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…

Equality

The Court of Appeal has ruled that, when considering a ‘material factor’ defence within an equal pay claim, organisations need to explain pay disparity, not justify it. Under the Equality Act 2010, men and women have the right to receive equal pay for equal work. Work is considered to be of ‘equal value’ where the value of a woman's work is equal to that of a man in terms of the demands made on her, for example, under such headings as effort, skill and decision-making. In effect the remit and…

Termination

The Employment Appeal Tribunal (EAT) has found that an employee was constructively dismissed when she was moved onto a different role instead of being subject to appropriate redundancy procedures.  Redundancies can arise when an organisation no longer requires a member of staff to conduct work of a particular kind. Consulting with staff in this situation is important as it allows organisations to justify why a redundancy is necessary and discuss if any other courses of action are available,…

Termination

The Employment Appeal Tribunal has ruled that a dismissal with no procedure was fair due to a breakdown in the working relationship. To avoid a claim for unfair dismissal an organisation needs to demonstrate a potentially fair reason to dismiss and that they followed a fair procedure. Potentially fair reasons are outlined in the Employment Rights Act 1996 and include Some Other Substantial Reason (SOSR). This can occur when there is a loss of mutual trust and confidence between the employee…

Equality

The Employment Appeal Tribunal (EAT) has ruled that the tribunal did not err by finding a claimant had not demonstrated clear evidence that her ‘mixed personality’ disorder had a substantial adverse effect on her day-to-day activities. Under section 6 of the Equality Act 2010, a person is deemed to have a disability if they have an impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. If this can be established, an employee…

Employees and workers

The employment tribunal (ET) has ruled that a hairdresser was an employee, not self-employed, due to the level of control asserted on her by an organisation. ‘Employment status’ refers to the arrangement under which an individual is engaged to work for an organisation. There are three main categories of employment status; employees, workers and the self-employed. Distinguishing between these three labels is important; whilst employees and workers are entitled to a number of employment rights,…

Employees and workers

The Employment Appeal Tribunal (EAT) has upheld an earlier decision from the employment tribunal (ET), finding a worker supplied from one company to another met the definition of ‘agency worker’ as defined in the law. The rules governing the supply and use of agency workers from one organisation to another (the end-user) are found in the Agency Worker Regulations 2010. Regulation 3 defines an ‘agency worker’ as an individual who is supplied by a ‘temporary work agency to work temporarily for…

Pay and benefits

The EAT has provided guidance on situations where deducting wages for training costs and accommodation expenses could put organisations in breach of minimum wage law. As outlined in the National Minimum Wage Act 1998 (NMWA), and clarified by the National Minimum Wage Regulations 2015 (NMWR), workers must be paid at least the current rate of the minimum wage as set by the government. The law does permit certain deductions to be made from wage calculations that do not place organisations in…

Discipline and grievance , Termination

The Employment Appeal Tribunal (EAT) has ruled that the ET erred by finding evidence from an external witness was unreliable and made a decision to dismiss unfair. Under the Employment Rights Act 1996, in order to demonstrate that the decision to dismiss an employee is fair, organisations need to clearly show the reason for the dismissal. It also needs to be established that their actions leading up to the decision to dismiss fell inside the ‘band of reasonable responses’ to the situation that…

Equality

The Employment Appeal Tribunal (EAT) has ruled that an employment tribunal (ET) was right to rely on medical evidence from a GP when it was contradicted by the claimant in a discrimination claim. Under the Equality Act 2010, a person, (A), discriminates against a disabled person (B), if A treats B unfavourably because of something arising in consequence of B’s disability and cannot show this treatment is a proportionate means of achieving a legitimate aim. For example, if an organisation…

Equality

The Employment Appeal Tribunal has ruled that a tribunal proceeded on a false basis by not requiring the disclosure of documents relating to the refusal of an employment opportunity due to potentially racist reasons. Under the Equality Act 2010, organisations are prohibited from discriminating against individuals on the basis of their race and religion. This includes denying them opportunity for promotion or new roles. During employment tribunal proceedings, a preliminary hearing may be held…

