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ET Fees Refund Scheme

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Have you booked a place on HR Secrets?  If not, scroll down... The pilot scheme for ET Fees Refunds has now finished, and the Refund Scheme has opened to everybody to apply for a refund if they paid fees in respect of a tribunal claim (or appeal)...

Failure to Evidence Right to Work does not mean employment is a contravention of statute

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Can dismissing an employee who isn't subject to immigration control, but can't provide documentary proof, be fair under s98(2)(d)  Employment Rights Act , for contravening a restriction imposed by an enactment? No, held the EAT in  Baker v...

Newsflash: Uber Decision in the EAT

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The Employment Appeal Tribunal has just handed down its decision in the Uber decision, upholding the  employment tribunal's ruling  that Uber drivers are 'workers' and thus qualify for workers' rights. More to follow......

Working Time: Workers can work 12 consecutive days without a Weekly Rest Break

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Does the  EU Working Time Directive  allow for weekly rest for a worker of 24 hours to be given at any point in a 14-day period? Yes, held the European Court of Justice in  Maio Marques da Rosa v Varzim Sol . The case arose from a redundant...

Worker Status: Uber Drivers are 'Workers'

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Did the tribunal disregard the basic principles of agency law when finding that Uber drivers were workers? No, held the EAT in  Uber BV v Aslam . The EAT agreed with the tribunal that when the Uber app was switched on, Uber drivers were workers for the...

Pensions: Part Time Workers & Comparators

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Was it an error of law for a tribunal to adopt 'wholesale' the Respondent's submissions in its judgment in this part-time pension case? No, held the EAT in  Dr Parker v MDU Services Ltd. The EAT held the "degree of copying and...

Employment Tribunal can hear discrimination complaints by a doctor against the GMC

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Can employment tribunals hear discrimination claims against qualification bodies such as the GMC? Yes, held the Supreme Court in  Michalak v General Medical Council . Dr Michalak was found to have been unfairly dismissed by the NHS Trust that had...

Failure to conduct Risk Assessment for Breastfeeding Mother

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Is a failure to conduct an appropriate risk assessment for a breastfeeding employee sex discrimination? Yes, held the CJEU in  Otero Ramos v Servicio Galego de Saude. The Claimant was a nurse working in a hospital's accident and emergency unit....

Mental Health At Work

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An independent review on how employers can better support the mental health of employees, including those with mental health problems or poor well-being, has been published today. The Stevenson/Farmer review,  Thriving At Work , contains 40...

Police can bring discrimination claims if they are dismissed by a police misconduct panel

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Can a police officer bring a claim against a police misconduct panel for discriminating against her? Yes, held the Supreme Court in  P v Metropolitan Police. The Claimant, a serving Police Officer, suffered post-traumatic stress disorder (PTSD) as a...

Discrimination: The 'Innocent' Discriminator

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If another person influences a decision-maker in a discriminatory way, can that person be considered a joint decision-maker? Yes, held the EAT in  Metropolitan Police v Denby . The Claimant was a male police officer. The Deputy Assistant Commissioner...

Victimisation: Knowledge of Protected Disclosure

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Is it a whistleblowing dismissal if the person who made the decision to dismiss was ignorant of the protected disclosure, and was deliberately misled by the employee's line manager to believe the reason was poor performance? No, held the Court of Appeal...

Employment Tribunals Fees Refund Scheme

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The government has announced its  fees refund scheme  today. Full details are  here. In short, all fees will be repaid along with interest of 0.5%. Applicants should be contacted directly in due course, but can pre-register their claims by...

Diplomatic Immunity from Employment Claims

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Does an embassy employee have diplomatic immunity in respect of employment claims from his domestic staff? No, held the Supreme Court in  Reyes v Al-Malki. Mr and Mrs Al-Malki employed Ms Reyes as a member of domestic staff at their London residence....

Height Requirement for Police is Indirectly Discriminatory against Women

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Is the Greek government's regulation imposing the same minimum height requirement to join the police of 170 cm for both men and women unjustifiable indirect discrimination? Yes, is the long and short of it, held the CJEU in  Ypourgos Ethnikis...

State Immunity

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Can sections 4(2)(b) and 16(1)(a) of the  State Immunity Act 1978 protect embassies from Employment Tribunal claims brought by domestic staff in the UK? No, held the Supreme Court in its unanimous judgment in  Benkharbouche v Secretary of...

New leave allowance for grieving parents

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A Bill has been published today which will entitle parents who lose a child under the age of 18 to two weeks' paid leave. Currently, whilst employers are expected to be understanding and flexible, there is no legal obligation to allow parents paid time...

Discrimination: Gender Segregation

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Does the segregation of boys and girls at a co-ed school amount to direct discrimination? Yes held the Court of Appeal in  HMCI v. The Interim Executive Board of Al-Hijrah School. This case concerns a Muslim faith school which educates boys and...

Never leave allowance for grieving parents

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A Bill has been published today which will entitle parents who lose a child under the age of 18 to two weeks' paid leave. Currently, whilst employers are expected to be understanding and flexible, there is no legal obligation to allow parents paid time...

New Acas Guides on Mental Health

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Today is World Mental Health day. This year's theme is mental health in the workplace. Acas have published a new guidance booklet on  Promoting Positive Mental Health in the Workplace. They have also published two smaller online guides:- ...

Expiry of Fixed Term Contract and Amendment of ET1

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Is it open to a Claimant to apply to add a claim of unfair dismissal via the agenda she prepares for a Preliminary Hearing on case management? Yes, is the unsurprising but abbreviated answer of the EAT in  Ministry of Defence v Dixon .  HHJ...

Modern Slavery

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As more and more companies are complying with modern slavery requirements - either because they have to publish a modern slavery statement or their customers are demanding they produce a statement voluntarily - the government has  updated its guidance...

Unfair Dismissal: Reasonable Investigations

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Does the inclusion of incidents in an investigatory report which did not result in disciplinary action render a dismissal unfair? Not usually, held Lady Wise in  NHS 24 v Pillar . P was a Nurse Practitioner employed to triage patient calls. In 2013...

Miscellaneous Update

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An assortment of employment law miscellanea… 1. The ‘gay cake’ appeal to the Supreme Court,  Lee v Ashers Bakery , has had its hearing pushed back from this month to May 2018. 2. Two new reports on flexible work have been issued,...

Worker Status

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Most readers will be aware that yesterday an employment tribunal ruled that Addison Lee drivers are workers, not self-employed. The  judgment  is here. Meanwhile, Uber's appeal against the decision that its drivers are workers begins tomorrow...

Changes to how the Insolvency Service Calculates Holiday Pay

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The Insolvency Service pays holiday pay (along with notice pay and redundancy pay, all subject to various caps) to employees whose employers are insolvent. It has announced that it will be changing the way it calculates holiday pay to include...

CJEU: Venue for contractual disputes by air crew

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Is the nomination of a "home base" for air crew the deciding factor in establishing the place of habitual work for jurisdiction purposes? No, held the CJEU in the joined cases of  Nogueira andOrs v Crewlink and Osacar v Ryanair. ...

Acas Early Conciliation

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Does the rule requiring a separate early conciliation form for each respondent to a claim mean that the early conciliation certificate is invalid if has been issued notwithstanding a breach of that rule? No, held the EAT in  De Mota v (1) ADR Network...

AG Opinion: Collective Redundancies May not Justify Dismissal of Pregnant Worker

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Under European law, is a collective redundancy an 'exceptional case' permitting the dismissal of a pregnant worker? Not always - is the opinion of Advocate-General Sharpton, in  Guisado v Bankia SA  - there must be no plausible...

Employment Tribunal Fees

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  Employment Tribunal Fees I rarely report employment tribunal decisions, but fees are so 'current' at the moment, I thought I'd report some recent cases of interest. 1. In  A v B , Employment Judge Brain at the Sheffield Tribunal...

Presidential Guidance on Making A Statutory Appeal

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The Employment Tribunal Presidents for England & Wales and Scotland have issued a  Joint Presidential Guidance on Making Statutory Appeals. It attaches, as appendices, model (but non-compulsory) appeal forms to use when invoking some of the...

Employment Tribunal Fees - House of Commons Questions

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Yesterday in Parliament, the Minister of State for Courts & Justice, Dominic Raab, answered various questions on employment tribunal fees. His tone was apologetic towards those who had been prevented from bringing claims and, most importantly, there was...

Monitoring workers' emails

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Remember the 2016 ECHR decision in  Barbulescu v Romania , which said that a Romanian employer acted lawfully when it monitored an employee's Yahoo messenger account? Something unusual has happened.  There has been an appeal from the Chamber...

Acas guidance on supporting parents with ill or premature babies

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New advice has been  published today  to assist employers in supporting staff who have given birth to premature or ill babies. Acas’ advice for employers includes: • being compassionate and sensitive in all communication; • being...

New 'Vento' bands following consultation

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The Presidents of the Employment Tribunal in England & Wales, and Scotland have released a  Joint Response  to the  Vento Bands Consultation. The full rationale for the response is set out in the document, but the upshot is the new bands...

Asda Equal Pay Claims: Comparability

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The EAT has ruled in  Asda S tores Ltd v Mrs S Bierley and others that claimants who work in Asda’s retail stores can compare themselves with higher paid men who work in distribution centres. Mr Justice Kerr decided that:   Article...

Deposit Orders

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Can an employment tribunal make a Deposit Order merely because the Claimant's case is unclear? No, held the EAT in  Tree v South East Coastal Services Ambulance NHS Trust. The Claimant brought claims of direct and disdisability discrimination....

Supporting Trans Employees in the Workplace

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Acas has published a new  research paper  on supporting trans and intersex employees in the workplace (the paper moves away from the nomenclature 'transsexual'). Over some 50 pages (plus case studies), the paper covers the legal and policy...

Tribunal Fees - Stay on Cases has been removed

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Earlier this month, the Presidents of the Employment Tribunals issued a  Case Management Order  staying all claims and applications arising from the  Unison  decision. Today, in a further Case Management Order, that stay has been lifted....

Employment Tribunal Fees - Refunds

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I have been asked to distribute the following information on behalf of the Employment Tribunals (England & Wales): "As you are probably aware, in advance of the Supreme Court’s judgment in the Unison case an undertaking was given to the Court...

Suspension is not a neutral act

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Did suspension of a teacher amount to a breach of the implied term of mutual trust and confidence? Yes, held the High Court in  Agoreyo v London Borough of Lambeth . In this case, a teacher was suspended because of the force she used with two children....

Tribunal Procedure: Witness Orders

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Should an employment tribunal copy a witness order to the other side (tribunal practice is not to do so)? Yes, held the EAT (in almost all circumstances) in  Jones v Secretary of State for Business, Innovation and Skills. The Claimant was not legally...

Discrimination: Burden of Proof

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By s.136(2)  Equality Act 2010  there is a burden on the claimant to prove facts before the burden 'shifts' to the respondent. Right? Wrong , held the EAT in  Efobi v Royal Mail Group Ltd. The claimant was a postman. He applied...

New: Principles for Calculating Pension Loss

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The fourth edition of the tribunal’s  Guidance on Compensating Pension Loss  has just been released, following last year’s consultation exercise.  It was last revised over ten years ago, in 2004.  The new document is to be...

Tribunal Fees - Presidential Case Management Order

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The Presidents of the Employment Tribunals in England and Scotland have issued a Case Management Order arising from the Supreme Court's decision in the  Unison  case.  (Note: I have not seen a copy of the Scotland version, although I...

Litigation Friends in the Tribunal

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Can a rule be implied into tribunal rules to provide for the appointment of a litigation friend? Yes, held the Employment Appeal Tribunal in  Jhuti v Royal Mail. When proceedings concern a vulnerable individual it is imperative to ensure they can...

Vicarious Liability

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Is a company vicariously liable for sexual assaults committed by a doctor engaged to carry out medical examinations for prospective applicants? Yes, in this case, held the High Court in  various Claimants v Barclays Bank plc. This case involved 126...

Religious Discrimination

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Is it direct or indirect religious discrimination to discipline an employee who condemns homosexuality and speaks of repentance during a Prison church service? No, held the EAT in  Trayhorn v The Secretary of State for Justice. The Claimant, a...

Holiday Pay: Voluntary Overtime

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Is pay for voluntary overtime, normally worked, 'normal remuneration' for the purposes of calculating holiday pay? Yes, held the EAT in Dudley Metropolitan Borough Council v Willetts. The Respondents were Quick Response Operatives working for the...

Reductions to Basic and Compensatory Awards

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Was it perverse to reduce a compensatory award by 35% but not also reduce the basic award? Yes, held the Employment Appeal Tribunal in University of Sunderland v Drossou. The Claimant was a Senior Lecturer and Programme Leader at the Respondent...

Employment Tribunal Fees - Supreme Court Decision

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By now, you probably know about this morning's  Supreme Court has allowed the appeal by Unison , holding that the  Employment Tribunals and the Employment Appeal Tribunals Fees Order 2013 (which led to a 70% reduction in claims) is unlawful and...

MASSIVE APOLOGY: Supreme Court on Tribunal Fees

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I had two paragraphs ready to send as the judgment was announced, and accidently hit 'send' before deleting one of them.  The correct result is  the Supreme Court has allowed the appeal by Unison against the legality of the current system...

Update: Employment Tribunal Fees

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Further to this morning's bulletin (reproduced below)... I understand from reliable sources that:- 1.  employment tribunals are now refusing to take fee payments when  hard copies of ET1s  are presented in person at one of the tribunals...

Breaking News: Supreme Court on Tribunal Fees

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The Supreme Court has allowed the appeal by Unison against the legality of the current system of employment tribunal fees, holding that the fees regime introduced in 2013 is unlawful.   The Supreme Court has dismissed the appeal by Unison against the...

Consultation on Vento Bands

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The Presidents of the Employment Tribunals have issued a joint consultation statement, seeking views on increasing the bands for damages for injury to feelings and psychiatric injury in line with the RPI.  The bands were last formally updated eight...

Employee Imprisoned for Breaching Court Order

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The High Court has imposed a sentence of 6 weeks imprisonment on an employee for breaches of an interim injunction in a dispute over confidential information, in OCS Group UK v Dadi. Mr Dadi was an employee of the Claimant, an aviation cleaning contractor...

Discrimination: Unfavourable Treatment

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Is ‘unfavourable treatment’ to be equated with detriment, for the purposes of a claim of discrimination in consequence of something arising from a disability? No, held the Court of Appeal in Trustees of Swansea University Pension &...

