Judgement published:
Discipline and grievance

Court of Appeal – January 2017 In this case, the Court of Appeal decided that negligence can amount to gross misconduct in certain circumstances The case concerned one of the retailer’s regional managers, who was responsible for 20 stores. In June 2013, the retailer sent out its regular staff satisfaction survey, for which the regional manager and a HR business partner were jointly responsible. The HR manager emailed five store managers with suggestions on how they could make the region…

Judgement published:
Discipline and grievance

Employment Appeal Tribunal - December 2016 Here the Employment Appeal Tribunal decided expired an warning could be taken into account when considering the fairness of a dismissal.    The employee in this case had worked for the organisation for 13 years when he was dismissed without notice (but with 12 weeks’ pay in lieu of notice). His disciplinary record had 17 items on it, the last two of which were a nine-month warning for failing to make contact while off sick in December 2012, and…

Judgement published:
Equality

High Court – December 2016 The High Court has decided that an assault by an organisation’s managing director on another staff member at an impromptu drinking session three hours after the company Christmas party was not the employer’s fault, as the actions did not take place ‘in the course of employment’. Employers are liable for acts of discrimination and harassment committed by employees ‘in the course of employment’ under the Equality Act 2010. This can include an unlawful act…

Judgement published:
Discipline and grievance

Employment Appeal Tribunal – December 2016 Here the Employment Appeal Tribunal (EAT) held that that the standard of disciplinary investigation needed to be higher where a subsequent dismissal would have career-threatening consequences for the employee involved. Allegations of patient mistreatment were made against a healthcare assistant, including one concerning a specific incident. Allegedly Tykocki had put her hand over the face of a patient asking for morphine during a night shift and…

Judgement published:
Equality

Employment Appeal Tribunal – December 2016 Here, the Employment Appeal Tribunal (EAT) decided the Church of England was entitled to deny a clergyman a licence to become a hospital chaplain, following his same-sex marriage, even though this was a discriminatory act. The Church of England opposed the legalisation of same-sex marriage in 2013, and issued guidance to its clergy setting out that the “Christian understanding and doctrine of marriage as a lifelong union between one man and one…

Judgement published:
Employees and workers

Employment tribunal - November 2016 An employment tribunal has held that drivers engaged by Uber were not self-employed contractors, but fell squarely within the legal definition of ‘worker’ under the Employment Rights Act 1996, the Working Time Regulations 1998 and the National Minimum Wage Act 1998.   Certain employment rights only apply to employees, such as the right not to be unfairly dismissed and the right to a redundancy payment. However, ‘workers’ are also entitled to some…

Judgement published:
Employees and workers

Employment Appeal Tribunal – November 2016 The Employment Appeal Tribunal (EAT) has decided that district judges are not workers but ‘office holders’ and so do not have the protection provided by the whistleblowing legislation. Recent cases (such as Aslam v Uber) have extended ‘worker’ rights (for example, the right to paid holiday, the minimum wage and whistleblowing protection) to those who previously would have been seen as self-employed. In those cases, courts and tribunals have…

Judgement published:
Business principles

Employment Appeal Tribunal – November 2016 This EAT decision closes a loophole in the UK’s working time rules that allowed employers to be considered not to be refusing a worker a rest break if the worker had not requested one – an approach not in keeping with the spirit of the directive which is aimed at protecting workers’ health and safety. Under the Working Time Regulations 1998, workers are entitled to a rest break of 20 minutes if they work for more than six hours (regulation 30).…

Judgement published:
Discipline and grievance

Employment Appeal Tribunal – November 2016 The Employment Appeal Tribunal (EAT) has confirmed that a ’manifestly inappropriate’ final written warning could make a subsequent dismissal for further acts of misconduct unfair. Bandara was a senior producer with 18 years’ service, who was working for the BBC World Service, delivering content to the Sinhalese-speaking audience in Sri Lanka and elsewhere. In 2013, he fell out with a manager over an instruction he had been given and then, some…

Judgement published:
Family friendly and flexible working rights , Equality

Employment tribunal – October 2016 This is the first case on discrimination over shared parental leave. The employment tribunal awarded a father almost £30,000 because his employer refused to pay his shared parental leave at the same rate as his wife who was employed by the same company. Under the shared parental leave (SPL), parents can share up to 50 weeks’ leave and 37 weeks’ statutory pay in the first year of their child’s life. In order to take SPL, the mother must bring her…

