Dispute resolution , Termination

Employment Appeal Tribunal – October 2017 When determining whether a tribunal has jurisdiction to hear claims from employees working overseas, the tribunal has to assess whether the employment has a stronger connection to Great Britain and British employment laws compared to the connection with the overseas territory.   Facts Green was a British national. He was married to a Lebanese citizen and had lived in the Middle East for over 15 years. He provided consultancy services to the…

Dispute resolution , Termination

This ruling provides guidance on how tribunals will assess factors when looking at jurisdiction for overseas workers, following the Serco v Lawson judgment. Employers should make sure that proper contractual provisions are put in place that reflect the agreed arrangements. A full and proper process should be followed in the event that an employees’ employment is terminated to avoid the risk of an unfair dismissal claim from an overseas, or a domestic, worker.

Equality

Court of Appeal – October 2017   School’s policy of pupil segregation was discriminatory under Equality Act 2010 despite pupils of both sexes being treated equally. Applied to the workplace, this ruling means that equal, but separate, treatment can still be discriminatory. Facts Al-Hijrah school is a faith school which accepts children of both sexes. However, from Year 5 onwards, the children are split into single sex classes for religious reasons held by the school in accordance with…

Equality

Although this case does not concern an employment relationship, the decision is applicable to organisations as it is made under the Equality Act 2010. This case confirms the adage that "two wrongs don't make a right"; an organisation cannot defend a discrimination claim by saying, although the treatment is less favourable, both groups are being treated the same. As direct discrimination is examined from an individual perspective, not a collective perspective, an individual within that group…

Business principles , Termination

Court of Appeal - October 2017 Is a dismissal automatically unfair when the decision maker had no knowledge of protected disclosures, and was intentionally misinformed by the employee’s line manager? Facts Jhuti was employed on a six month trial period in the organisation’s MarketReach department. She noticed irregularities in the way colleagues were offering incentives to customers and believed these breached OFCOM guidance. Jhuti twice reported this to her line manager, by email in…

Business principles , Termination

This case confirms the decision in Orr v Milton Keynes Council [2011] that a tribunal will look at the knowledge of the decision maker alone based on the information they had available at the time of making the decision. This means a dismissal will not be unfair where the decision maker has unknowingly and innocently been misled by false evidence provided by the manipulator, outside of the formal process, that is later relied on. The motivation of the manipulator will be relevant where they…

Business principles , Termination

Court of Appeal - October 2017 Is a dismissal automatically unfair when the decision maker had no knowledge of protected disclosures, and was intentionally misinformed by the employee’s line manager? Facts Jhuti was employed on a six month trial period in the organisation’s MarketReach department. She noticed irregularities in the way colleagues were offering incentives to customers and believed these breached OFCOM guidance. Jhuti twice reported this to her line manager, by email in…

Business principles , Termination

This case confirms the decision in Orr v Milton Keynes Council [2011] that a tribunal will look at the knowledge of the decision maker alone based on the information they had available at the time of making the decision. This means a dismissal will not be unfair where the decision maker has unknowingly and innocently been misled by false evidence provided by the manipulator, outside of the formal process, that is later relied on. The motivation of the manipulator will be relevant where they…

Employees and workers

Employment tribunal – October 2017 Were minicab drivers self-employed or workers? Facts Three drivers signed a driver contract that stated they were self-employed and contracted to provide services to Addison Lee as a sub-contractor. The contract also stated there was no obligation to provide services to Addison Lee, nor an obligation on Addison Lee to provide work. The contract stated the drivers chose when to work but were obliged to perform each “customer contract” promptly. The…

Employees and workers

This decision is another case that confirms tribunals will look behind the contractual documentation to determine how the arrangement works in practice, as first set out in Autoclenz v Belcher and followed in subsequent cases including Aslam v Uber. The judge also commented on the mutual expectations of the parties in the arrangement – the driver expected to log on and be offered jobs to earn money whilst Addison Lee expected drivers to log on and work sufficient hours for their business model…

Discipline and grievance

Employment Appeal Tribunal – October 2017 Can a disciplinary investigation be regarded as unreasonable where it is too thorough? Facts Pillar was employed as a Nurse Practitioner from July 2002 to September 2014. Her role was to take telephone calls from the public and triage them to decide the most appropriate next care step. In December 2013, a Patient Safety Incident occurred when Pillar failed to take in to account red flags when making a decision. Pillar directed a patient who was…

Discipline and grievance

This decision highlights the ongoing test of sufficiency of investigation; whether the employer has carried out a reasonably sufficient investigation in all the circumstances of the case. Only in extreme circumstances will an investigation be deemed unreasonable because it is too wide, ie where it is overzealous or unfair. There are distinct roles in the disciplinary procedure for the investigator and the disciplinary chair; the investigator has to establish the facts of the case whilst the…

Tupe

If the activities taken over by the new organisation are fundamentally the same there will be a service provision change under Tupe regulations. Previous cases, such as Qlog v O’Brien, have emphasised the need to take a common sense approach to “activities” and to avoid drawing a narrow definition which defeats the purpose of the legislation. The question to ask is what, in essence, was the activity pre and post transfer. Further information on Tupe transfers can be found in our employment law…

Tupe

Employment Appeal Tribunal Activities were fundamentally the same after the transfer The Transfer of Undertakings (Protection of Employment) Regulations 2006 (Tupe) apply where there is what the regulations refer to as a “relevant transfer”. This includes a “service provision change”, when business activities are reassigned from one contractor to another. Previous case law has suggested that, for Tupe to apply, pre-transfer and post-transfer activities need not be identical, provided they…