Acas Early Conciliation: Getting the Employer's Name Right

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If a director was named on the ACAS Early Conciliation form and the company on the Claim Form, should the claim be allowed to proceed (as this was a minor error)? No, held the EAT, in Giny v SNA Transport Ltd. The Claimant brought several claims,...

Employment Status: The Taylor Review 'Good Work' Report

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The Taylor Report, now called the ' Good Work ' report, has been published this morning. The summary below is adapted, with permission, from blogger and speaker Darren Newman's excellent summary. Here are the proposals on employment law that...

Whistleblowing: Public Interest Requirement

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Can a disclosure which is in the private interest of the worker making it become in the 'public interest' because it also serves  the (private) interests of other workers as well?  Potentially yes, held the Court of Appeal in Chesterton...

Injury to Feelings Awards in Discrimination Claims

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Does a Simmons v Castle uplift apply to injury to feelings awards in discrimination cases? Yes, held the Court of Appeal in De Souza v Vinci Construction (UK) Ltd , concluding the debate in a run of competing authorities on the point. In July 2012,...

Tribunal under duty to consider stigma future loss claim

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When the evidence in a 'whistleblowing' case suggests that a Claimant should receive damages for stigma and loss of future prospects, should an employment tribunal determine that even if it not raised by the parties? Yes, held the Court of Appeal in...

CJEU: 'Pre-Pack' Administration Does Not Disapply TUPE Protection

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Does a 'pre-pack' administration of a company mean that TUPE protection does not apply when an undertaking is transferred? No, held the CJEU in FNV v Smallsteps . A Dutch trade union sought a declaration that employees had transferred after a...

'Pre-Pack' Administration Does Not Disapply TUPE Protection

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Does a 'pre-pack' administration of a company mean that TUPE protection does not apply when an undertaking is transferred? No, held the CJEU in FNV v Smallsteps . A Dutch trade union sought a declaration that employees had transferred after a...

Equal Pay Claims

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Can Claimants doing different work bring equal pay claims on the same ET1 claim form? No, held the EAT in Farmah & ors v Birmingham City Council & ors. The appeals concerned a single ET1 claiming equal pay used by a number of Claimants who...

Costs in the Employment Tribunal

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Can an employment tribunal make a costs award in relation to a period of time even when the Claimants have a Damages Based Agreement (setting their costs at 10% of an award)? Yes, held the EAT, in Swissport Limited v Exley & Others. The Claimants...

'Conduct' Reason for Dismissal Does Not Entail Culpability

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Does an employment tribunal have to find an employee 'culpable' when deciding if a dismissal is for conduct? No, held the EAT in JP Morgan v Ktorza . The Claimant worked on the Respondent bank's foreign exchange desk. He was dismissed for...

Direct Discrimination and Victimisation

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Is a detriment that is inextricably linked to and arises out of a protected act done because of the protected act? Not necessarily, held the Court of Appeal in Greater Manchester Police v Bailey . As is well known, the test in discrimination and...

TUPE and Garden Leave

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A senior executive was placed on garden leave. Were the circumstances such that a TUPE transfer enabled him to object to it and terminate his garden leave? No, held the High Court in ICAP Management Services Ltd v Berry. Mr Barry worked for ICAP...

Bits and Bobs...

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Three quick employment law updates which don't justify their own bulletin... 1. In Elmore v Darland High School , the EAT held there was a presumption that an appeal decision was taken for the same reasons as a dismissal decision, hence the...

Carrying Over Holiday Pay

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Does a worker’s paid holiday entitlement carry over to subsequent years if they do not take holiday because their employer refuses to pay them? Yes, stated the Advocate General of the CJEU in a non-binding opinion in King v The Sash Window Workshop ...

Employees Not Under Duty to Disclose Their Intention to Compete

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Are employees under a duty to disclose their intention to compete? Probably not, held the Chancery Division in MPT Group v Peel . Two moderately senior employees planned to set up a new company in competition with their employer after their restrictive...

Territorial Jurisdiction

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Is the assessment of whether an employee has a strong connection to the UK (to give an employment tribunal territorial jurisdiction to consider a claim) objective rather than subjective? Yes, held the EAT in Green v SIG Trading Ltd . The...

Time Limits

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Can an appellant to the EAT rely on vague medical evidence to get an extension of time for a late appeal? No, held the EAT in J v K. J appealed against the strike-out of his discrimination claim. He sent in his Notice of Appeal before the 4pm...

Calculating Strike Pay

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If teachers lawfully strike for one day, at what rate can the employer make a deduction of pay? 1/365 of annual pay, held the Supreme Court in Hartley v King Edward VI College.  The Supreme Court unanimously held that, unless contracts...

Whistleblowing

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Where the making of a disclosure is the principal reason for a dismissal, is the decision-taker's belief about whether the disclosure is protected relevant? No, held the Court of Appeal in Beatt v Croydon Health Services NHS Trust . This case...

Holiday Pay: The Latest Instalment

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Was the employment tribunal right to consider itself bound by the earlier EAT decision in Bear Scotland that a break of more than three months between non-payment or underpayment of wages breaks the series of deductions? Yes, held the EAT in Fulton...

Discrimination: Adjustments for Candidate

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Was a job applicant with Asperger's Syndrome discriminated against by being required to sit a psychometric test? Yes, held the EAT in The Government Legal Service v Brookes . The Government Legal Service (GLS) was recruiting lawyers in what the...

Definition of Worker

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Can a junior doctor come within the extended definition of ‘worker’ for whistleblowing purposes, even if he already falls within the scope of the traditional definition of ‘worker’ because he is employed by an NHS Trust?  ...

Compulsory Union Recognition: Fragmentation of Bargaining Units

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Should single small units of an employer's workforce not be subject to compulsory trade union recognition given the statutory requirement to consider the desirability of avoiding small fragmented bargaining units? No, held the Court of Appeal, in ...

Working Time: Sleeping At Work

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Are workers entitled to the national minimum wage when 'on-call', or sleeping, at work?  In a comprehensive decision, the EAT decides 'it depends'. In three cases heard at the same time (with the lead case being Focus Care Agency v...

Unlawful Contracts

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If someone is employed by the government in breach of the statutory provisions governing Civil Service recruitment, is the contract of employment void for illegality? Yes, held the EAT in SoS for Justice v Betts and others , upholding the Justice...

Redundancy - Competing for New Roles

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Is the application of the s.98(4) test modified in the case of redundancy dismissals where employees must compete for newly-created posts following a restructure? No, held the EAT in Green v London Borough of Barking & Dagenham . The Claimant had...

Some Other Substantial Reason Dismissal

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Is there a particularly high threshold for an employer dismissing an employee because of a 'substantial reason'? No, held the EAT in Ssekisonge v Barts Health NHS Trust , rejecting the Claimant's appeal against a finding that her...

Supreme Court: Indirect Discrimination

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To succeed with an indirect discrimination claim, is it necessary to establish the reason for the particular disadvantage to which a group is put, compared to another? No, held the Supreme Court in the decisions of Essop and others v Home Office (UK...

TUPE: Employee Liability Information

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When giving Employee Liability Information to a transferee pursuant to reg 11 of TUPE, a transferor incorrectly stated that a Christmas bonus was non-contractual, when it turned out it was contractual. Was this a breach of reg 11, giving rise to a...

Indirect Discrimination

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In an indirect discrimination claim, can an employment tribunal reject a justification defence on the basis that the employer should have pursued a different aim which would have had a less discriminatory impact? No, held Court of Appeal in ...

Age Discrimination: Advocate General Opinion

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Can a State provide that under-25s can be employed on zero hour contracts, whilst restricting such contracts for employees aged 25+? Perhaps, advised Advocate General Bobek in his Opinion in Abercrombie & Fitch v Bordonaro . Mr Bordonaro...

Timing of Notice of Termination

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Where an employment contract is silent on when notice is deemed to be given, when does notice of termination take effect? On actual receipt, held the Court of Appeal (by a majority) in Newcastle Upon Tyne NHS Foundation Trust v Haywood . In...

Long-Term Absence Dismissals

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In a dismissal for long-term sickness absence, is the test for discrimination arising from disability different from the test for unfair dismissal? Not really, held the Court of Appeal in O'Brien v Bolton St Catherine's Academy . At the...

CJEU: Headscarves and Religious Discrimination

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Does the banning of a headscarf at work constitute discrimination? No, at least not direct discrimination, held the CJEU in Achbita v G4S Secure Solutions (the full judgment is not available yet, only the press summary ). G4S in Belgium operated a...

TUPE: Service Provision Change - 'Principal Purpose' Test

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When assessing the 'principal purpose' of an organised grouping of employees under TUPE, is an employment tribunal entitled to look at the actual activities being carried out? Yes, held the EAT in Tees Esk & Wear Valleys NHS v...

Employment Status

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Is a lack of mutuality of obligation between assignments relevant to the test for employment status under s.83(2)(a) of the Equality Act 2010 ? Yes, held the EAT in Capita Translation v Siauciunas . The Claimant was an interpreter working with...

New HMRC Employment Status Tool

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Did you ever read those 'Choose Your Own Adventure' books as a kid? The ones that gave choices at the end of each page, such as:- • turn to page 37 if you want to follow the goblin through the woods • turn to page 55 to pick up the...

Disability Discrimination

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Can a Claimant successfully claim harassment by simply asserting s/he has a disability without establishing s/he is disabled under the Equality Act 2010? No, held the EAT in Peninsula Business Services v Baker . The Claimant was...

Change to Discount Rate for Personal Injury Damages

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Occasionally, employment tribunals award personal injury damages in discrimination and detriment cases. If an (ex-) employee has a serious long term medical condition and is being awarded a sum of money for long-term loss of earnings, a 'discount...

Annual Compensation Increase

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BIS has made The Employment Rights (Increase of Limits) Order 2017 , containing the annual increases in compensation payments, before Parliament. It applies to dismissals (or detriments, etc) occurring on or after 6 April 2017. The main changes (tipping...

Trade Union Act 2016

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Six statutory instruments have been made under the Trade Union Act 2016 , which now make it clear the Act will come into force on 1 March 2017 (even though everyone knew that anyway). The Trade Union Act prohibits industrial action...

No Breach of Article 11 ECHR

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Does a 'sweetheart' union recognition deal result in a breach of Article 11 of the European Court of Human Rights (ECHR) in respect of the right to trade union membership? No, held the Court of Appeal, in Pharmacists' Defence Association...

Employment Status - Important Case

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The Court of Appeal has handed down its judgment in Pimlico Plumbers & Charlie Mullins v Gary Smith . Dismissing the appeal by Pimlico Plumbers from the EAT decision , the Court of Appeal upheld the decision that the plumbers employed by Pimlico...

Employment Status

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1. The Department for Business, Innovation and Skills has published its Employment Status Review  (published today, despite the review being dated December 2015). It sets out the current system of employment status, considers the position of some...

Employment Tribunal Judgments Online

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The Ministry of Justice has launched its website of employment tribunal decisions . About 100 decisions from 2016 are already up there, and you can search by name, date, judge or jurisdiction code. This is a real step forward for putting important...

Annual NAtional Minimum Wage Increase

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The draft The National Minimum Wage (Amendment) Regulations 2017  have been published, intended to come into force on 1 April 2017. They raise the national living wage (for those aged over 25) from £7.20ph to £7.50ph, with associated...

Governent Review of Employment Tribunal Fees Now Published

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After a very long wait, the government has now published its “Review of the introduction of fees in the Employment Tribunal”. This includes a consultation on proposals for reform of the system, and is available online here . The lengthy...

Acas Guidance on Gender Pay Gap Reporting

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The gender pay reporting legislation, which requires employers with 250 or more employees to publish statutory calculations every year showing how large the pay gap is between their male and female employees, is expected to come into force in April 2017. ...

Public Sector Exit Payments

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A statutory instrument  has been made which brings s41 of the Enterprise Act 2016  into force on 1st February 2017 (ie this Wednesday). Section 41 allows the Secretary of State to issue regulations capping public sector exit payments (which...

Can Gross Negligence Constitute Gross Misconduct?

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Can gross negligence constitute gross misconduct? Yes, held the Court of Appeal in Adesokan v Sainsbury's Supermarkets Ltd . The Claimant was a Regional Manager who became aware that a HR Manager had issued an email which attempted to interfere in...

Gender Pay Reporting

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The government has published The Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 , which extend the duty to publish annual gender pay gap reports to public sector employers with over 250 employees. These broadly reflect the ...

Disability Discrimination: Reasonable Adjustments

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When a wheelchair user wishes to board a bus, but the space is occupied by a non-disabled passenger, is it sufficient for the driver to request that the latter vacate the space, without further action if they refuse? No, held the Supreme Court in ...

Age Discrimination and Judicial Pensions

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Are the transitional protections afforded to older judges but denied to younger judges under the Judicial Pension Regulations 2015 objectively justified? No, held the employment tribunal in McCloud & Mostyn (and others) v The Lord Chancellor...

Definition of Disability: Progressive Conditions (Diabetes)

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Can type 2 diabetes be a disability? Yes, held the EAT in Taylor v Ladbrokes Betting & Gaming Ltd . After the Claimant's dismissal, he asserted he had been disabled  for almost a year before the dismissal, due to type 2 diabetes....

COT3 Agreements: Construction

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Was an unclear COT3 wording sufficient to settle all disability claims? No, held the EAT in DWP v Brindley , dismissing an appeal against a finding that a COT3 did not settle a subsequent claim. The Claimant brought two claims for disability...

Cardiff Employment Tribunal

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The Cardiff head office of Wales Employment Tribunal will, this weekend, be leaving Caradog House after 40 years and moving to the top floor of Cardiff and Vale Magistrates' Court. To facilitate the move, the Cardiff office will be closed between 6 and...

Costs - Litigant in Person

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 Thanks to  Neil Addison  of New Bailey Chambers for preparing this case summary Can an employment tribunal make an order for unreasonable conduct costs against a litigant in person? Yes, held the EAT in  Liddington v 2gether NHS Trust...

Presidential Practice Direction - Presentation of Claim Forms

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[Thanks to Claire Scott of Burness Paull for tipping me off about this] Both Presidents of Employment Tribunals (England & Wales, and Scotland) have issued a Practice Direction on Presentation of Claims, updating the existing Practice Directions. ...

Ministers of Religion and Same Sex Marriage

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Thanks to Will Young of Outer Temple Chambers for preparing this case summary. Can a Bishop (as a 'qualifications body') rely on the exemption in Schedule 9 of the Equality Act 2010 in refusing to grant a practising licence to an Anglican priest on...

Gender Pay Issues

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The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017  have been published (subject to parliamentary approval, which is unlikely to be contentious). The main differences between the draft Regulations, published for consultation in...

