Equality

16 November 2021 Summary The Court of Appeal (CoA) has confirmed that in order for a condition to be a disability, there must be a long term and lasting effect upon the individuals day-to-day life, and that is not necessarily the case if it is managed and later flares up again.  Law Section 6 of the Equality Act 2010 (EqA) 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.…

Discipline and grievance , Termination

19 October 2021 Summary In this decision on unfair dismissal, the Employment Appeal Tribunal (EAT) had to consider whether or not the Employment Tribunal (ET) had adequately considered the employers investigation into whether the employees’ misconduct was caused by the claimants mental health condition (depression), or the medication to treat it.   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…

Discipline and grievance , Termination

26 October 2021 Summary In this Employment Appeals Tribunal (EAT) case, two key points of law are explored: the right of the accused to know what they are actually being dismissed for, and respond to it, and the need to consult with the accused over the potential outcome of the case in disciplinary hearings. The latter is a new spin on the right to know the potential outcome, and goes beyond that which is required in the ACAS code of practice. Law Section 94 Employment Rights Act (ERA)…

Dispute resolution

01 September 2021 Summary In this decision on time limits for tribunal claims, the Employment Appeals Tribunal (EAT) was tasked to consider, in a case where an employer has made an ‘offer’ to induce employees into forgoing collective bargaining over changes to terms and conditions, if the time limit for a claim ran from the date of the offer, or the date of when the change was imposed, finding the former to be the case.   Law Section 145B Trade Union and Labour Relations (Consolidation) Act…

Pay and benefits

29 October 2021 Summary In this decision on deductions and the national minimum wage (NMW), the Employment Appeal Tribunal (EAT) overturned the decision of the initial Employment Tribunal (ET) in holding that where expenses are directly connected with employment, they fall within NMW legislation, even if the obligation resulting in the expenditure could have been met in another way.   Law Regulation 13 of the National Minimum Wage Regulations 2015: Deductions or payments as respects a…

Terms and conditions , Employee relations

27 October 2021 Summary The Supreme Court has ruled that employers cannot attempt to bypass an agreed collective bargaining process by offering incentives to staff to do so. Bargaining procedures must be completely exhausted before making direct approaches to employees.   Law Section 145B Trade Union and Labour Relations (Consolidation) Act 1992: (1)A worker who is a member of an independent trade union which is recognised, or seeking to be recognised, by his employer has the right not to…

Employees and workers, Terms and conditions

25 October 2021  Summary The Court of Appeal has upheld earlier decisions of the ET and EAT in another gig economy case, confirming that the ability to offer a piece of work to a substitute does not mean that the service is not provided personally, and therefore does not mean they cannot be found to be a worker. Law Section 230(3) of the Employment Rights Act 1996 defines a worker as someone who has “entered into or works under a: contract of employment or any other contract, whether…

Equality , Termination

19 October 2021  Summary The EAT found that the Employment Tribunal had erred in striking out claims of sex and disability discrimination due to the menopause. The tribunal did not explain why the claimant’s condition did not amount to a disability and stated that there was insufficient evidence of sex discrimination for the claim to proceed, without providing any reasonable explanation for this decision. The claim has been remitted back to ET for fresh consideration of the issues. Law The…

Equality , Termination

19 October 2021 Summary The EAT held that a compulsory retirement age can be lawful, in limited circumstances. In these two cases, separate to each other but linked by the effects of the same policy, the employer argued that a compulsory retirement age of 68 was a proportionate means of achieving a legitimate aim. Law The Equality Act 2010 prohibits discrimination on the grounds of age under sections (5) and (13), unless it is a proportionate means of achieving a legitimate aim (section 13…

Equality

1 April 2021 An employment tribunal has decided, for the first time, that indirect discrimination can occur even when the employee to whom the provision, criterion or practice has been applied does not have the relevant characteristic, where their associates does and this has the result of disadvantaging the employee. Under the Equality Act 2010, section 19, (1), indirect discrimination is defined as:  “A person (A) discriminates against another (B) if A applies to B a provision, criterion…

