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…

Judgement published:
Termination

Supreme Court – June 2016 This case demonstrates some of the problems that can arise when a tribunal orders reinstatement rather than compensation for a successful unfair dismissal claim. The remedy for a successful unfair dismissal claim is usually compensation, but tribunals can also order the reinstatement or re-engagement of successful claimants. The first of these requires the employer to re-employ dismissed employees in their previous job. The employees must be treated in all…

Judgement published:
Equality

Employment Appeal Tribunal – June 2016 Here the EAT decided that an employer expecting a disabled employee to work long hours amounted to a provision, criterion or practice under equality laws. Employers have a duty under the Equality Act 2010 to make reasonable adjustments for disabled job applicants, employees and former employees. The duty can arise where a disabled person is placed at a substantial disadvantage by a ‘provision, criterion or practice’ (PCP) operating in the employer’s…

Judgement published:
Pay and benefits

Employment Tribunal – May 2016 This is the first decision from an employment tribunal in England on whether voluntary overtime should be included in holiday pay calculations. The tribunal decided it should be. The case involved 56 claimants working on repairing and maintaining a local authority’s social housing. They had the option of working additionally on Saturdays and could also choose to go on standby every four weeks to deal with emergency call-outs and repairs. The employer…

Judgement published:
Equality , Termination

Employment Appeal Tribunal – May 2016 Here the EAT found that dismissing a disabled employee for his angry outbursts over a workshop being moved, thereby preventing him from attending in his wheelchair, could be unfair and discriminatory. The case was sent back to the employment tribunal to decide whether dismissal was proportionate and reasonable in the circumstances. A local authority decided to stop using external venues for workshop events in order to save money. Risby, a manager and…

Judgement published:
Pay and benefits

Court of Appeal – May 2016 An HR executive could not prove that a conversation held ten years earlier with the HR director from the company that was taking over his own was contractual and binding with regard to pension rights Cunliffe joined the company in this case as a senior human resources executive. His letter of appointment (although not his employment contract) said he could join the defined contribution (DC) pension scheme, which he did a year later. When the company was taken…

Judgement published:
Equality

Employment Appeal Tribunal – May 2016 In this case the EAT set out the correct approach for assessing whether a philosophical belief met the criteria established by the Grainger case and therefore qualified for discrimination protection. Here the belief was about the 'efficient use of public money'. Harron claimed he had been discriminated against because of his profound belief in 'the proper and efficient use of public money in the public sector'.  Under the Equality Act 2010, 'religion…

Judgement published:
Termination

High Court – May 2016 In this successful constructive dismissal claim, the High Court found that removing certain duties from a manager amounted to constructive dismissal. The fact that he had engaged in exit talks with the employer was irrelevant. Gibbs was assistant manager on a three-year fixed-term contract at Leeds United football club. The club’s manager left part-way through this fixed-term contract and a new manager was brought in. Gibbs experienced difficulties with the new…

Judgement published:
Equality , Termination

Employment Appeal Tribunal – April 2016 Here the EAT decided disability discrimination played no part in an employer’s decision to dismiss an employee with stress because the employer was not aware the employee was disabled. Gallop worked for Newport City Council. He was absent with stress on a number of occasions over a period of three years, was suspended on allegations of misconduct, and finally dismissed. He claimed unfair dismissal and disability discrimination. Direct disability…

Judgement published:
Terms and conditions

High Court - April 2016 Here the court decided that a restrictive covenant in an employment contract was too wide in scope and inappropriate for the employee involved when originally drafted, and so was unenforceable when the employer applied for a court injunction on the basis of it 19 years later.   Post-termination restrictions in employment contracts are intended to prevent employees from misusing confidential information, working for a competitor organisation or soliciting clients…

Judgement published:
Terms and conditions

Court of Appeal – April 2016 Court of Appeal decided that a provision set out in an employee handbook (here an absence management procedure) had the same effect as an employment contract term. This meant the employer was bound by the provision, and would be in breach of contract if it decided not to comply with it. The employer imposed a new absence management procedure, after it failed to achieve agreement through negotiations, which changed the points at which various warnings, and…