Compensation: Medical Evidence not required for Personal Injury Awards in Tribunal

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 Thanks to  Rad Kohanzad  of Serjeants’ Inn Chambers for preparing this case summary Does an employee have to provide an expert report when bringing a personal injury claim in the employment tribunal? No, held the EAT in ...

Vicarious Liability: Assault at Christmas Party

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 Thanks to  Neil Addison  of New Bailey Chambers for preparing this case summary Is a company vicariously liable for injuries caused by an employee after a work Christmas party has ended? No, held the High Court in  Bellman v...

Costs - Litigant in Person

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 Thanks to  Neil Addison  of New Bailey Chambers for preparing this case summary Can an employment tribunal make an order for unreasonable conduct costs against a litigant in person? Yes, held the EAT in  Liddington v 2gether NHS...

Working Time Regulations: Rest Breaks

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 Thanks to James Medhurst of Fieldfisher for preparing this case summary. Is an employee required to ask for a rest break before claiming to have been refused a rest break? No,held the EAT in  Grange v Abellio London . The Claimant...

Perfunctory and Insensitive Redundancy Consultation

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Is a 'perfunctory and insensitive' redundancy consultation likely to make a redundancy dismissal unfair? Yes, held the EAT in  Thomas v BNP Paribas...

Fairness of Dismissal when Inappropriate Final Written Warning

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 Thanks to  David Leslie  of Lyons Davidson for preparing this case summary. If a final written warning was found to be manifestly inappropriate such that the employer ought to ignore it when considering further misconduct, is it open to the...

Segregation on Grounds of Gender is not Direct Discrimination

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 Thanks to  Miranda de Savorgnani  of Outer Temple Chambers for preparing this case summary Is segregation of pupils based on sex direct discrimination contrary to  s.13 Equality Act 2010 ? No, held the Administrative Court...

Trade Union Detriments: Burden of Proof

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[Thanks to Mark Greaves, pupil barrister at Old Square Chambers, for providing this case summary.] In a case of detrimental treatment related to trade union activities, contrary to  s.146 TULR(C)A 1992 , does the employer necessarily lose if the...

Article 50 and Brexit

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The Divisional Court has upheld an application brought against the government, and held that the government does  not  have prerogative power to invoke Article 50 without a vote by Parliament. In other words, Parliament needs to vote in favour of...

Employment Status - Judicial Office Holders

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Thanks to  Rad Kohanzad  of Serjeants’ Inn Chambers for preparing this case summary Are judicial office holders employed under a contract? No, held the EAT in  Gilham v Ministry of Justice . Whilst judges are undoubtedly office...

Uber Tribunal Decision

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An Employment Tribunal has, this afternoon, ruled that two drivers who provide services to gig economy stalwart Uber are 'workers' within the meaning of the Employment Rights Act 1996. This means they will be entitled to a limited number of...

Inquiry into the Rights of Workers in the 'Gig' Economy

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The Commons Select Committee on Business, Energy and Industrial Strategy (previously BIS) has launched an inquiry into the future world of work, focusing on the rapidly changing nature of work, and the status and rights of agency workers, the self-employed,...

Gay Cakes (if, of course, a cake can be gay)

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How should conflicts between the LGBT community, and the faith community, be resolved under discrimination law? The Northern Ireland Court of Appeal has handed down its decision in the so-called 'gay cake' case, more properly known as  Lee v...

Brexit and Employment Law

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The House of Commons Library has produced a (very) short  briefing paper  on what the implications might be for employment law following Brexit. It says very little. But there is a useful table at the end setting out which rights might be...

Workplace Privacy

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 Thanks to  John Cook  of Cook Lawyers, for preparing this case summary. Is there a minimum level of compensation for workplace privacy claims following the misuse and disclosure of an individual's personal data? No, held the...

Communicating a Dismissal

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 Thanks to  John Cook  of Cook Solicitors, for preparing this case summary. Can a dismissal be implied by the inaction of an agency employer to find work for its employee? No, held the EAT in  Sandle v Adecco . The employee was...

TUPE: Service provision change-activities remaining the same

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 Thanks to  Emily Gordon Walker  of Outer Temple Chambers for preparing this case summary Did the employment judge err in his interpretation of “activities” under regulation 3(1)(b) TUPE and/or by applying a test of...

Holiday Pay and Commission - British Gas v Lock

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[Thanks to Rachel Farr of Taylor Wessing for sending me the transcript of the judgment]  The Court of Appeal has handed down its decision in  British Gas v Lock .  It is an important case on the calculation of holiday pay, not that it says...

Judicial Assessments of Tribunal Cases

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The President of the Employment Tribunals, Judge Brian Doyle, has issued an important protocol for judicial assessment by Judges in employment tribunals. Judicial assessment is an informal assessment by a Judge, typically (but not necessarily) during a...

Discrimination: Justification

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 Thanks to  Keira Gore  of Outer Temple Chambers for preparing this case summary. In a case of ‘discrimination arising’ under s.15 Equality Act 2010, it sufficient to show that the policy from which unfavourable...

1st October Changes

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1st October (along with 1st April) is the date when many employment law legislative changes are introduced. We don't have any major changes due tomorrow (we were expecting the Gender Pay Gap Regulations to come into force, but that has been pushed back...

Inquiry of Corporate Governance

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The House of Commons' Business, Innovation and Skills Committee has launched an inquiry on corporate governance. The points of interest to employment lawyers and HR professionals include a focus on:- • executive pay • directors duties •...

Acas Early Conciliation

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Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary. Does an Acas Early Conciliation certificate only apply to matters that have taken place before the certificate is issued? No, held the EAT in  Compass Group v Morgan . ...

Michael Lambe

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Readers will be saddened to learn of the death of Michael Lambe, who died on 2 August 2016 in hospital in Belfast.  Many of you will have known Michael from his time as the Employment Law Caseworker at the Free Representation Unit, where he represented...

Costs and Allegations of Bias

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 Thanks to  Rad Kohanzad  of Serjeants’ Inn Chambers for preparing this case summary. Does an employment tribunal urging a claimant to focus on whether certain of his claims had any prospect of success, and whether his claim was...

Unfair Dismissal: Extension of Time

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 Thanks to  Keira Gore  of Outer Temple Chambers for preparing this case summary Does intervention by the Solicitors' Regulation Authority ('SRA') make it not reasonably practicable to present a claim in time? Not on the facts...

TUPE: Service Provision Change

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary When a Council-tendered 'park and ride' service closed after a competitor set up at the site, was there a service provision change? No, held the EAT in  C...

Reasonable Adjustments

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary. Can the duty to make reasonable adjustments for a disabled employee extend to continuing to pay a higher salary when an employee is moved to a lesser role? Yes, holds...

Compensation-Seeking Job Applicants Excluded from Discrimination Protection

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 Thanks to  Karen Jackson  of didlaw for preparing this case summary Do the provisions of the  Equal Treatment Directive (2000/78/EC)  apply to a job applicant who is purely seeking compensation? No,...

Territorial Jurisdiction

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 Thanks to  Sarah Fitzpatrick  of Collingwood Legal for preparing this case summary. Was an employee who worked abroad for a British company, under a contract of employment governed by English law, which required a notional deduction for UK...

Changes to Taxation of Termination Payments

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HM Revenue & Customs has published draft legislation changing the taxation of termination payments, intended to come into force April 2018. The main changes are:- • make all PILONs (payments in lieu of notice) taxable, even if   ...

Striking Out

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 Thanks to  Barnaby Large  of No.18 Barristers Chambers for preparing this case summary. ​ Is it appropriate to strike out a party's case due to the manner in which it has conducted proceedings? In exceptional circumstances...

Tribunal Rules Procedure for Rejecting a Claim

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Does an employment tribunal have the legal power to reject a claim under rule 12(1)(b) of the  Employment Tribunals (Constitution and Rules of Procedure) Regulations  2013 without a hearing when it is presented with an ET1 form which...

Fee Paid Judicial Pension Scheme

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The Ministry of Justice has announced a delay in the implementation of the new judicial pension scheme for fee paid (part-time) Judges. Read its statement  here ....

Indirect Sex Discrimination

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Does the employment tribunal have to weigh the legitimate business aims of the employer against the provision criterion or practice (PCP) when determining justification for the discriminatory effect? Yes, held the EAT  XC Trains Ltd v CD and Aslef...

Owen Smith sets out Manifesto Employment Rights

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Labour Leader challenger Owen Smith has published his  workplace manifesto  (scroll down to read the pledges) containing 25 pledges to improve worker rights. They include:-  • abolition of fees for employment tribunals • employment...

Whistleblowing: Definition of 'Worker'

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 Thanks to  James Medhurst  of Hill Hofstetter for preparing this case summary. Can an agency worker bring a whistleblowing claim against the end user? Usually, held the EAT in  McTigue v University Hospital Bristol .  The...

Carrying over Paid Annual Leave when Sick

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Thanks to  Karen Jackson  of didlaw for preparing this case summary If sickness prevents a worker from taking annual leave, can the leave be carried forward? Yes, reaffirmed the ECJ in  Sobczyszyn v Skola Podstawowa w Rzeplinie , in a case...

Subconscious Direct Discrimination

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Thanks to Karen Jackson of didlaw for preparing this case summary Is failing to address, or make a finding, in relation to subconscious or unconscious discrimination an error of law? Sometimes, held the EAT in Geller v Yeshurun Hebrew Congregation . A...

Protected Conversations

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Can the privilege that covers 'protected conversations' under section 111A ERA be waived? No, held the EAT giving the first appellate judgment on 'protected...

Discrimination: Work Placements

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 Thanks to  Will Young  of Outer Temple Chambers for preparing this case summary Does section 56(5) of the Equality Act 2010 prevent a claim being brought in the employment tribunal against the provider of vocational training in respect of...

Equal Pay Claims: No Power to stay Claims in Employment Tribunal

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 Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary Should the Asda equal pay claims in the employment tribunal be stayed, in effect compelling the Claimants to pursue High Court proceedings? No, held...

Abuse of migrant Workers not Unlawful Discrimination

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Does abuse of migrant domestic workers, on grounds of their status as vulnerable migrants, amount to unlawful discrimination? No, held the Supreme Court in an  important judgment ( Taiwo v Olaigbe and another and Onu  v Akwiwu and...

Acas Code does not apply to Ill Health Dismissals

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 Thanks to Jamie Anderson of Trinity Chambers for preparing this case summary Does the Acas Code of Practice on Disciplinary and Grievance Procedures apply to ill health dismissals? No it does not, held the EAT in  Holmes v QinetiQ . ...

Employment Tribunal Fees Review

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The House of Common Justice Committee has published its  review into Court and Tribunal Fees .  Note this is not the government review which was completed in 2015 but has not been published, about which the report is deeply critical at...

Supreme Court: Reinstatement after Unfair Dismissal

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 Thanks to  Neil Addison  of New Bailey Chambers for preparing this case summary Before making an order for reinstatement, does an employment tribunal have to be satisfied that reinstatement would be acceptable to both parties? No, held the...

Unfair Dismissal: Procedure and Polkey

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 Thanks to James Medhurst of Hill Hofstetter for preparing this case summary Can a dismissal be found to be procedurally unfair without specifying the breach of procedure? No, held the EAT in  Express Medicals v O'Donnell . The...

TUPE: Service Provision Change

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 Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary For a service provision change TUPE transfer, there must have been, prior to the change, an organised grouping of employees, the principal purpose of...

Age Discrimination and National Minimum Wage

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The House of Commons library has produced a  debate pack  (ie briefing note for MPs) on the interaction between bands of the national minimum wage and age discrimination. It is intended to inform intelligent discussion in a forthcoming Westminster...

Consultation: Changes to IR35 in the public sector

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HMRC has issued a  consultation document . It proposes that where individuals offer services to public sector 'employers' through an intermediary, such as a limited company, it will become the public body's responsibility to operate the...

Muslims, headscarfs and direct discrimination

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 Thanks to  Miranda de Savorgnani  of Outer Temple Chambers for preparing this case summary Is it direct discrimination for a private employer to prohibit a Muslim employee from wearing a headscarf in the workplace? Not if the prohibition...

Discrimination: provision criterion or practice

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 Thanks to James Medhurst of Hill Hofstetter for preparing this case summary Does an employee have to be forced to do something for it to be a provision, criterion or practice? No, held the EAT in  Carreras v United First Partners...

New Acas research paper

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 Thanks to Laurie Anstis for permission to reproduce the content of his blog  Work/Life/Law ACAS has just published a  lengthy research paper  on the effect of its conciliation processes in employment tribunal claims. There is an...

WTR Rest Breaks - No Injury to Feelings Award

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Can a worker claim compensation for injury to feelings if not allowed rest breaks under the WTR? No, held the EAT in  Santos Gomes v Higher Level Care Ltd ,...

Indirect religious discrimination

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Was it indirect religious discrimination to dismiss a teacher for refusing to leave her husband after his conviction for sex offences? Yes, held the EAT on the facts...

Definition of Employee

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 Thanks to  Gus Baker , pupil barrister of Outer Temple Chambers, for preparing this case summary Can an employment tribunal take account of the absence of mutuality of obligation when deciding whether an individual is an employee for the...

Civil Restraint Orders

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According to the High Court in  National Midwifery Council v Harrold , it would be desirable for employment tribunals - when they make decisions in weak claims - to consider, and make a finding on whether the claim (or application) is Totally Without...

Territorial Jurisdiction: Equality Act

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 Thanks to James Medhurst of Hill Hofstetter for preparing this case summary Is the territorial jurisdiction of the Equality Act 2010 the same as the territorial jurisdiction for unfair dismissal? Yes, held the Court of Appeal in ...

Meaning of Philosophical Belief

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Is a belief that public service is improperly wasteful of money protected as a ‘philosophical belief’ under the Equality Act 2010? Potentially, yes, held...

Repudiatory Breach by Employer

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 Thanks to  James English  of Hempsons solicitors for preparing this case summary Does an employee's willingness to negotiate a termination package prevent a claim of constructive dismissal? No, held the High Court in  Gibbs v...

Consultation on Tipping

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The Government has launched a  consultation  on its proposals to secure a fairer deal for workers. The consultation paper reflects the evidence received from consumer, worker and employer groups, and sets out the Government’s proposals for...

Trade Union Bill receives Royal Assent and becomes Trade Union Act

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The  Trade Union Bill  received Royal Assent today and becomes the Trade Union Act. Key provisions are:- - requirement for at least 50% turnout in votes for industrial action - in certain public services, including in the health, education,...

Government To Investigate Non-Compete Clauses

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The Government is launching a call for evidence asking for views on non-compete clauses. These are often seen in employment contracts and can prevent individuals from competing against their former employer or working for a competitor for a set...

