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…

Judgement published:
Equality

Employment Appeal Tribunal – February 2015 An employer’s knowledge of an employee’s disability triggers the duty to make reasonable adjustments and the employee’s protection against discrimination arising from the disability. When this occurs in time is a critical question. Here the tribunal had to decide whether the employer should have known its employee was disabled when occupational health said she was not.   Employers can be guilty of discrimination where they ought reasonably to…

Judgement published:
Equality

Employment Appeal Tribunal - January 2015 An ex-employee was allowed to pursue her 'caste' discrimination claim, even though caste itself is not a protected characteristic under the equality legislation. The EAT decided that as the concept of race in the legislation includes ethnic origins, it was broad enough to encompass characteristics determined by descent, which could include caste. Facts Tirkey, a nanny, was originally employed in India and then later in the UK by the same…

Judgement published:
Employees and workers

Employment Appeal Tribunal - January 2015 In this case the Employment Appeal Tribunal had to decide on the employment status of a plumber when he claimed unfair dismissal. Written contracts between him and the company indicated he was self-employed, but an employment tribunal decided he as a worker, primarily because he was required to carry out the work personally, and this was confirmed on appeal. Facts Smith worked as a plumber for Pimlico Plumbers from August 2005 to April 2011…

Judgement published:
Discipline and grievance , Termination

Employment Appeal Tribunal – January 2015 Offensive, non-work related remarks contained in tweets were sufficiently public to justify dismissal for gross misconduct, as the claimant concerned knew they could be viewed by his employer's store managers and potentially by members of the public. Facts Laws, a risk and loss prevention investigator for a high street chain, was responsible for approximately 100 of the company’s 300 stores. He set up a personal Twitter account to follow…

Judgement published:
Dispute resolution

Court of Appeal – January 2015 This case demonstrates that the court system can provide an alternative route for an employment complaint which is outside the time limit for bringing a claim in a tribunal.   The legal principle of ‘res judicata’ (meaning ‘a matter already judged’) prevents the parties in a dispute from going to court again with issues that have already been, or could have been, dealt with in earlier proceedings. For example, a tribunal claim for unpaid notice pay which…

Judgement published:
Equality

Employment Appeal Tribunal- January 2015 A surgeon who suffered from depression and anxiety was held not to be substantially impaired enough for the illness to warrant special consideration as it did not affect his ability to carry out day-to-day activities.   A registrar specialising in cardiothoracic surgery was employed under a series of fixed term contracts, the last of which expired in September 2012. When it was not renewed, Saad brought a discrimination claim, contending that his…

Judgement published:
Dispute resolution , Termination

Employment Appeal Tribunal– January 2015 This case provides further guidance on whether employees working abroad can bring claims in a UK employment tribunal under the Employment Rights Act 1996. The tribunal had to decide whether an Australian working in Australia for a British company was an ‘expatriate employee’ or whether the employment relationship had a sufficiently strong link to Great Britain to provide her with employment protection.   Lodge was employed by a British not-for-…

Judgement published:
Termination

Employment Appeal Tribunal – January 2015 Labelling a dismissal as redundancy when it does not meet the statutory definition will not help employers evade an unfair dismissal judgment. In this case two HGV delivery drivers were unfairly dismissed when their overnight HGV parking was withdrawn.   Two drivers lived in Manchester but needed to go to a depot 70 miles away to load up their HGVs. Their contracts said their place of employment was in the depot area. They had been given secure…

Judgement published:
Business principles , Termination

Employment Appeal Tribunal – January 2015 Under the Employment Rights Act 1996, an employee cannot be subjected to detrimental treatment by an employer for blowing the whistle (making a protected disclosure). This case confirms that the correct legal test for assessing whether an employee has suffered detrimental treatment for whistleblowing is whether the disclosure had more than a “trivial influence” on the employer’s actions. Facts Ahmed was offered an alternative post during a…

Judgement published:
Equality , Dispute resolution

Employment Appeal Tribunal - December 2014 This case confirms that when making awards for injury to feelings in sexual harassment cases, tribunals have to consider the effect of the harassment on the victim, not what they themselves think of the behaviour. They must also follow guidelines on how high or low the award should be. Facts Ozog, a waitress brought claims for sexual harassment and sex discrimination. The head waiter had kissed her on the hand, and had subsequently taken…

