The 2024 annual update to the Vento guidelines (which give ranges for injury to feelings awards in discrimination cases, depending on severity) have been published. In respect of claims presented on or after 6 April 2024, the Vento bands are: ...
Where unconnected acts of discrimination are linked by their factual setting, should they be treated as ‘conduct extending over a period’ to bring them all within the ordinary time limit for discrimination claims? No, held the Employment Appeal...
Was an employee who resigned after refusing to attend at her workplace during the COVID-19 pandemic unfairly dismissed on health and safety grounds? Yes, held the Employment Appeal Tribunal in Herve v Goldstein . The Claimant worked from an...
Did an employer make reasonable adjustments when it dismissed a disabled employee rather than placing him in an alternative role on a trial basis? No, held the Employment Appeal Tribunal in Miller v Rentokil . The Claimant worked as a field-based...
Could a claimant claim unfair dismissal on the basis that he had ‘sought to take’ parental leave when he had not made a formal application for leave at the point he was dismissed? Yes, held the EAT in Wright v Hilton Food Solutions ....
Was a tribunal entitled to conclude that there were two ‘principal' reasons for dismissal in a claim for automatic unfair dismissal on health and safety grounds under section 100(1)(e) Employment Rights Act 1996 ? No, held the EAT in ...
Was a tribunal entitled to decide that a decision to dismiss an employee for posting a racist ‘joke’ on his employer’s intranet fell outside the band of reasonable responses? No, held the EAT in Vaultex v Bialas . The Claimant...
Was it discriminatory for a theatre to dismiss a Christian actress from a lesbian role after online posts about her belief that homosexuality was sinful become public? No, held the EAT in Omooba v Michael Garret Associates . The Claimant was...
Could an employee bring a claim of whistleblowing detriment against his employer where the act of detriment relied upon was his dismissal? No, held the EAT in Wicked Vision v Rice . The Claimant brought a claim of automatic unfair dismissal against...
Where a Claimant fails to comply with an 'unless' order, but a fair trial is still possible, is a tribunal still entitled to strike out that claim? Yes, held the Employment Appeal Tribunal in Tattersall v Mersey & West Lancashire Teaching...
Did an overarching agency agreement exist between an agency worker and a hirer, such that the agency worker was entitled to ‘suspension pay’ from the hirer during a nine-month period when she was not allowed to book shifts with them? No, held...
The government has announced the annual increase in compensation limits for employment tribunal awards and other statutory payments. They are contained in The Employment Rights (Increase of Limits) Order 2024 . The two key increases are: ...
Was it lawful for an employment tribunal to refuse a disabled litigant in person’s request that he be allowed to record a three-day preliminary hearing? No, held the EAT in Bella v Barclays Execution Services . The Claimant was disabled. His...
The government has published an updated Code of Practice on dismissal and re-engagement (better known as ‘Fire and Rehire’). If it is approved by Parliament, a commencement order will bring the Code into effect, likely later this...
Was the tribunal right to conclude that, in serving his witness statement on the tribunal, the Claimant had complied with an Unless Order requiring him to serve his witness statement on the other side? No, held the EAT in Elemide v Bauhaus...
UPDATE : After sending this email a few minutes ago, I came across this article by Darren Newman which explains the proposals (as according to the Guardian) far better than me, and also beats them up with a very big stick. === Original email...
According to this report in yesterday’s Guardian , the Labour party has drafted a Race Equality Bill which extends equal pay rights to BAME and disabled workers. At the moment, the equal pay regime only applies on grounds of sex. This is...
Was an employment tribunal right to strike-out a claim on the basis that the Claimant’s conduct meant that a fair trial was not possible? No, held the EAT, on the facts of Hargreaves v Evolve Housing & Support and another . The Claimant...
Is it unlawful age discrimination to change the rules of a Long Term Incentive Plan to only benefit employees who remained employed at the date that the change was made? No, held the EAT in Fasano v Reckitt Benckiser Group (1) and Reckitt Benckiser...
Mark Lewis, the Employment Tribunals Service Manager has issued the following update for professional representatives in the employment tribunal: - From tomorrow, the MyHMCTS portal will allow ET3 submission for all types of cases for professionally...
Can liability for harassment transfer under TUPE, where the harasser transfers under TUPE and the Claimant was not employed at the point of the transfer? No, held the EAT in Moore v Sean Pong Tyres . The Claimant claimed constructive dismissal and...
Did an employment tribunal act perversely in refusing an extension of time in a discrimination case where the Respondent had not told the Claimant the race of his comparator? No, held the EAT in Jones v Secretary of State for Health and Social Care ...
Can the definition of ‘worker’ be extended on human rights grounds to cover external job candidates as whistleblowers? No, held the EAT in Sullivan v Isle of Wight Council . The Claimant applied, unsuccessfully, for work at the...
His Majesty’s Courts and Tribunals service has asked us to issue this notice: Please be aware that Employment Tribunal online services will be subject to a planned upgrade on Wednesday 24th January at 20:00 , with services being restored by Thursday...
Did an employment tribunal in a whistleblowing unfair dismissal claim have to give reasons as to why they discounted certain dates of knowledge, put forward in evidence by the decision-maker, in favour of one which fell after the date of the dismissal? No,...
Could a tribunal's decision that a Claimant had not been victimised stand where it had erred in concluding that the alleged act of victimisation had not occurred? Yes, held the EAT in Toure v Ken Wilkins Print . The Claimant was employed as a forklift...
After announcing proposals to make changes to paternity leave rights in summer 2023, the government has now published draft legislation in the form of the Paternity Leave (Amendment) Regulations 2024 . The Regulations make the following changes: -...
Can a settlement agreement be used to validly settle future unknown claims under Equality Act 2010 ? Yes, held the Court of Session in Bathgate v Technip Singapore PTE Ltd . The Claimant was made redundant and left employment under a settlement...
Was a tribunal correct to conclude that a contract of employment had been affirmed, when a Claimant waited three months to resign, following a ‘last straw’ breach by the Respondent? No, held the EAT in Leaney v Loughborough University ....
Earlier this week, the government released new guidance to cover the latest holiday pay and entitlement reforms. It sets out the changes to the Working Time Regulations which the government introduced on 1 January 2024 and will affect: - irregular hours...
Could a clause in a contract of employment, purporting to limit the financial liability of the Respondent on termination of employment, operate to cap the compensation awarded by the tribunal in a whistleblowing claim? No, held the EAT in SPI Spirits...
The Carer’s Leave Regulations 2024 have been laid before Parliament. They set out the statutory scheme under which employees can apply for up to one week of unpaid carer’s leave, in any 12 month period. Key features are: - ...
The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 have been laid before Parliament, extending the period of special protection from redundancy for employees who are on maternity leave, adoption leave or...
