The Supreme Court has considered whether the Home Office’s treatment of a skilled worker under the current tier 2 immigration system was unfair. Currently, until the end of 2020, migrants seeking to come and live in the UK from outside of the EEA and Switzerland need to do so through a tiered system. Tier 2 is for sponsored workers and intra-company transfers. Those seeking entry through Tier 2 need to meet a number of eligibility criteria, including being offered a job that cannot be filled…

The Employment Appeal Tribunal (EAT) has considered when a notice of dismissal is said to have been served to an employee if they do not receive it due to being on holiday. In a redundancy situation, it is crucial that a fair procedure is followed. This includes offering the right to appeal to all employees selected for redundancy when they are issued with a dismissal notice. They should also be provided notice pay as stipulated in their contract and, if they have worked for the company for at…

The Employment Appeal Tribunal (EAT) has provided clarity on establishing the link between individual and group disadvantage when bringing a claim for indirect age discrimination. Under the Equality Act 2010, indirect age discrimination occurs when: a provision, criterion or practice (PCP) is applied to people of all ages, but the PCP disadvantages people of one age (or in a particular age group) more when compared with persons of a different age or age group the PCP causes an individual…

  Summary The Employment Tribunal (ET) has held that an employee was not directly discriminated against on the grounds of religion or harassed by her employer. Law ‘Religion’ means any religion, or a lack of religion, and ‘belief’ means any religious or philosophical belief or a lack of belief. For ‘religion’ to be protected, it must have a clear structure and belief system. ‘Religious belief’ goes beyond beliefs about and adherence to a religion or its central articles of faith and may…

The Employment Appeal Tribunal (EAT) has ruled that the imposition of a new contract was a one-off event, and not a continuing act, for the purposes of whistleblowing detriment. Whistleblowing is a term used to cover legal protections offered to certain groups of people who disclose information about the organisation they work for. In order for this protection to apply, the disclosure needs to be ‘protected’ under the law. There are two areas of protection: employees are protected from…

The Employment Appeal Tribunal (EAT) has ruled that there was not a sufficient amount of control placed over a claimant in order to label him an employee of a company. The term 'employment status' is the arrangement under which an individual is engaged to work for an organisation. There are three labels: ‘employee’, ‘worker’ and ‘self-employed’. It is important to correctly label individuals who work for an organisation, as a false labelling could mean they are missing out on key employment…

The Employment Appeal Tribunal (EAT) has ruled that a tribunal had failed to consider if there had been a genuine redundancy situation, following a claim that new roles created afterwards were ‘essentially the same’. The burden of proof as to if a dismissal was for a fair reason lies with the respondent and in this case, the reason for dismissal being relied upon was redundancy. To test for redundancy, it must be shown that there was a potentially fair reason for the redundancy to take place…

Summary The Employment Appeal Tribunal (EAT) has held that foster carers who operated under an agreement with a local authority were employees of that authority. The term 'employment status' is the arrangement under which an individual is engaged to work for an organisation. There are three main categories: employees, hired directly by the organisation workers (for example, casual, agency or freelance workers) the self-employed (for example, contractors). As employees are covered by…

Summary The Court of Session has ruled that a decision to dismiss a teacher for charges he faced (but not prosecuted on) was fair, and one that a reasonable employer would have made. For a dismissal to be fair under the Employment Rights Act 1996, it must be for one of the reasons listed in s98(1)(b) and be within the band of reasonable responses (s98 (4)).   Two of the five potentially fair reasons for dismissing an employee are ‘conduct’ and ‘some other substantial reason (SOSR)’. SOSR is…

Summary The Court of Appeal has ruled that, when considering a ‘material factor’ defence within an equal pay claim, organisations need to explain pay disparity, not justify it. Under the Equality Act 2010, men and women have the right to receive equal pay for equal work. Work is considered to be of ‘equal value’ where the value of a woman's work is equal to that of a man in terms of the demands made on her, for example, under such headings as effort, skill and decision-making. In effect the…

