Summary An employment tribunal (ET) has held that a pregnant woman was not discriminated against by her employer after she was sent home during the coronavirus pandemic for health and safety reasons. The Equality Act 2010 prohibits discrimination and victimisation relating to the protected characteristic of ‘pregnancy and maternity’. Discrimination will occur under section 18 of the 2010 Act when an individual is treated unfavourably during the protected period because: of her pregnancy…

Summary The employment tribunal (ET) has ruled that an agency worker was entitled to receive accrued holiday pay when furloughed. Generally, agency worker agreements work through an agency supplying workers to an ‘end-user’ for a period of time on an assignment. The length of the assignment should be clearly specified at its commencement and agreed between the agency, the end-user and the worker. During this assignment, it is the agency that usually pays the worker’s wages. Under the Working…

The Court of Appeal has ruled that a union comprising of foster carers should be eligible to be included in the official list of recognised unions as those operating under a Foster Care Agreement could be considered workers. Under section 3 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), trade unions are entitled to apply to the Certification Officer (CO) in order to be entered onto the list of registered unions, which gives the union access to increased rights such…

Summary The Employment Appeal Tribunal (EAT) has held that once there has been a fundamental breach of an employment contract, an organisation cannot seek to ‘cure’ this breach in order to avoid a constructive dismissal claim. Constructive dismissal claims occur when an employee resigns due to the conduct of the organisation as they feel there has been a breakdown in the mutual trust and confidence between them. To establish constructive dismissal, the employee must show that the organisation…

Summary The Court of Appeal has refused to hear an appeal against a decision which found that private-hire drivers were ‘workers’ and not ‘independent contractors’. The term 'employment status' is the arrangement under which an individual is engaged to work for an organisation. 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 implied and (if it is express) whether oral or in…

Summary The Employment Appeal Tribunal (EAT) has held that a tribunal’s decision to reduce compensation awarded in an unfair dismissal claim was not perverse as the claimant’s argument, that he would have avoided dismissal if provided opportunity to change his behaviour, was not substantiated. Unfair dismissal claims can arise when the procedure which led to a decision to dismiss an employee is flawed. For example, the employee’s reason for dismissal may be specified as one thing, but the…

The Employment Appeal Tribunal (EAT) has held that a man on shared parental leave (SPL) being paid less than a woman on adoption leave (AL) was not sex discrimination. Direct sex discrimination occurs where a person is treated, or would be treated, less favourably ‘because of’ sex compared with others in like-for-like circumstances. Direct discrimination can never be justified, no matter how well-intentioned the motive. To bring a successful claim, a claimant needs to establish a comparator,…

Summary An employment tribunal (ET) has held that an employer unfairly dismissed their employee who refused to agree to proposed employment contract changes due to coronavirus. To avoid a claim for unfair dismissal an employer must have a potentially fair reason to dismiss, acted reasonably in treating this reason as sufficient to justify dismissal, and followed a fair procedure. For a dismissal to be fair, the employer must show that the employee was dismissed for one of the following five…

The employment tribunal has evaluated the calculation of notice pay whilst furloughed before the law was changed in July 2020. The Job Retention, or furlough, Scheme, was introduced in March 2020 to assist businesses suffering downturn as a result of the coronavirus pandemic and associated lockdown restrictions. The scheme involved placing employees on ‘furlough’, meaning they remained on company books but did no work for that company, and the government covered 80 per cent of their wages.…

Summary An employment tribunal has decided, for the first time, that indirect discrimination can occur even when the employee to whom the provision, criterion or practice has been applied does not have the relevant characteristic, where their associates does and this has the result of disadvantaging the employee. Under the Equality Act 2010, section 19, (1), indirect discrimination is defined as:  “A person (A) discriminates against another (B) if A applies to B a provision, criterion or…

The Supreme Court has upheld a previous Court of Appeal decision that retail workers can compare pay terms for the purposes of an equal pay claim to distribution workers, due to common terms applying at the establishments. The right of men and women to receive equal pay for equal work is contained in the Equality Act 2010. In order to bring a claim for equal pay, the claimant must identify comparators of the opposite sex that are conducting equal work to them but are being paid more for doing…

Summary An employment tribunal (ET) has held that a driver who was sacked after he was spotted drinking in a pub while he was off sick was unfairly dismissed. To avoid a claim for unfair dismissal an employer must have a potentially fair reason to dismiss, acted reasonably in treating this reason as sufficient to justify dismissal, and followed a fair procedure. For a dismissal to be fair, the employer must show that the employee was dismissed for one of the following five permitted reasons:…

Summary The Supreme Court (SC) has brought an end to uncertainty around sleep in shifts and national minimum wage (NMW) by confirming the rulings of the previous courts, specifically that a care worker who performed ‘sleep in’ shifts was ‘available for work’ and not 'actually working’ and so was not entitled to the NMW for the time spent asleep. Note. This matter is now closed as there is no further route to appeal.  Facts This case relates to a situation which had, up until this point,…

The Employment Tribunal (ET) has ruled that a claimant was not unfairly dismissed after being made redundant and having their bumping request denied. A redundancy situation exists where organisations shut down a business or part of it completely; shut down at a specific location (even if you are moving to a new location); or the requirement for employees to do work of a particular kind has reduced or come to an end. It is crucial that an organisation is fair in how those who are to be made…

The Employment Tribunal (ET) has ruled that the claimant was unfairly dismissed after posting his frustrations with his employer on social media. In this case, the ET examined the laws contained within section 10 of the Employment Relations Act 1999 and section 98 of the Employment Rights Act 1996. Section 10 of the 1999 Act creates a right for staff to be accompanied to a grievance and/or disciplinary hearing, whilst section 98 of the 1996 Act provides that to avoid a claim for unfair…