Article 8 (right to privacy) not engaged by employer investigating emails

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 Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary When an employer investigated an employee's emails to a work colleague, was Article 8 of the European Convention on Human Rights (right to privacy)...

Incorporation of Terms: When Staff Handbook Absence Policy is Contractual

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Is an absence management policy in a Staff Handbook 'apt for incorporation' into employee contracts? Yes, held the Court of Appeal, on the facts in ...

Employment Agency Amendments Regulations

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The conduct of employment agencies and businesses is governed by (amongst other things)  The Conduct of Employment Agencies and Employment Businesses Regulations 2003 . From 8 May 2016, these are amended by the newly published  The Conduct of...

Enforcement of Tribunal Awards and Settlements

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The Department of Business, Innovation and Skills has published its  form for claiming penalties  from employers for non-payment of tribunal awards or settlements. Under the new s37A to 37Q of the Employment Tribunals Act, a Claimant who has not...

Acas Early Conciliation: what is a 'month'?

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary When the time limit for an employment tribunal claim is extended by a month (under s207B ERA 1996) after Acas Early Conciliation, does the extension run following the...

TUC Publishes advice on Legal Implication of Brexit

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The TUC has published a  66-page Advice  by Michael Ford QC on the potential impact of Brexit on employment and health & safety laws. It's an impressive piece of research. Anyone interested should probably read the summary at the end...

Christian Proselytising and Discrimination

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 Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary Was disciplinary action against an employee for improperly promoting Christianity to a junior colleague unlawful religious discrimination? No, held the...

Protected Disclosure - Information v Allegation

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Does the distinction between 'information' (which can be a qualifying disclosure) v an 'allegation' (which cannot) remain good law? No, held the Employment Appeal Tribunal in  Kilraine v London Borough of Wandsworth . The Claimant, an...

National Minimum (and Living) Wage

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The Department for Business, Innovation and Skills has issued a new 55-page booklet on  Calculating the Minimum Wage . It covers how to calculate the minimum wage, what counts as pay, what hours needs to be counted, and how to enforce the national...

Restrictive Covenants

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Thanks to  Miranda de Savorgnani  of Outer Temple Chambers for preparing this case summary In  Bartholomews Agri Food v Thornton , the High Court resoundingly rejected the reasonableness of a restrictive covenant in an employment contract on...

Discrimination Claims against Qualification Bodies can be brought in the ET

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 Thanks to  Rad Kohanzad  of Serjeants’ Inn Chambers for preparing this case summary Do employment tribunals have jurisdiction to hear discrimination claims against qualification bodies such as the GMC? Yes, held the Court of Appeal...

Consultation: Pension Losses in Employment Tribunals

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Over the last few years, the (excellent) 2003 booklet on Compensation for Loss of Pension Rights in the Employment Tribunals has become increasingly out of date. The President of the Employment Tribunals has issued a  consultation paper  on...

Protected Disclosures: Rarely appropriate to strike out on 'public interest' grounds

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Can a complaint about an individual employee's cramped working conditions be a protected disclosure for 'whistleblowing' purposes? Yes, held the EAT...

Disability: No Imputed Knowledge

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 Thanks to  Karen Jackson  of didlaw for preparing this case summary Can knowledge by Occupational Health of a disability be imputed to the employer? No, held the EAT in  Gallop v Newport City Council . The EAT found, following the...

Breaking News: Budget

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Chancellor George Osborne has announced that from 2018, termination payments over £30,000 will be subject to employer's national insurance contributions (under £30,000 is currently free of tax). BBC Budget at a Glance ...

'Pulling a Sickie'

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With great aplomb, in  Metroline West v Ajaj , the EAT has held that 'pulling a sickie' is dishonest and a fundamental breach of contract. Mr Ajaj was a bus driver. He wrongly claimed to be more sick than he was, and surveillance evidence...

Whistleblowing: Who is 'Protected'?

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary If a junior doctor makes a disclosure to an organisation that arranges his placements at the hospital which employs him, is that a 'protected disclosure' under...

Late Application For Reconsideration

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 Thanks to  Jennifer Danvers  of Cloisters for preparing this case summary. Is it an error of law to allow a late application for reconsideration without giving a Respondent a chance to make representations? Yes (unsurprisingly), held the...

Salary Sacrifice schemes can be discontinued during maternity leave

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 Thanks to  Karen Jackson  of didlaw for preparing this case summary Is it discriminatory to discontinue childcare vouchers during maternity leave? No, held the EAT in  Peninsula Business Services v Donaldson . Women on maternity...

Annual Compensation Limit Increases

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BIS has made  The Employment Rights (Increase of Limits) Order 2016 , containing the annual increases in compensation payments, before Parliament. It applies to dismissals (or detriments, etc) occurring on or after 6 April 2016. The main changes (and...

EHRC on Discriminatory Advertising

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The Equality and Human Rights Commission has published new guides on advertising, for organisations who advertise jobs or services. They include some guidance, a checklist and an FAQ document. They're written in plain English,...

Supreme court re-examines vicarious liability

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 Thanks to Angharad Davies of St. Pauls Chambers for preparing this case summary What sort of relationship has to exist between an individual and a Defendant before the Defendant can be made vicariously liable in tort for the conduct of that...

Employment Tribunal Fees

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The Supreme Court has, this morning,  granted permission  to Unison to appeal the  Court of Appeal's decision  rejecting Unison's judicial review of the employment tribunal fee regime....

Tribunals' Annual Report

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The Senior President of the Tribunals has published his Annual Report. The following points are relevant to employment practitioners:-   - last year was the 50th anniversary of the establishment of employment tribunals; - at pages 97-100 of the...

Holiday Pay: Full Lock Decision available

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Thanks to  Karen Jackson  of didlaw for preparing this case summary Can domestic legislation be interpreted in a way which conforms to EU law on holiday pay? Yes, held the EAT in  Lock v British Gas , upholding the submissions of UNISON...

Employment Tribunal Postponements

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Thanks to  Naomi Cunningham  of Outer Temple Chambers In January 2015, the Government published a  consultation on proposed amendments to the Employment Tribunal Rules of Procedure  to do the following: - limit the number of...

Appeal documents cannot be lodged using Dropbox link

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 Thanks to  Naomi Cunningham  of Outer Temple Chambers for preparing this case summary Can a notice of appeal to the EAT be lodged by sending a link to a Dropbox document? No, held the EAT in  Majekodunmi v City Facilities Management ,...

Reasonableness of Lay-Off Period

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Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary Is an express power to lay off subject to an implied term of reasonableness? No, held the EAT in  Craig v Bob Lindfield & Sons . Mr Craig's...

Important: Gender Pay Reporting

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The Government has published the draft  The Equality Act (Gender Pay Gap Information) Regulations 2016 . Now intended to come into force in October 2016 (with the first reports to be published in April 2017), the draft Regulations set out the framework...

TUPE

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Who hates TUPE? Raise your hand now… In  Mustafa v Trek Highway Services , the Employment Appeal Tribunal has ruled on an appeal which was - essentially - a case turning on its own facts. But it’s a good decision to read if you’re a...

Apprentice Levy

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The Government has published the  draft legislation introducing the apprenticeship levy , expected to come into force in April 2017. The levy is on UK employers to fund new apprenticeships. The levy will be charged at a rate of 0.5% of an...

disability Discrimination: Meaning of 'Day to Day' Activities

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Are 'warehouse operations', such as manually lifting and moving cases of up to 25 kg, 'normal day-to-day activities' for the purposes of disability under...

Whistleblowing - Prescribed People

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A qualifying disclosure will normally be protected, for whistleblowing purposes, if made to the employer. It will also be protected if made to a 'prescribed person' and is within their remit, and if the information disclosed within it is...

Upper Tribunal holds damages for injury for feelings are taxable

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 Thanks to  James English  of Hempsons solicitors for preparing this case summary Is a payment in respect of injury to feelings made on the termination of employment subject to tax? Yes, held the Tax and Chancery Chamber of the Upper...

Acas Early Conciliation

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 Thanks to  Jamie Anderson  of Trinity Chambers for preparing this case summary Is an employment tribunal prevented from adding a Respondent to proceedings where the Respondent being added is not named on the Early Conciliation certificate? ...

National Living / Minimum Wage

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The National Minimum Wage (Amendment) Regulations 2016  have been made, and come into force on 1 April 2016. They make it clear - if there was ever any doubt - that the 'National Living Wage' for over-25 year olds promised by the Government...

Acas Early Conciliation

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 Thanks to  Keira Gore  of Outer Temple Chambers for preparing this case summary Does an error in the identification of a Respondent in an Acas early conciliation certificate prevent the employment tribunal from accepting a claim? No, held...

EAT Practice Direction

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The Employment Appeal Tribunal wishes to remind advocates about the  July 2015 Practice Direction . In particular, advocates' attention is drawn to the section on Notices of Appeal, and the rule that the grounds of appeal should normally be no more...

Police Misconduct Panels Immune from Discrimination Claims

  • Posted

 Thanks to  Rad Kohanzad  of Serjeants’ Inn Chambers for preparing this case summary Can a police officer bring a claim against a Police Misconduct Board for discriminating against her? No, held the Court of Appeal in  P v The...

Unpaid Awards and Settlements - Penalty Notices

  • Posted

According to a written answer in  Hansard , the Government is intending to bring the new 'unpaid award penalties' into force from April 2016. Contained in the new  ss37A-37Q of the Employment Tribunals Act 1996 , the Government will issue...

Interim Briggs Report Published

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Lord Justice Briggs has published his  interim report  on the civil courts structure. In paragraphs 11.8 to 11.18, he tentatively recommends that ETs and the EAT be moved within the civil court structure (rather than staying where they are,...

Case Management Orders

  • Posted

 Thanks to  Andrew Smith  of Matrix Chambers for preparing this case summary When may an Employment Tribunal vary a case management order? Rarely, holds the EAT in  Serco Ltd v Wells . An Employment Judge had made an order listing a...

Monitoring Employees' Use of The Internet

  • Posted

Is the right to respect for private life and correspondence breached if employers monitor employees' personal communications at work? No, subject to reasonableness/proportionality, according to the European Court of Human Rights in  Barbulescu v...

Zero Hour Contracts

  • Posted

At last, some real protection has been introduced for zero hour contract workers. In force today,  The Exclusivity Terms in Zero Hour Contracts (Redress) Regulations 2015  provide that:-   - any dismissal of a zero hour contract employee...

Territorial Jurisdiction: Seafarers

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[Thanks to Benjamin Jones, pupil barrister at Littleton Chambers, for preparing this case summary.] Do British seafarers employed on ships operating wholly or principally outside of UK territorial waters “ordinarily work in Great Britain under their...

New Resources

  • Posted

There are some useful resources, just published, which some practitioners may find interesting/helpful. First, a House of Commons Briefing Paper on  Whistleblowing and Gagging Clauses.   It's remarkably good, particularly on the public...

Summary Dismissal and Gross Misconduct

  • Posted

 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Can an employee be dismissed without notice for disclosing confidential information? Yes, held the High Court (Whipple J) dismissing a claim for wrongful dismissal and...

Part-Time Pensions

  • Posted

 Thanks to  Sandy Kemp  of Clyde & Co for preparing this case summary Can the purposive interpretation obligation for the construction of statutory provisions to give effect to EU Directives (theMarleasing principle) extend to the...

Mitigation of Loss

  • Posted

 Thanks to  Barnaby Large  of No.18 Barristers Chambers for preparing this case summary. The EAT (Langstaff P) has summarised the main principles in decisions on mitigation of loss in  Cooper Contracting Ltd v Lindsey . The Claimant...

Discrimination: Instruction to speak English not discrimination

  • Posted

 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Was an instruction to a non-native English speaker not to speak in her native language at work discriminatory? No, held the EAT in  Kelly v Covance Laboratories...

Negative References and Disability discrimination

  • Posted

 Thanks to  Karen Jackson  of didlaw for preparing this case summary Did a tribunal err in its approach to the burden of proof when it required a Claimant to show that the only inference which could be drawn from a negative oral reference...

Disability Discrimination and Reasonable Adjustments

  • Posted

 Thanks to  Naomi Cunningham  of Outer Temple Chambers for preparing this case summary Should the duty to make reasonable adjustments under s.20 of the Equality Act be abolished? No, held the Court of Appeal in  Griffiths v Secretary...

Discrimination: Less Favourable Treatment and assessing Compensation

  • Posted

 Thanks to  Miranda de Savorgnani  of Outer Temple Chambers for preparing this case summary Was an employment tribunal entitled to find that part-time judges of the Residential Property Tribunal had been less favourably treated than their...

TUPE and short term contracts

  • Posted

 Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary Are events following a putative service provision change relevant in determining whether it was the client’s intention that the contract awarded...

New Government Guide: Transgender Staff

  • Posted

The Government Equalities Office has today published a new guide for employers on Recruitment and Retention of Transgender Staff. It is designed to provide employers with practical advice, suggestions and ideas on the recruitment and retention of...

Practice and Procedure: Amendment to Claim and Acas Early Conciliation

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 Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary When an employment tribunal claim is amended to add a new cause of action, is fresh early conciliation required? No, held the EAT in  Science...

Tribunal Procedure: Use of Interpreters

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 Thanks to  Rad Kohanzad  of Serjeants’ Inn Chambers for preparing this case summary Was it wrong for an employment tribunal to proceed with a hearing where an interpreter had previously been requested but did not attend? No, held the...

Discrimination and Time Limits

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Thanks to Bruno Gil, pupil barrister of Old Square Chambers for preparing this case summary] Can an employment tribunal consider complaints of different types of discriminatory conduct when considering whether there is an act extending over a period? ...

TUPE: Change in Identity of Employer

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Is there a transfer of an undertaking when an employee changes from being employed by a single employer to a group of employers which includes the original employer? ...

Holiday Pay: When Part-Time Workers Increase Hours

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 Thanks to  James English  of Hempsons solicitors for preparing this case summary If a part-time worker increases her hours, is her employer obliged to recalculate her entitlement to annual leave retrospectively, even taking into account...

Unfair Dismissal: Consistency of Treatment

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 Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary Does inconsistency of treatment make a dismissal unfair? Not necessarily, held the EAT in  MBNA Limited v Jones . Two employees were at a...

Continuity of Employment

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 Thanks to Georgina Bryan of Littleton Chambers for preparing this case summary Did the employment tribunal’s erroneous view that the presumption of continuity of employment applied vitiate its conclusion? Not in this case, held the...

