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…

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…