Judgement published:
Pay and benefits

The 2014 EAT interpretation of the law limited the scope for workers to make substantial retrospective claims for underpaid holiday. This has now been confirmed by the Scottish EAT which said that if the claimants had wanted to challenge the approach taken to time limits on a series of deductions, they should have appealed that point to the Court of Appeal.   When the government introduced the Deduction from Wages (Limitation) Regulations 2014, the amount of back pay that employees could…

Judgement published:
Pay and benefits

Employment Appeal Tribunal Scotland – May 2017 The Scottish Employment Appeal Tribunal has confirmed that breaks of more than three months in a series of holiday pay underpayments breaks the series, thereby limiting the scope for back pay   When Bear Scotland v Fulton was heard in the Employment Appeal Tribunal (EAT) in 2014, the EAT decided that ‘non-guaranteed’ overtime that is part of ‘normal remuneration’ should be included in holiday pay. But the EAT limited the scope for employees…

Judgement published:
Equality

Employment Appeal Tribunal - May 2017 An applicant with Asperger’s syndrome was able to show that a multiple choice psychometric test in a recruitment process disadvantaged her because of her disability, and that the employer’s refusal to allow her to answer the questions in an alternative format was a failure to make reasonable adjustments   Brookes, a lawyer wishing to join the Government legal service, was required to sit a multiple choice questionnaire at a preliminary stage of the…

Judgement published:
Equality

Cases involving indirect disability discrimination are unusual - most claims are concerned with discrimination arising from disability and failure to make reasonable adjustments. The outcome suggests employers need to be flexible in their assessment methods for disabled applicants and accept that in some cases the format will need to be altered.   Employers who insist that all job candidates undertake a multiple choice test may be vulnerable to disability claims following this judgment. Each…

Judgement published:
Business principles

Employment Appeal Tribunal – April 2017 In this case, a ‘sleep-in’ night worker was found to be entitled to national minimum wage and not just an allowance for the duty This case was heard alongside two others, also dealing with whether sleeping during on-call time counted as working time for the purposes of the national minimum wage requirements. Roberts was an hourly paid care worker for an agency providing a ‘supported living service’ paid for by local authorities or by the clients…

Judgement published:
Business principles

The issue of calculating whether time spent sleeping at work is working time, and eligible for the minimum wage, or on-call time, and outside the calculation, continues to trouble employers in those sectors where it is part of normal duties. This decision does not give a definitive answer, but it does list some factors which potentially might be relevant in deciding whether ‘sleeping-in’ is working time.   The EAT said that tribunals and employers should consider: What sleep-in workers were…

Judgement published:
Discipline and grievance

Court of Appeal – April 2017 A manager accused of insubordination was fairly dismissed for gross misconduct as the appeals process, on which the dismissal decision was based, remedied faults in the original disciplinary procedure. The claimant in this case had been the principal pharmacist at Wandsworth Prison since 2002. Her employer was St George’s Hospital. Problems arose when the pharmacist strongly disapproved of a plan to move from nurse-led to pharmacist-led pharmacy services in…

Judgement published:
Discipline and grievance

This case confirms that errors of procedure in an employer’s disciplinary process can sometimes be remedied on appeal, as tribunals have to assess the fairness of the procedure as a whole. But it is worth noting that here the appeals procedure was effectively a full re-hearing of the case.   One criticism of the appeals procedure by the claimant was that the appeals panel included a subordinate of the manager who had conducted the disciplinary hearing, making that person not sufficiently…

Judgement published:
Tupe

Employment Appeal Tribunal – April 2017 A transferee contractor was unable to use Tupe information rules to claim compensation for paying transferred staff a Christmas bonus which it believed was non-contractual. This case concerned a changeover in contractor providing print finishing services to auctioneers Sotheby’s. The move was subject to the Tupe rules covering service provision changes. The outgoing contractor (Spire) had stated that staff received a non-contractual Christmas bonus…

Judgement published:
Tupe

This case demonstrates the limitations of the Tupe employee liability information requirements. Transferors simply have to provide transferees with the identities and ages of those transferring, their ‘statement of particulars’ information, any collective agreements they are covered by, any disciplinary action taken against them or grievances raised by them in the preceding two years, and any actual or potential claims they may have had against the transferor in the preceding two years.   A…

