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…

Judgement published:
Tupe

Employment Appeal Tribunal: February 2016 The Tupe ‘service provision change’ rules can still apply in contract retendering where a commercial dispute has stopped the work, provided the employees involved were assigned to the functions in question before the transfer occurred. This case involves a complex re-tendering exercise.   For there to be a ‘service provision change’ (SPC) under the Transfer of Undertakings (Protection of Employment) Regulations 2006, the functions transferring…

Judgement published:
Pay and benefits

Employment Appeal Tribunal: February 2016 The EAT has confirmed that commission must be included in holiday pay, in line with the Bear Scotland holiday pay case on bonuses, but it’s likely a further appeal to the Court of Appeal will be required on the issue. In the meantime employers have no further guidance on how to pick an appropriate reference period for holiday pay calculations that must include variable pay.   The Employment Appeal Tribunal (EAT) has published its decision on the…

Judgement published:
Termination

Employment Appeal Tribunal - January 2016 Employees considering claiming constructive dismissal need to do much more than just show their treatment is something they disagree with or don’t like. Potential claimants should make an assessment of the risks involved before deciding how to respond to such a situation at work, and employers should be reassured that an employee faces a significant burden in proving his or her case. A recent Employment Appeal Tribunal (EAT) decision in the case…

Judgement published:
Equality

Employment Appeal Tribunal – January 2016 In the case of Kelly v Covance Laboratories, the Employment Appeal Tribunal (EAT) had to decide whether an employer telling an employee not to speak her first language at work amounted to direct race discrimination and racial harassment.   Direct race discrimination occurs where an employee is treated less favourably because of his or her race. Racial harassment occurs where an employer engages in conduct related to race that has the purpose or…

Judgement published:
Equality , Termination

Employment Appeal Tribunal: January 2016 The EAT decision in the case Pnaiser v NHS England and Coventry City Council is a reminder of the liabilities employers may face when they act in response to inaccurate or damaging references received from a job candidate’s former employer. Tribunal In this case, the claimant was disabled. She had been promoted, and received positive appraisals, but her employment had been terminated after several sickness absences under a settlement…

Judgement published:
Equality

Employment Appeal Tribunal: January 2016 The case of Donkor v Royal Bank of Scotland involved a director denied the opportunity to apply for voluntary redundancy as this would have entitled him to claim enhanced retirement benefits of over £500,000. Given these benefits were only available to employees over 50, the Employment Appeal Tribunal had to decide whether preventing him applying for redundancy was unlawful age discrimination.   Under the Equality Act 2010, direct discrimination…

Judgement published:
Business principles

Employment Tribunal: January 2016 The impact of the Bribery Act 2010 stretches beyond the criminal realm. In the case of Blake v Home an employment tribunal had to whether an immigration officer had been fairly dismissed for gross misconduct for accepting a bribe.   It became apparent that the immigration officer had accepted money from an individual involved in the immigration process. The officer returned the money, thought to be around £200, and reported the bribe. On the facts, there…

Judgement published:
Termination

Employment Appeal Tribunal – December 2015 Here the EAT provided a reminder of what employers need to consider in an ill-health dismissal where long-term disability is involved. As with all dismissals, following a fair and reasonable procedure is essential.   Harris was disabled due to four long term impairments: depression, sinusitis, asthma and an underactive thyroid. She could work from home, but felt her new manager was not being supportive (for example, asking her to attend a…

Judgement published:
Equality

Employment Appeal Tribunal – December 2015 In this case, making an online test compulsory for a promotion applicant disabled by stress and depression was a failure to make reasonable adjustments, but putting him in a redeployment pool was not indirect discrimination.   The claimant in this case had been employed since 2004. He was temporarily promoted while undergoing a training course in 2010, but failed the course and was demoted back to his original position. Shortly before this, he…

Judgement published:
Equality

Court of Appeal – December 2015 Here the Court of Appeal explored the interaction between absence monitoring trigger points and reasonable adjustments where absence is caused by, or related to, a disability. It decided that adjusting an absence policy which already made provisions for disability, so that a disabled employee was effectively kept out of work, was not reasonable or desirable.   Griffiths was diagnosed with post viral fatigue and fibromyalgia in October 2009. The employer…