Fee Remission in Tribunals

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Thanks to  Claire Scott , professional support lawyer at Burness Paull LLP, for telling me about this HMCTS has made some changes to the fee remission system, removing much of the bureaucracy which made it difficult to claim fee remission. From 28...

Disability Discrimination - Long-term Absence

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 Thanks to  Karen Jackson  of didlaw for preparing this case summary Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett until the end of the month. In an unfair dismissal case where the reason for...

Race Discrimination - Detriment

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 Thanks to  James English  of Hempsons solicitors for preparing this case summary Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett until the end of the month. Can the failure to investigate a...

Adjournments - requirement to give reasons when considering an application to adjourn

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 Thanks to  Sophie Beesley  of Old Square Chambers for preparing this case summary Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett until the end of the month. Must an Employment Judge demonstrate...

Indirect Age Discrimination

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 Thanks to  Rad Kohanzad  of Serjeants’ Inn Chambers for preparing this case summary Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett until the end of the month. In an indirect...

Collective Redundancies

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett until the end of the month. Is there an exception for 'public...

Zero Hour Contracts

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Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett until the end of the month. The Department for Business, Innovation and Skills has produced a  guide for employers on zero-hour contracts . It explains to...

Whistleblowing - breach of contract and the public interest

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 Thanks to Dionne Dury of Fox Whitfield solicitors for preparing this case summary Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett until the end of the month. Can a complaint about contractual...

Employment Tribunal Fees Review

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As readers know, the Ministry of Justice is conducting a  review of the employment tribunal fee regime. The President and the Regional Employment Judges of the Employment Tribunals have, together, submitted  written evidence for the review...

Unfair Dismissal: Allegations of Bad Faith

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 Thanks to  David Leslie  of Lyons Davidson for preparing this case summary. Do allegations of bad faith have to be put to a dismissing officer in an unfair dismissal case? Yes, if they are central to the employment tribunal's...

Time when Sleeping

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 Thanks to Miranda de Savorgnani of Outer Temple Chambers for preparing this case summary Is an on-call night worker who lives at his place of work entitled to National Minimum Wage (NMW) for all hours of the night? No, held the EAT in  Shannon...

Shared (Grand) Parental Leave

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You won't have missed the headline that the Government is planning to extend shared parental leave to include grandparents. For those who find themselves answering questions about it, here are some important 'small print' points missed off most...

TUPE - temporary lay-off is no bar to 'organised grouping of employees'

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Does laying-off employees before a transfer mean that they are not 'assigned' to an 'organised grouping of employees', stopping them from transferring...

Company can bring Discrimination Claim

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 Thanks to  Sophie Beesley  of Old Square Chambers for preparing this case summary Can a limited company, as a member of a Limited Liability Partnership, bring a direct discrimination claim for detrimental treatment because of the protected...

Employment Law Changes - 1 October 2015

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Just a reminder - the following changes are taking place on 1 October 2015:-   - minimum wage changes (adult rate increases from £6.50 to £6.70)   - tribunals lose power to make wider recommendations in discrimination cases - now...

BIS Call for Evidence on Tips & Gratuities

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BIS is  calling for evidence  on how tips, gratuities and service charges are collected and what deductions are made from them by the employer. At present, tips paid in cash to the employee belong to the employee, whereas tips paid to the...

ECJ: Meaning of 'transfer of a business'

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 Thanks to  James English  of Hempsons solicitors for preparing this case summary Is it a TUPE transfer if a majority shareholder takes over its subsidiary's activities after it is wound up? Yes, held the ECJ in  Ferreira da Silva...

New Enterprise Bill published

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The government has, today, published the  Enterprise Bill . The employment-law related aspects are:-   - protecting the 'apprentice' brand, by (amongst other things) making it a criminal offence to offer an apprenticeship course or...

Employment Tribunal Fees

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The House of Commons Library produced a  briefing paper  earlier this week summarising the background to and operation of the fees system. It provides a statistical analysis of its impact, proposals for reform, and discusses the legal challenges...

Working Time - Travel Time to First Job of the Day

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 Thanks to  Paul Smith  of Broadway House Chambers for preparing this case summary In the case of mobile workers, is the time spent travelling from home to customers' premises to be regarded as 'working time' for the purposes of...

Proper Limits to HR's Role in Disciplinary Situations

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 Thanks to  Sarah Fitzpatrick  of Collingwood Legal for preparing this case summary Can a dismissing or investigating officer seek guidance or advice from human resources? Yes, held the EAT in  Ramphal v Department for Transport ,...

Law Society calls for Employment Tribunal Reforms

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The Law Society has published a discussion document,  Making Employment Tribunals Work For All . The main proposals are:- · all employment law disputes should be dealt with in a single jurisdiction consisting of four levels. · claims...

Presenting a Tribunal Claim

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 Thanks to  Naomi Cunningham  of Outer Temple Chambers for preparing this case summary Was it open to an employment tribunal to find that it had not been reasonably practicable to present a complaint within 3 months where there had been a...

TUPE: Long-term sick employee not 'assigned'

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Can an employee who is permanently off work sick be assigned to an organised grouping of employees in the event of a TUPE transfer? No, held the EAT in  BT Managed...

Scotland to abolish Employment Tribunal Fees

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In ' A Stronger Scotland: The Government's Programme for Scotland 2015-16 ', the Scottish Government has announced it intends to abolish employment tribunal fees. At page 3 of the document (p6 of the pdf file), the Government...

Indirect Discrimination - Expansion in Scope?

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The ECJ has handed down an important decision, dealing with indirect discrimination, in C HEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia . The ECJ holds that individuals can claim indirect discrimination even if they fall...

Tribunal Fees - Unison loses Court of Appeal case

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 Thanks to  Laurie Anstis  of Boyes Turner for allowing me to reproduce his summary of this decision from  worklifelaw.co.uk The Court of Appeal has dismissed Unison's appeals against its judicial review applications...

Newcastle Employment Tribunal

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Newcastle Employment Tribunal is moving from Quayside to: Kings Court Earl Grey Way Royal Quays North Shields Tyne and Wear NE29 6AR During the move, the tribunal will have no access to emails or telephones. The move takes place from noon tomorrow (27...

Choice of Companion at Disciplinary Hearing

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 Thanks to  Barnaby Large  of No.18 Barristers Chambers for preparing this case summary. Was the denial of choice of representative for disciplinary investigation beyond statutory or contractual entitlement a breach of the implied term of...

Civil Restraint Orders

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 Thanks to  Neil Addison  of New Bailey Chambers for preparing this case summary Can the High Court make a Civil Restraint Order (CRO) to prevent further claims being brought in the employment tribunal? Yes, held the High Court in ...

Social Media Dismissal: EAT declines to lay down guidance

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 Thanks to  James English  of Hempsons solicitors for preparing this case summary Was it unfair to dismiss an employee for comments made on Facebook which he claimed were untrue? No, held the EAT in  British Waterways Board v Smith...

Fees paid by Union can be Reimbursed

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 Thanks to  Karen Jackson  of didlaw for preparing this case summary Can the consistent application of the same rule policy or practice across a series of separate contracts amount to "a series of similar acts" where there is...

New Acas Guides on Equality

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Acas has published  three new guides  on equality:-   - Equality and Discrimination: Understand the basics - Prevent Discrimination: Support equality - Discrimination: What to do if it happens Like most Acas guides, they are detailed and...

Agency Workers Regulations

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Does EU law require that an agency worker in a temporary job be given a right to apply for that job, and/or get preference ahead of an employer's permanent...

Extensions of Time and Discretionary Factors

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 Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary Must an employment tribunal consider the position of different Respondents separately when considering an extension of time? Yes, held the EAT in ...

WWCD (What Would Corbyn Do)?

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Jeremy Corbyn, currently the  joint favourite  to become the next Labour leader, has published a quasi-manifesto document, ' Working With Women '. In it, he sets out the following employment law / HR related goals:-   - abolishing...

Consultation on Simplifying Tax Treatment of Termination Payments

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This is boring but important. The government is  consulting on simplifying the tax treatment of termination payments. At the moment, the first £30,000 of any non-contractual termination payment is free of tax and national insurance. The...

National Security and 'Closed Material' procedure

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 Thanks to  Barnaby Large  of No.18 Barristers Chambers for preparing this case summary. Can an employment tribunal prevent an employee from giving instructions, from knowing the full gist of the case against him and from disclosure on...

Discrimination: Meaning of 'Unfavourable'

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 Thanks to  James English  of Hempsons solicitors for preparing this case summary Is 'unfavourable' treatment to be equated with detriment, for the purposes of a claim of discrimination in consequence of something arising from a...

Commons Select Committee launches Inquiry into Tribunal Fees

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The Commons Justice Select Committee has launched an  inquiry into court and tribunal fees , with a particular focus on whether the introduction of fees has affected access to justice.  Important :This is different from the Ministry of...

Trade Union Bill - Consultation

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You can't have missed the news (which everyone knew was coming anyway) about the consultation on a reform of strike balloting laws. The government has published the draft  Trade Union Bill , along with three separate consultation documents on ...

EAT procedure: What is a cross-appeal?

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 Thanks to  Miranda de Savorgnani  of Outer Temple Chambers for preparing this case summary Does a cross-appeal, which could be brought as an independent, free-standing appeal, have to be brought within the ordinary 42-day time limit for...

Indirect Age Discrimination

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 Thanks to  Dionne Dury  of Fox Whitfield solicitors for preparing this case summary Is it indirectly discriminatory on the grounds of age to retire police officers entitled to receive a pension, in order to cut costs? No, held the EAT...

Carrying over Holiday Pay when Sick

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 Thanks to  Karen Jackson  of didlaw for preparing this case summary Does an employee on sick leave have to show he was unable by reason of illness to take holiday for it to be carried forward and is the right to carry forward unlimited? No...

Acas Early Conciliation: First Year Statistics

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Acas has published statistics showing the impact of the first year of Early Conciliation.  Key statistics include:-   - it dealt with over 83,000 EC cases between April 2014 and March 2015; and, - three out of four employees and employers agreed...

New Acas Guide - Handling Staff Pay

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Acas has issued a guide for small employers which covers the basics of employment law on staff pay. According to Acas, the new guide ‘ Help for small firms: Handling pay and wages ’ can "help small and medium sized businesses stay on...

ICE Regulations - meaning of 'undertaking'

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 Thanks to  Sian McKinley  of Cloisters for preparing this case summary Does an undertaking have to be a legal entity for the purposes of the Information and Consultation of Employees Regulations 2004? Yes, held the EAT in  Moyer Lee...

Holiday Pay - Voluntary Overtime

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 Thanks to  Gareth Walls  of A&L Goodbody NI for preparing this case summary Should employers include voluntary overtime when calculating an employee's holiday pay? Cautiously, yes, held the Court of Appeal in Northern Ireland in...

Collective Redundancy Consultation - when obligation arises

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Can the obligation to consult over collective redundancies be triggered when an employer makes a provisional decision to close a workplace? Yes, held the EAT, in ...

Indirect Discrimination: Proving Disadvantage

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 Thanks to  Rad Kohanzad  of Serjeants’ Inn Chambers for preparing this case summary Is it necessary in an indirect discrimination claim for the Claimant to show why the provision, criterion or practice has disadvantaged the group and...

Employment Appeal Tribunal

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Thanks to  Barnaby Large  of No.18 Barristers Chambers for preparing this case summary. Can the Employment Appeal Tribunal hear appeals from parties who were not acting in the employment tribunal case below? Yes, if the appeal has merit, is not...

Tribunal Procedure: No duty to be inquisitorial

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 Thanks to  Karen Jackson  of didlaw for preparing this case summary Is it an error of law for an employment tribunal not to adopt a purposive or inquisitorial approach to the evidence before it when determining disability? No, held the EAT...

Working Time - Travel Time to First Job of the Day

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Thanks to  Grahame Anderson  of Littleton Chambers for preparing this case summary Does the time that workers (who are not assigned to a fixed or habitual place of work) spend travelling from home to their first customer, and from the last...

TUPE: Assignment of Employees

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 Thanks to  David Leslie  of Lyons Davidson for preparing this case summary. In a TUPE scenario, can the 'client' dictate who is assigned to an organised grouping of employees for the purpose of the transfer? No, held the EAT...

Employment Status of GP

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 Thanks to John Cook of SAS Daniels LLP for preparing this case summary Was a GP, who provided his services to an NHS Trust through a Cooperative, either an employee or a worker for employment law purposes? No, held the EAT in  Suhail...

Government announces review of Employment Tribunal Fees

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The government has announced its long-awaited  review of employment tribunal fees . It is expected to conclude towards the end of the year. Keen-eyed readers will notice there is no mention of any intention to consult with stakeholders or users of the...

No Implied Term Duty to Disclose Allegations of Misconduct

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Is there an implied term in an employment contract that an employee should disclose his own misconduct? No, held the EAT in  The Basildon Academies v Amadi ,...

Wasted Costs against Legal Representatives

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 Thanks to  Barnaby Large  of No.18 Barristers Chambers for preparing this case summary. Should an Employment Judge make a wasted costs order against solicitors, on an inferred assumption the unrealistically high Schedule of Loss they...

TUPE: Meaning of 'client' re service provision changeover

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 Thanks to  James English  of Hempsons solicitors for preparing this case summary If a party contracts out a service, which is then subcontracted, can it be the 'client' for the purposes of a TUPE claim? Yes, held the EAT in ...

Dress Codes, Jilbabs and Indirect Religious Discrimination

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 Thanks to  Naomi Cunningham  of Outer Temple Chambers for preparing this case summary Was an employment tribunal entitled to find that a limit on the length of a garment that a Muslim nursery assistant could wear to work was not...

Whistleblowing

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The Department of Business, Innovation and Skills has, today, updated its list of  prescribed persons and bodies  to whom individuals can make a protected disclosure (assuming the other criteria are met)....

Employment Tribunal Rules

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HMCTS and BIS have published an  updated version of the tribunal procedural rules  contained in Schedule 1 to the  Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 . It incorporates the amendments to the rules since...

Exclusivity clauses in zero-hour contracts finally banned

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Some two months after  claiming that they had been banned , the government has prohibited the use of exclusivity clauses in zero-hours contracts. This and other employment law-related measures are contained in the  first commencement order...

Status of Employee after TUPE Objection

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 Thanks to  James English  of Hempsons solicitors for preparing this case summary Does the TUPE transfer of a contract of employment amount to an offer of employment? No, held the EAT in  NHS Direct v Gunn . The Claimant (who was...

Pay Deductions for Strike

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary How much pay can an employer withhold for a day's strike by a salaried striker? 1/260th held the Court of Appeal in  Hartley v King Edward VI College , not...