Could an embassy use state immunity to deny the jurisdiction of the employment tribunal in a discrimination case? Yes, held the EAT in The Royal Embassy of Saudi Arabia (Cultural Bureau) v Alhayali , subject to a specific exception for personal...
The Flexible Working (Amendment) Regulations 2023 have been laid before Parliament. The Regulations remove the requirement that an employee must have 26 weeks’ service in order to be able to make a request for flexible working. The...
HMCTS has asked us to circulate the following information: "Employment Tribunal online services will be subject to a planned upgrade on Thursday 7 December from 8:15pm. The upgrade is expected to last until 4.30am on Friday. A message, informing users...
Was a Claimant who provided services as a pilot to an airline via an intermediary business, both ‘employed’ by the intermediary business for the purposes of the Civil Aviation (Working Time) Regulations 2004 , and an agency worker under...
Was a tribunal correct to conclude that a Claimant’s ‘heat of the moment’ resignation should stand – with the result that he could not pursue an unfair dismissal claim? No, held the EAT in Omar v Epping Forest District...
Did a failure to consult with the workforce, in relation to redundancy proposals at a formative stage, render a later dismissal unfair? Yes, held the Employment Appeal Tribunal in Joseph de Bank Haycocks v ADP RPO UK Limited . The Claimant...
Is it an abuse of process for a Claimant, who had settled a whistleblowing detriment claim using a COT3 agreement, to attempt to bring fresh proceedings relying on the same protected disclosures but new detriments? Yes, held the EAT in Ajaz v...
Yesterday the Government announced that it has accepted the Low Pay Commission’s recommendations on minimum wage rates to apply from 1 April 2024. This is the largest ever increase to the minimum wage in cash terms. The National Living Wage...
Was the CAC correct to refuse a trade union’s application for recognition in respect of a group of riders, working for Deliveroo, who were not required to provide personal service? Yes, held the Supreme Court in Independent Workers Union of...
The Government has published draft legislation to amend the Equality Act 2010 with effect from 1 January 2024. The Equality Act 2010 (Amendment) Regulations 2023 codify certain EU-derived discrimination protections which would otherwise have...
The government has published a draft statutory instrument containing amendments to the law on holiday pay, TUPE and working time. The changes, which are likely to come into force on 1 January 2024, include: - simplifying holiday pay calculations...
Was Scottish guidance stating that trans women with a gender recognition certificate (GRC) could claim protection as women under Equality Act 2010 lawful? Yes, confirmed the Inner House of the Court of Session in For Women Scotland Ltd v Scottish...
The Presidents of Employment Tribunals in England and Wales and in Scotland have announced that with effect from 20 November 2023, all employment tribunal proceedings will be recorded by HMCTS, using audio recording only, where facilities are available to do...
New legislation has come into force which means that criminal convictions become spent after a shorter time, reducing the period that individuals are legally required to declare them to their employers. Section 193 of the Police, Crime, Sentencing and...
The Worker Protection (Amendment of Equality Act 2010) Act 2023 has received Royal Assent, and will come into force in October 2024. This is an important piece of legislation when it comes to sex harassment litigation, and I’m explaining...
ACAS has today launched a consultation on a draft Code of Practice on handling requests for a predictable working pattern. The Code of Practice will sit alongside the Workers (Predictable Terms and Conditions) Act 2023 which received Royal Assent...
Was the tribunal correct, in a direct race discrimination claim, to treat a colleague who made a comment about her own race as an actual comparator of a Claimant who had made a comment about a colleague’s race? No, held the EAT in Virgin Active...
It was announced earlier today that Dame Ingrid Simler, Lady Justice of Appeal, has been appointed as a Justice of the Supreme Court. She will fill the vacancy left by Lord Kitchin's retirement. Dame Ingrid Simler was President of the...
The government has updated its Guidance on Fit Notes for Employers and Line Managers . As well as the guidance itself (and why use 500 words when you can use 4,462?), there is a checklist for employers and a set of case studies. Frankly, life’s...
Can employees claim for historic underpayments of holiday pay even if there are gaps of more than three months between deductions? Yes, held the Supreme Court in its long-awaited Judgment in Chief Constable of Police Service of Northern Ireland v...
Was a tribunal entitled to conclude that an intervening act by a third party in a whistleblowing detriment claim broke the chain of causation between the detriment to the Claimant and the losses suffered as a consequence? Not on the facts of this...
The Workers (Predictable Terms and Conditions) Act 2023 has received Royal Assent and is expected to come into force in September 2024. It introduces a new statutory right for workers to request a more predictable working pattern. Key points to...
The President of the Employment Appeal Tribunal, Mrs Justice Eady, has issued a new EAT Practice Direction which takes effect on 30 September 2023. The 80 page guide is an explanation of all EAT practice, including detailed explanations of what...
Judge Barry Clarke, President of Employment Tribunals (England & Wales) spoke on Discrimination in Employment/Industrial Courts at the Annual Conference of the Commonwealth Magistrates’ and Judges’ Association in Cardiff on 11 September 2023....
Further to our previous bulletin on 8th September, the online submission service for ET1s and ET3s is now back up and running. Judge Barry Clarke, President of the Employment Tribunals (England & Wales), has issued the following ...
The Employment Appeal Tribunal (Amendment) Rules 2023 have been published. They amend the current rules governing procedure in the Employment Appeal Tribunal set out in the Employment Appeal Tribunal Rules 1993 and will come into...
The House of Lords have amended the Worker Protection (Amendment of Equality Act 2010) Bill to remove the proposed third party harassment provisions. Following a debate in July 2023, the Bill has been republished with the original clause 1...
Can the termination of employment on ill-health grounds be regarded as termination by mutual consent, rather than dismissal? Yes, held the EAT in the case of Riley v Direct Line Insurance Group . The Claimant had Autism Spectrum Disorder. He was...
As you may know, HMCTS has been experiencing technical difficulties with the ET1 online submission service since Wednesday afternoon. Currently, the only two ways to submit an ET1 are by post or by hand to the tribunal. Judge Barry Clarke,...
Does the benefit of a non-contractual share incentive plan transfer under TUPE? Yes, held the Inner House of the Court of Session in Ponticelli Ltd v Gallagher . The case was about whether the Claimant’s employer share incentive plan...
Does an employer need to know the specifics of a disabled person’s substantial disadvantage before being required to make reasonable adjustments? No, held the EAT in AECOM Limited v Mallon , dismissing the employer’s appeal on that point. ...
The House of Commons library has just published a report on Artificial Intelligence and Employment Law . It reviews the current interaction between employment law and artificial intelligence (not much, and containing some analysis that I...
