Pay and benefits

Employment Appeal Tribunal - March 2002 Can an employer deduct overpaid holiday pay from an employee’s final pay? Facts Hill had resigned from her employment and noted that the employer had made a deduction from her final pay because she had taken five more days’ holiday than she had accrued. She complained to an employment tribunal of unauthorised deductions from wages and breach of contract. Her employer counterclaimed that the deduction related to the overpayment of salary and was…

Terms and conditions

Employment Appeal Tribunal - March 2002 Discretionary severance benefits not part of employee’s contract Facts Campbell was employed as a chemical plant operator, initially with ICI. The company entered into a collective agreement with the recognised trade union that included a clause covering redundancy payments that was stated to be legally binding, and another clause headed 'Discretionary severance in non-redundancy cases'.   The part of ICI in which Campbell worked was transferred…

Terms and conditions

Court of Appeal - March 2002 Continuing to work for two years meant employees had accepted changes by implication Facts Bus operator London General Transport and the Transport and General Workers Union (TGWU) had agreed a reduction in pay as part of a 'framework agreement'. The parties accepted that custom and practice in the industry was that agreements made with the TGWU would be binding on all relevant employees, provided they were balloted.   Although no such ballot took place,…

Equality

Court of Session - February 2002 Employee can claim equal pay using comparator working for a different education authority Facts Morton was a (female) primary school head teacher employed by a local education authority in Scotland. She brought an equal pay claim citing as her comparator a more highly paid male head teacher of a secondary school employed by a different Scottish education authority. Statistically, most primary school teachers are female and most secondary school teachers…

Pay and benefits

Employment Appeal Tribunal - February 2002 Employer had no right to conclude employee’s illness due to consequences of misconduct Facts There was a clause in Thurston’s contract of employment which stated that the employer could withhold sick pay where the sickness was "due, or attributable to, his own misconduct". Thurston was disciplined for misconduct. Immediately after the disciplinary action had been taken he took sick leave because of anxiety and depression.   Manchester City…

Pay and benefits

Court of Session - 2002 Should an employee be paid the national minimum wage when asleep? Facts Wright worked as a nightwatchman, working from the hours of 5pm to 7am. During this time he had to answer the telephone, respond if the intruder alarm was triggered and was often given other small tasks to complete. As long as he carried out all these duties, and was available on site, he was entitled to spend the rest of his time as he wanted. Indeed, sleeping facilities were provided and he…

Family friendly and flexible working rights

Employment Tribunal - 2002 Employer justified in refusing employee’s request for part-time work Facts McPollard asked to return to work part-time after her maternity leave, and to work specific hours to accommodate her husband's shift pattern. She resigned after the employer refused her request and brought a sex discrimination claim, which she lost. Tribunal The tribunal determined whether the employer's refusal was objectively justified by using the statutory grounds for refusing…

Equality

Employment Appeal Tribunal - December 2001 Adverse effects of condition not likely to become substantial Facts Mowat-Brown was a part-time music lecturer whose hours of work amounted to 55 per cent of a full-time contract of employment. When he was diagnosed with multiple sclerosis, his employer proposed to reduce this to a 20 per cent contract. He refused to accept this change and was subsequently dismissed. He brought claims to tribunal for disability discrimination and unfair…

Employees and workers, Equality

European Court of Justice - October 2001 Dismissal because pregnancy prevented completion of fixed-term contract is sex discrimination Facts Brandt-Nielson was interviewed in June 1995 for employment on a six-month fixed-term contract which commenced on 1 July 1995. She received training during the first two months. In August she told her employer she was pregnant and that the baby was due in November. She was subsequently dismissed with effect from 30 September because she had not told…

Equality

Employment Appeal Tribunal - September 2001 Refusal of police officer’s request to work part time was not justified Facts Chew was a single mother with primary responsibility for the care of her two young children. She was employed as a police officer for the Avon and Somerset Police Force.   The police operated a rotating shift system. Although Chew had previously worked in a unit where hours were regular and night shift working was rare, she was required to move elsewhere after…

