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…

Employees and workers

The much-anticipated Supreme Court ruling has been published, with judgement falling in favour of the Uber drivers who have been found, once and for all, to be workers not self-employed. Individuals are categorised into three different categories of 'employment': employee worker self-employed. The criteria by which legal classifications are determined are not laid down in legislation but have largely developed through case law. However, in this case this the Employment Rights Act 1996, the…

Equality

The Employment Appeal Tribunal (EAT) has upheld the Employment Tribunal’s (ET) decision in finding that an organisation did not go far enough in preventing racial harassment and was thus liable for the harassment faced by the claimant. The Equality Act 2010 provides protection against unlawful direct and indirect discrimination, harassment and victimisation for all protected characteristics. The focus of this case is race. Harassment is unlawful where a person is subjected to unwanted conduct…

Employees and workers

The Employment Appeal Tribunal (EAT) has provided further clarity on agency worker rights under the Agency Worker Regulations 2010. The Agency Worker Regulations adapt into UK law the Temporary Agency Workers Directive from the EU and is designed to ensure fair treatment of agency workers from both the agency and the end user. Regulation 5 dictates that agency workers should be afforded the same rights as employees directly hired by the end user after their placement has lasted for at least…

Equality

The EAT has dismissed a victimisation claim, ruling that wording used by the claimant in a grievance was not sufficient to amount to a ‘protected act’. As she was an experienced in HR, her wording called into question whether she believed she was discriminated against at the time.    The Equality Act 2010 provides protection against unlawful direct and indirect discrimination, harassment and victimisation for the protected characteristic of ‘sex’. Victimisation occurs where an employer…

Family friendly and flexible working rights , Equality

The Employment Appeal Tribunal (EAT) has considered whether a policy that removed contracted rest days due to the taking of parental leave was indirectly discriminatory against women. Employees who qualify have a right to take up to 18 weeks' unpaid parental leave in total for the purposes of caring for a child, which is usually limited to four weeks per year. This applies equally to both male and female workers. Under the Equality Act 2010, Indirect sex discrimination occurs when a provision…

Equality

The Employment Appeal Tribunal (EAT) has considered whether a tribunal erred by permitting evidence to be admitted into proceedings that was not included on the ET3 form.    Under the Equality Act 2010, direct race discrimination occurs where a person is treated, or would be treated, less favourably ‘because of’ race compared with others in like-for-like circumstances. In bringing a claim, the claimant needs to demonstrate that they have been subjected to unfavourable treatment. Once this is…

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…