His Majesty’s Courts & Tribunals Service has produced a video (lasting about half an hour) showing professional users how to register for the MyHMCTS portal (the new digital interface between professional users and the...
Does the fact that a claim is rejected for mis-naming the Respondent, prevent it from being 'not reasonably practicable' to have presented a claim in time? No, held the EAT in The Sports PR Company Ltd v Cardona . The Claimant presented a...
HMCTS has issued new ET1 and ET3 forms, effective as of 3 August 2023. They are prescribed forms, so technically a claim (or response) submitted using an older version is arguably invalid. New ET1 form New ET3 form The changes aren't major....
As well as their toolkit with tips and resources, Acas have released new and updated guidance on sickness absence which covers: - checking holiday entitlement and sick pay; - fit notes and proof of sickness; ...
The government has finally published its list of which overseas countries residents can give evidence from via video link. The list is here: https://www.gov.uk/guidance/taking-and-giving-evidence-by-video-link-from-abroad#tribunals . The list is...
Does an employment tribunal need evidence to support granting an extension of time for a discrimination claim on a ‘just and equitable’ basis? No, held the EAT in Owen v Network Rail Infrastructure Ltd . The Claimant, a signaller, brought...
Did an employment tribunal err in its approach when finding that the unilateral variation of a nurse’s contract to move her from a band 6 role to a band 5 role was not an actual dismissal in the Hogg v Dover College sense? Yes, held the...
Do the comments of a tribunal on social media concerning a decision it has made give rise to apparent bias? Not necessarily, held the EAT in Aspect Windows (Western) Ltd v Retter (as representative of the estate of McCrorie) . Following the...
The Employment Relations (Flexible Working) Act 2023 has completed its passage through Parliament and now awaits Royal Assent. There are several things it changes about the current flexible working regime and several (possible more notable)...
Was it lawful for the Government, without consultation, to revoke legislation which prevented workers on strike being replaced by agency workers? No, held the High Court in R (on the application of ASLEF and others) v Secretary of State for Business...
The President of Employment Tribunals (E&W), Judge Barry Clark has today issued new Presidential Guidance on Alternative Dispute Resolution . It compares and contrasts the four types of ADR available in employment tribunals: using the services of...
Can a person be an employee or worker of two different employers at the same time in respect of the same work? No, held the EAT in United Taxis Ltd v Comolly . Mr Comolly was a taxi driver who carried-out work driving United Taxi’s passengers...
Does a manager holding a disciplinary have to meet an employee before deciding to dismiss? Not on the facts of this case, held the EAT in Charalambous v National Bank of Greece . The Claimant was dismissed for gross misconduct over a data...
Can a Claimant be harassed if they were not aware of the act of harassment? No, held the EAT in the recent case of Greasley-Adams v Royal Mail Group Limited . The Claimant argued that he had suffered harassment in relation to his disability by reason...
The Master of the Rolls, Sir Geoffrey Vos, has said in a speech that he believes machines and Artificial Intelligence “may also, at some stage, be used to take some (at first, very minor) decisions.” (Para 21) ...
In discrimination claims for manifestation of a religion or belief, does a tribunal have to decide whether an employer’s actions were motivated only by the objectionable manifestation of a religion or belief, rather than the belief itself? Yes, held...
Are the 'significant' failings of a Claimant's representative grounds for a reconsideration of a Strike Out Order? Yes, on the facts of this case, held the Court of Appeal in the case of Phipps v Priory Education Services Ltd . A...
Can a ‘relevant agreement’ reached in relation to holiday pay on termination of employment provide for a lower payment than an employee would get under the calculations set out in the Working Time Regulations 1998 (‘WTR’) ? No,...
The London Tribunals Project, 7 Newgate Street, is now expected to be operational by December 2024, later than originally planned. Newgate Street will replace Victory House once the lease on that building expires. It will comprise of 30 hearing rooms...
Is a tribunal permitted to look behind the decision-maker’s motivation in a discrimination case and take account of the motivation of other employees who were only indirectly involved? No, held the EAT in Alcedo Orange Ltd v Ferridge-Gunn . In...
Is a tribunal able to treat a Case Management Order as an ‘Unless Order’ and, following non-compliance, dismiss a Claimant’s claim without further order? No, held the EAT in Tanase v Barchester Healthcare Limited . In this case the...
Three Acts (stemming from Private Members’ Bills) received Royal Assent yesterday. The Neonatal Care (Leave and Pay) Act allows eligible employed parents whose new-born baby is admitted to neonatal care to take up to 12 weeks of paid leave, in...
Was a tribunal wrong to hold that the Institute of Actuaries discriminated on nationality grounds against a British student by offering two annual opportunities to pass examinations, when the corresponding Indian Institute offered more opportunities for the...
Was the Claimant subjected to a detriment and/or dismissed for health and safety reasons when he resigned his employment having refused to go back to work as a driving examiner during the Coronavirus pandemic? No, held the EAT in Miles v Driver &...
Was the Claimant unfairly dismissed by reason of redundancy because the Respondent did not consider the possibility of putting the Claimant on furlough? Yes, held the EAT in Lovingangels Care Home Ltd v Mhindurwa . The Claimant was a live in carer....
Did a tribunal err in applying too narrow a pool for comparison in an indirect discrimination claim when it included all direct employees but only one group of outsourced workers? Yes, held the EAT in Boohene and others v Royal Parks Ltd . The...
The Ministry of Justice has launched a consultation on "Open Justice: the way forward", seeking evidence on a range of topics covering open justice, access to data, and the transparency of the court and tribunal services. The consultation covers...
The Employment (Allocation of Tips) Act 2023 received Royal Assent last week. The commencement date has not been announced but, according to the government release , will be in about one year’s time. In brief, it requires employers...
Yesterday we reported that the government was abandoning the sunset clause in the Retained EU Law (Revocation and Reform) Bill (i.e. the automatic revocation of all EU legislation, unless expressly retained, on 31 December 2023). It has now...
In the last few minutes, the government has announced in a written statement to parliament that is is abandoning the sunset clause in the Retained EU Law (Revocation and Reform) Bill . [For more information about the Bill, ...
The government has announced an intention to introduce new legislation to restrict the duration of non-compete restrictive covenants to three months. The press release makes it clear that employers will still be able to restrict activities during (paid)...
The government has announced its intention to make some important changes to aspects of employment law now that the UK has left the EU. Working Time Regulations merging ‘normal’ holiday leave with ‘additional’ holiday leave, to...
When a tribunal’s decision on disability discrimination included a summary that incorrectly stated the legal tests for knowledge of disability, was the decision unsafe? Not in the circumstances of this case, held the EAT in Lingard v Leading...
Is an employer required to use the formula set out in the Coronavirus Job Retention Scheme (CJRS) to calculate the amount of furlough pay owing to an employee even though they had reached an alternative agreement as to the calculation of such pay? No, held...
