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…

Discipline and grievance

High Court – August 2017 Here the High Court decided that suspending a teacher amounted to a breach of the implied mutual trust and confidence term in employment contracts.   Note: This decision has been appealed and overturned by the Court of Appeal.   The case concerned a primary school teacher engaged on a fixed term contract in November 2013 which was due to expire at the end of the following August. The teacher had 15 years’ experience teaching children with special needs, but no…

Equality

Employment Appeal Tribunal – August 2017 This case overturns popular misconceptions about ‘shifting the burden of proof’ in discrimination cases.   Note: This decision was appealed and overturned by the Court of Appeal. The later decision can be read here.   The EAT emphasised that it is a tribunal’s responsibility, not the claimant’s, to decide on the facts of a case whether there may have been a breach of discrimination law, or to reject a claim because there was no basis for it The…

Judgement published:
Equality

Employment Appeal Tribunal - November 2012   The Employment Appeal Tribunal had to decide if a lifelong medical condition is a disability, and so whether an employee’s increased susceptibility to illness gave her Equality Act protection.   In this case, an employee, Norris, was suffering from selective immunoglobulin A deficiency, a lifelong medical condition which caused her to be more susceptible to developing illnesses such as diarrhoea and upper respiratory infections and for which…

Judgement published:
Tupe

Court of Appeal - November 2012 Following a restructuring, it was agreed that the claimant’s employment would transfer to another employer – but that company was subsequently put in to the hands of receivers. The claimant was dismissed and claimed unfair dismissal, arguing that under Tupe, there had been a service provision change.   The Court of Appeal (CA) has clarified, in this case, the circumstances in which the transfer regulations apply to a change of service provider.   Tupe…

Judgement published:
Tupe

Employment Appeal Tribunal - November 2012 The EAT was called to rule on whether a condition in Tupe Regulation 3 was met in a case involving a change-over in contractor. To be covered by the transfer regulations, a service provision change must not be for a 'single specific' event or be short–term.   To find out if there is going to be (or has been) a service provision change (SPC) under Regulation 3 of The Transfer of Undertakings (Protection of Employment) Regulations 2006, the facts…

Judgement published:
Termination

Employment Appeal Tribunal - November 2012 An HR associate director was made redundant without consultation, following a restructuring exercise to protect the company from insolvency, during which a new role of HR director was created. The EAT found this to be lawful because the new role required a more highly-qualified and experienced candidate, and consulting the associate director would not have affected this outcome.   In Ashby v JJB Sports the Employment Appeal Tribunal held that…

Dispute resolution

Supreme Court - July 2017 In a landmark judgment, the Supreme Court decided in this case that the fees regime for employment tribunals was unlawful and indirectly discriminatory. The court quashed the Fees Order which introduced the payment system in 2013, resulting in the tribunals service ceasing to collect fees the following day.   The trade union Unison brought judicial review proceedings in the High Court in 2014, claiming that the introduction of tribunal fees in 2013 denied…

Pay and benefits

Employment Appeal Tribunal – July 2017 Here the EAT decided an employment tribunal was right to conclude that voluntary overtime that was normally worked should be included when calculating holiday pay.   EU law requires that workers should receive their ‘normal remuneration’ while taking their statutory holiday entitlement (20 days under EU law) for work that is ‘intrinsically linked’ to the work they usually do.   Case law, such as Lock v British Gas, has indicated that workers who…

Equality

Supreme Court – July 2017 The Supreme Court has decided that it is now unlawful to deny a same sex partner the same pension rights as a heterosexual spouse, even though this was permissible prior to the civil partnerships legislation.   Walker worked for Innospec for 23 years before retiring in 2003. The case was about how much of his pension his civil partner would receive on his death. They had been partners since 1993, and Walker had paid the same contributions as married members of…

Business principles

Court of Appeal – July 2017 The Court of Appeal has decided that blowing the whistle about the alleged wrongdoing of an employer with regard to one’s own and colleagues’ contracts of employment can amount to a protected disclosure.   Nurmohamed, the director of a London office of an international firm of estate agents, alleged that the company had awarded lower bonuses to himself and 100 other senior managers than they would otherwise have received by deliberately misstating £2-3 million…