Judgement published:
Equality , Discipline and grievance

Employment Appeal Tribunal – April 2016 A born-again Christian’s religious discrimination and harassment claims failed as the employer’s disciplinary warning to her was not because of her preaching Christianity, but because her attempts to convert a Muslim colleague to her own faith amounted to misconduct Wasteney, a born-again Christian, was head of forensic occupational therapy. Complaints were made about her by a more junior Muslim occupational therapist, accusing Wasteney of “grooming…

Judgement published:
Termination

Employment Appeal Tribunal: March 2016 This case confirms that where a dismissal for misconduct is based on a number of allegations, each one should be investigated and dealt with separately. Otherwise, if one is mishandled, the dismissal is likely to be unfair, even if any one of the remaining allegations justifies dismissal on its own.   A nurse who had worked for the trust in this case for 10 years was dismissed for gross misconduct. The disciplinary process addressed three…

Judgement published:
Equality

Supreme Court: March 2016 The Supreme Court has decided that an employer was legally responsible for a violent attack on a customer by one of its employees at a supermarket petrol station on the grounds that although the assistant’s actions were “inexcusable”, they were closely connected to his job.   The claimant in this case visited a Morrisons’ petrol station on the way to an event in London on the war in Somalia in 2008. He went into the kiosk and asked whether he could print some…

Judgement published:
Family friendly and flexible working rights , Equality

Employment Appeal Tribunal: March 2016 This decision, believed to be the first to consider the legal status of childcare vouchers provided through a salary sacrifice scheme, established that they are ‘remuneration’ for maternity leave purposes.   During maternity leave women are entitled to benefit from all the terms and conditions of employment which would have applied to them had they been at work, except remuneration. The employer in this case stipulated that those joining its…

Judgement published:
Termination

Employment Appeal Tribunal: March 2016 In this case the EAT judge confirmed that ‘pulling a sickie’ may justify a misconduct dismissal.   Ajaj was employed by Metroline West as a bus driver. He reported that he had slipped on water on the floor of the workplace toilets and suffered an injury. The employer was suspicious about the extent of his injuries and arranged covert surveillance of him. The video footage contradicted Ajaj’s description of his difficulties over day to day activities…

Judgement published:
Employees and workers

High Court: February 2016 This legal challenge may force a change to procedure on spent convictions which has hitherto prevented minor offences from ever being cleared from a person’s criminal record   The Rehabilitation of Offenders Act 1974 allows certain ‘spent’ convictions to be removed from criminal records so individuals do not have to disclose them in specific circumstances. Where regulated activities are involved, such as working with children and vulnerable adults, both spent…

Judgement published:
Equality , Employee relations

Court of Appeal: February 2016 Employers have responsibilities towards trade union members among its workforce and in this case an employer favouring a recognised union by not intervening in an inter-union dispute led to the unlawful treatment of a member of the minority union.   Bone, a mental health nurse, was a prominent member of a small trade union, the Workers of England Union (WEU), and a member of Unison. His employer recognised a number of trade unions, including Unison, but not…

Judgement published:
Terms and conditions , Pay and benefits

High Court: February 2016 Here an employee failed to prove his bonus, which was lower than his colleagues’, was ‘irrational and perverse’, because the contractual rules permitted the employer to treat the employees differently   A derivatives trader’s contract of employment stated he was entitled to be considered for a discretionary bonus. The factors to be used when determining the level of bonus, such as the bank’s overall performance and his individual contribution, were described in…

Judgement published:
Equality

Employment tribunal: February 2016 Here a tribunal commented on an employers’ apparent lack of knowledge of equality issues when making a finding of disability discrimination and victimisation in favour of a dyslexic employee, demonstrating the negative publicity that can be faced by a large employer facing tribunal proceedings.   When an employer is aware of an employee’s disability, and there are ‘provisions, criteria or practices’ (PCPs) that put that disabled employee at a…

Judgement published:
Equality

Employment Appeal Tribunal: February 2016 This case involved a warehouse worker disabled in a car accident who was entitled to ‘reasonable adjustments’. The decision indicates that ‘normal activities’ under the Equality Act 2010 can include lifting heavy loads at work   Banaszczyk, a picker in a warehouse, was required to load cases of goods. Following a car accident, he could no longer lift heavy loads without discomfort. As a result, his ‘pick rate’ fell below the employer's acceptable…