Is it reasonably practicable to present an ET1 in time, in circumstances where the solicitor had posted the claim to the incorrect address and then failed to submit the claim online within the time limit, instead choosing to repost it? Yes, held the EAT...
If a restrictive covenant covers what it needs to and what was contemplated by the parties, but also unintentionally covers areas which are “fantastical” and were not contemplated, can it still be valid? Yes, held the Court of Appeal in ...
If a Claimant is subject to a CPO (Civil Procedure Order), will any employment tribunal proceedings be a nullity if issued before seeking the required permission from the High Court? Yes, held the Court of Appeal in Williamson v Bishop of London . ...
Once a tribunal has issued a claim form, is it open to a Respondent to argue that the claim form should have been rejected by the tribunal? No, held the Court of Appeal in Sainsbury's Supermarkets v Clark & others . The Equal Pay litigation...
The minutes for the National Employment Tribunal User Group for September 2022 have been published.I’ve read them so you don’t have to. Key points: London Central employment tribunal is likely to move from Victory House to new...
Did an Employment Judge’s interventions during a hearing result in apparent bias? Yes, on these unusual and bizarre facts, held the EAT in Rolec Electrical Ltd v Georgiou . The EAT rejected most criticisms of the Judge, but found that...
Earlier this week, the Employment Tribunals National User Group received an update on the ongoing project to update employment tribunal case management technology. As set out in more detail in these slides : HMCTS, judges, representatives, litigants...
The 2023 annual update to the Vento guidelines (which give ranges for injury to feelings awards in discrimination cases, depending on severity) have been published.In respect of claims presented on or after 6 April 2023, the Vento bands are: a...
Was it an error of law to strike out Mr Minnoch's claim, and his 36 colleagues' claims, for breach of an 'unless order'? Yes, held the EAT in Minnoch v InterserveFM Ltd and ors . Mr Minnoch and 36 Claimants brought claims for pay...
Was a tribunal wrong to reduce compensation for failure to mitigate on a percentage basis? Yes, held the EAT in Edward v Tavistock and Portman NHS Trust . The Claimant appealed against a number of tribunal findings, including the finding that the...
The Ministry of Justice has announced a new competition for salaried employment judges. The competition is now open with a deadline of 1pm on Tuesday 4th April 2023. The Ministry of Justice is looking to appoint 50 Employment Judges, at a FTE salary of...
Did the tribunal err when striking out the Claimant's claims on the ground they had no reasonable prospects of success? No, held the EAT in Kaul v Ministry of Justice and ors . The Claimant appealed against a tribunal's decision to strike out...
It’s a couple of weeks overdue, but the The Employment Rights (Increase of Limits) Order 2023 has been published, with the regular annual increase in tribunal limits. The key increases are: Compensatory Award - £105,707 (previously...
If a Claimant’s disabilities (here dyslexia, Asperger’s, neurodiversity and hearing loss) had no effect on the aggressive behaviours for which he was disciplined, was a tribunal entitled to dismiss detriment claims for something arising from...
Did the Claimant’s mental health condition explain her very delayed appeal, such that the EAT should extend time? No, held the EAT in Palihakkara v The English Sport Council . The Claimant lodged an appeal 675 days out of time. The EAT...
Was it an error of law to strike out an entire claim when only parts of it were not properly particularised? Yes, held the EAT in Mohammed v Guy’s & St Thomas’ NHS Foundation Trust . The Claimant worked as a Clinical Research Sister....
Did a Respondent’s ‘without prejudice’ letter purporting to communicate a mutually agreed termination, where no such agreement had been made, amount to an effective termination letter resulting in the Claimant’s unfair dismissal claim...
The Women & Equalities Committee of the House of Commons has published its response to an independent report proposing various changes to employment law and practice to help women going through menopause. Most of the recommendations are not...
Did a bank doing business overseas, owe a duty to an employee posted there, not to expose him to the risk of criminal conviction in the performance of his duties? Not on the facts of this case, held the Court of Appeal in Benyatov v Credit Suisse...
Did a tribunal err in finding that an employer's curtailment of a redundancy dismissal process was a proportionate means of achieving a legitimate aim? Yes, held the EAT in Cook v Gentoo Group Ltd . The Claimant was dismissed by reason...
Was it proportionate to strike out an entire claim where the claimant had acted in a manner that was scandalous, unreasonable or vexatious? Yes, held the EAT in Smith v Tesco Stores . The Claimant, a Customer Assistant, had an altercation with his...
Was a tribunal wrong to fail to decide on all aspects of a discriminatory constructive dismissal claim, and then indicate that it would have reduced by 100% compensation for lost earnings if the Claimant had won? Yes, held the EAT in Wytrzyszczewski v...
The Parliamentary Under-Secretary of State for Justice, Mike Freer, has provided the answer to a written question setting out the average time between “a Claimant receiving their employment tribunal claim” (surely that should be...
Was the Respondent's provision of inadequate toilet facilities for women inherently less favourable treatment that therefore subjected the Claimant to direct sex discrimination? Yes, held the EAT in Earl Shilton Town Council v Miller . The...
Can the lack of an email 'bounceback' amount to a good excuse for filing an appeal to the EAT late? Yes, held the EAT in Hawkes v Oxford Economics Ltd . Mr Hawkes appealed against a tribunal decision by a series of emails attaching...
A consultation has been launched on Panel Composition in the Employment Tribunals and the Employment Appeal Tribunal. The premise behind the consultation is that including non-legal members on the panel is not always desirable. As...
Was it wrong for a tribunal to hold that reducing a payment on dismissal to a disabled civil servant under the Civil Service Compensation Scheme (CSCS) following a disability-related dismissal was discriminatory? Yes, held the EAT in McAllister v...
The Judicial Appointments Commission will shortly be launching two separate selection exercises for the Employment Tribunals in England and Wales. The first exercise aims to recruit up to 50 fee paid Employment Judges. It will be run alongside the chambers...
BEIS has published a draft Code of Practice on Dismissal and Re-engagement . The Code is designed to set out good industrial practice when employers need to negotiate/impose changes to terms and conditions. Failure to comply with the Code will be...
Did the tribunal err in its findings in relation to the Respondent's knowledge of disability and assessment of the date on which the duty to make reasonable adjustments arose? No, held the EAT in Preston v E.on Energy Solutions Ltd . The Claimant...
The snappily entitled “Checklist for lodging an appeal in the Employment Appeal Tribunal against a decision of the Employment Tribunal” has been created in-house in the EAT in an attempt to assist would-be appellants in lodging...
The government has issued a consultation paper to address the issues arising from the Supreme Court’s judgment last year in Harpur Trust v Brazel . As a result of Harpur Trust, part-year workers are entitled to a larger holiday...