Equality , Dispute resolution

Court of Appeal – July 2017 The Court of Appeal has decided that it is appropriate for tribunals to uplift awards made for personal injury by up to 10 per cent, effectively approving an increase to the Vento bands setting out the broad category of compensation to be used in such cases.   This claim was brought by a cleaner working in London Underground’s premises in London, who complained she was the victim of disability discrimination, harassment and victimisation, initially against…

Equality

Employment Appeal Tribunal - June 2017 Whether a condition had a "substantial adverse effect" on the claimant Facts The claimant, Olukanni, worked as a Selling Assistant for John Lewis. She contended that John Lewis had failed in its duty to make reasonable adjustments to her role; a duty that applied because she was disabled under the Act. Olukanni suffers from a disability that has features of semantic pragmatic disorder which affects communication. In such cases, the burden of proof…

Family friendly and flexible working rights , Equality

Employment tribunal – June 2017 An employment tribunal has decided that it was unlawful to pay mothers an enhanced pay rate during maternity leave, while only paying a father looking after a new-born baby statutory pay under shared parental leave arrangements   Statutory shared parental pay is paid at the lower rate of statutory maternity pay, although employers may choose to offer enhanced pay.   The claimant in this case took two weeks’ paternity leave following the birth of his baby…

Judgement published:
Business principles

Court of Appeal - May 2017 The Court of Appeal has allowed an appeal from a trainee doctor claiming whistleblower protection against the NHS’s national training body even though he was employed by an NHS trust.   The whistleblowing laws are contained in the Public Interest Disclosure Act 1998, the Employment Rights Act 1996 and the Enterprise and Regulatory Reform Act 2013. The original legislation only protected employees and workers, but the ERRA extended the protection against…

Judgement published:
Employee relations

Court of Appeal - May 2017 An employer’s court challenge to statutory union recognition over the appropriateness of the proposed collective bargaining unit failed as it was unable to show the unit would stop it from operating effectively   Lidl did not recognise a trade union for any of its UK employees. The GMB trade union applied to the Central Arbitration Committee (CAC) for statutory recognition to represent 273 warehouse staff at a Lidl regional distribution centre in Bridgend. The…

Judgement published:
Pay and benefits

Employment Appeal Tribunal Scotland – May 2017 The Scottish Employment Appeal Tribunal has confirmed that breaks of more than three months in a series of holiday pay underpayments breaks the series, thereby limiting the scope for back pay   When Bear Scotland v Fulton was heard in the Employment Appeal Tribunal (EAT) in 2014, the EAT decided that ‘non-guaranteed’ overtime that is part of ‘normal remuneration’ should be included in holiday pay. But the EAT limited the scope for employees…

Judgement published:
Equality

Employment Appeal Tribunal - May 2017 An applicant with Asperger’s syndrome was able to show that a multiple choice psychometric test in a recruitment process disadvantaged her because of her disability, and that the employer’s refusal to allow her to answer the questions in an alternative format was a failure to make reasonable adjustments   Brookes, a lawyer wishing to join the Government legal service, was required to sit a multiple choice questionnaire at a preliminary stage of the…

Judgement published:
Business principles

Employment Appeal Tribunal – April 2017 In this case, a ‘sleep-in’ night worker was found to be entitled to national minimum wage and not just an allowance for the duty This case was heard alongside two others, also dealing with whether sleeping during on-call time counted as working time for the purposes of the national minimum wage requirements. Roberts was an hourly paid care worker for an agency providing a ‘supported living service’ paid for by local authorities or by the clients…

Judgement published:
Discipline and grievance

Court of Appeal – April 2017 A manager accused of insubordination was fairly dismissed for gross misconduct as the appeals process, on which the dismissal decision was based, remedied faults in the original disciplinary procedure. The claimant in this case had been the principal pharmacist at Wandsworth Prison since 2002. Her employer was St George’s Hospital. Problems arose when the pharmacist strongly disapproved of a plan to move from nurse-led to pharmacist-led pharmacy services in…

Judgement published:
Tupe

Employment Appeal Tribunal – April 2017 A transferee contractor was unable to use Tupe information rules to claim compensation for paying transferred staff a Christmas bonus which it believed was non-contractual. This case concerned a changeover in contractor providing print finishing services to auctioneers Sotheby’s. The move was subject to the Tupe rules covering service provision changes. The outgoing contractor (Spire) had stated that staff received a non-contractual Christmas bonus…