Equality

Employment Appeal Tribunal - September 2001 Denying promotion in same division as husband was marriage discrimination Facts Graham was an inspector in the Bedfordshire police force, and was married to a chief superintendent in the same force. Graham successfully applied for the role of area inspector (which was a promotion) in the same division that her husband commanded. The following month she was told that the appointment had been rescinded, because it was inappropriate for her to…

Employees and workers

Employment Appeal Tribunal - September 2001 Obligation to perform work personally made individuals 'workers' EAT The EAT had to determine whether four carpenters who had been engaged by a building contractor were 'workers' or individuals in business on their own account.   If they were workers (as they argued), they would be entitled to paid holiday under the Working Time Regulations 1998. Their particular complaint was that they were effectively laid off over the Christmas period and…

Pay and benefits

Employment Appeal Tribunal - September 2001 Express right to be paid overtime Facts Wilson’s terms and conditions were covered by a collective agreement – the National Joint Council for Local Authorities’ Administrative, Professional, Technical and Clerical Services (Scottish Council) Scheme of Salaries and Conditions of Service. This document, which was incorporated into Wilson’s contract of employment, specified that the "normal hours of duty shall be 37 hours a week". Yet Wilson's…

Equality

European Court of Justice - June 2001 Being placed in the same job grade under a collective agreement does not necessarily mean that two jobs are the same or of equal value Facts When Brunnhofer and a male colleague joined the bank in Austria they were both employed in the same grade and paid the same basic salary as per an collective agreement. However, Brunnhofer’s colleague received an additional allowance. Brunnhofer was posted to the foreign department of the bank where it was…

Pay and benefits

Employment Appeal Tribunal - June 2001 Non-payment of accrued holiday pay unlawful even in light of employee’s gross misconduct Facts McKay’s contract of employment incorporated the terms of a collective agreement which included the term “no worker shall be entitled to accrued holiday pay if [he] is dismissed for dishonesty...and [he] is so informed by [his] employer at the time of dismissal”. Mackay, who had been employed as a club steward, was summarily dismissed for dishonesty,…

Terms and conditions

Employment Appeal Tribunal - May 2001 Demotion following misconduct amounted to a breach of contract Facts Hilton had worked at a small builders yard for 20 years, serving customers and dealing with cash transactions. He had no written job description. When the employer discovered that on three occasions Hilton had not charged customers for goods or kept proper accounting records, it suspected dishonesty, although there was no proof of this. When questioned, Hilton said that he was…

Employees and workers, Equality

Court of Appeal - March 2001 Redundancy selection of fixed-term contract employees can be unlawful indirect sex discrimination Facts Whiffen was employed as a part-time school teacher of modern languages. For five years, she worked under a series of fixed-term contracts from one academic year to the next. When redundancies became necessary, the school governors followed a selection policy under which staff employed on fixed-term contracts would be dismissed first, in other words not…

Terms and conditions

Court of Appeal - January 2001 Written particulars issued after employment started were not binding Facts When Lovett was interviewed by the local authority for the post of mechanical engineer, the terms and conditions of employment were discussed and a verbal offer was made, which Lovett accepted. The terms discussed were subsequently confirmed in writing. The terms included a statement that progression beyond salary scale 6 was conditional on "gaining appropriate qualifications and…

Terms and conditions

High Court - September 2000 Employer must not exercise discretion irrationally or perversely Facts The company operated an annual bonus scheme which was stated to be discretionary. During his second year of employment, Clark was dismissed, allegedly for poor time-keeping, lack of attendance at management meetings and unsatisfactory appearance (although none of these matters had been brought to his attention). He was not awarded any bonus for that year despite the fact that he had earned…

Tupe

Employment Appeal Tribunal - July 2000 Can terms and conditions be altered once a certain period of time has passed since the transfer? Facts Taylor worked as a company administrator for the South Eastern Train Company, part of British Rail. British Rail was privatised and the part that Taylor worked for was sold to Connex South Eastern Ltd in 1996. In 1997, he was offered a new contract as deputy company secretary, but revised terms and conditions were never agreed between the parties…

