Pay and benefits, Termination

Employment Appeal Tribunal – November 2018 Contractual term preventing ill-health capability dismissal whilst receiving PHI benefits implied by EAT. Facts The employee worked as a security agent under a contract entitling him to a long-term disability benefit plan, which expressly stated that the benefits would cease if his employment was terminated. In October 2012, the employee commenced sick leave due to depression and his employment was subsequently outsourced to ICTS under the…

Equality

Employment Appeal Tribunal – September 2018 The Employment Appeal Tribunal (EAT) has confirmed that a tendency to steal is not a disability for the purposes of bringing disability discrimination claims. Facts In this case the employee, who worked as an Anti-Social Behaviour Officer for Durham Council, left a Boots store without paying for some items in a bag he was carrying. Although he was arrested and later cautioned for this event following a signed admission statement, he did not…

Equality

Employment Appeal Tribunal – August 2018 The Employment Appeal Tribunal (EAT) has ruled that office cultures are important when considering potentially harassing comments. Facts In this case, the employee suffered from type 1 diabetes, which he believed had led to him being overweight. He also had close ties to the travelling community, although this was not common knowledge within the respondent’s organisation. Following his dismissal for poor performance, the employee brought a…

Pay and benefits

European Court of Justice (ECJ) – November 2018 The ECJ has ruled that domestic law does not prohibit the right for employees to be paid in lieu for untaken annual leave at termination of employment. Facts The ECJ was asked to consider two separate cases from Germany that concerned workers who, when their employment was to terminate, had requested an allowance in lieu for annual leave that they not taken. The first worker had not taken any annual leave at all during the last five…

Equality

The Employment Appeal Tribunal (EAT) has examined when a disability meets the statutory requirement of having a ‘long-term’ adverse effect. The Equality Act 2010 outlines that a person has a disability if the impairment has a ‘substantial’ and ‘long-term’ adverse effect on their ability to carry out normal day-to-day activities. For a condition to be classed as ‘long-term’, it needs to have been ongoing for at least 12 months or be ‘likely’ to last at least 12 months. Facts In this…

Equality

Employment tribunal – January 2018 The employment tribunal (ET) has ruled that it is not enough to have a race discrimination policy – organisations need to make sure they are putting it into practice.   Facts A contact centre for Her Majesty's Revenue and Customs ('HMRC') maintained a zero tolerance policy against race discrimination whilst using cleaning staff through an outside contractor, G4S. A written agreement stated that all G4S staff required the centre’s approval to work…

Termination

Employment Appeal Tribunal – November 2018 Employment tribunal failed to consider employer’s breach of contractual obligation to provide a trial period when determining fairness of redundancy dismissal. Facts In a case which had already been remitted to the employment tribunal twice previously, since 2003 the employee worked as one of six Library Managers responsible for two libraries. In 2011, facing funding cuts, the council decided to close half of their libraries and reduce the…

Employees and workers

Court of Appeal – November 2018 Appeal against finding that part-time worker was treated less favourably is dismissed and case is remitted to the tribunal to determine whether the treatment was objectively justified. Facts Pinaud was employed as a crew member by British Airways from 1985 on a full time basis but began working a part-time shift pattern in 2005. Full-time workers worked a “6/3 pattern” which provided for six days on and three days off. In total, over the course of a…

Discipline and grievance , Termination

Employment Appeal Tribunal – June 2018 The EAT have examined whether an investigation which did not include statements from witnesses who had not seen the alleged incident was a reasonable investigation. Facts Pupil A made a report against a long-standing teacher that he had been grabbed, pushed against a wall and then had two fingers pushed against his throat. A second pupil, B, corroborated A’s story and named other potential witnesses as pupils OB, EB and GK. Pupil OB was interviewed…

Equality

Employment Appeal Tribunal – July 2018 The Employment Appeal Tribunal (EAT) has ruled that establishing a causal connection for discrimination arising in consequence of a disability can involve several links  Facts In this case, the employee, who originally worked as a Professor in Edinburgh University’s School of Engineering, was absent from work due to work-related stress and depression. Discussions were held regarding her return to work, where the employee asked to move to a…