To succeed in a claim for marital status discrimination, is it essential to show that the fact that someone was married rather than simply in a close relationship, was part of the ground for the unfavourable treatment? Yes, held the EAT in Ellis v...
Does a failure to attach the written reasons when lodging an appeal render it not properly instituted? Not on the facts of this case, held the EAT in Elhallabi v Avis Budget UK Ltd . The Claimant lost claims before the tribunal and requested written...
Was a tribunal entitled to hold that an employee who failed to attend work during the covid pandemic was not automatically unfairly dismissed for doing so in the face of serious and imminent danger? Yes, held the Court of Appeal in Rogers v Leeds...
Was the tribunal right to make a 100% Polkey reduction to a compensatory award, as a redundancy dismissal was inevitable as a ‘pool of one’ could have been fairly applied to the Claimant? No, held the EAT in Teixeira v Zaika...
Is a failure to institute an appeal correctly, by mistakenly not attaching a relevant document, sufficient grounds for an extension of time? No, held the EAT in Anghel v Middlesex University . The Claimant appealed against an order of the...
Can a sufficiently widely drafted COT3 agreement prevent a subsequent claim for victimisation against the same Respondent? Yes, held the Court of Appeal in Arvunescu v Quick Release Ltd . The Claimant worked for the Respondent for a month before his...
The Department for Work and Pensions has published its annual rate increases for 2023/2024. The rate for statutory maternity, paternity, adoption, shared parental and parental bereavement pay will increase to £172.48...
The government has published its response to last year's consultation on updating flexible working laws. Here is a summary of its response: the right to request flexible working will become a Day One right (it is...
The Lord Chief Justice and Senior President of Tribunals have announced today (1st December) that going forward, Employment Judges and Judges of the Employment Appeal Tribunal are to be adressed as Judge, not Sir/Madam. "The move...
Responsibility for the Employment Tribunals Rules of Procedure 2013 will shortly be passing from the Department for Business, Energy & Industrial Strategy to the independent Tribunal Procedure Committee. I have been asked to circulate that...
Is a miscalculation of a Claimant’s expenditure a material error for the purposes of calculating a Costs Order? Yes, held the EAT in Ward v Dimensions UK Ltd . The Claimant brought claims for ordinary unfair dismissal, automatic unfair...
Could requiring a disabled employee to attend a redundancy selection interview amount to a substantial disadvantage? Yes, held the EAT in Hilaire v Luton Borough Council . The tribunal found that the relevant provision, criterion or practice...
Is the parties’ intention as to employment status determinative of the question? No, held the EAT in Richards v Waterfield Homes Ltd and Unity Build & Repairs Ltd. The tribunal concluded that the Claimant was self-employed, that being the...
Opposition parties, including Labour and the SNP, will tomorrow table amendments to the Bill during the committee debate in the House of Commons. As it stands, the Retained EU Law (Revocation and Reform) Bill will automatically repeal any...
If an unfairly dismissed whistleblower doesn’t apply for any jobs before a remedy hearing because of concerns that she will be stigmatised by future employers, is that a reasonable failure to mitigate losses? No, held the EAT in Hilco Capital...
Did the fact that the Claimant’s conduct was influenced by her disability, of itself, prevent the tribunal from concluding that objective justification was made out in a s15 claim for discrimination arising from disability? No, held the EAT in ...
Can an employment tribunal rectify a contract? Probably not, held the Court of Appeal in Nexus v RMT and Unite the Union , but it can decide whether a contract could in principle be rectified. This is the latest case in the long running litigation...
Should a tribunal strike out a claim for non-compliance with an Unless Order because it thought the witness statement was inadequate? No, held the EAT in Leeks v Brighton & Sussex UH NHS Trust . The Claimant was a litigant in person who had...
Can a settlement agreement compromise a discrimination claim that has not yet arisen? No, held the EAT in Bathgate v Technip UK Ltd and others . The Claimant had accepted voluntary redundancy that was formalised in a settlement agreement with advice...
Is it fair for an employer making redundancies to decide on a pool of one employee without prior consultation? No, held the EAT in Mogane v Bradford Teaching Hospitals NHS Foundation Trust . The Claimant was one of several nurses employed on a...
Did the Certification Officer err by failing to consider correctly whether the disciplinary process of a Trade Union gave rise to an appearance of bias? Yes, held the EAT in Simpson v Unite the Union . The Apellant was a trade union member who...
Are the merits of a claim a relevant consideration when deciding whether it is just and equitable to extend the time limit for discrimination claims? They are not necessarily an irrelevant consideration, held the EAT in Kumari v Greater Manchester...
If a share incentive plan is not in an employee’s contract, can the benefit of it transfer under TUPE? Yes, held the EAT in Ponticelli UK Ltd v Gallagher . The Claimant joined his employer’s share incentive plan, which was a voluntary...
The Prime Minister, Liz Truss, has announced new government policy to remove ‘reporting requirements and other regulations’ in connection with workers’ rights from all businesses employing under 500 employees. The scope of this...
In a tribunal claim involving multiple Claimants, is it sufficient to have one Early Conciliation number on the claim form, where the relevant EC certificate does not contain the names of all the Claimants? Yes, held the EAT in Clark & Ors v...
Can you imagine a duller title for a government Bill? But this might just be the most important piece of employment legislation we’ve seen since the introduction of discrimination and dismissal laws in the 1970s. The Retained EU Law (Revocation...
The President of Employment Tribunals in England and Wales, Judge Barry Clarke, has today notified members of the national user group for the Employment Tribunals in England and Wales of the following information. Following the announcement of the death of...
Is the mental health of the Respondent’s CEO sufficient reason to grant an extension of time for lodging an appeal? Yes, held the EAT in MTN1 Ltd v O'Daly . The Claimant was employed as Operations Director at the Respondent from...
The President of Employment Tribunals (Scotland), Judge Susan Walker, has today issued new Presidential Guidance and a Practice Direction concerning the use of witness statements in employment tribunals in Scotland. The...
Does the exception to the two years’ qualifying period set out in s108(4) Employment Rights Act 1996, extend to cover a dismissal related to a political neutrality clause? No, held the EAT in Scottish Federation of Housing Associations v Jones ....
Can a whistleblower be fairly dismissed for what decision-makers perceived as inappropriate conduct in the way the protected disclosure was made, when the tribunal finds that the disclosure was not made inappropriately? Yes, held the Court of Appeal...
Can permission to issue employment tribunal proceedings be given retrospectively to a Claimant who is subject to a Civil Procedure Order (‘CPO’)? No, held the EAT in Williamson v The Bishop of London & ors . The Claimant...