Equality

Employment Appeal Tribunal - June 2000 Refusal of a request to work from home may amount to indirect sex discrimination Facts Lockwood, an account executive/technician, had taken maternity leave and when she returned to work, her mother undertook to care for the baby. When, however, her mother became ill, she was unable to continue with the childcare. Lockwood put forward various suggestions to her employer, one of which was to allow her to work at home, and she offered to purchase any…

Equality

Court of Appeal - March 2000 No fair trial where hearing was not held in public Facts All employment tribunal cases are required to be held in public, unless there is a matter of national security or children are involved in the case.   Storer took a claim to the employment tribunal, and on the day that his case was due to be heard there were twelve tribunal rooms in operation. His case was listed as a "floater" - a case that would be heard when one of the tribunals became free to…

Employees and workers, Equality

European Court of Justice - February 2000 Refusal to appoint a pregnant woman to a post on health and safety grounds was direct sex discrimination Facts Mahlburg, who worked on a fixed-term contract as a nurse, applied for a permanent job in an operating theatre. She was in the early stages of pregnancy at the time.   Although Mahlburg had the necessary qualifications and experience to be appointed to the post, her application was rejected because German law prohibited pregnant women…

Family friendly and flexible working rights

Employment Appeal Tribunal - January 2000 Does suitable alternative employment for a pregnant woman need to include allowances? Facts Moore and Botterill were both pursers with British Airways. They became pregnant and, in accordance with their contracts of employment, could not continue with flying duties after their 16th week of pregnancy. They were reallocated to ground-based posts. Their basic pay remained the same, but they were no longer paid flying allowances. The employer did…

Termination

Employment Appeal Tribunal - December 1999 Can customer complaints be referred to in a reference if the employee is not aware of them? Facts During Harris’ employment at TSB there had been seventeen customer complaints about her. She had not been made aware of these complaints. Harris applied for a job with the Prudential, who sought a reference from the TSB. In the reference, mention was made of the 17 complaints against Harris. At this time four had been upheld, and a further eight…

Recruitment and selection, Equality

House of Lords Discriminator’s conscious motivation not a necessary ingredient of unlawful victimisation   Nagarajan had previously brought a number of race discrimination complaints against his employer, London Regional Transport (LRT) which had been largely unsuccessful. When he applied internally for a vacant post, he was rejected. One of the members of the interview panel had given him only one point out of 10 for articulateness and noted that he was "very anti-management". The only…

Employees and workers

House of Lords - June 1999 Lack of obligation to offer or accept work meant individuals were not employees Facts The two claimants were engaged on a ’casual as required basis‘ and trained by the employer to fulfil the role of tour guides.   The documentation issued to them did not contain any information indicating how much work they would be offered, nor any details of matters such as notice periods, sick pay entitlement, or disciplinary or grievance procedures.   They were,…

Equality , Business principles

Employment Appeal Tribunal - May 1999 Failure to conduct a pregnancy risk assessment was direct sex discrimination   Day worked as a counter assistant in a sandwich shop. She became pregnant and became so nauseous that she was unable to continue at work.   When her employer ceased to pay her she claimed unfair constructive dismissal and sex discrimination. The employer had not carried out a risk assessment which she argued would have resulted in her being suspended from work on full pay…

Terms and conditions

Employment Appeal Tribunal - March 1999 No continuity of service because of gaps between fixed-term contracts Facts This case was centred on three employees who had worked at a US Air Force base on a series of fixed-term contracts. At the end of each contract, there was a short break in service after which a new contract of employment was issued. When each 'new' contract was issued, they returned to the same job with the same tools and equipment. EAT However, the breaks in…

Business principles

Northern Ireland High Court - March 1999 What is a night worker? Facts The claimant was asked to move to a new shift pattern which required her to work night shifts one week in every three. In the weeks when she worked nights, three of the hours that she worked fell during the period defined as 'night work'. She started to suffer some health problems, which she linked to the shift pattern, and hence she asked to be moved to different shifts.   Burns brought a claim to court arguing…