Judgement published:
Pay and benefits

Employment Appeal Tribunal - December 2014 A commission-only worker, who was unable or unwilling to take holiday because of the loss of income associated with doing so, was not able to claim for lost holiday pay but was entitled to claim for the loss of the benefit of taking holiday.   If annual leave cannot be taken because of sickness, it must be granted at some other time, or paid for on termination of employment. This case raises the possibility that the same principle could be…

Judgement published:
Termination

Employment Appeal Tribunal – December 2014 A tribunal's decision that it was fair to dismiss a mentally ill employee for gross misconduct, after he had admitted to sexual assaults in the workplace, was found to be unsafe on appeal. The tribunal had not considered the employee's blameworthiness for the acts in question and the employer had not looked at possible alternative outcomes. Tribunal Burdett, who suffered from a paranoid schizophrenic illness, was dismissed for gross…

Judgement published:
Terms and conditions

Employment Appeal Tribunal – December 2014 An employee was found to have accepted a variation of her employment contract by implication through continuing to work for a prolonged period without expressly objecting to the change. Facts A senior museum curator, originally employed on civil service terms and conditions, was placed on a lower grade in 2003. Pay protection was discussed but not finalised at the point at which she accepted the new role, and she wrote indicating she…

Judgement published:
Equality

Court of Justice of the European Union - December 2014 This case deals with the controversial issue of whether or not obesity amounts to a disability. The European court decided that it could be a disability where it prevented a worker participating in professional life 'on an equal basis with others'. Facts Kaltoft had worked for a children’s nursery for 15 years and was dismissed on the grounds of redundancy. He reportedly weighed 25 stone and satisfied the World Health…

Judgement published:
Termination

Employment Appeal Tribunal - November 2014 The onus is on employers to prove claimants’ compensation should be reduced, according to the EAT in a case which confirms the ground rules for applying the Polkey rules in unfair dismissal cases.   A so-called Polkey reduction in an employee’s compensation for unfair dismissal can have the effect of reducing a sizeable compensation claim to nothing and is, therefore, a significant part of any tribunal decision.   On the face of it, the…

Judgement published:
Pay and benefits

Employment Appeal Tribunal – November 2014 In a decision in line with previous cases on whether variable pay should be included in holiday pay, the EAT decided in this case that non-guaranteed overtime needs to be included when calculating holiday pay, but a gap of more than three months will break a series of unlawful underpayments of holiday pay.   The principles which the EAT set out in its judgment on three conjoined cases - Bear Scotland v Fulton, Hertel v Woods, and Amec v Law is…

Judgement published:
Equality

Employment Appeal Tribunal - November 2014 This case shows how unpredictable disability discrimination cases can be, as the tribunal found the claimant disabled when the expert medical evidence indicated otherwise, and the claimant herself conceded that she was not. Facts Conyers had been employed by the Department for Work and Pensions for nearly 35 years. She had had two substantial periods of absence, one lasting from 14 November 2007 to 11 April 2008; the second from 16 March…

Judgement published:
Equality

Employment Appeal Tribunal – November 2014 The tribunal in this case used its own web research as evidence that the claimant was disabled, causing the case to be remitted to a fresh tribunal on appeal. Employers should avoid falling in to the same trap when assessing disability. Facts The preliminary issue was whether Sanders’ symptoms of depression meant she was disabled for the purposes of the Equality Act 2010. A psychiatric expert's report concluded that her depression was mild…

Judgement published:
Family friendly and flexible working rights , Termination

Employment Appeal Tribunal - November 2014 This case illustrates how the right to a suitable alternative vacancy applies when a redundancy situation arises during a restructuring exercise. The EAT analysed the right of women on maternity leave to be offered a ‘suitable available vacancy’ (a job that is both suitable and available) in a redundancy situation. Here the failure to do this amounted to unfair dismissal but was not discrimination. Facts The employer in the case decided…

Judgement published:
Equality , Tupe

Employment Appeal Tribunal - November 2014 Here an employer's liability for sexual harassment transferred under Tupe but, because the harassment had been a continuing act, the time limit for bringing a claim did not start from the victim's transfer date to the company, but from the end of the conduct complained of. This meant the employer was liable for the acts of the harasser, even though there was no employment relationship between them. Facts Vernon was employed by Port Vale…