hearing, whilst section 98 of the 1996 Act provides that to avoid a claim for unfair…

Business principles

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 dismissal. Conduct…