Gay v Religious Beliefs

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[Thanks to  Gareth Walls  of A&L Goodbody NI for preparing this case summary] Is a gay customer's rights to access goods and services more protected than the service provider's religious belief? Yes, held the County Court for...

Collective Redundancy Consultation - Establishment

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Is a single retail store capable of being an 'establishment' for collective redundancy consultation purposes? Yes, held the European Court of Justice (ECJ)...

Permanent Anonymity Orders

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 Thanks to  Paul Smith  of Broadway House Chambers for preparing this case summary Is the risk of the public believing unfounded allegations a valid reason for anonymising an employment tribunal's judgment? No, held the EAT in  BBC...

Tribunal entitled to reject claim with incorrect early conciliation number

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 Thanks to  Paul Smith  of Broadway House Chambers for preparing this case summary Was an employment tribunal entitled to reject a claim that was submitted out of time due to the Claimant entering the wrong Early Conciliation number? Yes,...

New government appointments

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10 Downing Street has announced the ministers filling the roles of relevance to employment lawyers. Secretary of State for Business, Innovation & Skills: Sajid Javid Secretary of State for Justice: Michael Gove Employment Minister: Priti Patel We...

First Sift (before ET3) Strikeouts

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 Thanks to  James English  of Hempsons solicitors for preparing this case summary Was the employment tribunal right to strike out a claim brought six years after the employment relationship ended as an abuse of process? No, held the EAT...

Union Representatives and Working Time

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 Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary Is attending meetings at the workplace, in the capacity of a trade union or health and safety representative, working time for the purposes of the...

acas Early Conciliation - no 'unfairness' exception

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 Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary Can an employment tribunal hear a claim if the ACAS early conciliation requirements have not been met? No, held the EAT in  Cranwell v Cullen. ...

Suspending Disciplinary Hearing for Grievance

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 Thanks to  Paul Smith  of Broadway House Chambers for preparing this case summary Is an employer obliged to put a disciplinary process on hold whilst the employee's grievance is dealt with? No, held the EAT in  Jinadu v Docklands...

Whistleblowing: Meaning of Disclosure

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Can disclosures that are not protected disclosures be converted into them by linking them together? No, held the EAT in  Barton v Royal Borough of Greenwich ,...

Discrimination: Focus on the Discriminator

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 Thanks to James Medhurst of Employment Law Advocates for preparing this case summary Is it discriminatory to dismiss after relying upon the reports of colleagues motivated by discrimination? No, held the Court of Appeal in  CLFIS v Dr...

ECJ: Collective Consultation - Woolworths Decision

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The European Court of Justice has handed down its judgment in the  Woolworths and Ethel Austin  cases.  The full text is not online yet, but the court's  official summary  is. The ECJ held that 'establishment',...

Employment Status - Ministers of Religion

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 Thanks to  Naomi Cunningham  of Outer Temple Chambers for preparing this case summary Was a Rector, the holder of a statutory office, an employee or a worker for the purposes of protection from unfair dismissal and whistle-blowing...

Territorial Jurisdiction

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 Thanks to  Claire Scott  of Burness Paull LLP for preparing this case summary Did an internationally mobile employee based in Switzerland, who spent more of his working time in the UK than any other single place, have a sufficiently strong...

Redundancy and Limited Term Contracts

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The Supreme Court has, this morning, reversed the Court of Session's decision in  University & College Union v University of Stirling . Collective consultation obligations arise if an employer is proposing to dismiss 20+ people as redundant...

Trade Union Recognition - Collective Bargaining

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 Thanks to  Jamie Susskind  of Littleton Chambers for preparing this case summary In cases of compulsory trade union recognition, is there an obligation to negotiate items which are not core contractual terms 'relating to pay, hours and...

Dismissals following Bad Faith Warnings

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 Thanks to  Rosa Dickinson  of St Philips Chambers for preparing this case summary Can a warning given in bad faith be relied on for the purpose of determining whether there is sufficient reason to dismiss an employee? No, held the Court of...

Criminal Record Requests by Employers

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In theory, if employers want to know whether job applicants have a criminal record, they should use the  Disclosure and Barring Service (formerly known as the Criminal Records Bureau), which does not disclose any spent convictions.  Employers have...

SOSR Dismissals

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 Thanks to Neil Addison of New Bailey Chambers for preparing this case summary Was the fact that a financial arrangement might be regarded as a misuse of public funds 'some other substantial other reason' justifying dismissal? ...

Whom are you voting for?

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What are the various political parties saying about  employment tribunal fees  in their election manifestos? Conservative: no change ( manifesto , p21 left column) Labour: abolish the employment tribunal fees system (query: is that the same...

Deposit Orders and Costs

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 Thanks to James Medhurst of Employment Law Advocates for preparing this case summary Should full costs be awarded automatically be awarded if a claim is lost following the payment of a deposit? No, held the EAT in  Oni v Unison . The...

Whistleblowing: EAT says 'reasonable belief in public interest' is low threshold

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Can a disclosure be made in the 'reasonable belief it is in the public interest' if it relates to a contractual dispute affecting a group of staff, and not the...

Stress at Work - Foreseability of Injury

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 Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary Was an employer liable for psychiatric illness caused by occupational stress? Not on the facts of  Easton v B&Q plc , held the High Court. ...

London (Central) Employment Tribunal temporarily closed

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I have been asked by Regional Employment Judge Potter to pass this message to users of the London (Central) employment tribunal:- Following a power failure on Wednesday 1st April, the Employment Tribunal at Victory House in Kingsway will be temporarily...

Labour pledges to abolish employment tribunal fee system... or does it?

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The Labour party has, this morning, published its Work Manifesto,  A Better Plan for Britain's Workplaces . It pledges to abolish the "employment tribunal fee system" (p6 final paragraph). But hang on...  is that abolishing fees...

Ticking Fee Remission box suffices for presentation of claim

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 Thanks to  Keira Gore  of Outer Temple Chambers for preparing this case summary Must a claim be accompanied by a fee, or an application for fee remission, at the time it is presented? Yes, held the EAT in  Deangate Ltd v Hatley , but...

Holiday Pay - the Lock Decision

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The employment tribunal in Leicester has handed down its  long-awaited decision in Lock v British Gas . Mr Lock was a salesman on a basic salary with variable commission paid in arrears. Mr Lock's commission depended not on the time worked, but the...

Written Statement of Terms and Conditions

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 Thanks to Sarah Russell of Slater & Gordon for preparing this case summary Where part of an employment tribunal claim has settled before the hearing, and the remaining elements fail, can there still be an award for failure to provide a statement...

Type 2 Diabetes controlled by diet is not a 'disability'

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 Thanks to James Medhurst of Employment Law Advocates for preparing this case summary Does Type 2 diabetes controlled by diet automatically qualify as a disability? No, held the EAT in  Metroline Travel v Stoute. The Claimant argued...

Employment Status and Agency Workers

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Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Is it necessary to imply a contract between an agency worker and an end-user where factors point to a contract as the underlying reality? No, held the Court of Appeal in ...

TUPE, Insolvency and the National Insurance Fund

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Thanks to  Claire Darwin  of Matrix Chambers for preparing this case summary Is the Secretary of State for Business, Innovation and Skills (in accordance with the statutory scheme at Part XII of the Employment Rights Act 1996) liable for debts...

Philosophical Belief Discrimination

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Thanks to  Jennifer Danvers  of Cloisters for preparing this case summary. Does an accusation made as part of a heated conversation that a letter written by the Claimant was “too left-wing” amount to harassment related to belief? Not...

Supreme Court on Disability Discrimination

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 Thanks to  Karen Jackson  of didlaw for preparing this case summary Is the proportionality test under sections 15 and 35(1)(b) of the Equality Act 2010 the same as the test under Article 8 of the European Convention on Human Rights? No,...

Acas Code of Practice

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The revised  Acas Code of Practice on Disciplinary and Grievance Procedures  came into force yesterday, pursuant to  The Code of Practice (Disciplinary and Grievance Procedures) Order 2015 . The change is minor, reflecting the EAT's...

Compensation: Importance of clear structure and reasoning

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Thanks to  James English  of Hempsons solicitors for preparing this case summary Can an employment tribunal carry out a speculative assessment of a Claimant's working hours, possible dismissal and the impact on their loss of earnings? Yes,...

Resignation amounting to Constructive Dismissal is not Harassment

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Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary Is an act of constructive dismissal in itself an act of harassment for the purposes of the Equality Act 2010? No, held the EAT in  Timothy James...

Reimbursement of EAT Fees by Respondent

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Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary If a Union pays an Appellant's fee, does Rule 34A (2A) of the EAT Rules permit the EAT to order unsuccessful Respondents to pay the EAT fees of the Appellant? No, held the...

Employment Tribunal Fees: Bits and Bobs

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Several developments on tribunal fees: each small, but cumulatively worth a mention. 1. Parliament has made an  amending statutory instrument , clarifying an ambiguity in the original fees order. It is now clear than an employer counter-claim for...

Judicial Bias (unusual case)

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Was there bias in a salaried Employment Judge, hearing a part-time workers claim from a Tribunal lay member, deciding the case with the benefit of his own experience of...

Damages for Injury to Feelings and Personal Injury

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 Thanks to  Karen Jackson  of didlaw for preparing this case summary . Is cutting off email access for a sick employee a provision, criterion or practice (PCP) which triggers the reasonable adjustment duty? Does the Vento uplift...

ET1 form

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The online ET1 form has been updated, so that it now has a 'save' and 'return' function. Finally....

Repudiatory Breach of Contract

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 Thanks to  James English  of Hempsons solicitors for preparing this case summary Is it a repudiatory breach of contract to forward an obscene and pornographic email at work? Yes, held the High Court in  Williams v Leeds United...

Unfair Dismissal: Scope of Investigation in Conduct Dismissal

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 Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary In a suspected misconduct case does an employer have to investigate every line of defence put forward by an employee? No, held the Court of Appeal...

Strike Out and Detriment

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 Thanks to  Barnaby Large  of No.18 Barristers Chambers for preparing this case summary. May an employment tribunal strike out a victimisation claim based on a procedurally flawed grievance process if removal of the flaw would have made no...

Shared Parental Leave: BIS Eligibility Calculator / Resources

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Jo Swinson, the Employment Relations Minister, has today issued a  press release  about the imminent introduction of Shared Parental Leave.  Meanwhile, the Department of Business, Innovation and Skills has developed an  online calculator...

Tribunals' Annual Report

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The Senior President of Tribunals has issued his  Annual Report , which is well worth reading for first-rate summaries of what has been happening in the EAT and ETs over the last 12 months, and what is expected in the future. The relevant sections...

Annual Compensation Limit Increase

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It's time for the annual increase in compensation limits, requiring us to yet again commit a series of essentially meaningless numbers to memory. The  Employment Rights (Increase of Limits) Order 2015 applies where the dismissal (or detriment, or...

'Loss of a Chance' Compensation

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 Thanks to  Grahame Anderson  of Littleton Chambers for preparing this case summary Can an employment tribunal reduce victimisation compensation because the Claimant was unlikely to be appointed to a role?   Yes, held the EAT in ...

TUPE: Organised Grouping of Employees

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[Thanks to Georgina Bryan, pupil barrister at Littleton Chambers, for preparing this case summary.] Does a single employee constitute an organised grouping for TUPE purposes where he or she has been instructed by the employer to carry out all of the...

HHJ Jeremy McMullen QC 1948 - 2015

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Employment law practitioners will be saddened to learn of the death of His Honour Judge Jeremy McMullen QC, who has passed away after a period of illness. HHJ Jeremy McMullen was a resident judge of the Employment Appeal Tribunal, sitting there from 2001...

Indirect Age Discrimination

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 Thanks to  Naomi Cunningham  of Outer Temple Chambers for preparing this case summary If an employer introduces contractual changes, can those changes themselves be regarded as a provision, criterion or practice (PCP)? Yes, held the EAT...

Employment Status

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 Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary Was an unremunerated director both an employee and a worker? Yes, held the Court of Appeal, on the facts in  Stack v Ajar-Tec . Agar-Tec had...

State Immunity

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 Thanks to  Grahame Anderson  of Littleton Chambers for preparing this case summary Is a member of service staff at a foreign diplomatic mission to the UK able to bring proceedings in this jurisdiction against the employing state to assert...

Redundancy: Meaning of 'Establishment'

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Does the EU Collective Redundancies Directive 98/59 require that the numbers of employees dismissed across an employer’s various establishments be aggregated to...

Affirmation and Sickness

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Does an employee who might claim constructive dismissal affirm the contract by claiming sick pay whilst off sick? Not necessarily, held the EAT in  Colomar Mari v...

National Minimum Wage

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The  draft National Minimum Wage Regulations 2015  have been published. They consolidate the existing 28 (that's right - 28 - here's  the proof ) separate statutory instruments dealing with the national minimum wage since it was first...

Appeals against Dismissal

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 Thanks to  Chesca Lord  of Cloisters for preparing this case summary Where an employer decides that an appeal against dismissal should succeed, is communication of the decision necessary to revive the contract? No, held the EAT in ...

Tribunal Adjournments - BIS consultation

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BIS has issued a  consultation document , seeking views on new legislation restricting adjournments in employment tribunals. The proposals are:- 1. if a party has already been granted two adjournments (for whatever type of hearing, preliminary or...

Changes to Acas Early Conciliation Form

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Acas has, today, revised its  Early Conciliation notification form  (both online and hard copy versions). The changes are:- 1. a new field so the Claimant can include contact details of their representative (if s/he has one). If the Claimant...

Redundancy - Meaning of Place of Employment

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Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary When employees lost the benefit of free parking near their homes, was this a place of work redundancy? No, held the EAT in  EXOL Lubricants v Birch . ...

Employment Tribunal Fees

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The House of Commons Library has produced a superb  briefing note on employment tribunal fees . It sets out, impartially and dispassionately, the impact of fees and the various arguments for and against fees in employment tribunals. It also summarises...

Caste Discrimination

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Thanks to  Michael Reed , Employment Legal Officer at the Free Representation Unit, for preparing this case summary Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett this week.    Is caste protected...

Public (and press) access to witness statements

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett this week. If an employment tribunal decides to exclude part of a witness...

Unfair dismissal - geographic jurisdiction

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Thanks to  Sheryn Omeri  of Cloisters for preparing this case summary Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett this week. Can an employee who returns to Australia, at her own request, but who...

TUPE - Assignment to Organised Grouping of Employees

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 Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary When are employees assigned to a service changing hands under TUPE? The question is to be determined having regard to the way an organisation is...

