Summary The Employment Appeal Tribunal (EAT) has ruled that a failure to consider how a disability can be the operative cause of an employee’s misconduct amounted to unfair dismissal. This case concerned a lorry driver who suffered from type 2 diabetes. After a period of driving he returned to the organisations’ premises, parked near a loading bay to the store and felt an extreme need to urinate. Not believing he would make it to the building’s facilities in time, he urinated in the yard.…

Summary The Employment Appeal Tribunal (EAT) has held that not holding a meeting with an employee before making a decision to dismiss for SOSR did not amount to unfair dismissal. In this case, the employee operated as a voluntary reservist with the Royal Marines whilst maintaining his role within an organisation. As he needed additional time off for this commitment he had successfully negotiated a further week of unpaid leave upon acceptance of the role. Under the terms of this arrangement…

Summary The employment tribunal (ET) has ruled that an organisation’s failure to assist in the implementation of reasonable adjustments amounted to a breach of their duty In this case the employee, whose role as a clerical assistant involved a significant amount of keyboard and mouse work, was classed as disabled due to carpal tunnel syndrome and repetitive strain injury. Following the recommendation of an Occupational Health report the employee started to research voice recognition software…

Summary The Employment Appeal Tribunal (EAT) has ruled that an employee was entitled to a written statement of terms despite only working for the organisation for six weeks. This case concerned three European claimants who were employed by a hotel as waiting staff and claimed they were poorly treated. Following a complaint to management about numerous issues, such as shortfalls in their wages, falsification of their wage slips and late payments, they were summarily dismissed. Section 1 of…

Summary The Supreme Court has agreed with the earlier decisions of the Court of Appeal (CA) and the Employment Appeal Tribunal (EAT) that an ill-health retirement pension scheme did not amount to unfavourable treatment despite it being potentially more advantageous to other employees.  This case concerned an employee who suffered from several psychological problems including Tourette’s Syndrome. Due to the progress of his illness, he had reduced his hours and salary to half of his full-time…

Summary The Court of Appeal (CA) has dismissed Uber’s appeal against the employment tribunal (ET) and Employment Appeal Tribunal’s (EAT) decision that drivers engaged by Uber were not self-employed contractors, but fell squarely within the legal definition of ‘worker’ under the Employment Rights Act 1996, the Working Time Regulations 1998 and the National Minimum Wage Act 1998. This case concerns the claim from two London-based Uber drivers that they should be classed as ‘workers’ and not ‘…

Summary Contractual term preventing ill-health capability dismissal whilst receiving PHI benefits implied by EAT. Facts The employee worked as a security agent under a contract entitling him to a long-term disability benefit plan, which expressly stated that the benefits would cease if his employment was terminated. In October 2012, the employee commenced sick leave due to depression and his employment was subsequently outsourced to ICTS under the Tupe Regulations. The employee…

Summary The Employment Appeal Tribunal (EAT) has confirmed that a tendency to steal is not a disability for the purposes of bringing disability discrimination claims. Facts In this case the employee, who worked as an Anti-Social Behaviour Officer for Durham Council, left a Boots store without paying for some items in a bag he was carrying. Although he was arrested and later cautioned for this event following a signed admission statement, he did not disclose that it had taken place to…

Summary The Employment Appeal Tribunal (EAT) has ruled that office cultures are important when considering potentially harassing comments. Facts In this case, the employee suffered from type 1 diabetes, which he believed had led to him being overweight. He also had close ties to the travelling community, although this was not common knowledge within the respondent’s organisation. Following his dismissal for poor performance, the employee brought a number of claims to the employment…

Summary The ECJ has ruled that domestic law does not prohibit the right for employees to be paid in lieu for untaken annual leave at termination of employment. Facts The ECJ was asked to consider two separate cases from Germany that concerned workers who, when their employment was to terminate, had requested an allowance in lieu for annual leave that they not taken. The first worker had not taken any annual leave at all during the last five months of employment whereas the second…