Termination

6 September 2021  The Employment Appeal Tribunal (EAT) has upheld an automatically unfair dismissal claim which was previously thrown out by the Employment Tribunal (ET) because at the time of her complaint to her employer, the breach had not occurred. Law If a dismissal is for one of the automatically unfair reasons, no qualifying service is required to bring a claim. Common examples include dismissals for: taking action on health and safety grounds. asserting statutory rights. reasons…

Termination

3 June 2020 The Court of Appeal (CA) has upheld a decision 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. Law 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…

Termination

16 August 2021 Summary The Employment Appeal Tribunal (EAT) has held that a claimant was not unfairly dismissed from the company he founded after not being offered the opportunity to appeal. Law Some other substantial reason (SOSR) is a category that provides a potentially fair reason for dismissal where the circumstances cannot be classed as one of the other potentially fair reasons. The following could amount to SOSR dismissals: the dismissal of a person employed as a temporary…

Equality , Termination

29 July 2021 Summary The Employment Tribunal (ET) has dismissed a series of claims concerning discrimination, unfair and wrongful dismissal, harassment, and more, in order to avoid encouraging ‘a culture of hyper-sensitivity’. Facts The claimant worked as a lawyer for PSI CRO UK, the respondent. She was offered a role at the company’s branch in Switzerland but was told that her age “will prevent [her] from commanding a higher salary”. Due to unrelated personal reasons, she declined the…

Equality , Discipline and grievance

14 October 2020 Summary The Employment Tribunal (ET) has held that an employee was not directly discriminated against on the grounds of religion or harassed by her employer. Law ‘Religion’ means any religion, or a lack of religion, and ‘belief’ means any religious or philosophical belief or a lack of belief. For ‘religion’ to be protected, it must have a clear structure and belief system. ‘Religious belief’ goes beyond beliefs about and adherence to a religion or its central articles of…

Equality

23 July 2021 Summary The Supreme Court has affirmed the Court of Appeal’s decision in finding that claimants must provide evidence to the tribunal in discrimination claims. Law The Equality Act 2010 provides protection against unlawful direct and indirect discrimination, harassment and victimisation for the protected characteristic of 'race'. Employers are liable for acts of discrimination, harassment and victimisation carried out by their employees ‘in the course of employment’, whether…

Equality , Managing absence and capability , Termination

2 July 2021 Summary The Employment Appeal Tribunal (EAT) has decided that the Employment Tribunal had erred in law by relying on irrelevant medical records in a disability discrimination claim, and for not considering the claimant's challenge to the respondent’s justification defence. Law The Equality Act 2010 provides protection against unlawful discrimination, harassment and victimisation for the protected characteristic of disability. The core definition of ‘disability’ is a physical or…

Equality , Managing absence and capability , Termination

29 January 2021 Summary The Employment Tribunal (ET) has decided that an NHS receptionist, who was dismissed after telling her employer that she was scared to work in a public-facing role, was unfairly dismissed. Law To avoid a claim for unfair dismissal an employer must have: a potentially fair reason to dismiss acted reasonably in treating this reason as sufficient to justify dismissal followed a fair procedure. In order to bring an unfair dismissal claim the employee must show that…

Employees and workers, Business principles

6 July 2021 Summary An employment tribunal (ET) has decided that, for the period that the claimant was on furlough, he was not a worker for the purposes of the Working Time Regulations 1998 and therefore did not accrue annual leave during that time. Law Workers are separate from employees. Workers agree under a contract – which can be oral or written, expressed or implied – to personally perform services for another party, who is not a client or customer of any profession or business…

Equality , Termination

22 June 2021  Summary An employment appeal tribunal (EAT) has upheld a claim of indirect sex discrimination because the employer had not considered the employee’s childcaring responsibilities. Law The Equality Act 2010 provides protection against unlawful direct and indirect discrimination, harassment, and victimisation for the protected characteristic of ‘sex’. Indirect sex discrimination occurs when a provision, criterion or practice (PCP) is applied universally and that PCP: puts, or…

