Business principles

European Court of Justice – February 2018 ECJ finds restrictions placed on the worker meant time spent at home on-call was ‘working time’ under the Working Time Directive. The Working Time Directive (2003/88/EC) defines “working time” as any time where a worker is working, at the employer’s disposal and carrying out their activity or duties. In contrast, any time not classed as working time will be categorised as a “rest period”. Facts Matzak was a Belgian volunteer firefighter in the…

Termination

Employment Appeal Tribunal – January 2018 Was an employee’s effective date of termination changed when she received written notice of termination following an earlier summary dismissal? The effective date of termination is the date on which an employee’s employment ends. When this date occurs will depend on the type of dismissal, ie whether it was a dismissal with notice or a summary dismissal. This date is important because an employee has to present a claim for unfair dismissal within…

Equality

Court of Appeal – February 2018 How far is an employer required to go to have constructive knowledge of an employee’s disability? The duty on employers to make reasonable adjustments is triggered when an employer knows, or could reasonably be expected to know, that the employee has a disability. The reasonable expectation is known as “constructive knowledge” and the following case looks at this issue under the Disability Discrimination Act 1995. Facts A Court Officer with previous…

Business principles , Dispute resolution

Employment Appeal Tribunal - January 2018 The EAT has ruled there are exceptional circumstances where employees can bring whistleblowing claims against co-workers in the employment tribunal even though the detriment took place outside Great Britain. s47B(1A) of the Employment Rights Act 1996 provides protection for workers against detrimental treatment from co-workers due to making protected disclosures. If an employee successfully presents a claim against their co-workers under this…

Equality , Business principles

European Court of Human Rights – January 2018 Were employees’ rights to privacy breached by covert surveillance set up to monitor suspected thefts? Under Article 8 of the European Convention of Human Rights, individuals have a right to respect for their private and family life that extends to the workplace. The right is a qualified right so employers can place restrictions on privacy rights to achieve a legitimate objective, so long as their methods are proportionate and necessary. Facts…

Terms and conditions

Employment Appeal Tribunal - January 2018 Where an employee knows the contract of employment is not temporary, in contravention of immigration laws, does this make the contract unenforceable from the outset because of illegality? In Hall v Woolston Hall Leisure Ltd, three categories of cases of illegality were identified. The first two render the contract unenforceable from the outset: where the contract was entered in to with the intention of committing an illegal act or where the contract…

Terms and conditions , Termination

Employment Appeal Tribunal – January 2018 To act fairly when deciding not to renew an employee’s fixed-term contract, are employers only required to comply with the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002? The Regulations provide protection for fixed-term employees against less favourable treatment in comparison to a comparable full-time worker. This includes the right to not be treated less favourably regarding the opportunity to secure permanent…

Equality

Employment Appeal Tribunal – November 2017 Dismissal because of marital difficulties could engage the protected characteristic of marriage and civil partnership. Facts Reverend Gould was employed as a minister within the North London church from 1 September 1995 until his summary dismissal on 1 August 2016. During his ministry, the congregation grew and the church prospered. Rev. Gould married in 1997 but there were difficulties in his marriage. These difficulties were raised by the…

Employees and workers

Court of Appeal – January 2018 District Judge could not claim whistle-blowing protection as she was solely an office-holder, and not a worker under s230(3) of the Employment Rights Act 1996. Individuals are protected against suffering a detriment due to making a protected disclosure if they are a worker under s230(3) Employment Rights Act 1996 (‘ERA’). This defines a worker as an individual who has entered in to, or works under, a contract of employment or any other contract whether express…

Business principles

Can shorter breaks be aggregated to satisfy a worker's entitlement to a 20 minute rest break under the Working Time Regulations? Note: This decision has been appealed and overturned by the Court of Appeal. Under Regulation 12, workers are entitled to an uninterrupted rest break lasting at least 20 minutes if their daily working time is more than six hours. Regulation 21(f) states workers in railway transport roles carrying out activities relating to the continuity and regularity of…

