Summary The right to be accompanied at a formal hearing is an unfettered right, within the parameters of the applicable law, which applies regardless of the companions conduct. However, the companions conduct can lead to a reduction in compensation for suffering loss and detriment. Law Employment Relations Act 1999 10. Right to be accompanied. (1) This section applies where a worker— (a) is required or invited by his employer to attend a disciplinary or grievance hearing, and (b)…

Summary Where a redundancy process is accelerated, and as a result not carried out in accordance with organisational policy, in order to avoid paying out a substantial payment under the local government pension scheme, it can result in successful claims for both unfair dismissal and age discrimination. Law Unfair dismissal Employment Rights Act 1996 section 98 ERA provides (so far as relevant) as follows: (1) In determining for the purposes of this Part whether the dismissal of an…

Summary Where an employer fails to prevent a recurrence of sexual harassment by a third party towards one of its employees, they risk being liable for a claim of harassment related to sex. Law  Section 26 Equality Act 2010 (EqA): (1) A person (A) harasses another (B) if – a. A engages in unwanted conduct relating to a relevant protected characteristic, and b. The conduct has the purpose or effect of – i. Violating B’s dignity, or ii. Creating an intimidating, hostile, degrading,…

Summary When determining whether or not inappropriate conduct at work could be something arising in consequence of a disability, and therefore action taken against it be unfavourable treatment, there must be a connection between the ‘something’ and the disability. Law Section 15 of the Equality Act 2010 (EqA) (so far as is relevant to this case): “(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's…

Summary Continuity of service cannot be broken by a sham resignation; it must be a genuine and clean break for it to bring service to an end. When continuity has not been broken, failing to follow a proper procedure to dismiss an employee with over two years service will render the dismissal unfair, and unless the employer can show evidence that a dismissal would have been fair had a proper process been followed, 100% compensation will be awarded. Law Employment Rights Act 1996 (ERA)…

Summary An employer’s failure to communicate properly a reasonable management instruction, and hasty disciplinary process, resulted in an unfair dismissal for a matter that otherwise would have been within the band of reasonable responses. Law Unfair dismissal Section 94 Employment Rights Act 1996: (1)An employee has the right not to be unfairly dismissed by his employer. Section 98 of the Employment Rights Act 1996: (1) In determining for the purposes of this Part whether the dismissal…

Summary The EAT has overturned an ET decision rejecting a claim for indirect sex discrimination, deciding it did not make a difference to the outcome if the provision, criterion or practice applied was later revoked. Law Section 39 of the Equality Act 2010 (“EQA”) renders detrimental discriminatory treatment unlawful: (2) An employer (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment; (b) in the way A affords B access, or by not affording B…

Summary In a preliminary hearing, a tribunal has held that stress and anxiety can fall within the definition of disability within the Equality Act 2010, when it has a substantial and long-term impact on an individual’s ability to perform day to day tasks. Law Section 6 of the Equality Act 2010: (1) A person has a disability if: (a) that person has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on their ability to carry out normal…

Summary An employer’s efforts in following a thorough a proper process managing a case of long-term sickness absence, and ultimately dismissal, led to a successful defence of an unfair dismissal claim. Law Employment Rights Act 1996 (ERA) Section 98(1) (so far as is relevant to this case) (1)In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a)the reason (or, if more than one, the principal reason) for…

Summary Is a management style that involves humiliation and intimidation ever appropriate? No, an ET has said, especially when it is compounded by a poor grievance procedure and a failure to address the manager's behaviour. Law Section 95(1)(c) of the Employment Rights Act 1996: An employee is dismissed by their employer if ‘the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by…

Summary Age-preference policies and recruitment practices lead to unlawful age discrimination. Law Employment Rights Act 1996 Section 98(1): In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection  By section 98(4): Where the employer has fulfilled the requirements of…

Summary Could dismissal without proper internal process, to shorten redundancy consultation and dismiss an employee before they became eligible for an enhanced pension payment, be a proportionate means of achieving a legitimate aim? Law Section 13 Equality Act 2010 (EQA) - direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. (2) If the protected characteristic is…

Summary Employers who fail to question further an ambiguous resignation can find themselves liable for unfair dismissal if they treat the employment as at an end. Law Where an employee has used unambiguous words to resign their employment, they cannot say they did not mean what they appeared to mean. Sovereign House Security Limited v Savage [1989] Unambiguous words of resignation spoken in the heat of the moment did not necessarily amount to a resignation; an employee should be given an…

Summary Permitting unequal access to toilets and toilet facilities between male and female members of staff can amount to direct sex discrimination, when the inherent reason for less favourable treatment is that of sex.   Law Section 39 of the Equality Act 2010 (EQA) renders detrimental discriminatory treatment unlawful: (2) An employer (A) must not discriminate against an employee of A's (B)— … (d) by subjecting B to any other detriment.   Direct discrimination is defined by…

Summary National minimum wage has been held to be payable for “basic hours”, including hours designated in the contract but not working hours, rather than based alone on hours actually worked for salaried workers.   Law Regulation 21(3) of the National Minimum Wage Regulations 2015 The meaning of salaried hours work (1) “Salaried hours work” is work which is done under a worker’s contract and which meets the conditions in paragraphs (2) to (5) of this regulation. (2) The first condition…