Judgement published:
Equality

Supreme Court – April 2017 This Supreme Court judgment overturns a previous Court of Appeal decision in the case, which ruled that claimants must show why a particular policy or practice was discriminatory in indirect discrimination cases. It restores the approach that claimants instead need to show a measure is discriminatory towards a group with a protected characteristic and to the claimant within it.   The case Essop v Home Office concerned a requirement for staff to pass a ‘core…

Judgement published:
Equality

This decision effectively restores previous legal approaches to indirect discrimination. The judgment includes a comment from the court emphasising that employers should monitor how their policies and practices affect various groups and, where they do have a disparate impact on particular groups, try to modify the PCP to remove the discriminatory effect.   However, the court also pointed out that there was no stigma attached to employers seeking to justify an indirectly discriminatory PCP,…

Judgement published:
Termination

This decision does not follow the usual approach, whereby notice is given once the communication has arrived at its destination, regardless of whether it is read at that point or not. Here the Court of Appeal followed the Supreme Court’s ruling in Gysda Cyf v Barratt [2010], where the three-month time limit for claiming unfair dismissal was considered to run from when the claimant read the letter, not when she received it.   Some employment contracts contain clauses specifying that a…

Judgement published:
Termination

Court of Appeal – March 2017 The appeal court has decided that a dismissal notice only became effective in terminating an employment contract on the date it was read by the employee, not the date when the communication was received.   In this case, that approach had a significant impact on the claimant’s pension entitlement. This case concerned an associate director in the provision of community services for two NHS primary care trusts. Following a merger with the local NHS foundation…

Judgement published:
Equality , Termination

Court of Appeal - March 2017 Dismissing an employee who had been absent on sick leave for over a year with mental health issues following a workplace assault was unfair and disability discrimination.   A school teacher who had been assaulted by a pupil felt unsafe and unsupported following her return to work and became unwell with numerous mental health issues, including post-traumatic stress disorder. She was absent on sick leave for over a year, during which the employer tried to meet…

Judgement published:
Equality , Termination

An organisation has to decide how long it is reasonable to wait before dismissing an employee who has been absent long-term through sickness. Employers should take steps to obtain proper medical advice, with the employee’s consent, including a prognosis, and should take the employee’s own views into account.   Exactly how much longer the employer in this case should have waited is unclear, but no organisation should ignore new and positive information regarding an employee’s fitness for work…

Judgement published:
Equality , Termination

Court of Appeal - March 2017 Dismissing an employee who had been absent on sick leave for over a year with mental health issues following a workplace assault was unfair and disability discrimination.   A school teacher who had been assaulted by a pupil felt unsafe and unsupported following her return to work and became unwell with numerous mental health issues, including post-traumatic stress disorder. She was absent on sick leave for over a year, during which the employer tried to meet…

Judgement published:
Equality , Termination

An organisation has to decide how long it is reasonable to wait before dismissing an employee who has been absent long-term through sickness. Employers should take steps to obtain proper medical advice, with the employee’s consent, including a prognosis, and should take the employee’s own views into account.   Exactly how much longer the employer in this case should have waited is unclear, but no organisation should ignore new and positive information regarding an employee’s fitness for work…

Judgement published:
Equality

Court of Justice of the European Union March 2017 In this judgment, the European court ruled that banning all religious dress at work is not direct discrimination, but may constitute indirect discrimination which could be justified if there was a legitimate reason behind it.   This CJEU ruling concerned a Belgian case, Achbita v G4S, and a French case, Bougnaoui v Micropole.   Achbita worked as a receptionist for G4S Secure Solutions. The company’s employee code of conduct banned the…

Judgement published:
Equality

Employers should treat these decisions with caution. When the cases were considered by different Advocates General of the CJEU, they reached different conclusions as to whether dress codes were lawful or not. In Achbita, the AG thought a neutral dress code was not discriminatory. In Bougnaoui, the AG thought the employer’s approach to dress might be legitimate, because it was in the interests of the company to pursue it, but it was not proportionate and was, therefore, discriminatory.  …