Judgement published:
Discipline and grievance

Employment Appeal Tribunal – December 2015 In this case, HR was found not to have breached a disciplinary process by disclosing a written warning, but the subsequent dismissal was unfair as the employee had not been told about the consequences of having the written warning on his file and had been denied the chance to state his version of the events.   An IT network engineer who had a history of failing to follow reasonable instructions, was given a first written warning in January 2013…

Judgement published:
Pay and benefits

Employment Appeal Tribunal: November 2015 Sleeping on site did not entitle a care home assistant to back payments of the national minimum wage for all the hours he was on site, as he was seldom called on to actually assist night care workers while there.   The national minimum wage (NMW) legislation specifies that working time can include time when workers are available for work at or near their place of work.   Shannon was an on-call night care assistant at a residential care home…

Judgement published:
Employee relations , Termination

Supreme Court: November 2015 The case of USA v Nolan has still not reached a conclusion on whether the requirement to consult on collective redundancies is triggered when redundancies are proposed and relates mainly to how they are carried out, or when the decision that causes the redundancies (for example, the closure of a workplace) takes place.   Nolan was a civilian employee at a US Army base in Hampshire. Consultation took place when the US government decided to close the base, but…

Judgement published:
Discipline and grievance

Employment Appeal Tribunal – November 2015 Employers are entitled to treat similar cases of gross misconduct differently. In this case, dismissing an employee for punching a colleague while at a work event, and giving a final written warning to the colleague who had previously kneed the employee in the leg, did not make the dismissal unfair.   Jones, a collections officer for the credit card company, attended an evening event with colleagues at Chester Racecourse. Prior to the event, the…

Judgement published:
Equality

Employment Tribunal – November 2015 A police force discriminated against one of its marksman when he was removed from firearms duties due to failing a hearing loss test after new minimum permitted hearing levels were introduced. The tribunal decided offering the police officer an alternative test would have been a reasonable adjustment.   Shields joined Surrey Police in 1998, completed his firearms training in 2001, and had a distinguished career as a police marksman. He had high…

Judgement published:
Equality

Employment Appeal Tribunal – October 2015 In this case, the Employment Appeal Tribunal decided that a company, operating as a member of a limited liability partnership, can make an age discrimination claim after its sole director was treated less favourable because of his age.   Abrams, a member of a limited liability partnership, was due to retire at 62. He set up a limited company as he approached retirement of which he was the sole director.  He withdrew from membership of the…

Judgement published:
Tupe

Employment Appeal Tribunal – October 2015 Here the EAT decided that employees who had been laid off, and so had stopped working on a contract shortly before the potential Tupe transfer date, could transfer to the incoming contractor.   Inex was a subcontractor with a team dedicated to a contract for painting and decorating work in a particular location. When the contract was coming to an end, the client company stopped giving Inex assignments. The contractor put the group of employees…

Judgement published:
Pay and benefits, Equality

Court of Appeal: October 2015 In this case, the claimant had worked for the employer for 23 years before retiring in 2003. He had lived with his partner since 1993 and, following their civil partnership in 2006, wanted to clarify the amount of pension his partner would receive on his death.   The Equality Act 2010 prevents occupational pension schemes from discriminating on the grounds of sexual orientation, which means civil partners must be treated the same way as spouses on the death…

Judgement published:
Business principles

Employment Appeal Tribunal: October 2015 In this case, the EAT decided that it may be possible for an employee to claim whistleblowing protection against dismissal arising from a dispute between a small group of employees and their employer about their own contractual terms.   For a whistleblowing claim to succeed, the complaint must be a ‘protected disclosure’. There is also a requirement for the employee to have a reasonable belief that raising it is ‘in the public interest’, so…