Holiday Pay - Cap on Backdated Claims

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The government has introduced the  Deduction from Wages (Limitation) Regulations 2014 . They do two things:- (1) limit all unlawful deductions claims to two years before the date the ET1 is lodged (with the exception of certain categories of unlawful...

ECJ: Is Obesity a Disability?

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Is obesity a disability under EU law? It can be, held the European Court of Justice in  FOA (Kaltoft) v Billund . However, discrimination on the grounds of obesity...

Employment Tribunal Fees

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 Thanks to  James English  of Hempsons solicitors for preparing this case summary The High Court has today handed down  its judgment  in Unison's application for judicial review to challenge the employment tribunal fees system....

Breaking News: Employment Tribunal Fees Judicial Review

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It is being reported that Unison's judicial review application, challenging the legality of employment tribunal fees, was dismissed this morning by the High Court (without reasons being given; the reasons will follow on BAILII today). A previous attempt...

Taxation: Settlement Monies for Injury to Feelings

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 Thanks to  Paul Smith  of Broadway House Chambers for preparing this case summary Are injury to feelings payments taxable? If the payment arises out of the termination of employment, probably yes, held the First Tier Tribunal (Tax Chamber)...

Disability Discrimination: Reasonable adjustments and correct comparator

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Is it a reasonable adjustment under the Equality Act 2010 to require a bus company to have a policy requiring non-wheelchair using passengers to move if occupying a...

Disability Discrimination: Meaning of Disability

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 Thanks to Jonathan Gibbons of Black White and Grey Limited for preparing this case summary Was an employment tribunal entitled to conclude that an employee who suffered from depression and anxiety was not disabled? Yes, held the EAT...

10 Ways for HR to have a Happy Xmas

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Okay, it's a little off beat, but I enjoyed reading this  excellent blogpost  by Gemma Reucroft so much that I thought I'd share it... This is the ultimate advice checklist for how HR should deal with Christmas issues... 1. Employees...

Employment Status

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 Thanks to David Campion of Garden Court North Chambers, for preparing this case summary Was a plumber engaged by a plumbing and maintenance company an 'employee'? No, although he was a worker, held the EAT in  Pimlico Plumbers...

Restrictive covenants

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 Thanks to  James English  of Hempsons solicitors for preparing this case summary Could a company enforce restrictive covenants against a former employee where there had been no specific consideration? No, held the High Court in ...

Compulsory retirement of judges

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 Thanks to  Andrew Smith  of Matrix Chambers for preparing this case summary Is it lawful to impose compulsory retirement on serving judges when they reach their 70th birthday? Yes, held an employment tribunal in White v Ministry of...

Does Mitchell apply in tribunals?

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Thanks to  Peter Taheri  of 5 Essex Court for preparing this case summary Does the strict post- Mitchell  approach apply to case management in the employment tribunals as it does in civil litigation? No, not directly, held Langstaff P in the...

Res Judicata

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 Thanks to  Paul Livingston  of Outer Temple Chambers for preparing this case summary Was the Claimant entitled to pursue a claim for negligence in the High Court in respect of the same issues that had previously been alleged before the...

Newsflash: Holiday Pay Claims

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According to a  report in WSB , Unite has announced it is not appealing the Employment Appeal Tribunal's decision in  Bear Scotland v Fulton case , which has the effect of (largely) preventing claims for holiday-pay backpay going back to...

Contract variation: effect of not objecting

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 Thanks to  Naomi Cunningham  of Outer Temple Chambers for preparing this case summary Was an employment tribunal entitled to find that an employee had impliedly accepted a variation of her contract of employment by continuing to work,...

Fees in the EAT

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 Thanks to  Paul Smith  of Broadway House Chambers for preparing this case summary When may an appellant recover the fees paid to have an appeal heard in the EAT? It depends on the circumstances of the case, held the EAT in Look Ahead...

Psychiatric Injury

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 Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary What are the rules relating to remoteness in damages claims for psychiatric injury? The Court of Appeal explains this in  Yapp v FCO .  Mr...

Redundancy during Maternity Leave

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Can an employer arrange a redundancy process so as to determine when it is obliged to offer a suitable alternative vacancy to a redundant employee on maternity leave? ...

Acas Early Conciliation

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Acas has published the  first six months' figures  showing how early conciliation is working. Key figures:-   - over the first six months, it has conciliated in 37,000 cases (of which about 1,000 were multiple claims, covering about 8,000...

ET shouldn't research evidence/arguments on Wikipedia

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Should an employment tribunal conduct its own enquiries into evidence (for example, on Wikipedia during an adjournment)? No, held the EAT in  East of England...

Reimbursement of EAT Fees by Respondent

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 Thanks to James Medhurst of Employment Law Advocates for preparing this case summary Is there a presumption that the successful Appellant in an appeal will recover the £400 issue fee and £1,200 hearing fee from the unsuccessful...

Judicial Review not normally appropriate in employment cases

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 Thanks to  Barnaby Large  of No.18 Barristers Chambers for preparing this case summary. Is judicial review a mechanism for examining employment practices? On the face of the Court of Sessions' decision (Lords Essie's lead judgment)...

Holiday Pay: Government announces taskforce

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Following this morning's  important ruling on holiday pay , Business Secretary Vince Cable has announced he is setting up a new taskforce to assess the impact of the ruling. Although the  press release  uses the neutral language...

Important Case: Holiday Pay

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The Employment Appeal Tribunal has, this morning, handed down judgment in  Bear Scotland v Fulton  (and conjoined cases). Key points:- 1.  workers are entitled to be paid a sum of money to reflect normal non-guaranteed overtime as part of...

Work placements - discrimination

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 Thanks to James Medhurst of Employment Law Advocates for preparing this case summary Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett this month. Does an employment tribunal have jurisdiction to...

Discrimination - meaning of 'employee'

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett this month. Does UK discrimination law meet the requirements of EU law in...

Striking out

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 Thanks to  Sarah Fitzpatrick  of Collingwood Legal for preparing this case summary Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett this month. Can a claim for unfair dismissal due to...

Injunctions during notice period

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 Thanks to  Grahame Anderson  of Littleton Chambers for preparing this case summary Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett this month. Where a departing employee expresses unwillingness...

Teachers - disciplinary procedures

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 Thanks to  Neil Addison  of New Bailey Chambers for preparing this case summary Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett this month. Can a teacher be disciplined by a local authority...

Actors as workers

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 Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett this month. Were actors working under a profit share...

Polkey deductions

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 Thanks to  Grahame Anderson  of Littleton Chambers for preparing this case summary Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett this month. Was an employment tribunal's failure explicitly...

Reasonable adjustments

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 Thanks to James Medhurst of Employment Law Advocates for preparing this case summary Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett this month. Does an employment tribunal deciding a reasonable...

ACAS guidance on shared parental leave

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Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett this month. ACAS has published a detailed guidance note on the new shared parental leave rules, together with supporting material including standard letters and a...

Duty of care in instigating disciplinary proceedings

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 Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett this month. Can an employer be liable to an employee for...

Retirement - Lord Justice Maurice Kay

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Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett this month. The Ministry of Justice has announced the  retirement of Lord Justice Maurice Kay  as of 1 October 2014. Sir Maurice sat as a judge in the...

Armed forces discrimination claims in the employment tribunal

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 Thanks to  Barnaby Large  of No.18 Barristers Chambers for preparing this case summary. Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett this month. How should the bar to bringing discrimination...

Retirement of Lord Justice Rimer

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Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett this month. The Ministry of Justice has announced the retirement of Lord Justice Rimer , as of yesterday. Lord Justice Rimer sat as a judge in the Employment...

BIS annnouncement on minimum wage and employment status

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Thanks to  Laurie Anstis  of Boyes Turner, who is standing in for Daniel Barnett this month. Following Vince Cable’s  speech to the Liberal Democrat conference  yesterday, BIS have made two new employment law announcements: 1....

Procedural Guidance for Tribunals

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The Court of Appeal has handed down guidance on the best way for Employment Judges to prepare their written reasons in cases where they sit with wing members. See paragraph 11 of  Eyitene v Wirral MBC . In short, there is no obligation for Employment...

Effective Date of Termination

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 Thanks to  Jennifer Danvers  of Cloisters for preparing this case summary. Where the result of an internal appeal is that an employee’s summary dismissal is substituted for dismissal with pay in lieu of notice, is the effective date...

Deductiond from Salary

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 Thanks to  Naomi Cunningham  of Outer Temple Chambers for preparing this case summary Is recovery of a previous overpayment of wages or salary a 'deduction' which must be explained in an itemised pay statement? Yes, held the EAT...

Future Loss of Earnings / Pension Losses

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 Thanks to  Chesca Lord  of Cloisters for preparing this case summary Is the simplified approach to pension loss appropriate where an individual would have remained a member of a final salary scheme to retirement, but whose only future...

Court of Appeal - Territorial Jurisdiction

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 Thanks to  Will Young  of Outer Temple Chambers for preparing this case summary Does the test for whether an employment tribunal has territorial jurisdiction to hear a claim of unfair dismissal under the Employment Rights Act 1996 from a...

Fixed Term Worker Discrimination

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 Thanks to  Michael Reed , Employment Legal Officer at the Free Representation Unit, for preparing this case summary Is it a breach of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 for an employer to purchase...

TUPE service provision changes

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 Thanks to  Nathaniel Caiden  of Cloisters for preparing this case summary Does the percentage of time an employee spends on an activity immediately before an SPC transfer establish assignment? No, held the EAT in  Costain Ltd v...

Employment Tribunal Fees

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In the Court of Appeal today, Unison applied to admit new evidence in their appeal against the decision dismissing their judicial review application challenging employment tribunal fees. It is (reliably) being reported that the Court of Appeal decided to...

Claimant entitled to costs despite having insurance cover and not paying fees himself

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 Thanks to  Rad Kohanzad  of Serjeants’ Inn Chambers for preparing this case summary When deciding whether to award costs, is it relevant for an employment tribunal to take into account the fact that the receiving party has had their...

Military Reservists

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The  Reserve Forces (Payments to Employers and Partners) Regulations 2014  have been published - coming into force on 1st October 2014. At present, when called up, military reservists are paid directly by the Ministry of Defence - and employers...

Time Off to Accompany a Pregnant Woman to Ante-Natal Appoinments

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From 1 October 2014 expectant fathers, or the partner of a pregnant woman, will be entitled to take unpaid time off work to attend antenatal appointments with their partner. The Department of Business, Innovation and Skills has produced a  guide for...

Tribunal Member Appears Asleep due to Medical Condition

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary If a member of an Employment Tribunal is apparently sleeping for around 15-20 seconds, having been observed to be drooling by the Employment Judge, is that a material...

Employment Tribunal Statistics Quarter 2, 2014

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The Ministry of Justice has just released the  statistics for employment tribunals for April to June 2014. They reveal a 71% drop in claims (70% in single claims) compared with the same period in 2013. A more significant statistic is that single...

Breaking News: Labour Party Announcement on Employment Tribunals

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Speaking live at TUC Congress, Shadow Business Secretary Chuka Umunna is announcing that the next Labour Government will "scrap" the Government’s employment tribunal system and replace it with "a fairer system to ensure that...

(1) TUPE and (2) Adjournments

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 Thanks to  Peter Taheri  of 5 Essex Court for preparing this case summary In  Ejiofor t/a Mitchell & Co Solicitors v Sullivan  and others, the EAT considered two questions: (1) Can a business be transferred under TUPE when...

Territorial Jurisdiction

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 Thanks to  Barnaby Large  of No.18 Barristers Chambers for preparing this case summary. Did the employment tribunal have jurisdiction to determine the claims of a US citizen, employed by a US company, paid in dollars but who lived and...

Employment Tribunal can Award Costs of In-House Lawyer

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 Thanks to  Nicholas Hill  of Outer Temple Chambers for preparing this case summary Can an employer recover costs in respect of time spent by a legally qualified in-house representative? Yes, held the EAT in  Ladak v DRC Locums Ltd . ...

Adjournments

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 Thanks to  Rad Kohanzad  of Serjeants’ Inn Chambers for preparing this case summary Should an employment tribunal briefly adjourn a hearing of its own motion for a mentally impaired litigant to recover his lucidity and obtain...

Construction of Salary Increase clause in contract

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 Thanks to  Barnaby Large of No.18 Barristers Chambers for preparing this case summary. Should an assurance of guaranteed incremental pay increases subject to performance contrary to absolute discretion in a written contract bind an...

New Acas Guidance on Dress Codes

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Acas has issued new guidance on  dress codes and appearance in the workplace . It sets out the issues for employers to consider, rather than providing answers. Two of the areas it focuses on are tattoos and body piercings, and religious dress....

DDA and reasonable adjustments

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 Thanks to  Sarah Russell  of Slater & Gordon for preparing this case summary Was there a failure to make reasonable adjustments in dismissing a health visitor following her conviction for theft, dangerous driving and battery? No, held...

Constructive Dismissal

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 Thanks to  David Leslie  of Lyons Davidson for preparing this case summary Is an employee prevented by law from claiming constructive dismissal if he is in repudiatory breach of his contract? No, held the EAT in  Atkinson v Community...

Zero-hours contracts

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[Thanks to Craig Gordon of  HR Bullets  for allowing the reproduction of his  bulletin ] Having decided in June to ban the use of exclusivity clauses on zero-hours contracts (ZHCs), the government is now asking for views on how to stop...

TUPE and constructive dismissal

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 Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary Does a change of location where the employee is required to work after a TUPE transfer justify a resignation and a claim for constructive dismissal? ...

The timing of a TUPE transfer

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 Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary When, precisely, does a TUPE transfer take place? When responsibility for the management of the business or service transfers from one entity to...

TUPE

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 Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary. Where a security contractor has been engaged for a company on  land owned by a Borough, when the Borough take back the site and engage a new...

Age Discrimination and Voluntary Early Retirement

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 Thanks to  Caroline Jennings  of No 5 Chambers for preparing this case summary Was a failure to allow an employee to change her choice of voluntary redundancy to redeployment (in the hope that the redeployment exercise would take her from...

Detrimental treatment and the burden of proof

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Thanks to Sophie Beesley of Old Square Chambers for preparing this case summary . In a case of detrimental treatment related to union activities, contrary to s.146 TULRCA 1992, does the burden of proof operate as in a discrimination claim? No,...

Scope of regulators' duty to report on whistleblowing

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[Thanks to Craig Gordon of  HR Bullets  for giving permission to reproduce his summary] The government has started a consultation asking for views on exactly how regulators will be obliged to report on whistleblowing disclosures they receive. ...

