Judgement published:
Equality

Employment Appeal Tribunal - November 2012   The Employment Appeal Tribunal had to decide if a lifelong medical condition is a disability, and so whether an employee’s increased susceptibility to illness gave her Equality Act protection.   In this case, an employee, Norris, was suffering from selective immunoglobulin A deficiency, a lifelong medical condition which caused her to be more susceptible to developing illnesses such as diarrhoea and upper respiratory infections and for which…

Judgement published:
Equality

Although Norris wasn’t successful, her case confirms that a lifelong condition which causes someone to be more susceptible to infections can mean they are ‘disabled’ under the Equality Act. The test isn’t whether they have suffered substantial adverse effects on more than one occasion, but whether they are likely to do so in the future, and whether such an episode would make it difficult or impossible to carry out their normal day-to-day activities.   For employers who find themselves in a…

Judgement published:
Tupe

Court of Appeal - November 2012 Following a restructuring, it was agreed that the claimant’s employment would transfer to another employer – but that company was subsequently put in to the hands of receivers. The claimant was dismissed and claimed unfair dismissal, arguing that under Tupe, there had been a service provision change.   The Court of Appeal (CA) has clarified, in this case, the circumstances in which the transfer regulations apply to a change of service provider.   Tupe…

Judgement published:
Tupe

Employers in similar situations should consider carefully whether they have valuable staff they want to retain or redeploy rather than automatically transferring them to an incoming service provider, if they are the outgoing service provider on the sale of a commercial property; and whether they want to take on existing staff, if they are an incoming service provider. Hunter v McCarrick can provide a route for such employers to avoid taking on existing staff. If there are key staff that the…

Judgement published:
Tupe

Employment Appeal Tribunal - November 2012 The EAT was called to rule on whether a condition in Tupe Regulation 3 was met in a case involving a change-over in contractor. To be covered by the transfer regulations, a service provision change must not be for a 'single specific' event or be short–term.   To find out if there is going to be (or has been) a service provision change (SPC) under Regulation 3 of The Transfer of Undertakings (Protection of Employment) Regulations 2006, the facts…

Judgement published:
Tupe

No practitioner would claim that the application of the law relating to SPC in the Tupe regulations is straightforward. As more guidance is received from the appellate courts – we had the first Court of Appeal decision on SPC recently in Hunter v McCarrick – it might be hoped that the task would become easier.   But if philosophy has now intruded into the SPC arena, that hope begins to look misplaced.     Note that the law may have changed since the judgment above. You will find the most…

Judgement published:
Termination

Employment Appeal Tribunal - November 2012 An HR associate director was made redundant without consultation, following a restructuring exercise to protect the company from insolvency, during which a new role of HR director was created. The EAT found this to be lawful because the new role required a more highly-qualified and experienced candidate, and consulting the associate director would not have affected this outcome.   In Ashby v JJB Sports the Employment Appeal Tribunal held that…

Judgement published:
Termination

The EAT stressed that this case was unusual but, even so, employers should treat it with enormous caution, perhaps verging on suspicion. It is difficult to see why the EAT came to the decision it did, particularly with regard to its conclusion that the circumstances of this particular case can be described as ‘exceptional’, simply because they involved a senior employee and a substantial reorganisation of the business.   The “futile” exception identified in Polkey is rarely successfully…

Dispute resolution

Supreme Court - July 2017 In a landmark judgment, the Supreme Court decided in this case that the fees regime for employment tribunals was unlawful and indirectly discriminatory. The court quashed the Fees Order which introduced the payment system in 2013, resulting in the tribunals service ceasing to collect fees the following day.   The trade union Unison brought judicial review proceedings in the High Court in 2014, claiming that the introduction of tribunal fees in 2013 denied…

Dispute resolution

The government has confirmed its intention to repay tribunal fees collected over the past four years, but it is not yet clear how this will be achieved. It should be relatively straightforward to refund fees by claimants, but more complicated where an employer has reimbursed an employee as part of compensation in a successful claim, or as part of a settlement agreement.   Another outcome could be that employment tribunals allow claimants deterred from bringing legitimate claims, and whose…