Should holiday pay for a term-time worker with a year-round contract (a ‘part-year worker’) be calculated as 12.07% of their annual earnings? No, held the Supreme Court in Harpur Trust v Brazel . The Claimant works as a music teacher...
If an employer offers a ‘ permanent’ pay premium to staff, does that mean that it cannot later terminate and re-engage staff to remove that premium? No, held the Court of Appeal in Tesco v USDAW & others , overturning the...
Was it wrong to strike out part of a wrongful dismissal claim when the employer had the option to terminate with a PILON on basic salary rather than provide full pay and benefits for the notice period? Not on the facts of this case, held the Court of...
Is it unlawful discrimination on the ground of belief to require a Christian doctor carrying out disability assessments to use service users’ preferred pronouns? No, held the EAT in Mackereth v DWP & anor . The Claimant, a Christian...
At the third stage of deciding employment status using the Ready Mixed Concrete test, can factors other than the express and implied terms of the contract be considered? Yes, held the Court of Appeal in Atholl House Productions v HMRC . ...
Can an employer engaged in collective bargaining, having had its ‘final’ offer rejected, simply treat collective bargaining as over, and so avoid the provisions of s145B Trade Union Labour Relations Consolidation Act - which prohibits offers to...
Did a tribunal err by awarding the Claimant the maximum 25% Acas Uplift? No, held the EAT in Rentplus UK v Coulson , following the tribunal's conclusion that the procedure adopted by the Respondent was a total sham. The judgment contains a useful...
Judge Susan Walker, the current Vice President of the Employment Tribunal (Scotland), will be appointed to the role of President of Employment Tribunals (Scotland) with effect from 16 July 2022. This follows the retirement of the previous President,...
HM Courts & Tribunals Service has announced today the acquisition of a new building which, subject to the relevant permission from the local authority, will be developed into a new, modern Central London Tribunal Centre. The new centre will be located at...
If an employee obtains an ACAS Early Conciliation Certificate after lodging an ET1, will sending it to the tribunal remedy the procedural defect of issuing an ET1 without a certificate? No, held the EAT in Pryce v Baxterstorey Ltd . The Claimant had...
Was it automatically unfair to dismiss an employee who refused to attend work over concerns about the risk of Covid-19 to his vulnerable children? No, held the EAT in Rodgers v Leeds Laser Cutting Ltd . Mr Rodgers refused to attend work during the...
In 2015, exclusivity clauses were made unenforceable against workers on zero hour contracts. The government is now proposing to extend the ban on exclusivity clauses for workers whose earnings are below £123 per week (£123 being the Lower...
The HMCTS Reform Employment Tribunal Project have produced a useful FAQ document to help tribunal users navigate the reform. The document will be updated as the project continues. It explains the aims of the reform project, including the...
If an employer dismisses a disabled employee, but fails to make a reasonable adjustment during that process, must that render the dismissal unfair? No, held the EAT in Knightley v Chelsea & Westminster Hospital NHS Trust . The disabled...
New Presidential Guidance is out on taking oral or video evidence from abroad. Following Agbabiaka , permission from the foreign state is needed. The process now is to provide the employment tribunal details as soon as possible and for them to...
In claims for indirect discrimination should the comparison pool be matched to the relevant PCP? Yes, held the EAT in Allen v Primark . The Claimant worked for the Respondent as a Department Manager. Following maternity leave she aimed to return to...
Did the tribunal err in failing to consider the last straw doctrine when concluding there was no repudiatory breach entitling the Claimant to resign and claim constructive dismissal? Yes, held the EAT in Craig v Abellio . The Claimant was a bus...
Is the Claimant's perception sufficient to turn conduct into harassment? No, held the EAT in Ali v Heathrow Express and Redline Assured Security Ltd . The Claimant worked as a Security Guard at Heathrow Airport. Suspicious objects were...
Can a claim be struck out at a closed preliminary hearing? No, held the EAT in Mendy v Motorola Solutions UK Ltd , overturning a case management decision that had the effect of striking out the Claimant's indirect discrimination claim. At a...
The Presidents of Employment Tribunals (England & Wales, and Scotland) have issued a joint road map for 2022-2023. The full document should be read by all practitioners; here is a summary:- - the HMCTS Reform Programme is...
The Presidents of the Employment Tribunals in England & Wales and Scotland have issued issued joint Presidential Guidance updating the bands of awards for injury to feelings, known as the Vento bands. In respect of claims presented on or...
What is the correct test to apply when determining if a Claimant has suffered a detriment for the purposes of a victimisation claim? The ' Shamoon test', held the EAT in the case of Warburton v The Chief Constable of Northamptonshire...
Can a non-competition restrictive covenant in a service agreement prevent a solicitor from joining a competitor? Yes, held the High Court in Law By Design Ltd v Ali . The Claimant began employment at Law By Design in 2013. In 2016 she became a...
Can the EAT depart from its own previous decisions? In rare circumstances, held the EAT in Fentem v Outform Ltd EMEA . In this case an employment tribunal considered itself bound by the majority decision of the EAT in Marshall (Cambridge)...
Was it appropriate to make an indefinite restriction of proceedings order ('RPO') against a Claimant who had brought over 40 employment tribunal claims in 10 years, against a range of prospective employers? Yes, held the EAT in HM...
The Employment Rights (Increase of Limits) Order 2022 has been laid before parliament. This year's core compensation limit increases are:- a week's pay (basic award / redundancy payment) - £571 (from £544) maximum...
Was a cricket club groundsman, operating through his own business, a worker, thereby entitling him to holiday pay? No, held the EAT in Waters v The Mote Cricket Club . The Mote Cricket Club has two cricket pitches on grounds at Maidstone in Kent. It...
The Statutory Sick Pay Rebate Scheme will close on 17 March 2022. Employers will no longer be able to claim back Statutory Sick Pay for their employees’ coronavirus-related absences or...
Do agency workers have the right under the Agency Workers Regulations 2010 to apply for a directly employed vacancy with the hirer? No, held the Court of Appeal in Kocur v Angard Staffing Solution Ltd . The Claimant was employed by Angard...
The Lord Chief Justice has announced that the next President of the Employment Appeal Tribunal will be The Honourable Mrs Justice Eady. Her term of office started on 1 February 2022 (although was not formally announced until today). Dame Jennifer Eady...
What is the correct approach when assessing loss of earnings compensation for constructive dismissal and disability discrimination dismissal? This was the issue before the EAT in Shittu v Maudsley NHS Foundation Trust . The Claimant was employed from...
Is a whistleblower entitled to remove confidential legal documents from their employer for the purpose of taking legal advice? It seems not, held the High Court during an interim injunction application in Nissan v Passi . Mr Passi had taken, and...
