Judgement published:
Termination

Summary The EAT considered if dismissal for lateness was reasonable, when that lateness included instances of 2-3 minutes. Rejecting the argument that this was disproportionate, it was held that employers do not have to show damage as a result of the misconduct in order for dismissal to be reasonable 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…

Equality

Summary In a case that considered the application of the exemption to the two year service requirement for unfair dismissal laws, the EAT has held that failing to remain politically neutral, as required by the contract of employment, and being dismissed for this failure was not enough to mean the two year service requirement should be waived. Law Section 94(1) Employment Rights Act 1996 (ERA) states that an employee has the right not to be unfairly dismissed by their employer. Section 108…

Judgement published:
Employee relations

Summary An employer tried to bypass collective bargaining processes by unilaterally applying to trade union member employees a disputed pay offer, telling them no better offer would be forthcoming; this was found to be in breach of the law and compensation was ordered totalling £4.8 million. Law Section 145B Trade Union Labour Relations (Consolidation) Act 1992 (TULRCA): Inducements relating to collective bargaining (1) A worker who is a member of an independent trade union which is…

Judgement published:
Equality

Summary The Employment Tribunal has ruled that support for a football club (in this case, Rangers) is not tantamount to a religious or philosophical belief, and dismissal in connection with it is therefore not automatically unfair. Law Section 104(1) of the Employment Rights Act 1996 specifies that an employee can claim automatic unfair dismissal (i.e. no qualifying service needed) if the reason or principal reason for dismissal is that the employee: alleged that the employer had…

Judgement published:
Business principles

Summary The Court of Appeal has upheld a decision where an employer successfully defended a claim for automatic unfair dismissal in relation to whistleblowing, by showing that the dismissal was genuinely due to the conduct of the individual, and not the protected disclosure.   Law Employment rights act 1996 (ERA) Section47B Protected disclosures. 1 A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the round…

Judgement published:
Recruitment and selection

Summary Whilst, strictly speaking, this case falls outside of employment law, the learning points from it make it essential reading for all employers. In this matter, the Supreme Court ruled that those who obtain employment through fraud and deception can be deprived of the proceeds they enjoyed as a result, calculated by taking the difference between the salary they had, when being honest, and what they actually got through fraud and deception.   Law The law in this case is outside the…

Judgement published:
Tupe

Summary The Employment Appeal Tribunal had to consider if the claimant’s employment had transferred to the respondent under a service provision change within the TUPE regulations; finding it had not, it confirmed the Employment Tribunal's judgment that the activities set out by the respondent were fundamentally different to those previously undertaken by the claimant’s employer. Law Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE") Regulation 2(1) of TUPE…

Judgement published:
Equality

Summary The Employment Tribunal has held that a job advert that could not be submitted without holding a driving licence was indirect discrimination and a failure to make reasonable adjustments, in circumstances where an applicant had the means to provide a driver. Law Discrimination arising from disability Section 15 Equality Act 2010: (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 disability…

Judgement published:
Business principles , Termination

Summary The Employment Tribunal once again demonstrates the vital importance of having relevant policies and procedures in place, finding against the respondent in a matter of unfair dismissal where these were not. The Employment tribunal also found that the act of liking and sharing a Facebook post can amount to a protected disclosure under whistleblowing laws. Law Unfair dismissal Employment Rights Act 1998 (ERA) Section 98(1): In determining for the purposes of this Part whether…

Judgement published:
Termination

Please note that this case report relates to a matter deal within the High Court and then Court of Appeal, outside of the Employment Tribunal system. This is due to the nature of the relief sought (an injunction to prevent action). It is however highly relevant to employers considering changing agreed terms and conditions. Summary The Court of Appeal has overturned an injunction placed on Tesco by the High Court, preventing them from going through a process of fire and re-hire. This was…

Judgement published:
Equality , Termination

Summary In finding that a redundancy dismissal was a ‘total sham’, the Employment Appeal Tribunal (EAT) held that the Employment Tribunal (ET) did not err in law in awarding an uplift of 25% for failure to follow the Acas code of practice on disciplinary and grievances Law Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A) Section 207A - Effect of failure to comply with Code: adjustment of awards (1) This section applies to proceedings before an employment tribunal…

Judgement published:
Pay and benefits

Summary The Supreme Court has upheld the Court of Appeal's judgment that holiday pay for permanent staff who only work part of the year, such as term-time workers, should get a full 5.6 weeks' annual leave a year, with pay calculated over a 52-week average, rather than on a basis of 12.07%. The same principles apply to those on a zero-hours, variable-hours or casual contract. Law Article 7 of the EU’s Working Time Directive (WTD) outlines that workers in Member States should be provided at…

Equality

Summary In a complex case, that has gone from Employment Tribunal (ET) to Employment Appeal Tribunal (EAT), and back to ET again, it has been held that the claimant was directly discriminated against and victimised following tweets that they made which expressed gender-critical views. Law Section 4 Equality Act 2010 (EqA) provides that religion or belief are protected characteristics; for these purposes, religion and belief are defined at section 10 EqA, as follows: (1) Religion means any…

Judgement published:
Equality

Summary The Employment Appeal Tribunal has held that whilst a Christian doctor’s beliefs about transgenderism would be protected by the Equality Act 2010 (EqA), this protection did not include expressing those views whilst at work. Law Section 4 EqA provides that religion or belief are protected characteristics; for these purposes, religion and belief are defined at section 10 EqA, as follows: (1) Religion means any religion and a reference to religion includes a reference to a lack of…

