Judgement published:
Discipline and grievance

High Court – August 2015 In this case, the High Court decided that the implied term of trust and confidence in an employment contract outweighed an employer’s duty to comply with its own disciplinary procedure. Here the employer’s refusal to allow a doctor to be accompanied by his chosen companion at an investigatory meeting into allegations of misconduct had potentially serious consequences for both his reputation and career.   Employers are obliged to allow their staff to be…

Judgement published:
Equality

Employment Appeal Tribunal – July 2015 Here the EAT decided that type 2 diabetes controlled by diet is not a disability – but the ruling is out of kilter with statutory guidance and should be treated with caution.   For a condition to be a disability under the Equality Act 2010, it has to have a substantial and long-term adverse effect on someone’s ability to carry out day-to-day activities. In assessing this, the effect of treatment on the condition must be discounted. The test is…

Judgement published:
Equality , Tupe

Employment Appeal Tribunal – July 2015 A disabled employee, who had objected to transferring to a new employer on reasonable adjustments grounds, was permitted to bring a discrimination claim against the incoming service provider, even though she had not become its employee. She was a ‘job applicant’ for Equality Act purposes, because the new employer had offered her an alternative to redundancy.   When a Tupe transfer takes place, employees assigned to the transferring business normally…

Judgement published:
Terms and conditions

Court of Appeal – July 2015 Court injunctions have not usually been used when whole teams leave a company to join a competitor in the absence of restrictive covenants. But in this case a springboard injunction was granted to the company suffering the loss preventing the competitor from enticing more employees away from a business.   One of the key tests for a court considering an application for an injunction is whether there is anything to be gained by the applicant if it is granted…

Judgement published:
Tupe

Employment Appeal Tribunal – July 2015 Here the EAT found that Tupe protection extends beyond contractual relationships, and that a sub-contractor’s employees carrying out activities that are transferring are protected, just as employees of the contractor would be, so it is possible for their employment to transfer to the new provider.   Transferor companies often face claims from employees of sub-contractors, who are looking to them to honour Tupe principles which the companies will not…

Judgement published:
Pay and benefits

Northern Ireland Court of Appeal – July 2015 In this test case, the Northern Ireland appeal court decided there was no reason in principle why voluntary overtime should not be included in holiday pay.   Voluntary overtime is generally agreed to be overtime which the employer is not obliged to provide and which the employee can choose to work or reject. Patterson worked 52 hours over a reference period of 13 weeks, an average of four hours overtime a week, giving him additional pay of £60…

Judgement published:
Equality

Court of Appeal – July 2015 In this case, the Court of Appeal held that in indirect discrimination claims, claimants must show that the application of a provision, criterion or practice (PCP) not only causes disadvantage to a group of employees with a protected characteristic of which the claimant is a member, but also why that PCP causes them personal disadvantage.   The Home Office required staff to pass a generic core skills assessment for all jobs at the same level in order to become…

Judgement published:
Pay and benefits

Employment Appeal Tribunal – July 2015 A worker who had been off sick for nearly four years, and who had not taken or requested any holiday, was not entitled to be paid in lieu for all his unused holiday when his employment ended. This case also establishes that 18 months should be the ceiling on carrying over holiday untaken due to sick leave.   Under the Working Time Regulations 1998, workers are required to take their statutory holiday during the holiday year in which it accrued and…

Judgement published:
Equality

Court of Justice of the European Union – July 2015 In a recent case, the European court decided that associative discrimination also applies to indirect discrimination   An electricity company installed meters in a district in a town in Bulgaria at a height of between six and seven metres. In other parts of the same town, meters were placed at a height of 1.70 metres. The company argued the difference in treatment was justified by the increased frequency of tampering with meters and…

Judgement published:
Dispute resolution

High Court – July 2015 In the case, the High Court decided that Afghan interpreters, employed by the British government and working with British forces in Afghanistan, could not bring discrimination claims against the British government.   The Equality Act 2010 does not specify where it applies geographically, but the employment statutory code of practice states that UK discrimination protection occurs when “there is a sufficiently close link between the employment relationship and Great…