Employees and workers

Employment Appeal Tribunal – August 2017 Part-time worker paid 50 per cent of comparable full-time worker’s salary whilst working proportionately more than 50 per cent of full-time hours was treated less favourably. Facts Pinaud was employed as a crew member by British Airways from 1985 on a full time basis. After returning from maternity leave in 2005, Pinaud began working a part time shift pattern. The full-time shift pattern was called the “6/3 pattern” and provided for six days on…

Employees and workers

This case is evidence that any discrepancies between the treatment of a part-time worker and a comparable full-time worker, however small, will constitute less favourable treatment of the part-time worker. Where organisations use complicated shift patterns, they should fully examine whether part-time workers are working more hours for less pay then their full-time comparators. Organisations can justify less favourable treatment of part-time workers on objective grounds. This case demonstrates…

Judgement published:
Equality

European Court of Human Rights Grand Chamber – September 2017 The Grand Chamber of the European Court of Human Rights has reversed a previous decision from January 2016 that email monitoring undertaken by an employer did not breach an employee’s human rights. The judges determined the employer failed to strike a fair balance between the employee’s right to privacy and the employer’s right to ensure their business is running effectively.   Barbulescu, a Romanian national, lodged his case…

Judgement published:
Equality

Although the original decision has been overturned, this case does not mean that employers cannot monitor employees’ emails. The ECtHR found that, in this particular case, the employer’s actions were not justifiable however it remains possible for employers to maintain effective monitoring processes without breaching the right to privacy. Employers have to be able to justify any intrusion into an employee's personal life. It is important to note that although this was a Yahoo account, it was…

Pay and benefits

Court of Appeal - February 2013 A graduate, working voluntarily at a museum in pursuit of a career in that sector, was offered a six-week training scheme through her Jobcentre. She was told the scheme was ‘mandatory’ and she risked losing benefits if she did not participate. She challenged the lawfulness of the regulations.   Reilly, a geology graduate, was working voluntarily at a museum in order to fulfil her ambition of working in that sector. She was receiving Jobseeker’s Allowance (…

Pay and benefits

The government and companies involved in invalid work schemes may now be open to claims for compensation and payments of benefits previously denied to scheme participants. HR professionals should be wary of these schemes as they are now subject to attack. That said, the government intends to appeal the decision and bring in replacement legislation as a matter of urgency.

Terms and conditions

Employment Appeal Tribunal - 1983 Service continuous by arrangement and custom Facts Mackay had been employed as a waitress in a hotel in the north of Scotland over a number of years, working during the summer seasons only, as the hotel was semi-closed during the winter months.   Each year, her employment was terminated at the end of the summer season and the contract revived again in the early spring. When her services were dispensed with, she claimed unfair dismissal, arguing that…

Terms and conditions

The Employment Rights Act 1996 (section 212) contains a provision under which employment can be continuous where a gap between two contracts is ‘by arrangement or custom’. The above case is a useful demonstration of such an ‘arrangement’ – in other words, where it is understood between the parties that the employee will return to work at some point in the future. In these circumstances, continuity of service is preserved once the employee has returned to work.

Terms and conditions

Employment Appeal Tribunal - 1978 Contract of apprenticeship is a one-off contract EAT The EAT held in this case that a contract of apprenticeship was a one-off contract which, once completed, could not logically be renewed. Consequently, the employer's decision not to offer the individual a contract of employment following the completion of his apprenticeship training did not amount to a dismissal in law.

Terms and conditions

Employers who take on apprentices on contracts of apprenticeship will not normally be bound to offer the individual employment following the end of the agreed apprenticeship period.

Employees and workers

Court of Appeal - 1983 ‘Regular casuals’ and employment rights Facts O'Kelly, who worked as a casual wine waiter, was one of several members of staff who were regarded by the employer as 'regular casuals' and who were given priority over other casual staff in terms of the allocation of available work.   He had worked regularly in the hotel for many years until he was discharged, after which he lodged a claim for unfair dismissal. In order for the tribunal to have jurisdiction to hear…

Employees and workers

Although the claimant in this case did not succeed in his argument that he had been an employee, it is nevertheless possible that an individual who has worked regularly for an employer on a so-called ‘casual’ basis could be classed as an employee. This could be the case if, over a period of time, the individual had worked on a regular pattern (for example, every weekend) and both parties had, through custom and practice, come to expect that that pattern of working would continue (thus creating…

Discipline and grievance

High Court – August 2017 Here the High Court decided that suspending a teacher amounted to a breach of the implied mutual trust and confidence term in employment contracts.   The case concerned a primary school teacher engaged on a fixed term contract in November 2013 which was due to expire at the end of the following August. The teacher had 15 years’ experience teaching children with special needs, but no training in teaching children with behavioural difficulties. The evidence…

Discipline and grievance

This case confirms previous case law that has shown that suspension in these circumstances is not a ‘neutral’ act. Here the timing of the suspension was also at fault, because it came within a few days of the teacher being told that she was finally to receive the assistance with these children she had been requesting for some time, a plan which was never actually implemented.   Before suspending an employee, employers should consider what the purpose of the suspension is, and whether there is…

Equality

Employment Appeal Tribunal – August 2017 This case overturns popular misconceptions about ‘shifting the burden of proof’ in discrimination cases.   The EAT emphasised that it is a tribunal’s responsibility, not the claimant’s, to decide on the facts of a case whether there may have been a breach of discrimination law, or to reject a claim because there was no basis for it The claimant in this case worked as a postman. He made over 20 unsuccessful applications for IT-related jobs with…

Equality

This decision is significant for employers, because it overturns established beliefs about the process of discrimination law stemming both from the Equality Act’s explanatory notes and from case law decided using the Act’s predecessor legislation.    If an employer fails to produce evidence to show that the steps it took were made without a discriminatory motive, and does not have a sufficient explanation as to why it can’t produce this evidence, a tribunal is entitled to draw adverse…