Pay and benefits

Employment Appeal Tribunal – July 2017 Here the EAT decided an employment tribunal was right to conclude that voluntary overtime that was normally worked should be included when calculating holiday pay.   EU law requires that workers should receive their ‘normal remuneration’ while taking their statutory holiday entitlement (20 days under EU law) for work that is ‘intrinsically linked’ to the work they usually do.   Case law, such as Lock v British Gas, has indicated that workers who…

Pay and benefits

There have been a number of employment tribunal cases that have suggested that voluntary overtime can be ‘normal pay’ but this is the first EAT case dealing with holiday for purely voluntary overtime. The EAT said that to be included, payments must be paid with ‘sufficient regularity’ but did not specify what this meant in terms of time periods. Where such payments form a regular pattern over the course of the holiday year, employers need to consider whether they should be included in a holiday…

Equality

Supreme Court – July 2017 The Supreme Court has decided that it is now unlawful to deny a same sex partner the same pension rights as a heterosexual spouse, even though this was permissible prior to the civil partnerships legislation.   Walker worked for Innospec for 23 years before retiring in 2003. The case was about how much of his pension his civil partner would receive on his death. They had been partners since 1993, and Walker had paid the same contributions as married members of…

Equality

Those organisations that arranged for only contracted out benefits to be payable to same sex partners as pension for service before 5 December 2005, in accordance with legislation, may need to revisit those provisions in the light of this judgment.    Many pension schemes have already decided to give same sex civil partners, and same sex married couples, the same benefits that heterosexual married couples would receive under their pension schemes. This decision will now put pressure on the…

Business principles

Court of Appeal – July 2017 The Court of Appeal has decided that blowing the whistle about the alleged wrongdoing of an employer with regard to one’s own and colleagues’ contracts of employment can amount to a protected disclosure.   Nurmohamed, the director of a London office of an international firm of estate agents, alleged that the company had awarded lower bonuses to himself and 100 other senior managers than they would otherwise have received by deliberately misstating £2-3 million…

Business principles

The judgment implies that larger employers may be more at risk from disclosures being considered to be in the public interest than smaller ones. But the CA did stress that a nuanced approach to deciding these matters was required. The character of the particular interests of those involved was relevant, not just the numbers affected.   The 2013 change to the law was intended to prevent potential claimants from arguing that blowing the whistle on a breach of their own employment contract was…

Equality , Dispute resolution

Court of Appeal – July 2017 The Court of Appeal has decided that it is appropriate for tribunals to uplift awards made for personal injury by up to 10 per cent, effectively approving an increase to the Vento bands setting out the broad category of compensation to be used in such cases.   This claim was brought by a cleaner working in London Underground’s premises in London, who complained she was the victim of disability discrimination, harassment and victimisation, initially against…

Equality , Dispute resolution

The case implies that the broad categories of personal injury compensation awards made in the employment tribunal, known as the Vento bands (after Vento v Chief Constable of West Yorkshire Police [2002]), which were adjusted in 2009 by another case (see Da’Bell v NSPCC), can be adjusted again for inflation. The CA suggested that there should be further guidance on this from the President of the Employment Tribunals.   While most personal injury awards made by tribunals are likely to remain…

Equality , Dispute resolution

Court of Appeal – July 2017 The Court of Appeal has decided that it is appropriate for tribunals to uplift awards made for personal injury by up to 10 per cent, effectively approving an increase to the Vento bands setting out the broad category of compensation to be used in such cases.   This claim was brought by a cleaner working in London Underground’s premises in London, who complained she was the victim of disability discrimination, harassment and victimisation, initially against…

Equality , Dispute resolution

The case implies that the broad categories of personal injury compensation awards made in the employment tribunal, known as the Vento bands (after Vento v Chief Constable of West Yorkshire Police [2002]), which were adjusted in 2009 by another case (see Da’Bell v NSPCC), can be adjusted again for inflation. The CA suggested that there should be further guidance on this from the President of the Employment Tribunals.   While most personal injury awards made by tribunals are likely to remain…