Judgement published:
Employee relations

Court of Appeal February 2017 This case confirms that a trade union cannot seek statutory recognition when another trade union is already recognised by an employer, and that current recognition legislation does not breach European freedom of association rights.   The two unions involved in this case were the Pharmacists’ Defence Association (PDA - an independent trade union within the meaning of the legislation) and Boots Pharmacists Association. The PDA was trying to gain recognition by…

Judgement published:
Employee relations

This case confirms that a collective agreement that falls within the definition of the statutory recognition legislation will prevent another union from seeking recognition through that route, even if the agreement it is trying to displace is a ‘sweetheart deal’.   In practice, the route for de-recogntion is not straightforward. It requires an application from an employee within the bargaining unit, showing at least 10 per cent in the unit already in favour, and that a majority would be…

Judgement published:
Equality

Employment Appeal Tribunal February 2017 Here an employer was found to have failed to make reasonable adjustments when it compressed the working hours of an employee with dyslexia, at her request, but did not reduce her workload.   Kuranchie joined the Home Office in 2006. She was dyspraxic (a co-ordination disorder) and dyslexic (a condition affecting reading, writing and spelling). In 2013 she told her manager that her disability was leading her to work long hours in order to get…

Judgement published:
Equality

This case is a reminder that it’s not employees’ responsibility to suggest appropriate adjustments for their disability. The duty to make reasonable adjustments rests with the employer, and they need to adopt a proactive approach and decide whether a suggested adjustment will actually have the effect of removing or reducing the disadvantage.   Tribunals have to decide whether an adjustment would be reasonable in all the circumstances of a case, including whether it helps reduce the employee’s…

Judgement published:
Pay and benefits, Equality

Employment Appeal Tribunal February 2017 Here the EAT decided that the purpose of an employee’s request for a five-week holiday in Sardinia was to visit his family, rather than to attend religious festivals, and so refusing it was not discriminatory.   Gareddu, an engineer, had worked for London Underground for over 25 years. He was entitled to 38 days’ holiday a year, and between 2009 and 2013 had been allowed to take the whole of August off (five weeks) in order to visit his family…

Judgement published:
Pay and benefits, Equality

Although the EAT found that this request for an extended period of leave was not a mandatory requirement of the claimant’s religion, and so not discriminatory, refusing a request for extended leave from a practising Muslim in order to perform the Hajj could be.   Each case turns on its facts, and employers should always consider whether any policy disadvantages certain groups of employees because of their religion or because of another protected characteristic, and see whether the policy can…

Judgement published:
Pay and benefits, Equality

Employment Appeal Tribunal February 2017 Here the EAT decided that the purpose of an employee’s request for a five-week holiday in Sardinia was to visit his family, rather than to attend religious festivals, and so refusing it was not discriminatory.   Gareddu, an engineer, had worked for London Underground for over 25 years. He was entitled to 38 days’ holiday a year, and between 2009 and 2013 had been allowed to take the whole of August off (five weeks) in order to visit his family…

Judgement published:
Pay and benefits, Equality

Although the EAT found that this request for an extended period of leave was not a mandatory requirement of the claimant’s religion, and so not discriminatory, refusing a request for extended leave from a practising Muslim in order to perform the Hajj could be.   Each case turns on its facts, and employers should always consider whether any policy disadvantages certain groups of employees because of their religion or because of another protected characteristic, and see whether the policy can…

Judgement published:
Employees and workers

Court of Appeal - February 2017 The Court of Appeal, in the latest ‘gig economy’ case, has confirmed the ruling of the Employment Appeal Tribunal that a plumber whom the company claimed was self-employed, was actually a worker, partly because he had to perform the work personally and was not allowed to provide a substitute.   The Court of Appeal, in the latest ‘gig economy’ case, has confirmed the ruling of the Employment Appeal Tribunal that a plumber whom the company claimed was self-…

Judgement published:
Employees and workers

This judgment is consistent with recent case law on employment status issues but is unlikely to be the last word on the matter. Pimlico Plumbers has said that it is considering an appeal to the Supreme Court on the case.   In the meantime, organisations should look carefully at any staff treated as self-employed, and evaluate any risks that might arise from a tribunal claim that the staff member is actually a worker or employee in employment law terms. While tribunals will look at written…