Pay and benefits

European Court of Justice – November 2017  Essentially agreeing with the Advocate General's opinion, the ECJ have decided workers are entitled to carry over and accumulate their accrued but untaken holiday where the organisation doesn’t allow the worker to exercise their right to paid leave. This carry over right is not subject to any limitation and cannot be extinguished. In addition, the worker is not required to take the leave first before establishing whether they have the right to pay…

Dispute resolution

Where the effective date of termination is disputed, are pre-termination negotiations inadmissible under s111A of the Employment Rights Act 1996? S111A of the Employment Rights Act 1996 (ERA) makes pre-termination negotiations inadmissible in any tribunal proceedings relating to complaints of unfair dismissal. Pre-termination negotiations are defined in the legislation as “any offer made or discussions held, before the termination of the employment in question, with a view to it being…

Equality

Was a refusal to recruit because a health condition may deteriorate in the future an act of perceived disability discrimination? Facts Coffey was employed as a police constable within the Norfolk Constabulary from 1993-1997. In 2009, she joined the Wiltshire Constabulary as a staff member and then applied to become a police constable in 2011. A medical was carried out and it was found that Coffey was suffering from hearing loss with tinnitus. Under the Medical Standards outlined in the…

Terms and conditions , Termination

Employment Appeal Tribunal – November 2017 Will the implied term of mutual trust and confidence be breached when an employer gives a false reason for dismissal? Facts Rawlinson commenced employment as Group Legal Counsel in December 2014. Before his appointment, the organisation used a variety of legal firms based on the required advice. Following the appointment of a new Chief Executive Officer in January 2015, concerns with Rawlinson’s performance were raised. Rawlinson was aware of…

Employees and workers, Employee relations

Central Arbitration Committee – November 2017 To be recognised for collective bargaining, the union had to first prove the riders were workers within the statutory definition contained in s296 Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). Facts The Independent Workers’ Union of Great Britain (IWGB) made a formal request for trade union recognition to Deliveroo on 7 November 2016. They sought to negotiate pay, hours and holiday rights with Deliveroo on behalf of the…

Employees and workers

Employment Appeal Tribunal – November 2017 The Employment Appeal Tribunal has dismissed Uber’s appeal against a tribunal decision that drivers engaged by Uber were not self-employed contractors, but fell squarely within the legal definition of ‘worker’ under the Employment Rights Act 1996, the Working Time Regulations 1998 and the National Minimum Wage Act 1998. Tribunal In November 2016, the employment tribunal held drivers engaged by Uber were workers. The tribunal judged the…

Business principles , Termination

Employment Appeal Tribunal – November 2017 Did a failure to produce right to work documents justify a statutory illegality dismissal? Facts As a Jamaican national, Baker had the right to live and work in the UK under the Immigration Act 1971. He was employed as a bus driver from July 2012. In 2015, an audit was carried out by the organisation in to their employees’ right to work. They asked Baker to produce one of a list of documents that included a passport. He explained that he had…

Recruitment and selection, Employee relations

Employment Appeal Tribunal – October 2017 Is a refusal to recruit because of previous trade union activities a refusal of employment because of trade union membership under s137(1)(a) Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”)? Facts Denby, a qualified pilot, started working at the airline in November 2005. In 2008, Denby became Chairman of the Crew Council and pilot representative for two airports. He was also a member of the British Airline Pilots’ Association…

Dispute resolution , Termination

Employment Appeal Tribunal – October 2017 When determining whether a tribunal has jurisdiction to hear claims from employees working overseas, the tribunal has to assess whether the employment has a stronger connection to Great Britain and British employment laws compared to the connection with the overseas territory.   Facts Green was a British national. He was married to a Lebanese citizen and had lived in the Middle East for over 15 years. He provided consultancy services to the…

Equality

Court of Appeal – October 2017   School’s policy of pupil segregation was discriminatory under Equality Act 2010 despite pupils of both sexes being treated equally. Applied to the workplace, this ruling means that equal, but separate, treatment can still be discriminatory. Facts Al-Hijrah school is a faith school which accepts children of both sexes. However, from Year 5 onwards, the children are split into single sex classes for religious reasons held by the school in accordance with…