Employee relations

02 June 2021 An employment appeal tribunal (EAT) has held that employees cannot face a detriment for taking part in industrial action, even if the detriment is not dismissal. The law relating to industrial action can be complicated. Under section 145A of Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), it is unlawful for organisations to make an offer to a worker where the sole or main purpose is to persuade the individual: not to be or become a member of an independent…

Equality

21 May 2021 An employment tribunal (ET) has held that a pregnant woman was not discriminated against by her employer after she was sent home during the coronavirus pandemic for health and safety reasons. The Equality Act 2010 prohibits discrimination and victimisation relating to the protected characteristic of ‘pregnancy and maternity’. Discrimination will occur under section 18 of the 2010 Act when an individual is treated unfavourably during the protected period because: of her pregnancy…

Discipline and grievance , Termination

31 March 2021  An employment tribunal (ET) has held that a driver who was sacked after he was spotted drinking in a pub while he was off sick was unfairly dismissed. To avoid a claim for unfair dismissal an employer must have a potentially fair reason to dismiss, acted reasonably in treating this reason as sufficient to justify dismissal, and followed a fair procedure. For a dismissal to be fair, the employer must show that the employee was dismissed for one of the following five permitted…

Terms and conditions , Business principles , Termination

14 April 2021 An employment tribunal (ET) has held that an employer unfairly dismissed their employee who refused to agree to proposed employment contract changes due to coronavirus. To avoid a claim for unfair dismissal an employer must have a potentially fair reason to dismiss, acted reasonably in treating this reason as sufficient to justify dismissal, and followed a fair procedure. For a dismissal to be fair, the employer must show that the employee was dismissed for one of the…

Business principles

6 May 2021 The employment tribunal (ET) has ruled that an agency worker was entitled to receive accrued holiday pay when furloughed. Generally, agency worker agreements work through an agency supplying workers to an ‘end-user’ for a period of time on an assignment. The length of the assignment should be clearly specified at its commencement and agreed between the agency, the end-user and the worker. During this assignment, it is the agency that usually pays the worker’s wages. Under the…

Termination

21 April 2021 The Employment Appeal Tribunal (EAT) has held that a tribunal’s decision to reduce compensation awarded in an unfair dismissal claim was not perverse as the claimant’s argument, that he would have avoided dismissal if provided opportunity to change his behaviour, was not substantiated. Unfair dismissal claims can arise when the procedure which led to a decision to dismiss an employee is flawed. For example, the employee’s reason for dismissal may be specified as one thing, but…

Termination

29 April 2021 The Employment Appeal Tribunal (EAT) has held that once there has been a fundamental breach of an employment contract, an organisation cannot seek to ‘cure’ this breach in order to avoid a constructive dismissal claim. Constructive dismissal claims occur when an employee resigns due to the conduct of the organisation as they feel there has been a breakdown in the mutual trust and confidence between them. To establish constructive dismissal, the employee must show that the…

Employees and workers

23 April 2021  The Court of Appeal has refused to hear an appeal against a decision which found that private-hire drivers were ‘workers’ and not ‘independent contractors’. The term 'employment status' is the arrangement under which an individual is engaged to work for an organisation. The Employment Rights Act 1996 defines a worker as someone who has “entered into or works under a: contract of employment or any other contract, whether express or implied and (if it is express) whether oral…

Employees and workers

The Court of Appeal has ruled that a union comprising of foster carers should be eligible to be included in the official list of recognised unions as those operating under a Foster Care Agreement could be considered workers. Under section 3 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), trade unions are entitled to apply to the Certification Officer (CO) in order to be entered onto the list of registered unions, which gives the union access to increased rights such…

Business principles , Termination

6 May 2022 Summary The Employment Appeal Tribunal (EAT) has upheld an ET judgement 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…