Family friendly and flexible working rights , Termination

Employment Appeal Tribunal – March 2018 Was a failure to review a dismissal decision, taken before the employee informed of her pregnancy, discrimination on pregnancy grounds and an automatic unfair dismissal? Under s99 of the Employment Rights Act 1996 and Regulation 20 of the Maternity and Parental Leave Etc Regulations 1999, a dismissal will be automatically unfair where the reason, or principal reason, for the dismissal is connected to the employee’s pregnancy. Pregnant employees are…

Family friendly and flexible working rights , Termination

This case is a useful reminder that a decision to dismiss a pregnant employee will only be automatically unfair where the reason, or principal reason, for the dismissal was the pregnancy itself. Similarly, discrimination will only occur where there was knowledge or belief in the pregnancy at the time the decision was made. Helpfully, the EAT decision confirms employers who are notified of an employee’s pregnancy are not placed under a positive obligation to go back and review their previous,…

Family friendly and flexible working rights , Termination

Employment Appeal Tribunal – March 2018 Was a failure to review a dismissal decision, taken before the employee informed of her pregnancy, discrimination on pregnancy grounds and an automatic unfair dismissal? Under s99 of the Employment Rights Act 1996 and Regulation 20 of the Maternity and Parental Leave Etc Regulations 1999, a dismissal will be automatically unfair where the reason, or principal reason, for the dismissal is connected to the employee’s pregnancy. Pregnant employees are…

Family friendly and flexible working rights , Termination

This case is a useful reminder that a decision to dismiss a pregnant employee will only be automatically unfair where the reason, or principal reason, for the dismissal was the pregnancy itself. Similarly, discrimination will only occur where there was knowledge or belief in the pregnancy at the time the decision was made. Helpfully, the EAT decision confirms employers who are notified of an employee’s pregnancy are not placed under a positive obligation to go back and review their previous,…

Employees and workers

Employment Appeal Tribunal – February 2018 Did higher hourly pay for an agency worker compensate for differences in holiday and payment for breaks when compared to an end-user’s employee? Article 5 of the EU Temporary Agency Workers Directive creates the principle of equal treatment; where basic working and employment conditions for agency workers should be “at least those” that would apply if they were a direct recruit for the agency worker. The domestic legislation, the Agency Workers…

Employees and workers

This decision makes it clear that employers and agencies cannot rely on a higher entitlement for one employment condition to offset a failure to provide at least the same entitlements for other conditions. The EAT did discuss that the requirement to provide at least the same entitlement can be met by different methods, for example, providing rolled-up holiday pay, however these will have to be clear and transparent. The EAT also considered “duration of working time” and found there was no…

Tupe

Under Tupe, there can be a service provision changed where a contract is transferred from one contractor to several new contracts. Previous cases, such as Kimberley Group Housing v Hambley, have also confirmed this. The importance is that the activities post-transfer must not become too fragmented that they are fundamentally different from the activities carried out pre-transfer. Although this will depend on the facts of each case, it is likely that the more contractors post-transfer and where…

Tupe

Employment Appeal Tribunal – February 2018 Tribunal erred by failing to properly determine the pre-transfer ‘activity’ and whether the activity had been fragmented post-transfer For there to be a service provision change under Regulation 3(1)(b) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, the activities being transferred to the new service provider must be fundamentally the same as those carried out by the old provider. This means the determination of ‘…

Business principles

European Court of Justice – February 2018 ECJ finds restrictions placed on the worker meant time spent at home on-call was ‘working time’ under the Working Time Directive. The Working Time Directive (2003/88/EC) defines “working time” as any time where a worker is working, at the employer’s disposal and carrying out their activity or duties. In contrast, any time not classed as working time will be categorised as a “rest period”. Facts Matzak was a Belgian volunteer firefighter in the…