Summary The Employment Appeal Tribunal (EAT) has examined when a disability meets the statutory requirement of having a ‘long-term’ adverse effect. The Equality Act 2010 outlines that a person has a disability if the impairment has a ‘substantial’ and ‘long-term’ adverse effect on their ability to carry out normal day-to-day activities. For a condition to be classed as ‘long-term’, it needs to have been ongoing for at least 12 months or be ‘likely’ to last at least 12 months. Facts…

Summary The employment tribunal (ET) has ruled that it is not enough to have a race discrimination policy – organisations need to make sure they are putting it into practice.   Facts A contact centre for Her Majesty's Revenue and Customs ('HMRC') maintained a zero tolerance policy against race discrimination whilst using cleaning staff through an outside contractor, G4S. A written agreement stated that all G4S staff required the centre’s approval to work there and that G4S were…

Summary Employment tribunal failed to consider employer’s breach of contractual obligation to provide a trial period when determining fairness of redundancy dismissal. Facts In a case which had already been remitted to the employment tribunal twice previously, since 2003 the employee worked as one of six Library Managers responsible for two libraries. In 2011, facing funding cuts, the council decided to close half of their libraries and reduce the number of managers from six to two.…

Summary Appeal against finding that part-time worker was treated less favourably is dismissed and case is remitted to the tribunal to determine whether the treatment was objectively justified. Facts Pinaud was employed as a crew member by British Airways from 1985 on a full time basis but began working a part-time shift pattern in 2005. Full-time workers worked a “6/3 pattern” which provided for six days on and three days off. In total, over the course of a year, a full-time crew…

Summary The EAT have examined whether an investigation which did not include statements from witnesses who had not seen the alleged incident was a reasonable investigation. Facts Pupil A made a report against a long-standing teacher that he had been grabbed, pushed against a wall and then had two fingers pushed against his throat. A second pupil, B, corroborated A’s story and named other potential witnesses as pupils OB, EB and GK. Pupil OB was interviewed but stated that they had not…

Summary The Employment Appeal Tribunal (EAT) has ruled that establishing a causal connection for discrimination arising in consequence of a disability can involve several links  Facts In this case, the employee, who originally worked as a Professor in Edinburgh University’s School of Engineering, was absent from work due to work-related stress and depression. Discussions were held regarding her return to work, where the employee asked to move to a different school within the University…

Summary The Employment Appeal Tribunal (EAT) has highlighted that a Tupe transfer cannot be used as a way of getting rid of ‘problem’ employees. Facts The employee was a cashier at a company which was facing significant financial difficulties. The transferee (the new employer) agreed to purchase the company and would take over the existing employees under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘Tupe’). However, following a meeting with the manager of…

Summary The Court of Appeal have overturned the High Court’s decision that an employer was not vicariously liable for an assault carried out by the organisation’s Managing Director at an impromptu drinking session after the company Christmas party. Employers are liable for acts of discrimination and harassment committed by employees ‘in the course of employment’ under the Equality Act 2010 where there is a sufficiently close connection between the act and the individual’s employment.…

Summary The Employment Appeal Tribunal (EAT) has ruled that the intentions behind a letter of resignation should be clarified to correctly confirm if the employee does intend to leave the company.  Facts In this case, the employee had worked in the records department for her employer for around 10 years. She had recently experienced issues with an employee and had applied for a position in the employer’s radiology department, for which she had received a provisional offer. Internal…

Summary Was the inclusion of an individual who had previously participated in trade union activities on a ‘blacklist’ prohibited? The Employment Relations Act 1990 (Blacklist) Regulations 2010 prohibit the use of a blacklist, and the refusal of employment related to a blacklist, where the motive for the list is to discriminate against an individual based on their trade union membership or activities. Facts The employee, a full-time officer of a union, was contracted to commence work at…