Summary The EAT was asked to consider if the ET had erred in law in finding that the claimant had been the victim of marriage discrimination; it found the correct question to ask was; was the less favourable treatment because she was married, not (as found by the ET) because of whom she was married to? Law Section 4 of the Equality Act 2010 (EqA): 4 The protected characteristics The following characteristics are protected characteristics— … marriage and civil partnership; … Section…

Summary EAT confirms that in certain circumstances, it is not unfair to reopen an already concluded disciplinary process and issue a new outcome of dismissal, where the previous decision was to give a final written warning. Law Section 98 (4) Employment Rights Act 1996 (ERA) (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a)depends on…

Summary The Court of Appeal upheld a contractual provision giving more favourable income protection payments (IPP) to an employee absent on long-term sick than the IPP insurance policy paid out under the policy at the time of payment. Law Jowitt v Pioneer Technology (UK) Ltd [2003] Where an employee is not aware of an underlying insurance policy, an employer’s contractual commitment to pay for long-term disability pay cannot be contingent on the terms of that policy. Villella v MFI…

Summary In this case relating to a ‘without prejudice’ discussion involving a settlement offer, the EAT has confirmed that the protection of the ‘without prejudice’ rule will only not be applied where there is a clear case of unambiguous impropriety. Law The 'Without Prejudice' rule Communications that take place under this rule, when properly applied, fall within legal privilege and therefore cannot be admitted as evidence before a tribunal. This is to encourage litigants to settle their…

  Summary The Court of Appeal (CoA) has upheld an ET and EAT judgment that an employee was not automatically unfairly dismissed following their refusal to come into work during the first Covid-19 lockdown. Law and context 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. Section 100(1)(d) or…

Summary A contractual clause specifying a calculation to be made when deducting from employees pay for missing stock was unenforceable, as it was not based on actual loss to the business. Applying such a clause is a fundamental breach of the implied term of contract of mutual trust and confidence.  Law 13(1A) of the Employment Rights Act 1996 - Right not to suffer unauthorised deductions. (1)An employer shall not make a deduction from wages of a worker employed by him unless— (a)the…

Summary The Court of Appeal had to decide if a sufficiently widely drawn COT3 could include a claim for victimisation that did not arise directly, or indirectly, out of the appellants employment with the respondent, or if that claim was outside this agreement, and therefore capable of consideration by a tribunal. Law Investors Compensation Scheme Ltd. v West Bromwich Building Society [1998], the process of interpreting contracts involves: “… the ascertainment of the meaning which the…

Summary The Court of Appeal offers guidance on awards for injury to feelings in discrimination cases. Facts Ms Vento joined the West Yorkshire Police in December 1995. She alleged that after her marriage broke down she suffered bullying and sexual harassment by her superiors. She was dismissed in 1997. She brought a claim that her dismissal constituted unlawful sex discrimination. Employment Tribunal (ET) The tribunal upheld her claim. It awarded compensation of £257,844. This was made up…

Summary The EAT had to consider if an adjustment in a redundancy exercise of slotting a disabled employee into a new organisational structure was reasonable, or a vehicle giving the disabled employee an advantage over their colleagues, going beyond simply removing the disadvantage of their disability.   Law Equality Act 2010 (EqA): Section 20 (1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply;…

Summary Is a belief in Scottish independence protected by the Equality Act 2010 as a philosophical belief? Law Section 10(2) of the Equality Act 2010 provides that; “Belief means any religious or philosophical belief and reference to belief includes a reference to lack of belief”. Grainger plc & others v Nicholson 2010 (i)                  it must be genuinely held; (ii)                it must be a belief and not an opinion or viewpoint based on the present state of information…

Summary The EAT was called upon to consider what amounts to withdrawal of an appeal against a conduct dismissal, and if not withdrawn and successful, does that mean the dismissal “vanishes”? Law Folkestone Nursing Home Ltd v Patel [2018] Mr Patel was dismissed. He appealed. He was informed that the appeal had been upheld by  letter. The Court of Appeal concluded that the original dismissal was no longer of any effect as a result of the successful appeal/ Sales LJ held: “I consider that……

Summary In this case involving constructive unfair dismissal, the ET had to consider if a repudiatory breach of contract had occurred when a manager excessively contacted an employee on long term sick, demanding that they ask their doctor to review their medication, and asking them to be mindful of their Facebook posts as they were ‘supposed to be sick’.   Law Employment Rights Act 1996 Section 95(1) An employee is dismissed by his employer if the employee terminates the contract under…

Summary The EAT had to consider if a settlement agreement could include a claim that had not yet arisen at the time it was signed, or if it was necessary for the employee to know they had a claim at the time of signing it? Law The Equality Act 2010: S. 147 (2)   A qualifying settlement agreement is a contract in relation to which each of the conditions in subsection (3) is met. (3)  Those conditions are that— (a)  the contract is in writing, (b)  the contract relates to the particular…

Summary The EAT had to consider if an employer’s decision on redundancy selection criteria that inevitably created a pool of one, made without consultation with affected employees, was sufficient for meaningful consultation and a fair dismissal.    Law Section 98 Employment Rights Act 1996 provides: (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason…for the dismissal, and (b) that it is…

Summary An Employment Tribunal has found that to succeed in a disability discrimination claim for long covid, it is not simply necessary to show that the employee had covid, but that at the time of the discriminatory act it would need to be considered a “long-term” condition. Law Section 6 of the Equality Act 2010: (1) A person has a disability if: (a) that person has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on their…