Summary The Employment Appeal Tribunal (EAT) has ruled that an organisation did not have constructive knowledge of a disability as the employee would have likely continued to conceal her impairment despite any further enquiries into her health. Section 15 of the Equality Act 2010 outlines that is unlawful to treat a disabled person unfavourably because of something arising from, or in consequence of, the disability, such as the need to take a period of disability-related absence. It is,…

Summary The Employment Appeal Tribunal (EAT) has ruled that an employee who covertly recorded a meeting did not automatically break the implied term of mutual trust and confidence. In a contract of employment, there exists an implied term of mutual trust and confidence between the organisation and its employee. This means that if either party conducts themselves in such a way that undermines or destroys the employment relationship, the other party can regard their actions as a fundamental…

Summary The Court of Appeal (CA) has reinforced the notion that the successful appeal of a dismissal means that continuity of employment is preserved, thereby meaning the employee's dismissal is considered to have 'vanished'.   Facts Mr Patel, who worked as a healthcare assistant, was dismissed for gross misconduct in April 2014 for sleeping on duty and falsifying residents’ records, the latter of which he was told would result in him being reported to the care home regulator for…

Summary Ruling confirms that collective agreements cannot be used to reduce minimum holiday pay Facts During 2015, the employee was placed on short-time working for a total period of 26 weeks. Over the course of 2015 and 2016, the employee took 30 days’ annual leave. According to German domestic law, pay for annual leave is calculated using a worker’s average earnings during a 13-week reference period. Within this legislation, there is a provision stating that earning reductions caused by a…

Summary The Employment Appeal Tribunal (EAT) has ruled that a director’s removal, after giving high-profile interviews on his religious opinion, was not religious discrimination. Article 9 of the European Convention on Human Rights (ECHR) provides that everyone has the right to freedom of religion and to manifest this religion. Article 10 outlines that everyone has the right to freedom of expression. The Equality Act 2010 protects against discrimination on the grounds of religion. The Act…

Summary The Employment Appeal Tribunal (EAT) has ruled that the side effects from the treatment of a visual impairment did not need to be considered when assessing the employee’s disability. The Equality Act 2010 outlines that an individual will be disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Generally, an impairment will still be treated as having an adverse effect if…

European Court of Human Rights – June 2019 The European Court of Human Rights (ECHR) has ruled that an organisation relying on evidence provided by the police during a disciplinary procedure did not breach an employee’s right to privacy. Article 8 of the European Convention of Human Rights provides that everyone has the right to respect for their private and family life, their home and their correspondence. It goes on to outline that there shall be no inference by a public authority with the…

The Employment Appeal Tribunal (EAT) has ruled that a disability disclosed during an appeal hearing gave the employer actual or constructive knowledge of a disability.   Section 15 of the Equality Act 2010 outlines that an organisation discriminates against a disabled employee if they treat them unfavourably because of something arising in consequence of their disability, and they cannot show that the treatment is a proportionate means of achieving a legitimate aim. The section goes on to…

Summary In a landmark judgement, the Court of Appeal has ruled that voluntary overtime does need to be taken into account when calculating holiday pay if it is ‘sufficiently regular and settled’.  The Working Time Directive (WTD) is EU legislation that gives all workers in Member States the right to at least four weeks (20 days) paid leave per year for workers who work five days a week. This is adapted into UK law through the Working Time Regulations 1998 (WTR), which also grants an…

Summary The Employment Appeal Tribunal (EAT) has ruled that a one-off act of discrimination does not limit tribunals to making an award in the lower Vento band for injury to feelings compensation. In the case Vento v Chief Constable of West Yorkshire Police, guidelines were given on how an employment tribunal (ET) should determine the amount of money to be awarded for injury to feelings in successful discrimination claims. As a result, the Court of Appeal in Vento set out three bands to be…

Summary The Court of Appeal has ruled that a disabled employee was not discriminated against when his international job posting was blocked after a medical assessment deemed him ‘high risk’. Direct disability discrimination occurs where a person is treated less favourably ‘because of’ their disability compared with others who do not share the protected characteristic but are otherwise in circumstances that are not materially different. Indirect disability discrimination occurs when a…

Summary In a conjoined appeal with Ali v Capita Customer Management, the Court considered whether enhancing maternity pay policies, but not shared parental leave policies, was sex discriminatory. Section 66 of the Equality Act 2010 operates to automatically insert a sex equality clause in contracts of employment which have the effect of inserting corresponding terms into a contract where their terms are less favourable than the terms in place for an employee of the opposite sex. Facts Under…

In a straight-forward decision, the Court of Appeal confirmed that it is not direct sex discrimination to offer enhanced maternity pay but only statutory shared parental pay. Whilst this decision may bring relief to many organisations who offer these types of family friendly leave and can continue to do so lawfully, there are cultural calls for family friendly pay to be equalised to ensure all working parents are not required to make child caring decisions based on financial incentives or…

Summary The Court of Appeal has ruled that a nurse was fairly dismissed on allegations she had engaged in inappropriate discussions with patients about religion. Article 9 of the European Convention on Human Rights (ECHR) provides that everyone has the right to freedom of religion and to manifest this religion. It also explains that this should only be subjected to limitations in the interests of public safety or protection of public order, health, morals or the rights and freedoms or others…

Summary The Employment Appeal Tribunal (EAT) has ruled it was a breach of the implied duty of trust and confidence to serve an ‘informal improvement’ notice without first holding a meeting, as required under the disciplinary procedure. Facts The claimant, a nurse working for the Trust, was asked to switch on incubators in readiness for a procedure the following day. However, she had to leave work early due to a suspected mini-stroke and did not do this. The claimant informed a doctor upon…