Summary The much-anticipated Supreme Court ruling has been published, with judgement falling in favour of the Uber drivers who have been found, once and for all, to be workers not self-employed. Individuals are categorised into three different categories of 'employment': employee worker self-employed. The criteria by which legal classifications are determined are not laid down in legislation but have largely developed through case law. However, in this case this the Employment Rights…

The Employment Appeal Tribunal (EAT) has upheld the Employment Tribunal’s (ET) decision in finding that an organisation did not go far enough in preventing racial harassment and was thus liable for the harassment faced by the claimant. The Equality Act 2010 provides protection against unlawful direct and indirect discrimination, harassment and victimisation for all protected characteristics. The focus of this case is race. Harassment is unlawful where a person is subjected to unwanted conduct…

Summary An employment tribunal (ET) has held that an organisation fairly dismissed their employee who refused to wear a facemask on a client’s site. For a dismissal to be fair, employers must show that the employee was dismissed for one of the following five permitted reasons: capability conduct redundancy statutory illegality some other substantial reason (SOSR). The burden of proof is on the employer to show that one of the five permitted reasons was the true reason for the…

The EAT has dismissed a victimisation claim, ruling that wording used by the claimant in a grievance was not sufficient to amount to a ‘protected act’. As she was an experienced in HR, her wording called into question whether she believed she was discriminated against at the time.    The Equality Act 2010 provides protection against unlawful direct and indirect discrimination, harassment and victimisation for the protected characteristic of ‘sex’. Victimisation occurs where an employer…

  Summary The Employment Tribunal (ET) has decided that an NHS receptionist, who was dismissed after telling her employer that she was scared to work in a public-facing role, was unfairly dismissed. Law To avoid a claim for unfair dismissal an employer must have: a potentially fair reason to dismiss acted reasonably in treating this reason as sufficient to justify dismissal followed a fair procedure. In order to bring an unfair dismissal claim the employee must show that: he or…

The Employment Appeal Tribunal (EAT) has considered whether a policy that removed contracted rest days due to the taking of parental leave was indirectly discriminatory against women. Employees who qualify have a right to take up to 18 weeks' unpaid parental leave in total for the purposes of caring for a child, which is usually limited to four weeks per year. This applies equally to both male and female workers. Under the Equality Act 2010, Indirect sex discrimination occurs when a provision…

The Employment Appeal Tribunal (EAT) has considered whether a tribunal erred by permitting evidence to be admitted into proceedings that was not included on the ET3 form.    Under the Equality Act 2010, direct race discrimination occurs where a person is treated, or would be treated, less favourably ‘because of’ race compared with others in like-for-like circumstances. In bringing a claim, the claimant needs to demonstrate that they have been subjected to unfavourable treatment. Once this is…

The Employment Appeal Tribunal (EAT) has upheld a ruling that a pregnant police officer was discriminated against due to a policy that instructed pregnant officers to be transferred to a desk-based role. In situations where an employee notifies the organisation that they are pregnant, a risk assessment may deem it necessary to temporarily alter their usual duties or role in order to keep them safe during their pregnancy. This needs to be approached carefully by organisations in order to avoid…

The Employment Appeal Tribunal (EAT) has provided clarity on identifying the correct organisation that has employed a claimant when this is disputed. When a dispute arises regarding employment of an individual, such as the duties they are expected to complete and the rights available to them, the starting point for tribunals to look to is the contract. However, as outlined in the case of Autoclenz v Belcher, the contract may not reflect the true relationship between the parties. As a result of…

The Employment Appeal Tribunal (EAT) has assessed if a claim for redundancy pay was in time when considering conflicting evidence of the termination date. The Employment Rights Act 1996 outlines that when an employee’s employment is terminated, such as when they are made redundant, and this is without notice, the relevant date of termination is the date which it takes effect – for example the day they stop receiving work and/or pay. If an employee believes they should have received redundancy…

The Employment Appeal Tribunal (EAT) has ruled that in circumstances where there is no evidence of a disability on the date of an alleged act of discrimination, a tribunal is entitled to consider all evidence available from around this date and infer that a disability was present at the relevant time. Under the Equality Act 2010, a person is said to be disabled if they have a condition that is a physical or mental impairment, which has a substantial and long-term adverse effect on someone’s…

The Employment Appeal Tribunal (EAT) has held that there was a redundancy situation where the owner of an organisation absorbed the role of its Managing Director. A redundancy situation can exist where business, or part of it, is shut down completely, shut down at a specific location (even if moving to a new location) or the requirement for employees to do work of a particular kind has reduced or come to an end. Organisations need to keep this in mind when dismissing employees on the basis of…

The Court of Appeal has held that indirect age discrimination can potentially be justified on the basis of saving costs to balance company books. The Equality Act 2010 outlines that indirect age discrimination is when a provision, criterion or practice (PCP) is applied to everyone and is apparently age neutral, but which: disadvantages more people in one age group than in another causes an individual employee a disadvantage is not justifiable as ‘a proportionate means of achieving a…

The EAT has held that an employee refusing to return to work following the end of her maternity leave amounted to her acceptance of a repudiatory breach, meaning her claim for constructive dismissal could succeed. Claims for constructive unfair dismissal can be brought when an employee can demonstrate the organisation acted in a way that served to breach the implied term of mutual trust and confidence between them. This can amount to a breach of the employment contract but needs to be a…

The Employment Appeal Tribunal (EAT) has ruled that tribunals are entitled to reconsider a judgement under their own initiative, in compliance with tribunal rules, after it has been suggested they do so by another party. Under the Employment Tribunal Rules of Procedure, employment tribunals are able to reconsider a judgement where it is deemed necessary. They can make the decision to do this on their own initiative, at the request of the EAT or on the application of a party, which can be…