Tupe

Employment Appeal Tribunal – October 2017 The Employment Appeal Tribunal (EAT) has highlighted that a Tupe transfer cannot be used as a way of getting rid of ‘problem’ employees. Facts The employee was a cashier at a company which was facing significant financial difficulties. The transferee (the new employer) agreed to purchase the company and would take over the existing employees under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘Tupe’). However,…

Equality

Court of Appeal – October 2018 The Court of Appeal have overturned the High Court’s decision that an employer was not vicariously liable for an assault carried out by the organisation’s Managing Director at an impromptu drinking session after the company Christmas party. Employers are liable for acts of discrimination and harassment committed by employees ‘in the course of employment’ under the Equality Act 2010 where there is a sufficiently close connection between the act and the…

Termination

Employment Appeal Tribunal – June 2018 The Employment Appeal Tribunal (EAT) has ruled that the intentions behind a letter of resignation should be clarified to correctly confirm if the employee does intend to leave the company.  Facts In this case, the employee had worked in the records department for her employer for around 10 years. She had recently experienced issues with an employee and had applied for a position in the employer’s radiology department, for which she had received a…

Employee relations

Employment tribunal – April 2013 Was the inclusion of an individual who had previously participated in trade union activities on a ‘blacklist’ prohibited? The Employment Relations Act 1990 (Blacklist) Regulations 2010 prohibit the use of a blacklist, and the refusal of employment related to a blacklist, where the motive for the list is to discriminate against an individual based on their trade union membership or activities. Facts The employee, a full-time officer of a union, was…

Recruitment and selection

Employment tribunal – July 2018 This case highlights the importance of requesting references from previous employers to confirm the information contained in a job application or CV. Facts The claimant was a trained pilot who had worked in First Officer positions. The organisation advertised a job vacancy for a Captain and the claimant applied for this role. In his application, he lied and stated that he had previously carried out work as a Captain. As a method of supporting this lie,…

Judgement published:
Discipline and grievance , Termination

Employment Appeal Tribunal – June 2018 The Employment Appeal Tribunal (EAT) has ruled that the Employment Tribunal (ET) did not assess all evidence available when evaluating if employers carried out a reasonable investigation into allegations of theft. Facts In this case, an employee had worked at the Anne Arms bar since 2003. During that time, she had received no complaints regarding her conduct nor any indications of wrongful behaviour. In 2015, Mr and Mrs Falzon took over management…

Discipline and grievance , Termination

Employment Tribunal – August 2018 The employment tribunal (ET) has ruled that a primary school teacher accused of “grooming” a pupil was unfairly dismissed and discriminated against due to their sexual orientation.   Facts In this case, a primary school teacher had received a written warning in 2002 for inappropriate and unprofessional contact with a pupil. At the time it was found that nothing sinister had taken place and that the reason for the employee’s actions was that he was naïve…

Discipline and grievance

Employment Appeal Tribunal – August 2018 This case examined whether an individual can be unfairly dismissed, having been denied the opportunity to postpone their disciplinary hearing, despite the fact that their conduct could potentially justify a dismissal. Facts Ms Smith who had worked for the employer from 1994 to 2016, was found to have sent a series of emails to a customer using insulting and offensive language to describe a colleague. Smith was suspended and invited to a disciplinary…

Judgement published:
Termination

Employment Tribunal – August 2018 The Employment Tribunal (ET) has ruled that a dismissal is unfair if an employee’s length of service and clean record are not taken into account and if any additional issues leading up to a disciplinary hearing are not discussed at the hearing but are noted as reasons for dismissal.  Facts In this case, two employees, Mr Genus and Mr Kelly, had been employed by a company specialising in property repairs for over 20 years. In February and April 2017…

Business principles

Court of Appeal – July 2018 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…

