Summary It is not possible to offset a failure to provide agency workers comparable rights to an end users directly employed workers, by offering an enhanced rate of pay to the agency workers. Rights should be determined and matched on a term by term basis. This however does not extend to the right to apply for a directly employed vacancy with the hirer, nor does it include the requirement to provide the same number of working hours as directly employed workers.  Law The Agency Worker…

  Summary The Employment Tribunal (ET) has held that a plumber called “half dead Dave” by his colleagues, and dismissed without warning by reason of redundancy, was both discriminated against on grounds of age and unfairly dismissed.   Law Employment Rights Act 1996 Section 98(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, the principal reason) for the…

Summary Claims for unpaid holiday pay can go as far back as necessary to fully compensate a worker who was denied the right to paid holiday, whether or not that holiday was not taken at all, or taken and not paid.   Law The Working Time Regulations 1998 Regulation 13 - Entitlement to annual leave (1)    Subject to paragraph (5), a worker is entitled to four weeks annual leave in each leave year. (2)    … (9) Leave to which a worker is entitled under this regulation may be taken in…

Summary In this decision on unfair dismissal, the Employment Tribunal (ET) had to consider if a contractual vaccination requirement was reasonable, and if a dismissal as a result of it was fair. It also had to consider the position when religious beliefs were asserted in connection with vaccine refusal. Law Section 98 Employment Rights Act 1998 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…

  Summary In this decision on vicarious liability, the Court of Appeal was called upon to consider the employer's liability for an employee's practical joke that resulted in hearing loss for the contractor involved. In particular, they had to consider to what extent an injury is foreseeable when the employer's materials are used to inflict injury.   Law The law in this area comes from common law, i.e. the decisions made by the courts, which become binding on other courts and must be…

  Summary An Employment Tribunal has found that an older employee with dementia was constructively dismissed, discriminated against, and humiliated because of her condition, when she was repeatedly asked if she wanted to retire and not offered an occupational health referral prior to her return to work after shielding. Law Employment Rights Act 1996 Section 95(1) An employee is dismissed by his employer if the employee terminates the contract under which he is employed (with or…

Summary The Employment Appeal Tribunal had to consider the status of owner driver franchisees in this case on employment status and consider once again the written agreement between the parties, the extent that represented the true relationship between the parties and the right of substitution found within it. Law Autoclenz v Belcher The Supreme Court ruled that the individuals in this case were employees, on the basis that substitution clauses in their contracts were actually a sham and…

  Summary In this decision on protected beliefs under the Equality Act 2010, the Employment Tribunal (ET) was asked to decide if a fear of catching Covid was sufficiently held to be protected under the legislation, and if a decision to withhold pay for refusal to return to the office due to this belief was an act of unlawful discrimination. Law Section 10(2) Equality Act 2010 (2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of…

  Summary In this decision on unfair dismissal and subsequent remedy hearing, the Employment Tribunal (ET) had to consider whether or not the actions of the employer in this case were designed to “exit the claimant out of the business”, and that if targeting the claimant for behaviour that would otherwise been ignored in better performing stores was fair. It also had to consider how much the claimant contributed to the actions of the employer.   Law Employment Rights Act 1996 Section 123(…

Summary In this decision on unfair dismissal, the Employment Appeal Tribunal (EAT) had to consider whether or not the Employment Tribunal (ET) conclusions were perverse in a case where numerous and vexatious grievances were found to be a fair reason for dismissal, and if it had erred in failing to consider whether the conduct relied upon was capable of amounting to gross misconduct in the contractual sense and that the ET’s Law Employment Rights Act 1996 (ERA) Section 98. (1) In…

  Summary In this decision on flexible working decision periods, the Employment Appeals Tribunal (EAT) had to decide if the Tribunal was correct in deciding that the three-month decision-making period under the flexible working rules had been extended by retrospective agreement, and therefore the claim before the Employment Tribunal (ET) was premature and as such outside of its jurisdiction to hear.    Law Part 8A of the Employment Rights Act 1996 ("ERA") and the Flexible Working…

  Summary In this decision on unfair dismissal related to health and safety, as a result of an employee’s refusal to attend the workplace due to fear of serious or imminent danger from Covid, the Employment Tribunal had to consider if ‘something more’ than merely the existence of Covid was required for an employees refusal to attend work to be reasonable and protected from dismissal. It also had to decide if the employer’s actions in dismissing rather than discussing the matter with the…

  Summary In this decision on unfair dismissal and discrimination, the Employment Tribunal (ET) had to consider if an academic, who claimed her race and sex lead to inherent characteristics of being naturally loud and argumentative, and her body language demonstrative, was unfairly dismissed and discriminated against for the way she dealt with PHD students. Law Section 98 Employment Rights Act 1996 provides: (1) In determining for the purposes of this Part whether the dismissal of an…

Summary In this decision on race discrimination, the Employment Tribunal (ET) had to consider whether or not a black employee had been treated differently to a hypothetical white employee. Whilst no evidence of malice was found, it was felt by the court that unconscious bias had impacted on the decision making of the all-white panel involved in her disciplinary process.   As an ET decision, this is not binding authority. However, it is reflective of the direction the courts are taking on this…

Summary The Court of Appeal (CoA) has confirmed that in order for a condition to be a disability, there must be a long term and lasting effect upon the individuals day-to-day life, and that is not necessarily the case if it is managed and later flares up again.  Law Section 6 of the Equality Act 2010 (EqA) A person is disabled if they have a physical or mental impairment that has a substantial long-term adverse effect on their ability to conduct day-to-day activities. Schedule 1 of the Act…