Equality

Employment Appeal Tribunal - June 2017 Whether a condition had a "substantial adverse effect" on the claimant Facts The claimant, Olukanni, worked as a Selling Assistant for John Lewis. She contended that John Lewis had failed in its duty to make reasonable adjustments to her role; a duty that applied because she was disabled under the Act. Olukanni suffers from a disability that has features of semantic pragmatic disorder which affects communication. In such cases, the burden of proof…

Equality

Although based on its individual facts, this decision is a reminder that an employee's mental or physical condition has to meet all the requirements in the statutory definition of a 'disability' to be protected under the Equality Act 2010. Where this is unclear, the organisation should take steps to meet with the employee and discuss their condition. They should ask questions about all the aspects of the disability test in this discussion, ie do they have a mental condition, is it long term,…

Family friendly and flexible working rights , Equality

Employment tribunal – June 2017 An employment tribunal has decided that it was unlawful to pay mothers an enhanced pay rate during maternity leave, while only paying a father looking after a new-born baby statutory pay under shared parental leave arrangements   Statutory shared parental pay is paid at the lower rate of statutory maternity pay, although employers may choose to offer enhanced pay.   The claimant in this case took two weeks’ paternity leave following the birth of his baby…

Family friendly and flexible working rights , Equality

Since this is an employment tribunal decision, it is not binding on other courts, and employers should treat it with caution.   If the case is appealed, as is the case with two previous employment tribunal decisions on whether it is lawful to enhance maternity pay and not shared parental pay, it may emerge that the wrong comparator has been chosen, and that Ali should have been compared to a female colleague on shared parental leave, not a woman on maternity leave.   EU law gives special…

Family friendly and flexible working rights , Equality

Employment tribunal – June 2017 An employment tribunal has decided that it was unlawful to pay mothers an enhanced pay rate during maternity leave, while only paying a father looking after a new-born baby statutory pay under shared parental leave arrangements   Statutory shared parental pay is paid at the lower rate of statutory maternity pay, although employers may choose to offer enhanced pay.   The claimant in this case took two weeks’ paternity leave following the birth of his baby…

Family friendly and flexible working rights , Equality

Since this is an employment tribunal decision, it is not binding on other courts, and employers should treat it with caution.   If the case is appealed, as is the case with two previous employment tribunal decisions on whether it is lawful to enhance maternity pay and not shared parental pay, it may emerge that the wrong comparator has been chosen, and that Ali should have been compared to a female colleague on shared parental leave, not a woman on maternity leave.   EU law gives special…

Judgement published:
Business principles

Court of Appeal - May 2017 The Court of Appeal has allowed an appeal from a trainee doctor claiming whistleblower protection against the NHS’s national training body even though he was employed by an NHS trust.   The whistleblowing laws are contained in the Public Interest Disclosure Act 1998, the Employment Rights Act 1996 and the Enterprise and Regulatory Reform Act 2013. The original legislation only protected employees and workers, but the ERRA extended the protection against…

Judgement published:
Business principles

This case indicates that courts will be inclined to interpret legislation positively to protect NHS whistleblowers.   The government is currently consulting on regulations which will expressly prohibit discrimination by an NHS employer, which would include Health Education England, against a job applicant who has, or whom the employer believes has, blown the whistle. The Employment Rights Act 1996 (NHS Recruitment – Protected Disclosure) Regulations 2017, presently in draft form, will clarify…

Judgement published:
Employee relations

Court of Appeal - May 2017 An employer’s court challenge to statutory union recognition over the appropriateness of the proposed collective bargaining unit failed as it was unable to show the unit would stop it from operating effectively   Lidl did not recognise a trade union for any of its UK employees. The GMB trade union applied to the Central Arbitration Committee (CAC) for statutory recognition to represent 273 warehouse staff at a Lidl regional distribution centre in Bridgend. The…

Judgement published:
Employee relations

The ‘appropriateness’ test applied by the CAC to proposed bargaining units is broadly based, rather than a set of rigid criteria, enabling the committee to apply what the CA called its “expert judgment”. This means that legal challenges to CAC decisions on this matter are unlikely to succeed.