Equality

Summary An employment tribunal has decided that for a belief in ethical veganism to be a philosophical belief under section 10 of the Equality Act 2010, it cannot include a belief in a positive obligation to break the law to expose and reduce animal suffering.  Law  Section 13(1) of the Equality Act 2010 ("EA 2010"):  A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would others.  Section 19 EA 2010: (1…

Equality

Summary A menopausal employee had her claim for disability and sex discrimination rejected by the Employment Tribunal (ET), despite the ET finding that her menopausal symptoms could be a disability.   Law Equality Act 2010 Section 9: (1) A person (P) has a disability if – (a) P has a physical or mental impairment; and (b) The impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities… (2) This Act (except part 12 and section…

Equality

Summary An employment tribunal has found that a police officer was the victim of harassment and victimisation, related to a disability, following a number of issues at work, including getting the nickname 'Dolly Parton' for his 9 - 5 working hours.  Law Equality Act 2010 Section 26 (harassment): (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the … effect of— (i) violating B's dignity, or (…

Equality

Summary An employment tribunal has concluded that calling an employee “bald” amounts to unlawful harassment. Law Equality Act 2010 Section 26: A person (A) harasses another (B) if— A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of— violating B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Two tests need to be met for the conduct to amount to…

Equality

Summary An employment tribunal has held that an employer failed to make reasonable adjustments for a disabled employee, whom they also discriminated against and victimised, after they asked for their specially adapted seat and desk not be used by others and was disciplined for doing so. Law Equality Act 2010 Section 39(2)(c)&(d): an employer must not discriminate against an employee by dismissing him or subjecting him to a detriment. Section 13 (1) - Direct discrimination: (1) A…

Equality , Termination

Summary An employment tribunal has upheld a claim for indirect sex discrimination and constructive unfair dismissal brought by a working mother, who had been required by her manager to start working weekend shifts, despite her lack of access to childcare at the weekend. Law Section 19 Equality Act 2010 (EqA) Indirect discrimination – (1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant…

Equality

  Summary An Employment Tribunal (ET) has rejected claims for unfair dismissal and direct discrimination as a result of action taken following an employee’s tweets on the subject of religion and Pride month, however has upheld a claim for indirect discrimination on the basis that the actions taken were outside of work and working time. Law European Convention on Human Rights Article 9 the freedom of thought, conscience and religion. 1. Everyone has the right to freedom of thought,…

Judgement published:
Equality

  SUMMARY The employment tribunal recently found that an employee who returned to work from maternity leave on a part-time basis after having triplets was subject to sex discrimination, a failure to pay equal pay, and less favourable treatment compared to a full-time equivalent male worker. LAW Equality Act 2010 Section 13 (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably that A treats or would treat others.” Section…

Equality

  Summary In this case, the Employment Appeal Tribunal (EAT) had to consider the comparison pool to be used in indirect discrimination claims and whether or not a provision, criterion or practice (PCP) to work late Thursday shifts disadvantaged the claimant as a woman. Law Section 19 of the Equality Act 2010 prohibits indirect discrimination: (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a…

Termination

Summary The Employment Appeal Tribunal was called upon to assess whether or not an employee who volunteered for redundancy could pursue an unfair dismissal claim. Law Section 94 Employment Rights Act 1996 (“ERA”). (1)  An employee has the right not to be unfairly dismissed by his employer. Section 98 ERA: (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,…

Judgement published:
Employee relations

Summary The Court of Appeal was tasked in this case with determining the limit of protection against a sanction short of dismissal in relation to industrial action, and how industrial action, and actions taken in preparation for it, differ to the activities of a trade union. Law Trade Union and Labour Relations (Consolidation) Act 1992 ("TULRCA") Part III of TULRCA concerns rights in relation to union membership and activities. Section 145A: It is unlawful for organisations to make an…

Business principles

Summary An employee who raised a protected disclosure regarding working conditions, lack of PPE and appropriate training during the pandemic, and was subsequently dismissed for poor performance, was found to have been unfairly dismissed and subject to a detriment as a result of their disclosure.    Law Employment Rights Act 1996 (ERA)  Section s.98 - In order to show that a dismissal was fair, the employer must show that the dismissal was for a potentially fair reason. It is sufficient that…

Judgement published:
Equality

Summary Specific legal protection applies to those who are pregnant, new mothers and those who have suffered a miscarriage (two weeks after the miscarriage). The Employment Tribunal (ET) in this case had to assess a matter of potential sex discrimination associated with miscarriage, outside of the protected period. Law Section 13 of the Equality Act 2010 provides: Direct Discrimination (1)    A person (A) discriminates against another (B) if, because of a protected characteristic, A treats…

Judgement published:
Employees and workers

Summary This Court of Appeal (CoA) decision involved worker status and whether or not a commitment to offer or accept a minimum amount of work was crucial to worker status for the purposes of claiming holiday pay. Law Working Time Regulations 1998 Regulation 2(1) of the Regulations defines a worker in the following way: ""Worker" means an individual who has entered into or works under (or, where the employment has ceased, worked under) –              (a) a contract of employment; or…

Terms and conditions , Termination

Summary The Employment Appeal Tribunal was asked to consider whether or not the claimant was dismissed by the respondents’ actions in terminating his employment early during his notice period, which he was serving as a result of his resignation. Law Section 95 Circumstances in which an employee is dismissed Employment Rights Act (ERA) 1996 (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (a)the contract under which he is employed…

Employees and workers

  Summary In another status case, the Employment Appeal Tribunal was called upon to weigh the balance of the requirement to provide personal service against the degree of control held by the claimant, and decide which side of the self-employed / worker status debate this particular claimant fell. Law Section 230(3) of the Employment Rights Act (ERA) 1996 defines a worker as follows: (3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who…