Issues Not In Dispute

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 Thanks to  Paul Smith  of Broadway House Chambers for preparing this case summary May an employment tribunal determine issues not in dispute between the parties? No, says the EAT in  Mr Clutch Auto Centres v Blakemore . In this case...

Illegality Defence in Discrimination Claims

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Thanks to Vanessa James of SA Law for preparing this case summary Can an illegal immigrant bring a claim for discrimination despite the illegal nature of the contract? Yes, held the Supreme Court in  Hounga v Allen. At common law a court...

Withdrawing a Tribunal Claim - Tribunal not obliged to make further enquiries

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Should an employment tribunal make enquiries of a Claimant when a claim is withdrawn, even in the heat of the moment? No, held the unanimous Court of Appeal in ...

New Court of Appeal Appointments

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The Ministry of Justice has announced four appointments to the Court of Appeal. Mr Justice Bean and Mr Justice Sales, who will take up their appointments as Lord Justices of Appeal in the autumn, both have considerable employment law experience. Also...

Health & Work Service

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The new Health & Work Service, which is a government funded occupational health service, is due to go live in April 2015 (with roll-out from late 2014). The Department for Work and Pensions has issued a  press release  announcing that the...

Restrictive Covenants, Notice Period and Salary

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 Thanks to  Caroline Field  of Fox for preparing this case summary Can an employee be restrained from working for a competitor during his notice period (and the period covered by his restrictive covenants) where the employer stops paying his...

Safeguarding Disclosures

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 Thanks to  Jennifer Danvers  of Cloisters for preparing this case summary. Does the former employer of a teacher owe that teacher a duty of care when making safeguarding disclosures? No, held Sir Colin Mackay in  Melik Camurat v...

Freedom of Information - Names of Employment Tribunal Respondents not available

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Is the list of Respondents to employment tribunal claims held by HM Courts & Tribunals Service exempt from disclosure under a Freedom of Information Act request? ...

Traditional Approach to Restrictive Covenants Reaffirmed

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Can a court re-write restrictive covenants to bring them in line with common sense? No, the Court of Appeal holds, in  Prophet plc v Huggett . Prophet was a software company, selling software to the fresh produce industry. A restrictive covenant...

Injunctions and Disciplinary Proceedings

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Thanks to David Campion of Garden Court North Chambers, for preparing this case summary Did an NHS Trust's disciplinary policy permit it to impose a more severe sanction upon an employee's appeal? No, held the Court of Appeal in ...

Is obesity the new disability?

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Does obesity qualify, without more, as a disability?  If yes, then the duty to make reasonable adjustments might include employers having to provide bigger chairs and desks, car parking spaces near the front door, and duties involving less mobility. ...

Employment Tribunal Fees

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Has HM Courts & Tribunal Service made its hoped-for £10m from tribunal fees? According to the HMCTS annual report (p85), fee income generated just under £4.5m in the 8 months between 29th July 2013 and 30th March 2014, equivalent...

Bundles in the Employment Appeal Tribunal

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The President of the Employment Appeal Tribunal, Langstaff P, has issued a clear warning to litigants in the EAT who fail to agree bundles. In summary, the parties should not turn up with two separate bundles if they cannot agree the contents. Where one...

Interim Relief Payments

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  Thanks to  Naomi Cunningham  of Outer Temple Chambers for preparing this case summary Are payments under an interim relief order taxable in full as earnings under s62 ITEPA , or as payments in connection with termination under s401? The...

Employment Tribunal Fee Remission

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Her Majesty's Courts and Tribunals Service has just published the new Form EX160A  (the form and guidance notes for applying for fee remission), as trailed  here . The form is only two pages (but it's in very small print, and the...

Employment Tribunal Fees

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According to a written answer in Hansard ( col WA 140 ), the Ministry of Justice will soon be announcing a review into fees in employment tribunal proceedings. Meanwhile, the Unison judicial review of the introduction of tribunal fees is due to be heard by...

Compulsory Retirement Ages

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 Thanks to  Keira Gore  of Outer Temple Chambers for preparing this case summary Is 65 an appropriate age for mandatory retirement? Yes, held the EAT in  Seldon v Clarkson Wright & Jakes , a well known and long-running case. Mr...

Two Things

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Two small things. First, the Information Commissioner's Office has published  Guidance Notes on Disclosure of Information under TUPE . It's short and easy to read. Thanks to  Laurie Anstis  of Boyes Turner for spotting it. Second,...

Reimbursement of Fees

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  Thanks to  Nathaniel Caiden  of Cloisters for preparing this case summary HHJ Eady QC in  Horizon Security Services Limited v PCS Group  has laid down the following general principles in relation to appellants recovering EAT fees...

The Small Business, Enterprise and Employment Bill 2014 Published

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The Small Business, Enterprise and Employment Bill  has been published today. It contains the following... First, under clause 136, a new system for enforcing tribunal awards: an 'enforcement officer' will give a 28-day warning notice if a...

Zero Hour Contracts

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Vince Cable, the Secretary of State for Business, Innovation and Skills, has this morning announced plans to ban exclusivity clauses (which prevent an individual from working for another employer, even when no work is guaranteed) in zero-hour contracts. The...

Constructive Dismissal and Affirmation of Contract

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Thanks to  Rad Kohanzad  of Serjeants’ Inn Chambers for preparing this case summary Can delay in resigning in and of itself amount to an affirmation of a breach of contract? No, held the EAT in  Chindove v Morrisons Supermarkets . The...

Bias: EAT Guidelines where 3rd party approaches Judge

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Thanks to  Samantha Cooper  of Outer Temple Chambers for preparing this case summary If, during a hearing, an employment tribunal receives information from a third party that may be prejudicial, should it disclose that information to the parties...

Employment status: Football Referee

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Thanks to  Jahad Rahman  of Rahman Lowe Solicitors for preparing this case summary Is a football referee an employee under the ERA 1996? No, held the EAT in  Conroy v Scottish Football Association . The Claimant, a football referee, lodged...

Fee-Paid Judges and Pensions

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The Ministry of Justice has issued a further statement in respect of part-time (fee-paid) judges and judicial pensions, in the light of the MOJ v O'Brien litigation. The statement is  here ....

Disclosure of 'Spent' Convictions

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Thanks to  Georgia Hicks  of Devereux Chambers for preparing this case summary Is the obligatory disclosure of spent convictions for specified professions or persons working with children and vulnerable adults a necessary and proportionate...

Employment Tribunal Fee Remission

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Thanks to Michael Reed of the Free Representation Unit for tipping me off about this. The Ministry of Justice has just announced a simplification of the fee remissions structure, effective 30 June.  With effect from 30 June:-   - applicants no...

Penalty Clause in Employee's Notice Period

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Thanks to  James English  of Hempsons solicitors for preparing this case summary Is a clause deducting a month's salary for an employee's failure to work their notice period a penalty clause? No, held the EAT (with some hesitation)...

Contracts of Employment

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Thanks to  Chesca Lord  of Cloisters for preparing this case summary Can an express contract of employment exist in the absence of an agreement to remunerate the individual for work provided to the company? No, held the EAT in  Ajar-Tec Ltd...

Employment Tribunal Statistics: January - March 2014

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The MOJ has released the most recent set of  employment tribunal statistics . They're not immediately easy to work out, and I've put some key points below: meanwhile, you can download my powerpoint slides on the impact of employment...

Paid Annual Leave not Extinguished by Worker's Death

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Thanks to  Will Young  of Outer Temple Chambers for preparing this case summary. Does the death of a worker extinguish his or her right to paid annual leave? No, held the CJEU in the case of  Bollacke v Klass & Kock B.V.   Mrs...

Associative Discrimination

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Thanks to Vanessa James of SA Law for preparing this case summary Does an employer's duty to make reasonable adjustments extend to an employee associated with a disabled person? No, held the Court of Appeal, upholding the EAT's decision...

BIS Survey of ET Applications

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BIS has today published its  Findings from the Survey of Employment Tribunal Applications 2013 . Coming in at a whopping 280 pages, this is the first such survey in five years. About 2,000 employees and 2,000 employers were interviewed for the...

Allegation of Bias

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Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Should allegations of bias at an employment tribunal be dealt with by an application for a review (or reconsideration)? No, held the EAT in  Papajak v Intellego Group...

Unusual bias case: Employment Judge hearing same case twice

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Thanks to Rosa Dickinson of St Philips Chambers for preparing this case summary Where an Employment Judge has announced a firm conclusion that a Claimant is disabled, but later re-hears this issue himself, does this amount to a real possibility of...

Burden of Proof

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Thanks to  Barnaby Large  of No.18 Barristers Chambers for preparing this case summary. When dealing with a multitude of discrimination allegations, may employment tribunals go beyond the first stage of the burden of proof test to look at 'the...

Minimum Wage Enforcement

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The government has 'named and shamed' 25 new employers who have failed to pay the minimum wage. Like last time, the list only represents a tiny proportion (estimated at less than 1%) of those breaching the legislation. No large employers are...

The Flexible Working Regulations 2014

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The  Flexible Working Regulations 2014   were laid before parliament yesterday and come into force on 30th June. They extend the right to make a request for flexible working to any employee who has been employed for 26 weeks (not just parents of...

Indirect Discrimination: Proving Disadvantage

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Thanks to  Thomas O’Donohoe  of 3 Paper Buildings for preparing this case summary In a claim for indirect discrimination do members of a disadvantaged group have to show why they have suffered the disadvantage, in addition to the fact that...

Employment Law Reforms in the Queen's Speech

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The  Queen's Speech  today identified various (minor) employment law proposals:-   - “Strengthen UK employment law by tackling National Minimum Wage abuses and cracking down on abuse in zero hours contracts”.  No details...

New TUPE Guidance

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Acas has, today, published new guidance on Handling TUPE transfers, as well as a useful  flowchart . This comes hot on the heels of Acas' new guidance and advice on the World Cup. If you're a TUPE afficionado (and who isn't?),...

Court of Appeal discourages EAT from substituting decision after successful appeal

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Thanks to  Paul Smith  of Broadway House Chambers for preparing this case summary When may the Employment Appeal Tribunal substitute its own decision for that of the employment tribunal, rather than remit? Only in limited circumstances, held the...

Reasonable Investigation: Misconduct which is also criminal

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Thanks to  Peter Taheri  of 5 Essex Court for preparing this case summary In a claim of unfair dismissal on grounds of misconduct, is an employment tribunal's failure to analyse whether the employer's investigation satisfied A v...

Adequacy of Reasons

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Thanks to  Barnaby Large  of No.18 Barristers Chambers for preparing this case summary. Can detailed reasons nevertheless fail to tell the parties sufficiently how their case was decided? Yes, held the Court of Appeal in  Co-Operative v...

Constructive Dismissal and Affirmation of Contract

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Thanks to  Will Young  of Outer Temple Chambers for preparing this case summary Can an employee be held to have affirmed the contract (and hence have lost any claim for constructive dismissal) if he or she gives longer than the contractual minimum...

Holiday Pay must Include Commission

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Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Does the Working Time Directive require that a worker's statutory holiday pay not be limited to basic salary where commission is a part of remuneration? Yes, held the...

LLP Member is a 'worker'

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Thanks to Lisa Joyce of DTM Legal LLP for preparing this case summary. Can a member of a Limited Liability Partnership (LLP) be a 'worker' within the meaning of section 230(3) of the ERA 1996? Yes, held the Supreme Court in ...

TUPE: Relocation and ETO

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Thanks to  Rad Kohanzad  of Serjeants’ Inn Chambers for preparing this case summary Is the requirement to work in a different location following a TUPE transfer a 'change in the workforce' within the meaning of the (pre-2014...

Admissiblity of Evidence

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Thanks to  Paul Smith  of Broadway House Chambers for preparing this case summary Before deciding that evidence should be excluded, should an employment tribunal investigate the relevance of such evidence? Yes, held the EAT in  Kalu v...

Independent Trade Union

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  Thanks to Jasvir Kaur of Squire Sanders for preparing this case summary . Is the question of whether a trade union is 'independent' a matter of jurisdiction for the employment tribunal when considering a claim for detriment...

Tribunal Compensation Cap: High Court dismisses judicial review application

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Under  this statutory instrument , the maximum compensatory award a tribunal can make is a year's salary (which, itself, is capped at £76,574). Last year, Alex Monaco of Compromise Agreements launched a judicial review application over the...

Employment Tribunal Fees - Remission Statistics

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A  written answer in the House of Commons  has revealed that 24% of remission applications between 29th July and 31st December 2013 were granted (in part or in full). Putting that in perspective, it amounts to remission being granted in just 5.5%...

Employment status of director on insolvency of company

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Thanks to  Bonike Erinle  of Farrar’s Building for preparing this case summary. Can the owner of a company be regarded as an employee for purposes of a claim for a redundancy payment? Yes, depending on the nature of the relationship between...

National minimum wage

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Thanks to  Peter Taheri  of 5 Essex Court for preparing this case summary Where a care worker was required to work a number of 'sleep in' night shifts at the employer's premises, and be available for emergency purposes, did the night...

Allegation of apparent bias

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Thanks to  David Leslie  of Lyons Davidson for preparing this case summary Is there apparent bias where the Employment Judge's daughter is a partner in the firm representing a claimant? No, held the Employment Appeal Tribunal in  South...

Case Management Agenda

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Back in March, the (then) President of the Employment Tribunals (England & Wales), Judge Latham, issued  Presidential Guidance on Case Management , which included a case management agenda for preliminary hearings as an appendix at the back. The...

Confidential Information: Inspection of Employees' Home Computers

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 Thanks to  Sarah Russell  of Slater & Gordon for preparing this case summary Is it possible to obtain an interim injunction compelling former employees to allow viewing and copying of their personal computer? Yes, in the circumstances...

Age Discrimination: Interesting Case

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 Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary The EAT (Langstaff P) has handed down judgment in the case of  Clements v Lloyds Bank , which concerned the interaction of discrimination and constructive unfair...

Constructive Dismissal and Contributory Conduct

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Thanks to  Mark Humphreys  of Littleton Chambers for preparing this case summary Can contributory fault be found in a case of constructive dismissal? Potentially yes, but unusually and not in the circumstances of  Firth Accountants v Law...

Changes to Employment Law

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As of today, the time period for a transferor to provide employee liability information to a transferee increases from 14 days to 28 days before the transfer. This applies only apply to TUPE transfers that take place on or after 1 May 2014. Further, from...

Employment Tribunal Fees

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It's been a few weeks since the last update on where we are with employment tribunal fees, so here we go... Last week, the Enterprise Minister, Matthew Hancock, hailed the 79% drop in employment tribunal claims as demonstrating the ending of the...