Summary The Employment Appeal Tribunal (EAT) has found that an employee was constructively dismissed when she was moved onto a different role instead of being subject to appropriate redundancy procedures.  Redundancies can arise when an organisation no longer requires a member of staff to conduct work of a particular kind. Consulting with staff in this situation is important as it allows organisations to justify why a redundancy is necessary and discuss if any other courses of action are…

Summary The Employment Appeal Tribunal has ruled that a dismissal with no procedure was fair due to a breakdown in the working relationship. To avoid a claim for unfair dismissal an organisation needs to demonstrate a potentially fair reason to dismiss and that they followed a fair procedure. Potentially fair reasons are outlined in the Employment Rights Act 1996 and include Some Other Substantial Reason (SOSR). This can occur when there is a loss of mutual trust and confidence between the…

Summary The Employment Appeal Tribunal (EAT) has ruled that the tribunal did not err by finding a claimant had not demonstrated clear evidence that her ‘mixed personality’ disorder had a substantial adverse effect on her day-to-day activities. Under section 6 of the Equality Act 2010, a person is deemed to have a disability if they have an impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. If this can be established, an…

Summary The employment tribunal (ET) has ruled that a hairdresser was an employee, not self-employed, due to the level of control asserted on her by an organisation. ‘Employment status’ refers to the arrangement under which an individual is engaged to work for an organisation. There are three main categories of employment status; employees, workers and the self-employed. Distinguishing between these three labels is important; whilst employees and workers are entitled to a number of employment…

Summary The Employment Appeal Tribunal (EAT) has upheld an earlier decision from the employment tribunal (ET), finding a worker supplied from one company to another met the definition of ‘agency worker’ as defined in the law. Law The rules governing the supply and use of agency workers from one organisation to another (the end-user) are found in the Agency Worker Regulations 2010. Regulation 3 defines an ‘agency worker’ as an individual who is supplied by a ‘temporary work agency to work…

Summary The Employment Appeal Tribunal (EAT) has ruled that the ET erred by finding evidence from an external witness was unreliable and made a decision to dismiss unfair. Under the Employment Rights Act 1996, in order to demonstrate that the decision to dismiss an employee is fair, organisations need to clearly show the reason for the dismissal. It also needs to be established that their actions leading up to the decision to dismiss fell inside the ‘band of reasonable responses’ to the…

Summary The EAT has provided guidance on situations where deducting wages for training costs and accommodation expenses could put organisations in breach of minimum wage law. As outlined in the National Minimum Wage Act 1998 (NMWA), and clarified by the National Minimum Wage Regulations 2015 (NMWR), workers must be paid at least the current rate of the minimum wage as set by the government. The law does permit certain deductions to be made from wage calculations that do not place…

Summary The Employment Appeal Tribunal (EAT) has ruled that an employment tribunal (ET) was right to rely on medical evidence from a GP when it was contradicted by the claimant in a discrimination claim. Under the Equality Act 2010, a person, (A), discriminates against a disabled person (B), if A treats B unfavourably because of something arising in consequence of B’s disability and cannot show this treatment is a proportionate means of achieving a legitimate aim. For example, if an…

Summary The Employment Appeal Tribunal has ruled that a tribunal proceeded on a false basis by not requiring the disclosure of documents relating to the refusal of an employment opportunity due to potentially racist reasons. Under the Equality Act 2010, organisations are prohibited from discriminating against individuals on the basis of their race and religion. This includes denying them opportunity for promotion or new roles. During employment tribunal proceedings, a preliminary hearing may…

Summary The Employment Appeal Tribunal (EAT) has ruled that a group of claimants were unfairly dismissed by a local authority when the school they worked in closed and they were unsuccessful in applying for positions at a new school in the same location. As outlined in the Employment Rights Act 1996 (ERA), a redundancy is a potentially fair reason for dismissal. However, when implementing a redundancy procedure, organisations need to ensure that it is fair and that they are able to justify…