Summary The EAT found that the Employment Tribunal had erred in striking out claims of sex and disability discrimination due to the menopause. The tribunal did not explain why the claimant’s condition did not amount to a disability and stated that there was insufficient evidence of sex discrimination for the claim to proceed, without providing any reasonable explanation for this decision. The claim has been remitted back to ET for fresh consideration of the issues. Update 3 October 2023 …

  Summary In this decision on deductions and the national minimum wage (NMW), the Employment Appeal Tribunal (EAT) overturned the decision of the initial Employment Tribunal (ET) in holding that where expenses are directly connected with employment, they fall within NMW legislation, even if the obligation resulting in the expenditure could have been met in another way.   Law Regulation 13 of the National Minimum Wage Regulations 2015: Deductions or payments as respects a worker’s…

  Summary The Supreme Court has ruled that employers cannot attempt to bypass an agreed collective bargaining process by offering incentives to staff to do so. Bargaining procedures must be completely exhausted before making direct approaches to employees.   Law Section 145B Trade Union and Labour Relations (Consolidation) Act 1992: (1)A worker who is a member of an independent trade union which is recognised, or seeking to be recognised, by his employer has the right not to have an offer…

  Summary In this Employment Appeals Tribunal (EAT) case, two key points of law are explored: the right of the accused to know what they are actually being dismissed for, and respond to it, and the need to consult with the accused over the potential outcome of the case in disciplinary hearings. The latter is a new spin on the right to know the potential outcome, and goes beyond that which is required in the ACAS code of practice. Law Section 94 Employment Rights Act (ERA) 1996: An…

  Summary The Court of Appeal has upheld earlier decisions of the ET and EAT in another gig economy case, confirming that the ability to offer a piece of work to a substitute does not mean that the service is not provided personally, and therefore does not mean they cannot be found to be a worker. Law Section 230(3) of the Employment Rights Act 1996 defines a worker as someone who has “entered into or works under a: contract of employment or any other contract, whether express or…

  Summary The EAT held that a compulsory retirement age can be lawful, in limited circumstances. In these two cases, separate to each other but linked by the effects of the same policy, the employer argued that a compulsory retirement age of 68 was a proportionate means of achieving a legitimate aim. Law The Equality Act 2010 prohibits discrimination on the grounds of age under sections (5) and (13), unless it is a proportionate means of achieving a legitimate aim (section 13 (2)). “(1)A…

  Summary In this decision on unfair dismissal, the Employment Appeal Tribunal (EAT) had to consider whether or not the Employment Tribunal (ET) had adequately considered the employers investigation into whether the employees’ misconduct was caused by the claimants mental health condition (depression), or the medication to treat it.   Law Employment Rights Act 1996 Section 98 (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for…

Summary The Employment Appeal Tribunal (EAT) has upheld an automatically unfair dismissal claim which was previously thrown out by the Employment Tribunal (ET) because at the time of her complaint to her employer, the breach had not occurred. Law If a dismissal is for one of the automatically unfair reasons, no qualifying service is required to bring a claim. Common examples include dismissals for: taking action on health and safety grounds. asserting statutory rights. reasons related…

  Summary In this decision on time limits for tribunal claims, the Employment Appeals Tribunal (EAT) was tasked to consider, in a case where an employer has made an ‘offer’ to induce employees into forgoing collective bargaining over changes to terms and conditions, if the time limit for a claim ran from the date of the offer, or the date of when the change was imposed, finding the former to be the case.   Law Section 145B Trade Union and Labour Relations (Consolidation) Act 1992: (1)A…

Summary The Employment Appeal Tribunal (EAT) has held that a claimant was not unfairly dismissed from the company he founded after not being offered the opportunity to appeal. Law Some other substantial reason (SOSR) is a category that provides a potentially fair reason for dismissal where the circumstances cannot be classed as one of the other potentially fair reasons. The following could amount to SOSR dismissals: the dismissal of a person employed as a temporary replacement for another…

Summary The Employment Tribunal (ET) has dismissed a series of claims concerning discrimination, unfair and wrongful dismissal, harassment, and more, in order to avoid encouraging ‘a culture of hyper-sensitivity’. Facts The claimant worked as a lawyer for PSI CRO UK, the respondent. She was offered a role at the company’s branch in Switzerland but was told that her age “will prevent [her] from commanding a higher salary”. Due to unrelated personal reasons, she declined the role. The…

Summary The initial burden of proof in discrimination claims lies with the claimant, who is to present evidence of any alleged wrongdoings. Only then will the respondent be required to provide an explanation for any alleged discrimination.   Law The Equality Act 2010 provides protection against unlawful direct and indirect discrimination, harassment and victimisation for the protected characteristic of 'race'. Employers are liable for acts of discrimination, harassment and victimisation…

  Summary An employment tribunal (ET) has decided that, for the period that the claimant was on furlough, he was not a worker for the purposes of the Working Time Regulations 1998 and therefore did not accrue annual leave during that time. Law Workers are separate from employees. Workers agree under a contract – which can be oral or written, expressed or implied – to personally perform services for another party, who is not a client or customer of any profession or business carried on by…

  Summary The Employment Appeal Tribunal (EAT) has decided that the Employment Tribunal had erred in law by relying on irrelevant medical records in a disability discrimination claim, and for not considering the claimant's challenge to the respondent’s justification defence. Law The Equality Act 2010 provides protection against unlawful discrimination, harassment and victimisation for the protected characteristic of disability. The core definition of ‘disability’ is a physical or mental…

  Summary An employment appeal tribunal (EAT) has upheld a claim of indirect sex discrimination because the employer had not considered the employee’s childcaring responsibilities. Law The Equality Act 2010 provides protection against unlawful direct and indirect discrimination, harassment, and victimisation for the protected characteristic of ‘sex’. Indirect sex discrimination occurs when a provision, criterion or practice (PCP) is applied universally and that PCP: puts, or would put,…