Summary The Employment Appeal Tribunal (EAT) has ruled that a dismissal was fair despite further investigations not being held into a late submission of alcohol dependence. Section 98(4) of the Employment Rights Act 1996 (ERA) provides that in order for a dismissal for misconduct to be fair, the organisation needs to clearly outline that they acted reasonably in treating the misconduct as a sufficient reason for dismissal. Section 57A of the ERA also outlines that employees have the right…

Summary The Employment Appeal Tribunal (EAT) has ruled that a person who was otherwise a suitable comparator in a direct discrimination claim was not rendered unsuitable merely because a different decision maker was involved. Section 23 of the Equality Act 2010 instructs that an employee who claims race discrimination will need to show that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs. Facts This…

Summary The Employment Appeal Tribunal (EAT) has ruled that a claim for unfair dismissal was submitted out of time despite being posted before the limitation deadline as the tribunal did not receive it until one day after the deadline. Section 111(2) of the Employment Rights Act (ERA) outlines that, when bringing a claim against an organisation, claimants have a period of three months from their effective date of termination in which to submit this claim to the employment tribunal (ET). It…

Summary The Employment Appeal Tribunal (EAT) has ruled that tribunals will only have the power to remove a judgement from the online register, and that anonymity will only be granted, in very limited circumstances Rule 67 of the Employment Tribunals Rules of Procedure 2013 outlines that tribunal judgements and written reasons should be entered onto the public register subject to certain exceptions. Since February 2017, all judgements on the public register have been published on the…

Summary The Employment Appeal Tribunal (EAT) has ruled in this case that there was no causal connection between an employee’s mistaken belief and her disability in order to prove discrimination arising from a disability, although this may not always be the case. Facts This case concerned a warehouse worker who was classed as disabled for the purposes of the Equality Act 2010 due to osteoarthritis. The employee believed that her condition was worsened in damp weather; a belief supported by…

Summary The Employment Appeal Tribunal (EAT) has outlined that the ‘reason why’ an organisation committed an act must be considered when establishing a claim for pregnancy discrimination. Facts In this case the employee, along with several colleagues, was aware she could be at risk of redundancy. An email was sent to them that confirmed they were being put on an ‘At Risk Register’ and instructed them to fill out a redeployment document. As the employee was on maternity leave at the time and…

Summary The Employment Appeal Tribunal (EAT) has ruled that a complaint of defamation of character could be considered a protected disclosure. Section 43B(1) of the Employment Rights Act 1996 defines a qualifying disclosure as any disclosure of information which, in the reasonable belief of the worker making the disclosure, is in the public interest and tends to show one or more specified types of wrongdoing. Whilst there is no definition of ‘in the public interest’ set out in the…

Summary The Employment Appeal Tribunal (EAT) has ruled protection against unfair dismissal following the assertion of a statutory right requires an allegation of an actual breach. In this case the employee, who has less than two years’ service, was dismissed following a disciplinary procedure that had considered, and upheld, allegations against him of sexual harassment and assault. At the disciplinary meeting, the employee claimed that he had tried to exercise his right to be accompanied but…

Summary The Court of Appeal has ruled that the decision to suspend an employee will not necessarily amount to a breach of implied mutual trust and confidence depending on the facts of each case. Facts The employee was a primary school teacher engaged on a fixed-term contract. Although she had 15 years’ experience teaching children with special needs she had no prior training for children with behavioural difficulties. Allegations were made against the employee that she had used unreasonable…

Summary The Court of Appeal has ruled that shorter breaks can be aggregated to satisfy entitlements to a 20 minute rest break period, overturning the previous decision of the Employment Appeal Tribunal. Under Regulation 12, workers are entitled to an uninterrupted rest break lasting at least 20 minutes if their daily working time is more than six hours. Regulation 21(f) states workers in railway transport roles carrying out activities relating to the continuity and regularity of timetables…

Summary The Court of Appeal has ruled that mistakenly referring to a different termination date than specified in an employment contract will not vary the date if there is no basis for inferring this intention. In this case, the employee joined an insurance broker in 2005 under an ‘Executive Employment Agreement’. This agreement was subsequently varied pursuant to a written addendum in 2012, which outlined that his employment would not expire before 31 December 2016 unless either party chose…

Summary The employment tribunal (ET) has ruled that the dismissal of an 88-year-old employee was unfair and ‘tainted by discrimination’. This case concerned an employee who had operated as a medical secretary under a consultant since 2005. Her duties involved the maintenance of a list of patients waiting for breast cancer and non-urgent surgery and to inform the consultant if their time on it was approaching 52 weeks. In 2015, training was arranged to assist the employee in a new electronic…

Summary The employment tribunal (ET) has ruled that dismissing an apprentice prior to the completion of their apprenticeship was in breach of contract. This case concerned an apprentice who entered into an arrangement with an organisation in Scotland, Express Joinery, under the auspices of the Construction Industry Training Board (CITB). This outlined an apprenticeship with an end date of January 2020. During his time working for Express Joinery the apprentice took several days off for…

Summary The employment tribunal (ET) has ruled that the decision to dismiss one employee and not another when their conduct was ‘similar’ was fair as their actions were not ‘identical’. The claimant in this case had been unhappy because the annual Christmas gift provided to employees was of less value than previous years. A colleague, Mr Minshull, posted a Facebook status criticising this and comparing management to Ronald McDonald. Commenting on the status, the claimant accused his manager…

Summary Court of Appeal upholds decision that retail workers can compare pay terms to distribution workers due to common terms applying at the establishments. Facts Around 30,000 predominately female retail employees have submitted equal pay claims against the organisation, alleging there are not receiving equal pay in comparison to the pay terms afforded to predominantly male distribution employees. As set out within s79(4)(c) of the Equality Act 2010, claimants can rely on…