Should a tribunal narrow its focus from a list of issues previously agreed between the parties? No, unless variations are necessary and in the interests of justice, held the EAT in Ijegede v Signature Senior Lifestyle Operations Limited . The...
Can an unjust enrichment claim for a quantum meruit be brought under Part II of the Employment Rights Act 1996? No, held the EAT in Abellio East Midlands Ltd v Thomas . The Claimant, who was employed by Abellio as Area Manager for Leicester, agreed...
The government has announced a proposed new law “as soon as parliamentary time allows” requiring employers to pass all tips to workers. The legislation will require employers to pass on all tips, gratuities, and service charges to...
Was it wrong for a tribunal to consider events after a decision to dismiss had been taken, when considering an unfair dismissal claim? Yes, held the EAT in Citizens Advice Merton and Lambeth Ltd v Mefful . The Claimant was a CAB manager who was made...
Did the amendment of the Claimant's case amount to a material change of circumstances so as to allow the tribunal to cancel the listing of a Preliminary Hearing to consider a Deposit Order application? Not in the circumstances of this case, held the EAT...
Can a worker carry over leave that has been taken, but not paid, because an employer did not recognise they were a worker? Yes, held the Court of Appeal in Smith v Pimlico Plumbers Ltd . Mr Smith worked for Pimlico Plumbers in what was originally...
The Employment Tribunal offices in Scotland are now offering access to a Document Upload Centre, which is designed to make it easier for tribunal users to submit larger sets of productions (i.e. hearing bundles). For smaller documents (under 35Mb),...
Did the tribunal err in concluding that a London black-cab driver was in business on his own account and not a 'worker' when he was engaged via the Respondent's 'Mytaxi' App? No, held the EAT in Johnson v Transopco Ltd . The...
Should a tribunal consider delay after the submission of the ET1 when deciding if it is just and equitable to extend time? Yes, held the EAT in Secretary of State for Justice v Johnson . In considering whether it was just and equitable to extend time...
Did the exercise of a discretion by which a partner ceased to be an equity partner when he hit the default retirement amount to a 'continuing act' for the purposes of the time limit for bringing a claim for discrimination? No, held the Court of...
Can an employer be held vicariously liable for the actions of its employees when engaging in horseplay? Possibly, but not on the facts of this case, held the Court of Appeal in Chell v Tarmac Cement And Lime Ltd . The Claimant was employed by...
Judge Simon, President of Employment Tribunals (Scotland), has announced she will be retiring this year. She was a partner at Maclay Murray and Spens, during which time she was also the Equal Opportunities Development Adviser at the Scottish Parliament. She...
Can a tribunal extend time in a discrimination claim where the Claimants have waited to issue proceedings while pursuing grievances? Yes, held the EAT in Wells Cathedral v Souter . However, this will not always be the case. The Claimants alleged acts...
Did an employment tribunal err in refusing a postponement due to Counsel's medical emergency? Yes, held the EAT in Kahn & Uzayr v BP . A 12 day hearing was listed to hear a substantial and complex discrimination case in the financial sector....
Was a dismissal for gross misconduct relating to the raising of vexatious grievances which the Claimant refused to either pursue or withdraw, fair? Yes, held the EAT in Hope v British Medical Association . The Claimant brought numerous...
A number of people (and thank you) have pointed out the statutory instrument below only applies to periods of sickness starting before (or on) 26 January 2022. It is intended as short-term measure to relieve the burden on GPs for the next few weeks. ...
If you blinked, you missed this. Employees can now self-certify sickness for up to 28 days (previously 7 days). They only need to attend a GP for a ‘fit note’ if they have been ill for more than 28 days and have taken sick leave. This includes...
In claims for detriments for making protected disclosures, should a tribunal consider if any disclosure was a material factor in the detrimental treatment, rather than the cause of it? Yes, held the EAT in Fitzmaurice v Luton Irish Forum . The...
Was a tribunal entitled to find that a director/shareholder of a small family business was not a worker/employee for purposes of s230 Employment Rights Act 1996? Yes, held the EAT in Rainford v Dorset Aquatics Limited . The Claimant and his brother...
A new Practice Direction has been issued for the Employment Appeal Tribunal, requiring parties to use a neutral citation number when quoting EAT judgments. The neutral citation number will involve the year and the number of the judgment. So, for...
The Employment Appeal Tribunal has updated its Guidance on Appealing to the EAT . Practitioners are strongly encouraged to use the new e-Filing system, which is the EAT’s preferred method for receiving appeals. I understand, anecdotally, that...
Did applying the maximum 25% 'Acas uplift' to injury to feelings and aggravated damages awards amount to double counting? No, held the EAT in Slade and ors v Biggs . This was a case where the tribunal had found that the departure of the...
If an employee agrees to attend an appeal hearing outside the three-month 'decision period' for resolving flexible working requests, has he also agreed to extend the decision period? No, held the EAT in Walsh v Network Rail Infrastructure...
In Burn v Alder Hey Children's NHS Foundation Trust , the Court of Appeal construed a disciplinary policy. That’s not very interesting. But what was interesting were some obiter comments made by Singh LJ and Underhill LJ, two of...
Is it sufficient for a tribunal to say that a Respondent’s objective justification defence is “obvious”, in the context of the dismissal of an absent, disabled employee? No, held the EAT in Gray v University of Portsmouth . The...
In determining a wrongful dismissal complaint, where the Claimant denies the alleged conduct, is a tribunal entitled to conclude that it could make no positive finding as to the conduct without having heard from witnesses who claimed to have seen the alleged...
Is a tribunal entitled to strike out a response when, due to the Respondent’s non-compliance, it is no longer possible to conduct a fair trial in the trial window? Yes, held the EAT in Emuemukoro v Croma Vigilant (Scotland) Ltd . On day one of...
Earlier this month, the Judicial Appointments Commission launched a competition for the appointment of 50 FTE salaried employment judges. The deadline for applications has been extended for a week, to 1pm on 23 November 2021. Full details of how to apply...
If an employee is dismissed for redundancy, having made protected disclosures, is the dismissal automatically unfair if the decision was ‘materially influenced’ by the disclosures? No, held the EAT in Secure Care UK Limited v Mr R Mott . ...
Should payments made by the Claimant to rent his vehicle and uniform have been treated as reductions when calculating his pay for the purposes of the National Minimum Wage? Yes, held the EAT in Augustine v Data Cars Ltd . The Claimant was employed as...
The minutes of the Employment Tribunal national and regional user group meeting for England and Wales held on 13 September 2021 are now available here . Key points:- all 19 new salaried judges have now been announced (there is a list at para...
The Judicial Appointments Commission has launched a competition for the appointment of 50 FTE salaried employment judges. Full details, including the application process and the job description, are here . There are vacancies in all Employment...