Judgement published:
Pay and benefits

Court of Appeal – October 2016 Here the Court of Appeal held that commission based on results must be included when calculating holiday pay, confirming earlier decisions of the CJEU, an employment tribunal and the EAT. Lock was a sales consultant whose remuneration was made up of fixed basic salary and commission, based on sales achieved. His commission was variable, paid weeks or months later, amounted to a monthly average of £1,912.67, and represented over 60 per cent of his earnings.…

Judgement published:
Equality

Court of Appeal (NI) – October 2016 Here the appeal court in Northern Ireland decided that a bakery refusing to provide a cake with a ‘support gay marriage’ message was discrimination on grounds of sexual orientation. The case demonstrates that religious beliefs do not trump other equality rights So far, the NI assembly has resisted calls for the introduction of legislation to allow same-sex marriage, which is already lawful in the rest of the UK. In this case, a gay man associated with…

Judgement published:
Dispute resolution

Employment Appeal Tribunal – September 2016 The employee’s unfair dismissal claim in this case was ruled out of time, even though the claimant was unaware of the time limit for presenting it, and the solicitors representing him were closed down by the regulator, forcing him to start again part-way through the procedure with another firm   Davies, a school caretaker, was dismissed on 12 June 2015. His solicitors began the Acas early conciliation process on 10 September, and concluded it…

Judgement published:
Recruitment and selection, Equality

Court of Justice of the European Union – September 2016 This ruling confirms that bogus job applicants are not protected by European equality law and must have a genuine interest in the role they are applying for before they can make a discrimination claim   A German company had advertised graduate trainee positions requiring a good, relevant university degree completed in the last year, or to be completed in the coming months, and relevant practical vocational experience. Kratzer…

Judgement published:
Equality

Employment Appeal Tribunal – September 2016 This case makes it clear that an employer's duty to make reasonable adjustments under the Equality Act 2010 may extend to maintaining the salary of a disabled employee who has been moved to a less skilled role.   Under the Equality Act 2010, an employer is required to make reasonable adjustments where it knows, or ought reasonably to know, that a person has a disability, and that a provision, criterion or practice places that person at a…

Judgement published:
Dispute resolution

Employment Appeal Tribunal – September 2016 Here the Employment Appeal Tribunal (EAT) laid out the ground rules for establishing whether expatriate UK employees can bring unfair dismissal and whistleblowing claims in an employment tribunal   The Employment Rights Act 1996 (ERA) and the Equality Act 2010 do not mention the extent to which their provisions apply to employment outside the UK, but this question has been explored in case law. The case Lawson v Serco [2006] established that,…

Judgement published:
Discipline and grievance

Employment Appeal Tribunal – August 2016 In this case, the EAT echoed the Ramphal judgment, which confirmed that HR and legal teams must not influence the outcome of disciplinary procedures Dronsfield, a university professor, was bound by the university’s policies and procedures. These required members of staff to inform the university if they were in a personal relationship with a student, in order that arrangements could be made to ensure an unbiased assessment of the student in…

Judgement published:
Dispute resolution

Employment Appeal Tribunal – August 2016 In this, the first Employment Appeal Tribunal (EAT) decision on ‘protected conversations’, the EAT clarified that the confidentiality of these discussions would be preserved, even though the employer had by implication given up its right not to have subsequent legal correspondence between it and its employee used as evidence in court Bailey, a part-time legal secretary, maintained that her employer had made it clear to her that it wanted her to…

Judgement published:
Business principles

Employment Appeal Tribunal – August 2016 Here the EAT clarifies how employment contract terms can determine which employer – the agency or the end-user – will be liable when an agency worker makes a whistleblowing claim The Employment Rights Act 1996 protects agency workers who blow the whistle. This protection specifically covers health service workers if their terms are substantially determined by the organisation they are working for, by their agency, or both (this is because NHS…

Judgement published:
Equality

Employment Appeal Tribunal – August 2016 Here the Employment Appeal Tribunal (EAT) decided that it was indirect sex discrimination to require a female train driver with childcare responsibilities to work 50 per cent of rosters and Saturdays. The case was remitted on whether the employer was able to justify the measure. In indirect discrimination claims, it is possible to avoid liability if a PCP can be objectively justified – in other words, shown to be a proportionate means of achieving…

