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…

Termination

High Court – April 2018 What duty of care does a reference writer owe when they include facts and opinions in a reference that are based on a previous investigation? Claims of negligent misstatement, a tortious claim, can be made against ex-employers if they provide an inaccurate reference to a potential employer. When writing references, the employer owes a duty of care to the employee. Previous cases have shown that this duty is to exercise reasonable skill and care to provide a true, fair…

Family friendly and flexible working rights , Equality

Employment Appeal Tribunal – April 2018 Note - this decision has appealed to the Court of Appeal. Their decision is available here. The EAT has confirmed there is no sex discrimination when an employer offers an enhanced pay rate during maternity leave, whilst only providing fathers with statutory pay under shared parental leave policies. Statutory shared parental pay is paid at the rate set by the government each April, currently £145.18 for 2018/19, although some employers may choose to…

Termination

Supreme Court – March 2018 Was a dismissal for failing to disclose close relationship with sexual offender within the band of reasonable responses? As well as showing they have a fair reason to dismiss and have followed a fair procedure, under s98(4) Employment Rights Act 1996 employers also have to show that, in all the circumstances, dismissal was a reasonable response. Parliament has previously introduced the Childcare Act 2006 and subsequent regulations which disqualify individuals from…

Recruitment and selection, Equality

Court of Appeal – March 2018 Was it unlawful discrimination to refuse to grant a licence to a priest because his same sex marriage was contrary to Church of England doctrine? The Marriage (Same Sex Couples) Act 2013 introduced lawful same sex marriages. The Canons of the Church of England set out that marriage is the union of one man with one woman. Following the introduction of the legislation, a statement of Pastoral Guidance was distributed which confirmed the Canon remained part of…

Termination

Employment Appeal Tribunal – February 2018 Was a company required to carry out collective consultation before being placed in compulsory liquidation? Facts Keeping Kids Company (KKC) was a charity that relied heavily on substantial donations and corporate sponsorship. In 2014, the charity was encountering significant financial difficulties and the government provided funding to the charity, subject to conditions, in early 2015 to help stabilise KKC. Financial difficulties continued,…

Equality

Court of Appeal – February 2018 Can an ‘expectation’ to work longer hours amount to a provision, criterion or practice under the Equality Act 2010? Employers have a duty under the Equality Act 2010 to make reasonable adjustments for disabled job applicants, employees and former employees. The duty can arise where a disabled person is placed at a substantial disadvantage by a ‘provision, criterion or practice’ (PCP) operating in the employer’s workplace. Facts Carreras worked as an…

Equality

Employment Appeal Tribunal – March 2018 Does the condition of “cancer” in the Equality Act 2010 include “pre-cancerous” and “in situ cancer” diagnoses? Under Schedule 1 paragraph 6 of the Equality Act 2010, individuals are automatically deemed to fall within the statutory definition of ‘disabled’ where they are diagnosed with cancer, HIV and multiple sclerosis. Facts Lofty began working as a café assistant in September 2001 before transferring to the new organisation in 2015. Following…

Family friendly and flexible working rights , Termination

Employment Appeal Tribunal – March 2018 Was a failure to review a dismissal decision, taken before the employee informed of her pregnancy, discrimination on pregnancy grounds and an automatic unfair dismissal? Under s99 of the Employment Rights Act 1996 and Regulation 20 of the Maternity and Parental Leave Etc Regulations 1999, a dismissal will be automatically unfair where the reason, or principal reason, for the dismissal is connected to the employee’s pregnancy. Pregnant employees are…

Employees and workers

Employment Appeal Tribunal – February 2018 Did higher hourly pay for an agency worker compensate for differences in holiday and payment for breaks when compared to an end-user’s employee? Article 5 of the EU Temporary Agency Workers Directive creates the principle of equal treatment; where basic working and employment conditions for agency workers should be “at least those” that would apply if they were a direct recruit for the agency worker. The domestic legislation, the Agency Workers…

Tupe

Employment Appeal Tribunal – February 2018 Tribunal erred by failing to properly determine the pre-transfer ‘activity’ and whether the activity had been fragmented post-transfer For there to be a service provision change under Regulation 3(1)(b) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, the activities being transferred to the new service provider must be fundamentally the same as those carried out by the old provider. This means the determination of ‘…

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…