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…

Discipline and grievance

The Employment Appeal Tribunal (EAT) has held that there can be circumstances where, when considering misconduct, a separate investigatory and disciplinary hearing is not required. Under section 98(4) of the Employment Rights Act 1996 (ERA), whether a dismissal is fair or unfair will depend on whether the organisation acted reasonably in treating the employee’s conduct as a sufficient reason for dismissing them. The case of British Home Stores v Burchell provides further clarification,…

Equality

The employment tribunal (ET) has found that the BBC failed to demonstrate its actions in paying two presenters substantially different salaries was not related to their gender. Under the Equality Act 2010, male and female employees must receive equal pay for equal work. The work does not have to be related to the same role; it can be work which is the same or broadly similar and any differences are not of practical importance in relation to employment terms and conditions. This is known as ‘…

Equality

The employment tribunal has ruled that ethical veganism is a philosophical belief and, therefore, should be granted legal protections under the Equality Act 2010. Under the Equality Act 2010, employees are able to bring claims if they are subjected to forms of discrimination because of a ‘philosophical belief’.  In the case of Grainger v Nicolson, the Employment Appeal Tribunal (EAT) provided guidance on what could constitute as a ‘philosophical belief’. Amongst other criteria, they outlined…

Equality

The Employment Appeal Tribunal (EAT) has ruled that individuals who have been dismissed, but then later reinstated, can still claim that their dismissal amounted to a detriment under the Equality Act 2010. Under the Equality Act, an individual is victimised when they are subjected to a detriment because they have done, or it is believed they have done, a ‘protected act’. For example, if an individual brings a complaint that they have been discriminated against as a result of their disability…

Equality

The Employment Appeal Tribunal (EAT) has ruled a claim of direct sex discrimination, brought after an organisation failed to pay the claimant an additional London allowance whilst she was on maternity leave, did not require the establishment of a comparator to succeed. Under section 13 of the Equality Act 2010, when bringing a claim of direct discrimination, a claimant will need to demonstrate that they were treated less favourably as a result of a protected characteristic than a real or…

Termination

The Employment Appeal Tribunal (EAT) has ruled that it was incorrect for a tribunal to presume that only an act of gross misconduct could contribute to a dismissal.   In situations where a claimant successfully claims unfair dismissal, they can still be subject to deductions from their overall compensation award. Polkey deductions stem from the case of Polkey v AE Dayton Services Ltd. Under Polkey, if it is likely that the claimant would have been dismissed anyway had the organisation in…

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…

Termination

The Supreme Court has ruled that in situations where the real reason behind the decision to dismiss an employee is hidden from the decision-maker by an ‘invented reason’, it is the hidden, real reason that should be taken as the true reason for dismissal. When a worker makes a protected disclosure, section 47B of the Employment Rights Act 1996 (ERA) states they cannot suffer a detriment as a result. Section 103A of the ERA also provides that a dismissal for making such a disclosure is…

Pay and benefits

The Employment Appeal Tribunal (EAT) has held that an organisation was wrong to completely depend on a negative right to work check when deciding to withhold work, and pay, from the claimant.    If an individual does not have the right to live and work in the UK, an organisation cannot employ them. Such an action can result in a civil penalty fine of up to £20,000 per worker, alongside criminal charges. However, it is possible for a ‘statutory excuse’ to be used as a defence for this if…

Equality

The Court of Appeal has upheld earlier decisions that an employee’s belief in the right to own the copyright of ‘her own creative works and output’ did not amount to a philosophical belief. Under the Equality Act 2010, employees are able to bring tribunal claims if they are subjected to forms of discrimination because of a ‘philosophical belief’.  In the case of Grainger v Nicolson, the Employment Appeal Tribunal (EAT) provided guidance on what could constitute as a ‘philosophical belief’.…

Judgement published:
Termination

The Employment Appeal Tribunal (EAT) has provided further clarification on how statutory and contractual redundancy pay should be provided to employees. When an employee is made redundant they are entitled to receive statutory redundancy pay if they have at least two years’ continuous service. The payment is calculated on the basis of an employee's age, length of service and weekly pay, subject to a weekly maximum. In addition to this, organisations may also provide enhanced, or contractual,…

Judgement published:
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…

Judgement published:
Terms and conditions

In a landmark ruling, the Supreme Court has confirmed that unreasonably wide wording in a post-termination covenant can be removed, and the covenant still enforced, if this does not generate any significant change to the overall effect of the restraint. Despite the common myth, organisations are able to use and enforce non-compete restrictions in order to protect their business interests when employees leave the business. However, a restrictive covenant which serves to restrict trade needs to…

Judgement published:
Equality

The Employment Appeal Tribunal (EAT) has ruled that, when evaluating if an impairment should be classed as ‘long-term’, and therefore a disability, organisations should determine the likelihood of it recurring at the time of the potentially discriminatory act. The Equality Act 2010 protects all employees from discrimination on the grounds of a disability. For the purposes of the legislation, an employee will be disabled if they have a mental or physical impairment and that impairment has a…

Judgement published:
Discipline and grievance , Termination

The Employment Appeal Tribunal (EAT) has ruled that an employee was not unfairly dismissed despite content being removed from an investigation report into his conduct that expressed views in his favour. Before undertaking a disciplinary procedure into alleged misconduct, organisations must first carry out a thorough investigation into the allegations. Acas recommends that the report produced from any investigation should not, from the facts gathered, provide an opinion on what the outcome…

Judgement published:
Equality

The employment tribunal (ET) has held that a doctor’s ‘conscientious objection’ to refer to transgender patients in their chosen gender was ‘incompatible with human dignity’. Under the Equality Act 2010, employees are able to bring claims if they are subjected to forms of discrimination because of a ‘philosophical belief’.  In the case of Grainger v Nicolson, the Employment Appeal Tribunal (EAT) provided guidance on what could constitute as a ‘philosophical belief’. Amongst other criteria,…

Judgement published:
Equality

The Employment Appeal Tribunal (EAT) has ruled that whilst the act of massaging an employee’s shoulders amounted to unwanted conduct, it was not harassment. Under section 26 of the Equality Act 2010, sexual harassment occurs when an individual, A, engages in unwanted conduct with a person, B, that is of a sexual nature or related to their gender and has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. When…

Employees and workers

The Employment Appeal Tribunal (EAT) has ruled that an out-of-hours GP, who provided her services to the respondent through a separate service organisation, was a ‘worker’ and not ‘self-employed’. Determining the true relationship between an individual and an organisation, and whether the individual amounts to an employee, worker and someone who is self-employed, can be the cause of much confusion. When considering this issue, tribunals will focus on the particular facts of the case in order…

Equality

The Employment Appeal Tribunal (EAT) has ruled that, when determining injury to feelings compensation in discrimination cases, it is not only one-off acts that fall into the lower band.  In the case Vento v Chief Constable of West Yorkshire Police, guidelines were given on how an employment tribunal (ET) should determine the amount of money to be awarded for injury to feelings in successful discrimination claims. As a result, the Court of Appeal in Vento set out three bands to be used when…

Judgement published:
Equality

The Employment Appeal Tribunal (EAT) has held that organisations can potentially avoid liability for acts of discrimination committed by employees if it is clearly established that the act complained of took place outside of work. Under section 109 of the Equality Act 2010, organisations are liable for acts of discrimination and harassment committed by employees ‘in the course of employment’ and it does not matter whether that act is done with the organisation’s knowledge or approval. In…

Judgement published:
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…