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…

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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…

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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…

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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…

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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…

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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…

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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…

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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…

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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…

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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…

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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…

Judgement published:
Equality

Supreme Court – April 2017 This Supreme Court judgment overturns a previous Court of Appeal decision in the case, which ruled that claimants must show why a particular policy or practice was discriminatory in indirect discrimination cases. It restores the approach that claimants instead need to show a measure is discriminatory towards a group with a protected characteristic and to the claimant within it.   The case Essop v Home Office concerned a requirement for staff to pass a ‘core…

Judgement published:
Termination

Court of Appeal – March 2017 The appeal court has decided that a dismissal notice only became effective in terminating an employment contract on the date it was read by the employee, not the date when the communication was received.   In this case, that approach had a significant impact on the claimant’s pension entitlement. 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…

Judgement published:
Equality , Termination

Court of Appeal - March 2017 Dismissing an employee who had been absent on sick leave for over a year with mental health issues following a workplace assault was unfair and disability discrimination.   A school teacher who had been assaulted by a pupil felt unsafe and unsupported following her return to work and became unwell with numerous mental health issues, including post-traumatic stress disorder. She was absent on sick leave for over a year, during which the employer tried to meet…

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Equality

Court of Justice of the European Union March 2017 In this judgment, the European court ruled that banning all religious dress at work is not direct discrimination, but may constitute indirect discrimination which could be justified if there was a legitimate reason behind it.   This CJEU ruling concerned a Belgian case, Achbita v G4S, and a French case, Bougnaoui v Micropole.   Achbita worked as a receptionist for G4S Secure Solutions. The company’s employee code of conduct banned the…

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Employee relations

Court of Appeal February 2017 This case confirms that a trade union cannot seek statutory recognition when another trade union is already recognised by an employer, and that current recognition legislation does not breach European freedom of association rights.   The two unions involved in this case were the Pharmacists’ Defence Association (PDA - an independent trade union within the meaning of the legislation) and Boots Pharmacists Association. The PDA was trying to gain recognition by…

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Equality

Employment Appeal Tribunal February 2017 Here an employer was found to have failed to make reasonable adjustments when it compressed the working hours of an employee with dyslexia, at her request, but did not reduce her workload.   Kuranchie joined the Home Office in 2006. She was dyspraxic (a co-ordination disorder) and dyslexic (a condition affecting reading, writing and spelling). In 2013 she told her manager that her disability was leading her to work long hours in order to get…

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Pay and benefits, Equality

Employment Appeal Tribunal February 2017 Here the EAT decided that the purpose of an employee’s request for a five-week holiday in Sardinia was to visit his family, rather than to attend religious festivals, and so refusing it was not discriminatory.   Gareddu, an engineer, had worked for London Underground for over 25 years. He was entitled to 38 days’ holiday a year, and between 2009 and 2013 had been allowed to take the whole of August off (five weeks) in order to visit his family…

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Employees and workers

Court of Appeal - February 2017 The Court of Appeal, in the latest ‘gig economy’ case, has confirmed the ruling of the Employment Appeal Tribunal that a plumber whom the company claimed was self-employed, was actually a worker, partly because he had to perform the work personally and was not allowed to provide a substitute.   The Court of Appeal, in the latest ‘gig economy’ case, has confirmed the ruling of the Employment Appeal Tribunal that a plumber whom the company claimed was self-…

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Employees and workers

Employment tribunal - January 2017 In yet another ‘gig economy’ case, an employment tribunal has decided that a cycle courier was a worker, and not a self-employed contractor.   Dewhurst, a cycle courier working for CitySprint, claimed that she was a worker under the Employment rights Act 1996 and, therefore, entitled to be paid for the two days’ holiday she had taken. ‘Worker’ status would also entitle her to rest breaks and the minimum wage.   Her contract said she was a “self-…

Judgement published:
Pay and benefits, Equality

Employment Tribunal – January 2017 Here changes made to a pension scheme for judges was found by an employment tribunal to be less favourable treatment which the Ministry of Justice could not justify. This case was brought on behalf of 210 judges at various levels in the judiciary. They claimed that a new pension scheme disadvantaged them, and that this was age discrimination and, where the scheme disadvantaged female and ethnic minority judges, race and sex discrimination. The claimants…