Judgement published:
Dispute resolution

Court of Appeal – August 2015 Following the introduction of fees for bringing an employment tribunal claim, trade union Unison applied for a judicial review, arguing that fees made exercising individual employment rights difficult and were also discriminatory.   The Court of Appeal has rejected Unison's claim that the employment tribunal fees regime is unlawful. The main thrust of the trade union’s case was that the fees are set at such a high level that some claimants are being denied…

Judgement published:
Equality

Employment Appeal Tribunal – September 2015 The Employment Appeal Tribunal (EAT) recently provided guidance on managing ill-health early retirement pension benefits in the case Trustees of Swansea University Pension Scheme v Williams. The case concerned how the rules of an occupational defined benefit pension scheme applied to a disabled scheme member taking early retirement.   Williams took ill-health early retirement at the age of 38. Over the two years before his retirement he had…

Judgement published:
Tupe

Employment Appeal Tribunal: September 2015 The Employment Appeal Tribunal recently had to consider whether an employee absent from work on long-term sick leave, and regarded as permanently incapacitated, should transfer under Tupe with the rest of his colleagues when the service they were assigned to transferred to a new contractor.   Edwards originally worked for mobile phone provider Orange as a field operations engineer on the maintenance of its domestic network. The company…

Judgement published:
Business principles

Court of Justice of the European Union: September 2015 In Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL, the Court of Justice of the European Union (CJEU) had to consider whether journeys made by workers without a fixed place of work, between their homes and the first and last customers of the day, constitute working time.   This case involved technicians with no fixed place of work, employed by a Spanish company to install and maintain…

Judgement published:
Discipline and grievance

Employment Appeal Tribunal – September 2015 In Ramphal v Department for Transport the Employment Appeal Tribunal had to decide whether a misconduct dismissal was fair when it seemed the HR department’s views on the employee’s conduct may have influenced a manager’s decision to dismiss him.   Ramphal was an aviation security compliance inspector. The employer conducted an investigation into possible misconduct by him involving his expenses and use of hire cars. A manager was appointed to…

Judgement published:
Equality

Employment Tribunal – September 2015 This case returned to an employment tribunal following an Employment Appeal Tribunal (EAT) decision accepting the principle that the current Equality Act 2010 protects individuals from caste discrimination because race discrimination includes ethnic origins, which in turn encompasses caste.   This is the first successful claimant in a caste discrimination claim in this country. When the claim started, it generated a debate about whether caste…

Judgement published:
Termination

Court of Appeal – August 2015 An employee, whose employment was terminated for gross misconduct after a serious health and safety breach, was found to be unfairly dismissed, partly because of the difference between his treatment and that of a colleague who only received a written warning for the same offence.   The claimant, an experienced sewer worker who had been employed by Thames Water for 34 years, was summarily dismissed, following an investigation into an incident in which he had…

Judgement published:
Employees and workers

Employment Appeal Tribunal – August 2015 This case confirmed that under the EU’s temporary agency workers directive and the UK’s regulations that implement it, all workers are entitled to equal access to information on internal job vacancies, but permanent employees can be given priority when those vacancies are filled.   Under the Agency Workers Regulations 2010, temporary agency workers are entitled to equal treatment compared with permanent employees over their fundamental terms of…

Judgement published:
Discipline and grievance

Employment Appeal Tribunal – August 2015 In this case, the Employment Appeal Tribunal decided that an internal appeal hearing put right an employer’s failure to provide an employee with all the witness evidence against her during the disciplinary procedure which preceded her dismissal.   A recently promoted temporary supervisor ‘un-friended’ Derwich and other colleagues on Facebook. Her employer became aware that an image of a witch had been placed on the supervisor’s computer as a…

Judgement published:
Termination

Employment Appeal Tribunal – August 2015 This, the first Scottish appeal tribunal decision dealing with social media misconduct, endorsed previous EAT decisions by holding that the band of reasonable responses test was still the most appropriate yardstick by which to judge the resulting dismissal.   Smith was a waterways operative responsible for the upkeep of canals and reservoirs. His duties included being on standby to respond to emergency situations occurring outside the employer’s…