Termination

The Employment Appeal Tribunal (EAT) has ruled 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…

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…

Termination

The Employment Appeal Tribunal (EAT) has found that in claims of constructive dismissal, even if the ‘last straw’ act that led to a resignation is considered ‘innocuous’, claimants can still rely on prior actions from the organisation.   To establish constructive dismissal, claimants must show that the organisation’s actions amounted to a serious breach of contract that led to their resignation. However, this can be difficult to prove if they continue to work for the organisation after such an…

Employees and workers

The European Court of Justice (ECJ) has assessed whether a gig-economy worker who was able to provide substitutes when doing work for an organisation could still be classed as a ‘worker’ and not ‘self-employed’. UK law outlines that individuals classed as ‘workers’ are those who perform services personally for an organisation that is not considered their client or customer. Examples include casual, agency or freelance workers. In contrast, self-employed individuals are those who provide…

Equality

The Employment Appeal Tribunal (EAT) has ruled that a tribunal had erred by finding an organisation had harassed an employee despite also finding its officers had not been motivated by discrimination. Under the Equality Act 2010, direct discrimination occurs where a person is treated, or would be treated, less favourably ‘because of’ a protected characteristic compared with others in like-for-like circumstances. If the claimant establishes a case which at first sight indicates that…

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…

Equality

The Supreme Court has ruled that Barclays were not liable for sexual assault committed by a GP on employees after the bank contracted him to conduct medical checks. Organisations can be liable for acts committed by their employees if it is found that their actions are sufficiently connected to their employment. However, this doctrine of vicarious liability has also extended beyond employment into other employment relationships, including those between an organisation and an independent…

Judgement published:
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…

Pay and benefits

The EAT has overturned a previous ruling from the employment tribunal, finding that Middlesbrough FC had unlawfully deducted wages from their staff when taking money from salaries for season tickets. Under the National Minimum Wage Regulations 2015, employees are entitled to be paid at least the national minimum wage. There are certain deductions that can be made from their wage without going below the minimum, such as tax and National Insurance contributions. The Regulations also outline…

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…

Equality

The Employment Appeal Tribunal (EAT) has ruled that two officers suffered discrimination after a compensation payment, provided as part of a voluntary exit scheme, was capped due to their receiving deferred pensions. The Equality Act 2010 outlines that it is unlawful to treat a disabled person unfavourably because of something arising from, or in consequence of, this disability. It is, however, possible to justify such treatment if it can be shown to be a proportionate means of achieving a…

Termination

The Employment Appeal Tribunal (EAT) has held that it was reasonable for a charity to dismiss an long-service employee with criminal charges due to the potential for reputational damage. Under the Employment Rights Act 1996, there are five potentially fair reasons to dismiss an employee, which includes some other substantial reason (SOSR). Generally, these dismissals arise when there are fears that maintaining the employment of an individual could result in reputational damage for an…

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…

Equality

The Court of Appeal has upheld earlier decisions that a provision criterion or practice (PCP) can be established by one-off acts committed by an organisation, but not always. Under sections 20 and 21 of the Equality Act 2010, organisations have a legal duty to make reasonable adjustments to assist disabled employees where a PCP places them at a substantial disadvantage. If reasonable adjustments are not made, the organisation could be liable for a claim of disability discrimination. There is…

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…

Equality

The Employment Appeal Tribunal (EAT) has ruled that, when bringing a claim of disability discrimination, a claimant must show that their condition has a ‘long-term effect’ at the time of the alleged acts of discrimination. The Equality Act 2010 makes it unlawful to discriminate against an individual, directly or indirectly, due to their having a disability. The Act also prohibits victimisation, which is where an individual is subjected to a detriment as a direct result of bringing a complaint…