Judgement published:
Employee relations

High Court – June 2015 The decision in this case illustrates the extent to which the courts will – or indeed, can - intervene in managing the relationship between an employer and a trade union that had persuaded the Central Arbitration Committee (CAC) to impose a specified method of collective bargaining.   Collective bargaining arrangements agreed between an employer and a union are not normally legally binding. This case involved arrangements ordered by the Central Arbitration…

Judgement published:
Equality

Employment Appeal Tribunal – June 2015 Here the EAT decided that requiring a Muslim nursery worker to wear a jilbab of a practical length, because her over-long garment presented a tripping hazard, was not indirectly discriminatory and, if it was, this was justifiable in the interests of the staff and children’s safety.   Indirect discrimination occurs where a ‘provision, criterion or practice’ (PCP) puts those with a ‘protected characteristic’ under the Equality Act 2010 at a particular…

Judgement published:
Business principles

Advocate General (CJEU) – June 2015 A legal opinion for the European court has said that mobile workers’ time spent travelling to the first and home from their last call of the day is ‘working time’ under the directive.   The case involved Spanish technicians installing and maintaining security equipment in homes and business premises.   They were assigned to the employer’s central office in Madrid, but also to geographical areas in Spain. Their daily travel varied and could sometimes…

Judgement published:
Dispute resolution

Employment Appeal Tribunal - June 2015 A claim six years outside the time limit was allowed to proceed on appeal as the employee’s acute mental illness justified delaying the hearing for that length of time.   Employment tribunal rule 12 allows tribunals to reject all or part of a claim if they consider they have no authority to consider it, or the claim is formulated in such a way that the employer cannot respond to it, or it does not comply with Acas early conciliation requirements…

Judgement published:
Employee relations

Court of Justice of the European Union – May 2015 The European court has decided that the employers’ requirement to consult with employees contained in the collective redundancies directive is triggered by the number of employees being made redundant in a particular work unit, not by the number of redundancies being made across the organisation as a whole.   Under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), employers must collectively consult where they…

Judgement published:
Dispute resolution

Employment Appeals Tribunal – May 2015 Tribunals can award costs orders against claimants who behave unreasonably in either bringing a claim or pursuing it, but these cases show there are no guarantees such orders will be made or paid in full.   Whoever loses the case in a civil court pays the legal costs of the winner but costs orders in a tribunal are the exception rather than the rule, except in the case of “unreasonable conduct” from of one of the parties. This means a party acting “…

Judgement published:
Equality

Court of Appeal – May 2015 The Court of Appeal has decided that in discrimination cases, the focus should be on a decision-taker’s motivation for an alleged discriminatory act, not on those who have supplied information for that decision.   Reynolds, a chief medical officer, had worked for Canada Life since 1968. When her employment ended in 1992 she was put on a consultancy agreement with a company within the group. When she was 73 years old, the group’s most senior UK executive decided…

Judgement published:
Discipline and grievance

Employment Appeal Tribunal – May 2015 This case deals with the issue of whether a disciplinary procedure should be paused when the employee concerned raises a grievance, and demonstrates that employers should make that decision based on the circumstances in each case, as there is no automatic right to halt a disciplinary procedure while the grievance is addressed.   Jinadu, a bus driver, was instructed by her employer to arrange a driving assessment at its training centre because the…

Judgement published:
Business principles

Employment Appeal Tribunal – May 2015 In this case, the Employment Appeal Tribunal decided that a health and safety rep and a shop steward attending meetings during the day, when they were working night shifts, should be considered as ‘working time’.   Under the Working Time Regulations 1998, ‘working time’ is “any period during which the worker is working, at his employer’s disposal and carrying out his activities or duties”. All three elements of the definition must be met.   The two…

Judgement published:
Termination

Employment Appeal Tribunal – May 2015 This case concerns disability discrimination, long-term sickness absence and reasonable adjustments and is a useful reminder that employer obligations regarding these two issues continue during an employee’s notice period.   This case went to the Court of Appeal in 2013 and returned to the Employment Appeal Tribunal in 2015. The claimant broke his back at work in 1995, resulting in several months’ absence. The accident continued to affect his…