Judgement published:
Equality

Supreme Court – July 2016 Two maltreated Nigerian domestic servants were unable to claim race discrimination because the reason for their abuse was their vulnerable immigration status, which is not a ‘protected characteristic.’ These two cases concerned the abuse of domestic servants whom the families involved brought with them from Nigeria. It appears the employers lied to get the requisite visas, then subjected Taiwo and Onu to poor living conditions, extended working hours,…

Judgement published:
Termination

Employment Appeal Tribunal – July 2016 Here the first case determined the Acas disciplinary code does not apply to ill-health dismissals, and the second established it does not apply to dismissals for ‘some other substantial reason’. Holmes, who was disabled, worked for Qinetiq as a security guard from 1996. He had a number of extensive absences because of pain in his back, legs and hips and was dismissed on the grounds of ill health in 2014. The employer conceded this was an unfair…

Judgement published:
Pay and benefits

Court of Justice of European Union – July 2016 Here the European court has confirmed that a period of convalescence serves the same purpose as sick leave, which means holiday due to taken during it may need to be carried over to the following leave year. Sobczyszyn, a teacher in Poland, was unable to take her accrued annual leave entitlement in the school summer holidays as her contract required, because she was undergoing an agreed period of convalescence. She asked to carry her leave…

Judgement published:
Employees and workers

Court of Appeal – July 2016 In this case, Czech and Algerian court interpreters who regularly worked for only one client (the Ministry of Justice) were unable to bring race claims because there was no mutuality of obligation in their contracts. Two court interpreters, who were on the court service’s National Register of Public Service Interpreters, and who assisted those who did not have English as their first language during court proceedings, were engaged to do work personally on a…

Judgement published:
Equality , Dispute resolution

Employment Appeal Tribunal – July 2016  Tribunal proceedings are generally open to the public; this means they can be attended by the press and the parties can be named in the decision. However, tribunals can make restricted reporting orders and anonymity orders, often collectively referred to as privacy orders.  Under the employment tribunal regulations, a tribunal can make a privacy order to prevent or restrict the public disclosure of any aspect of the proceedings either in the interests…

Judgement published:
Equality

Advocate General (CJEU) – July 2016 This European court legal opinion concluded that a company policy requiring an employee to remove her Islamic headscarf when in contact with clients constituted unlawful direct discrimination. It conflicts with a previous opinion on banning Islamic headscarves at work.   A design engineer was sent by her employer to clients, one of whom complained that her wearing the Islamic headscarf ‘embarrassed’ a number of its employees, and asked that she did not…

Judgement published:
Equality

Advocate General (CJEU): June 2016 This EU legal opinion on whether banning a female Muslim employee from wearing a headscarf at work contravened EU law is at odds with the Eweida judgment. Achbita worked as a receptionist for G4S. The employee code of conduct, which had been approved by the company’s works council, did not allow the wearing of religious, political or philosophical symbols on duty. Achbita wore an Islamic headscarf outside work and, after obeying the dress code rule for…

Judgement published:
Equality

Employment Tribunal (Channel Islands) – June 2016 Jersey case concerning the signage and use of toilets for transgender ferry customers may indicate the direction of travel for UK tribunals. Gender reassignment is a ‘protected characteristic’ under the Equality Act 2010. It is unlawful to directly discriminate against employees by treating them less favourably than others because of gender reassignment or to discriminate indirectly by imposing a provision, criterion or practice that…

Judgement published:
Equality

Employment Appeal Tribunal – June 2016 In this case, the Employment Appeal Tribunal (EAT) reached a decision that seems to expand the scope of the UK’s religious discrimination rules to include a belief in the sanctity of marriage. A practising Christian teaching in a school refused to leave her husband when he was charged, and subsequently sent to prison, for taking indecent pictures of boys in his school’s changing rooms. He was the headteacher of the school in question, which was in…

Judgement published:
Employee relations

Employment Tribunal – June 2016 Here a tribunal criticised an employer for completely failing to consult on nearly 3,000 redundancies and made a maximum ‘protective award’ against the company. City Link had been in financial difficulties since a change of ownership in April 2013. There was a clear turn-around plan but when it became apparent that administration was the only option, no consultation was carried out. Instead, on Christmas Day in 2014, 2,727 employees found out via the…