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…

Judgement published:
Terms and conditions

High Court – March 2015 A senior employee of a company was found to have breached his contract by investing in a potential competitor being set up by his sons.   Every employment contract contains the implied term that the employee will serve their employer with good faith and fidelity. This term may extend beyond the termination of the employment contract if the employee holds a position of particular responsibility or seniority. Company directors, for example, have more onerous duties…

Judgement published:
Termination

High Court – March 2015 This case demonstrates the important principle that an employer can defend a wrongful dismissal damages claim on the basis of the employee's gross misconduct, even if the employer was unaware of the misconduct at the time of the employee’s dismissal.   Wrongful dismissal occurs where the employer breaches a term of the employment contract. Here a claim was based on the employee receiving an inadequate notice period. Facts Williams, a technical director for…

Judgement published:
Equality

Employment Appeal Tribunal – March 2015 Here the EAT had to consider whether the claimant had been subjected to harassment related to his political beliefs by the trade union he worked for, and set out how the issues in a political belief case should be analysed.   Henderson was employed as a regional organising officer by the GMB trade union. He was dismissed as a result of various actions on his part that were found to constitute gross misconduct and which led to his employer…

Tupe

Court of Session - February 2015 When does an ETO reason apply? Facts Morison Bishop Solicitors had offices in Glasgow and Edinburgh. Mr Hynd was one of two corporate lawyers working in the Glasgow office. It was decided to dissolve the Morison Bishop partnership, with the Glasgow partners establishing a new firm, Bishops, and the Edinburgh partners establishing a new firm, Morisons.   Bishops did not intend to focus on corporate law, and hence had a reduced need for corporate lawyers…

Judgement published:
Termination

Employment Appeal Tribunal - February 2015 Tribunals must consider all an employer’s reasons when deciding whether a dismissal is unfair, and must follow a particular approach where an employer relies on a number of distinct grounds for a dismissal. This case shows employers need to be clear on their evidence for every incident where the dismissal is for misconduct.   Robinson, a registered mental health nurse working with war veterans, was dismissed for three misconduct matters: a one-…

Judgement published:
Equality

Employment Appeal Tribunal – February 2015 This case shows the difficulties an employer may face where a former employee, with whom there have been disputes in the past, applies for a new job. Employers need to document decisions carefully to avoid claims. Facts Das was employed as a specialist doctor by a health board from 2000 to 2009. During this time, he made a protected disclosure (blew the whistle), raised a race discrimination grievance and was unsuccessful in his…

Judgement published:
Employee relations

Advocate General (CJEU) – February 2015 Employers must inform and consult collectively with employees where they propose to make 20 or more employees redundant at one establishment within a period of 90 days or fewer. Here the European advocate general produced a legal opinion on the meaning of ‘establishment’. This may not necessarily be followed by the Court of Justice of the European Union when the case is actually heard. Tribunal Woolworths went into administration in November…

Judgement published:
Equality

European Court of Human Rights – February 2015 In this Latvian case, a majority ruling by the European Court of Human Rights decided a dismissal for sending emails criticising management was an unjustified interference with the employee’s right to freedom of expression. The ruling indicates that the European convention provides an opportunity for whistleblowing claims for employees in these circumstance.   A Latvian university professor was made aware that a proposal to merge departments…

Judgement published:
Discipline and grievance

Employment Tribunal – February 2015 This case, reportedly the first on ‘vaping’, looked at whether it was gross misconduct for a catering assistant to use an e-cigarette on school premises in full view of pupils. The employer’s policy only banned the smoking of conventional cigarettes. The tribunal had to decide whether the employer’s disciplinary action was fair.   There is a statutory prohibition on smoking in public places, including all offices and work spaces (Health Act 2006). E-…

Judgement published:
Terms and conditions

Employment Appeal Tribunal – February 2015 Employers can change terms post-appointment with careful contract drafting but in this case the EAT decided that the letter of appointment did not give the employer the right subsequently to vary the employment terms unilaterally.   Where changes are made to employment contracts, employees must be given a written statement containing particulars of the change (Employment Rights Act 1996). If an employer fails to provide this statement, or…

Judgement published:
Equality

Employment Appeal Tribunal - February 2015 A bonus scheme linked to attendance discriminated against employees who had a disability. The EAT then had to consider whether the discriminatory difference in treatment could be justified by the employer.   Under the Equality Act 2010, discrimination occurs where a disabled person is treated unfavourably not because of the disability itself but because of something arising from it, such as the need to take a period of disability-related absence…