3 June 2020 The Court of Appeal (CA) has upheld a decision that a group of claimants were unfairly dismissed by a local authority when the school they worked in closed and they were unsuccessful in applying for positions at a new school in the same location. Law As outlined in the Employment Rights Act 1996 (ERA), a redundancy is a potentially fair reason for dismissal. However, when implementing a redundancy procedure, organisations need to ensure that it is fair and that they are able to…

Summary The Employment Appeal Tribunal (EAT) has held that in TUPE situations, transfer-related contractual changes are void even if they benefit the employee and not just when they are detrimental. Aside from transfer of business ownership, TUPE transfers, and the laws that surround it, can also come into effect when where the provision of services ceases to be carried out by one contractor (known as the ‘transferor) and is allocated to another (known as the ‘transferee’). This is known as a…

Summary The Employment Appeal Tribunal (EAT) has found that in claims of constructive dismissal, even if the ‘last straw’ act that led to a resignation is considered ‘innocuous’, claimants can still rely on prior actions from the organisation.   To establish constructive dismissal, claimants must show that the organisation’s actions amounted to a serious breach of contract that led to their resignation. However, this can be difficult to prove if they continue to work for the organisation…

Summary The European Court of Justice (ECJ) has assessed whether a gig-economy worker who was able to provide substitutes when doing work for an organisation could still be classed as a ‘worker’ and not ‘self-employed’. UK law outlines that individuals classed as ‘workers’ are those who perform services personally for an organisation that is not considered their client or customer. Examples include casual, agency or freelance workers. In contrast, self-employed individuals are those who…

Summary The Employment Appeal Tribunal (EAT) has ruled that a tribunal had erred by finding an organisation had harassed an employee despite also finding its officers had not been motivated by discrimination. Under the Equality Act 2010, direct discrimination occurs where a person is treated, or would be treated, less favourably ‘because of’ a protected characteristic compared with others in like-for-like circumstances. If the claimant establishes a case which at first sight indicates that…

Summary The High Court has provided further clarity on how the Job Retention Scheme works during a situation of company insolvency. In situations where organisations become insolvent and therefore enter administration, administrators normally have 14 days following their appointment in which to dismiss that organisation’s workers. This is important to avoid liability for their employment and their wages. In March 2020, as a result of the coronavirus outbreak, the government introduced the…

Summary The Supreme Court has ruled that Barclays were not liable for sexual assault committed by a GP on employees after the bank contracted him to conduct medical checks. Organisations can be liable for acts committed by their employees if it is found that their actions are sufficiently connected to their employment. However, this doctrine of vicarious liability has also extended beyond employment into other employment relationships, including those between an organisation and an…

Summary The Supreme Court has overturned previous rulings, finding that Morrisons were not vicariously liable for the actions of an employee who illegally distributed personal data of nearly 100,000 staff. Organisations can be liable for acts committed by their employees if it is found that their actions are sufficiently connected to their employment. Since this doctrine was introduced, there have been numerous cases which established this liability. In Mohamud v Wm Morrison Supermarkets…

Summary The EAT has overturned a previous ruling from the employment tribunal, finding that Middlesbrough FC had unlawfully deducted wages from their staff when taking money from salaries for season tickets. Under the National Minimum Wage Regulations 2015, employees are entitled to be paid at least the national minimum wage. There are certain deductions that can be made from their wage without going below the minimum, such as tax and National Insurance contributions. The Regulations also…

Summary The Employment Appeal Tribunal (EAT) has held that a claimant did not make protected disclosures and, therefore, was not subjected to a detriment in the eyes of whistleblowing law. Under the Employment Rights Act 1996, workers are protected from dismissal if the reason, or principal reason, for their dismissal is that they have made a 'protected disclosure'. They are also protected from being subjected to a detriment. In order for a complaint to be considered a protected disclosure,…