Pay and benefits

Court of Appeal – July 2018 The Court of Appeal (COA) has ruled that a care worker who performed ‘sleep in’ shifts was ‘available for work’ and not 'actually working’ and so was not entitled to the national minimum wage (NMW) for the time spent asleep. Note. Permission to appeal this decision has now been granted by the Supreme Court who will consider grounds for appeal in due course. Facts This case relates to a situation which had, up until this point, been the cause of much…

Equality

Employment Appeal Tribunal – June 2018 The EAT has ruled that an employer's warning for absence levels was discrimination arising from a disability which could not be objectively justified Facts Ms O’Connor, who had worked for the company in a customer support role since 2005, was considered disabled under the Equality Act 2010. The company had made reasonable adjustments to accommodate her condition and despite her regularly exceeding the acceptable levels of absence as laid down in…

Employees and workers

Employment Appeal Tribunal – May 2018 The EAT has ruled that lower annual leave and rest break allowances for agency workers, in comparison to directly employed workers, cannot be compensated by an increased hourly rate of pay, however there is no requirement to provide agency workers with the same number of working hours as the directly employed workers. Facts The case relates to an agency worker who, after several months of work with an end user organisation, became dissatisfied with…

Termination

Employment Appeal Tribunal – June 2018 The EAT has ruled that an employer’s belief that an appeal would make no difference in a right to work dismissal was incorrect. The appeal could have provided opportunity for key evidence against the dismissal, not readily available at the time, to be submitted. Facts This case relates to a claimant who was employed as a delivery driver by the employers in October 2009. During his time working for the employers, he was noted as being a competent and…

Equality

Employment Appeal Tribunal – May 2018 The EAT has ruled that it was not religious harassment for an employee to ask a Muslim colleague if they were a supporter of Islamic State (IS) because the context of these remarks was not related to the individual’s religion. Facts The incident behind this case relates to an altercation between the claimant Mr Bakkali, a Muslim man of Moroccan origin, and his colleague Mr Cotter in 2015. During a conversation between the two men in early October,…

Equality

Court of Appeal – May 2018 The Court of Appeal has ruled that it was disability discrimination to dismiss an employee for gross misconduct because his conduct was a consequence of his disability Facts This case relates to an incident in 2013 where Mr Grosset, an English teacher at the Joseph Rowntree school in York, showed an 18+ rated horror movie to a class of 15 year olds without gaining the appropriate consent. The employee, who suffered from cystic fibrosis, acknowledged that his…

Equality

Employment Appeal Tribunal – May 2018 Note - this decision has appealed to the Court of Appeal. Their decision is available here. Was the payment of statutory shared parental pay to men and enhanced maternity pay to women an act of indirect discrimination? Facts The claimant in this case took a period of shared parental leave following the birth of his child lasting from 1 June 2015 - 6 September 2015. The employer paid the claimant the statutory rate of shared parental pay during his…

Terms and conditions , Termination

Supreme Court – April 2018 The Supreme Court has clarified when written notice of dismissal becomes effective in the absence of an express contractual term. Facts This case concerned an associate director in the provision of community services for two NHS primary care trusts. Following a merger with the local NHS foundation trust, she was informed by letter that she was at risk of redundancy. She was offered alternative employment, but rejected the posts on the grounds they were at a…

Dispute resolution

Employment Appeal Tribunal – April 2018 Was an application to amend a direct discrimination claim to include indirect discrimination a mere re-labelling? Employment tribunals have case management powers to exercise their judicial discretion and amend claims. Relevant considerations for tribunals will include the nature of the amendment, relevant time limits, the time and manner of the amendment application and the hardship involved in refusing or granting the amendment. Facts Patka is…

Dispute resolution

Employment Appeal tribunal – April 2018 Was a tribunal correct to strike out a claim once they were aware discussions had taken place with a journalist during a break in proceedings? The Employment Tribunal Rules entitle tribunals to strike out all, or part of, a claim where either party to the claim has conducted proceedings in an unreasonable, scandalous or vexatious manner. Facts Chidzoy had worked as a journalist for nearly 30 years. She made tribunal claims for whistleblowing, sex…