Business principles , Termination

Court of Appeal - October 2017 Is a dismissal automatically unfair when the decision maker had no knowledge of protected disclosures, and was intentionally misinformed by the employee’s line manager? Facts Jhuti was employed on a six month trial period in the organisation’s MarketReach department. She noticed irregularities in the way colleagues were offering incentives to customers and believed these breached OFCOM guidance. Jhuti twice reported this to her line manager, by email in…

Employees and workers

Employment tribunal – October 2017 Were minicab drivers self-employed or workers? Facts Three drivers signed a driver contract that stated they were self-employed and contracted to provide services to Addison Lee as a sub-contractor. The contract also stated there was no obligation to provide services to Addison Lee, nor an obligation on Addison Lee to provide work. The contract stated the drivers chose when to work but were obliged to perform each “customer contract” promptly. The…

Discipline and grievance

Employment Appeal Tribunal – October 2017 Can a disciplinary investigation be regarded as unreasonable where it is too thorough? Facts Pillar was employed as a Nurse Practitioner from July 2002 to September 2014. Her role was to take telephone calls from the public and triage them to decide the most appropriate next care step. In December 2013, a Patient Safety Incident occurred when Pillar failed to take in to account red flags when making a decision. Pillar directed a patient who was…

Tupe

Employment Appeal Tribunal Activities were fundamentally the same after the transfer The Transfer of Undertakings (Protection of Employment) Regulations 2006 (Tupe) apply where there is what the regulations refer to as a “relevant transfer”. This includes a “service provision change”, when business activities are reassigned from one contractor to another. Previous case law has suggested that, for Tupe to apply, pre-transfer and post-transfer activities need not be identical, provided they…

Employees and workers

Employment Appeal Tribunal – August 2017 Part-time worker paid 50 per cent of comparable full-time worker’s salary whilst working proportionately more than 50 per cent of full-time hours was treated less favourably. Facts Pinaud was employed as a crew member by British Airways from 1985 on a full time basis. After returning from maternity leave in 2005, Pinaud began working a part time shift pattern. The full-time shift pattern was called the “6/3 pattern” and provided for six days on…

Judgement published:
Equality

European Court of Human Rights Grand Chamber – September 2017 The Grand Chamber of the European Court of Human Rights has reversed a previous decision from January 2016 that email monitoring undertaken by an employer did not breach an employee’s human rights. The judges determined the employer failed to strike a fair balance between the employee’s right to privacy and the employer’s right to ensure their business is running effectively.   Barbulescu, a Romanian national, lodged his case…

Pay and benefits

Court of Appeal - February 2013 A graduate, working voluntarily at a museum in pursuit of a career in that sector, was offered a six-week training scheme through her Jobcentre. She was told the scheme was ‘mandatory’ and she risked losing benefits if she did not participate. She challenged the lawfulness of the regulations.   Reilly, a geology graduate, was working voluntarily at a museum in order to fulfil her ambition of working in that sector. She was receiving Jobseeker’s Allowance (…

Terms and conditions

Employment Appeal Tribunal - 1983 Service continuous by arrangement and custom Facts Mackay had been employed as a waitress in a hotel in the north of Scotland over a number of years, working during the summer seasons only, as the hotel was semi-closed during the winter months.   Each year, her employment was terminated at the end of the summer season and the contract revived again in the early spring. When her services were dispensed with, she claimed unfair dismissal, arguing that…

Terms and conditions

Employment Appeal Tribunal - 1978 Contract of apprenticeship is a one-off contract EAT The EAT held in this case that a contract of apprenticeship was a one-off contract which, once completed, could not logically be renewed. Consequently, the employer's decision not to offer the individual a contract of employment following the completion of his apprenticeship training did not amount to a dismissal in law.

Employees and workers

Court of Appeal - 1983 ‘Regular casuals’ and employment rights Facts O'Kelly, who worked as a casual wine waiter, was one of several members of staff who were regarded by the employer as 'regular casuals' and who were given priority over other casual staff in terms of the allocation of available work.   He had worked regularly in the hotel for many years until he was discharged, after which he lodged a claim for unfair dismissal. In order for the tribunal to have jurisdiction to hear…