Summary This case highlights the importance of requesting references from previous employers to confirm the information contained in a job application or CV. Facts The claimant was a trained pilot who had worked in First Officer positions. The organisation advertised a job vacancy for a Captain and the claimant applied for this role. In his application, he lied and stated that he had previously carried out work as a Captain. As a method of supporting this lie, the claimant included a…

Summary The Employment Appeal Tribunal (EAT) has ruled that the Employment Tribunal (ET) did not assess all evidence available when evaluating if employers carried out a reasonable investigation into allegations of theft. Facts In this case, an employee had worked at the Anne Arms bar since 2003. During that time, she had received no complaints regarding her conduct nor any indications of wrongful behaviour. In 2015, Mr and Mrs Falzon took over management of the bar and became her…

Summary The employment tribunal (ET) has ruled that a primary school teacher accused of “grooming” a pupil was unfairly dismissed and discriminated against due to their sexual orientation.   Facts In this case, a primary school teacher had received a written warning in 2002 for inappropriate and unprofessional contact with a pupil. At the time it was found that nothing sinister had taken place and that the reason for the employee’s actions was that he was naïve as to appropriate…

Summary This case examined whether an individual can be unfairly dismissed, having been denied the opportunity to postpone their disciplinary hearing, despite the fact that their conduct could potentially justify a dismissal. Facts Ms Smith who had worked for the employer from 1994 to 2016, was found to have sent a series of emails to a customer using insulting and offensive language to describe a colleague. Smith was suspended and invited to a disciplinary hearing, however this initial…

Summary The Employment Tribunal (ET) has ruled that a dismissal is unfair if an employee’s length of service and clean record are not taken into account and if any additional issues leading up to a disciplinary hearing are not discussed at the hearing but are noted as reasons for dismissal.  Facts In this case, two employees, Mr Genus and Mr Kelly, had been employed by a company specialising in property repairs for over 20 years. In February and April 2017 respectively both employees were…

Summary The Court of Appeal (COA) has ruled that the EU Working Time Directive (WTD) does not outline any obligation in the Working Time Regulations 1998 to provide compensation for ‘injury to feelings’ when an employer fails to facilitate rest breaks. Facts and Employment Tribunal The employee, Santos Gomes, made a claim that her employer was not affording her the requisite rest breaks which was having an impact on her health and wellbeing. The Employment Tribunal agreed and awarded her…

Summary The EAT has ruled that an employer's warning for absence levels was discrimination arising from a disability which could not be objectively justified Facts Ms O’Connor, who had worked for the company in a customer support role since 2005, was considered disabled under the Equality Act 2010. The company had made reasonable adjustments to accommodate her condition and despite her regularly exceeding the acceptable levels of absence as laid down in their sickness absence policy, the…

Summary The EAT has ruled that an employer’s belief that an appeal would make no difference in a right to work dismissal was incorrect. The appeal could have provided opportunity for key evidence against the dismissal, not readily available at the time, to be submitted. Facts This case relates to a claimant who was employed as a delivery driver by the employers in October 2009. During his time working for the employers, he was noted as being a competent and well-regarded employee and by…

Summary The EAT has ruled that it was not religious harassment for an employee to ask a Muslim colleague if they were a supporter of Islamic State (IS) because the context of these remarks was not related to the individual’s religion. Facts The incident behind this case relates to an altercation between the claimant Mr Bakkali, a Muslim man of Moroccan origin, and his colleague Mr Cotter in 2015. During a conversation between the two men in early October, Mr Bakkali made reference to a…

Summary The Court of Appeal has ruled that it was disability discrimination to dismiss an employee for gross misconduct because his conduct was a consequence of his disability Facts This case relates to an incident in 2013 where Mr Grosset, an English teacher at the Joseph Rowntree school in York, showed an 18+ rated horror movie to a class of 15 year olds without gaining the appropriate consent. The employee, who suffered from cystic fibrosis, acknowledged that his actions were ill…