Business principles

This ECJ decision indicates that it is not the location of the worker who is on-call that is fundamental to the issue of whether the time is classed as “working time” or not. Instead, it will depend on the extent of any restrictions and obligations placed on the worker whilst they are on call. UK courts are bound to take ECJ decisions in to account when considering similar cases. A previous Employment Appeal Tribunal, Truslove v Scottish Ambulance Service, has also looked at the control placed…

Termination

Employment Appeal Tribunal – January 2018 Was an employee’s effective date of termination changed when she received written notice of termination following an earlier summary dismissal? The effective date of termination is the date on which an employee’s employment ends. When this date occurs will depend on the type of dismissal, ie whether it was a dismissal with notice or a summary dismissal. This date is important because an employee has to present a claim for unfair dismissal within…

Termination

In this decision, the EAT highlighted the effective date of termination (EDT) is a statutory concept which cannot be changed by agreement between the parties. Even where both parties believe the EDT was a particular date, the tribunal can determine otherwise based on the facts of the case. The EDT will be the date on which the dismissal is communicated to the employee, as confirmed in this case, and cannot be changed by later actions. Where communication is verbal, it will be good practice to…

Equality

Court of Appeal – February 2018 How far is an employer required to go to have constructive knowledge of an employee’s disability? The duty on employers to make reasonable adjustments is triggered when an employer knows, or could reasonably be expected to know, that the employee has a disability. The reasonable expectation is known as “constructive knowledge” and the following case looks at this issue under the Disability Discrimination Act 1995. Facts A Court Officer with previous…

Equality

When considering whether an employer can reasonably be expected to know whether an employee is disabled, the Court of Appeal decision reminds employers that they are responsible for making a factual judgment of this using any guidance produced by their medical advisers. They cannot simply “rubber stamp” the opinion of medical advisers, as confirmed by the Gallop v Newport City Council case. The amount of information available to the employer will also provide an indication of whether they…

Business principles , Dispute resolution

Employment Appeal Tribunal - January 2018 The EAT has ruled there are exceptional circumstances where employees can bring whistleblowing claims against co-workers in the employment tribunal even though the detriment took place outside Great Britain. s47B(1A) of the Employment Rights Act 1996 provides protection for workers against detrimental treatment from co-workers due to making protected disclosures. If an employee successfully presents a claim against their co-workers under this…

Business principles , Dispute resolution

Following previous cases in this area, including Lawson v Serco Ltd and Duncombe v Secretary of State for Children, School and Families, this decision confirms employees can present claims against co-workers in the employment tribunal even where the detrimental treatment has taken place outside the UK. When examining whether there is a sufficiently strong connection to Great Britain and British law, a tribunal will look at the location of employment and the workers themselves. They will also…

Business principles , Dispute resolution

Employment Appeal Tribunal - January 2018 The EAT has ruled there are exceptional circumstances where employees can bring whistleblowing claims against co-workers in the employment tribunal even though the detriment took place outside Great Britain. s47B(1A) of the Employment Rights Act 1996 provides protection for workers against detrimental treatment from co-workers due to making protected disclosures. If an employee successfully presents a claim against their co-workers under this…

Business principles , Dispute resolution

Following previous cases in this area, including Lawson v Serco Ltd and Duncombe v Secretary of State for Children, School and Families, this decision confirms employees can present claims against co-workers in the employment tribunal even where the detrimental treatment has taken place outside the UK. When examining whether there is a sufficiently strong connection to Great Britain and British law, a tribunal will look at the location of employment and the workers themselves. They will also…

Equality , Business principles

European Court of Human Rights – January 2018 Were employees’ rights to privacy breached by covert surveillance set up to monitor suspected thefts? Under Article 8 of the European Convention of Human Rights, individuals have a right to respect for their private and family life that extends to the workplace. The right is a qualified right so employers can place restrictions on privacy rights to achieve a legitimate objective, so long as their methods are proportionate and necessary. Facts…

