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…

Pay and benefits

High Court - November 2014 In this case, the High Court ruled that a former executive was entitled to over £400,000 in severance pay even though he had received a ‘transaction bonus’ of nearly half a million pounds just a few months earlier. Facts Elliston was Glencore’s company secretary. His contract contained a ‘change of control’ clause which stated that its purpose was to “diminish the inevitable distraction to you” caused by the “personal uncertainties and risk created by … a…

Judgement published:
Employees and workers

Employment Appeal Tribunal - October 2014 Barring a fixed-term employee from benefitting from an income protection plan while he was ill was not discriminatory, as it was shown to be standard practice for the insurance industry to exclude employees whose contracts expired before the 26 qualifying period.   However, although the detrimental treatment was justifiable in this case, employers need to take care over their choice of insurer and should ensure it is clear that benefits are…

Judgement published:
Dispute resolution

Employment Appeal Tribunal - October 2014 This EAT decision clarified the legal test for whether foreign nationals are able to bring unfair dismissal discrimination and whistleblowing claims in a UK employment tribunal.   Here a US employee working in the UK was not entitled to employment and equality rights.   Both the Employment Rights Act 1996 and the Equality Act 2010 do not specify their geographical scope. However the case of Serco v Lawson (2006) did provide guidance on the…

Judgement published:
Dispute resolution

Employment Appeal Tribunal - October 2014 Tribunals can order employees or employers to pay a deposit into the court where it looks like the claim, or the employer’s defence, has little prospect of success. Here the Employment Appeal Tribunal (EAT) had to consider the effect of new rules on deposit orders.   Wright was employed by Nipponkoa as a marine underwriter. He brought tribunal claims for race discrimination and whistleblowing. At a preliminary hearing, it emerged that his claim…

Judgement published:
Dispute resolution

Employment Appeal Tribunal - October 2014 Here the Employment Appeal Tribunal had to decide whether an employment tribunal was wrong to award costs against a claimant and her representative when she brought multiple claims against her employer that were not supported by evidence.   Costs awards at the employment tribunal continue to be relatively rare, but an employer’s appetite for applying for costs may well be heightened in the face of particularly serious and unfounded allegations.…

Judgement published:
Employees and workers

Employment Appeal Tribunal - October 2014 Stage actors’ claim to be workers entitled to minimum wage and holiday pay is remitted to a fresh tribunal.   Employment law distinguishes between three types of worker: those employed under a contract of employment; the self-employed in business on their own account who undertake work for clients; an intermediate class of worker who are self-employed but do not fall within the second category. Here the Employment Appeal Tribunal had to consider…

Employee relations

High Court - September 2014 ‘Sweetheart’ tactics don’t infringe human rights Facts Boots had an existing collective bargaining agreement with the Boots Pharmacists Association (BPA). This was accepted as being a collective bargaining agreement within the definition of the Trade Union and Labour Relations (Consolidation) Act 1992, even though the agreement did not provide for negotiations for pay, hours or holidays. The agreement only recognised the association for collective bargaining…

Judgement published:
Equality

Employment Appeal Tribunal - September 2014 The case is a clear example of the proactive approach expected of employers when it comes to making reasonable adjustments for disabled employees. Here reasonable adjustments could have included finding alternative employment for a depressed, and about to become redundant, employee without making him attend an interview.   Charles was one of several employees at risk of redundancy. He joined a redeployment pool for the purpose of finding an…

Judgement published:
Tupe

Employment Appeal Tribunal - September 2014 This decision demonstrates that a service provision change, as defined by the Transfer of Undertakings (Protection of Employment) Regulations 2006, will not take place – and employees will not transfer - if the contract is short-term or for a different organisation.   Under Tupe, a service provision change (SPC) occurs where a client outsources services to a contractor, appoints a new contractor, or takes the service back in house. Where an SPC…

Judgement published:
Terms and conditions , Pay and benefits

Employment Appeal Tribunal - September 2014 In this case, the EAT had to decide whether a contractual term, or an HR officer's assurances, gave an employee the automatic right to a pay increase if her performance was satisfactory.   Earle was the successful applicant for a job which came with a salary range, within which there were a number of incremental steps from the lowest level (where she started) to the top. Her contract stated: “Progression through the salary range will be…