Judgement published:
Equality

Employment Appeal Tribunal – May 2015 Anonymity orders are rarely used in tribunals but when they are, competing human rights under the European convention must be considered. In this case the employer appealed against a claimant’s application for his name to be kept secret and was successful.   Tribunal anonymity orders prevent parties in the dispute, witnesses or other individuals mentioned during proceedings, from being identified at any time, whether at the hearing itself, in the…

Employees and workers, Employee relations

Court of Session - April 2015 Application of collective consultation requirements to employees on fixed-term contracts Facts The claimants were employed under fixed-term contracts which they had each agreed would come to an end at a particular date or at the end of a specific project. When their contracts came to an end and were not renewed, their union argued that the employer had failed to carry out collective consultation (for redundancy) according to s188 of the Trade Union and…

Judgement published:
Pay and benefits

Employment Tribunal - April 2015 A tribunal has accepted that words can be added to the UK’s working time regulations to give effect to a European court judgment that holiday pay should include commission that is part of normal pay. Confirmation is still required on whether the reference period for workers who regularly get commission should be 12 weeks.   This case was referred to the Court of Justice of the European Union which decided that holiday pay for workers who earn sales…

Judgement published:
Equality

Employment Appeal Tribunal – April 2015 This case looked at balancing Article 8 (right to respect for private and family life) against the competing Article 10 (right to freedom to receive and impart information) under the European Convention on Human Rights in relation to extending a tribunal restricted reporting order.   Where a tribunal claim involves confidential or salacious details, the parties can apply for a restricted reporting order, although even where an order is granted (and…

Judgement published:
Business principles

Employment Appeal Tribunal – April 2015 This, the first case to use the ‘public interest’ test in the UK’s whistleblowing legislation, confirms that a small group of employees may be enough to satisfy the definition and that whether the company is private or publicly listed is irrelevant.   Workers must have made a “protected disclosure”, showing that one or more of six specified types of wrongdoing (such as failing to comply with a legal obligation or a miscarriage of justice) has taken…

Judgement published:
Discipline and grievance

Employment Appeal Tribunal – April 2015 The stark warning for employers in this case is that appointing an inexperienced decision-maker to preside over a disciplinary procedure could make a resulting dismissal procedurally unfair. In this case the dismissal decision was found to be substantively unfair too.   A hospital consultant had been warned informally about her treatment of colleagues and given a written warning (although not a final written warning) for bullying. Four weeks later…

Judgement published:
Termination

Employment Appeal Tribunal – April 2015 Although the facts of this case are unusual it demonstrates, among other things, circumstances in which a tribunal can reduce a compensatory award to nothing even though it has found a dismissal unfair.   Anderson was employed by Sefton Metropolitan Borough Council at Chesterfield High School, initially as a senior learning mentor, and later as a social inclusion officer. He was elected leader of Liverpool City Council, a neighbouring local…

Judgement published:
Equality

Employment tribunal – April 2015 In this case a zero hours worker received a £19,500 injury to feelings award for sexual harassment, but it was the employer’s poor handling of the situation that led to the award, not the nature of her contract.   The case concerned a waitress working on a zero hours contract in a hotel bar. She raised a grievance with the hotel manager that she had been sexually harassed by the bar manager, who had quizzed her about her sex life, groped her, rubbed up…

Judgement published:
Pay and benefits, Termination

Employment Appeal Tribunal - March 2015 This case had to decide whether a genuine redundancy dismissal amounted to age discrimination because its timing avoided significant pension costs. The EAT also had to decide, if this was discrimination, whether it could be justified.   The claimant was dismissed for redundancy a few days before her 55th birthday; if she had been dismissed after that date she would have been entitled to take her pension immediately. She argued that the timing of…

Judgement published:
Dispute resolution

Employment appeal tribunal – March 2015 The Employment Appeal Tribunal made the significant decision in this case that if a trade union pays the tribunal fees for members bringing an appeal, and does not expect those members to pay it back, no order for reimbursement of those fees can be made against the employer.   If an EAT appeal is successful, generally those making the appeal can recover any fees paid from the respondent if that respondent actively resisted the appeal. Almost…