Equality , Business principles

Guidance produced by the Information Commissioner’s Office (ICO) states cover monitoring “should not normally be considered. It will be rare for covert monitoring of workers to be justified”. The ICO suggests covert monitoring should only be used where there are exceptional circumstances. UK judges are required to take ECtHR judgments in to account when deciding domestic cases. This decision confirms covert surveillance of employees will breach their right to privacy unless there is a fair…

Equality , Business principles

European Court of Human Rights – January 2018 Were employees’ rights to privacy breached by covert surveillance set up to monitor suspected thefts? Under Article 8 of the European Convention of Human Rights, individuals have a right to respect for their private and family life that extends to the workplace. The right is a qualified right so employers can place restrictions on privacy rights to achieve a legitimate objective, so long as their methods are proportionate and necessary. Facts…

Equality , Business principles

Guidance produced by the Information Commissioner’s Office (ICO) states cover monitoring “should not normally be considered. It will be rare for covert monitoring of workers to be justified”. The ICO suggests covert monitoring should only be used where there are exceptional circumstances. UK judges are required to take ECtHR judgments in to account when deciding domestic cases. This decision confirms covert surveillance of employees will breach their right to privacy unless there is a fair…

Terms and conditions

Employment Appeal Tribunal - January 2018 Where an employee knows the contract of employment is not temporary, in contravention of immigration laws, does this make the contract unenforceable from the outset because of illegality? In Hall v Woolston Hall Leisure Ltd, three categories of cases of illegality were identified. The first two render the contract unenforceable from the outset: where the contract was entered in to with the intention of committing an illegal act or where the contract…

Terms and conditions

This decision reiterates the analysis process the tribunal will go through when examining what category of Hall the contract will fall in to. To render the contract illegal and unenforceable under the third category of illegality, employers will have to show the employee has knowingly participated in the illegality.

Terms and conditions , Termination

Employment Appeal Tribunal – January 2018 To act fairly when deciding not to renew an employee’s fixed-term contract, are employers only required to comply with the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002? The Regulations provide protection for fixed-term employees against less favourable treatment in comparison to a comparable full-time worker. This includes the right to not be treated less favourably regarding the opportunity to secure permanent…

Terms and conditions , Termination

This case confirms dismissals by non-renewal of fixed-term contracts do not receive any special treatment and are subject to the general laws on unfair dismissal. The EAT confirmed employers will not always be required to discuss alternative roles in all dismissals by non-renewal of a standard fixed-term contract; it will depend on the circumstances of the case whether this will be a fair action for the employer to take. However, in cases like this where it is the employer who starts…

Terms and conditions , Termination

Employment Appeal Tribunal – January 2018 To act fairly when deciding not to renew an employee’s fixed-term contract, are employers only required to comply with the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002? The Regulations provide protection for fixed-term employees against less favourable treatment in comparison to a comparable full-time worker. This includes the right to not be treated less favourably regarding the opportunity to secure permanent…

Terms and conditions , Termination

This case confirms dismissals by non-renewal of fixed-term contracts do not receive any special treatment and are subject to the general laws on unfair dismissal. The EAT confirmed employers will not always be required to discuss alternative roles in all dismissals by non-renewal of a standard fixed-term contract; it will depend on the circumstances of the case whether this will be a fair action for the employer to take. However, in cases like this where it is the employer who starts…

Equality

Employment Appeal Tribunal – November 2017 Dismissal because of marital difficulties could engage the protected characteristic of marriage and civil partnership. Facts Reverend Gould was employed as a minister within the North London church from 1 September 1995 until his summary dismissal on 1 August 2016. During his ministry, the congregation grew and the church prospered. Rev. Gould married in 1997 but there were difficulties in his marriage. These difficulties were raised by the…

Equality

This decision confirms that individuals who are married or in a civil partnership will receive discrimination protection if their marriage or civil partnership plays an operative part in the reasons for any less favourable treatment.