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…

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…