Was the tribunal wrong in identifying a reason for dismissal which neither party had raised and without telling the parties prior to making a decision? Yes, held the EAT in Stone v Burflex (Scaffolding) Ltd . Mr Stone raised a grievance about his...
Can an employer make an offer directly to employees covered by collective bargaining without being liable to a penalty under s145B Trade Union and Labour Relations (Consolidation) Act (TULR(C)A) 1992? Yes, but only when collective bargaining has been...
Was a moped courier's ability to release a slot to other couriers via an app a sufficient right of substitution to remove the obligation on the courier to perform his work personally so that he was not a worker within the definition of s230 ...
Is a tribunal entitled to reject a discrimination claim about a dismissal for something arising from disability (s15 Equality Act), when the employer only knew about the disability after dismissal? Yes, held the EAT in Stott v Ralli Ltd . The...
How should employment tribunals make determinations on preliminary issues in discrimination claims? With careful and reasoned analysis held the EAT in Rooney v Leicester City Council . The claim was brought by Ms Rooney who was a childcare social...
Should tribunals take a structured approach when assessing qualifying disclosures in whistleblowing cases? Yes, held the EAT in Martin v London Borough of Southwark . The Claimant was a teacher who had expressed concerns that he and other teachers...
Does an Employer Justified Retirement Age ('EJRA') necessarily result in unlawful age discrimination? No, held the EAT in Pitcher v University of Oxford and University of Oxford v Ewart , dismissing appeals against two contrasting tribunal...
Is it unlawful direct sexual orientation discrimination to require that people who want join a foster agency as carers refrain from "homosexual behaviour"? Yes, held the Court of Appeal in R (Cornerstone Fostering) v Ofsted . Cornerstone is...
Is an individual, who was not a party or a witness in tribunal proceedings, entitled to have her name anonymised in the resulting judgment, under rule 50 of the Employment Tribunal Rules of Procedure 2013 ? Yes, sometimes, held the EAT in TYU v...
Is a tribunal entitled not to attribute the motivations of a manager who complained about the Claimant to the employer? Yes, held the EAT in Kong v Gulf International Bank Ltd . The Claimant made a number of protected disclosures. The tribunal found...
In order to claim automatic unfair dismissal under s104 Employment Rights Act in relation to a work pattern in breach of the Working Time Regulations , is it necessary for an employee to have worked the shift they had been instructed to...
When considering an application for costs on the basis that a claim or response had no reasonable prospect of success, under ET Rule 76(1)(b), should a tribunal look at the ET1 as a whole? No, held the EAT in Opalkova v Acquire Care Ltd , it should...
The government has just announced that the end date for the temporary adjusted checks has now been deferred to 5 April 2022. The following temporary changes were made on 30 March 2020 and now remain in place until 5 April 2022: checks can...
If an employer adopts a fair redundancy selection process, will the lack of an appeal make dismissals unfair? No, but the absence of an appeal is one of many factors in determining fairness, held the Court of Appeal in Gwynedd Council v Barratt &...
Is it lawful for part-time workers not to receive paid breaks if the reason is that they are working shorter shifts? Yes, held the EAT, on the facts in Forth Valley Health Board v Campbell . The Claimant was a part-time Phlebotomist who worked 16...
When an employer makes an 'offer' to employees covered by collective bargaining to change terms and conditions, does time run for making a tribunal claim for an inducement to forego collective bargaining run from the date of that offer, or from when...
Can a dismissal still be fair if the employer refuses to hear an appeal? Yes (in certain circumstances), held the EAT in Moore v Phoenix Product Development Limited . The Claimant, the inventor of a water efficient toilet, stepped down as CEO of the...
Was it wrong for a tribunal not to 'go behind' a final written warning when considering if a capability dismissal was fair? No, held the EAT in Fallahi v TWI , dismissing the appeal. The Claimant had been dismissed on the back of a final...
Was it perverse for a tribunal to conclude that the Claimant was not disabled and that the employer did not have actual or constructive knowledge of disability? No, held the EAT in Seccombe v Reed . The Claimant was dismissed on performance grounds....
Can there be a substantial disadvantage to a disabled employee where an absence management policy contains a discretion? Yes, held the EAT in Martin v Swansea . The tribunal had erred in law in concluding that the PCP (provision, criterion, practice)...
Is it a reasonable adjustment to protect pay permanently when disability means that a teacher can no longer teach? No, held the EAT in Aleem v E-Act Academy . Following the long-established principle in O'Hanlon it will...
Labour has this evening announced plans to create a single status of ‘worker’ to include employees and ‘limb b’ workers. The genuinely self-employed would retain their self-employed status. The proposal would remove qualifying...
Was the obligation on a Claimant alleging discrimination to prove facts from which a tribunal could find discrimination changed by the Equality Act 2010 ? No, held the Supreme Court in Royal Mail Group v Efobi , considering s136(2) of the ...
The government has published its consultation response on sexual harassment in the workplace. The consultation was undertaken in response to recent public disclosures by a number of (mainly) women of their experiences of workplace sexual...
The President of Employment Tribunals in England and Wales, Judge Barry Clarke, has asked for the following message to be circulated: "HMCTS has previously stated that people are required to wear face coverings in public areas of courts and tribunal...
Was it unfair to dismiss a teacher who had been suspected (but not charged) of possessing indecent images of children? No, held the Court of Session (Inner House) in L v K . The case concerned a teacher who had been arrested after indecent images of...
Is it direct discrimination contrary to EU law, for an employer to have a policy prohibiting employees from wearing anything manifesting a religious, philosophical or political belief in the workplace, if that policy requires 'neutral' dress from all...
Can a tribunal give a written judgment (without reasons), and give written reasons on a later occasion? Technically yes, held the EAT in Shaw v Intellectual Property Office , but to do so could be dangerous and is not encouraged. The tribunal...
A new electronic filing system comes into operation today at the Employment Appeal Tribunal. It enables parties to lodge their appeals with the EAT, upload documents and access all their appeals. It provides an additional method of lodging documents; it is...
The minutes from the May 2021 National Employment Tribunal user group are now available here . A summary (by me; not an official summary) is set out below. General Update Over the past couple of months, tribunals have been switching over the case...
In a whistleblowing unfair dismissal case, does a tribunal need to enquire into the decision-making process by considering the motives of people other than the decision-maker, if it finds that the dismissing manager was in the know about an overall plan to...
Can a Claimant rely on a change in status from equity partner to non-equity partner as amounting to a 'continuing act' for the purposes of the time limit for bringing a complaint of discrimination? Not in the circumstances of the case, held the EAT...
Are Deliveroo riders, as independent contractors, able to seek compulsory Union recognition as if they were 'workers', by applying the right of association under Article 11 of the ECHR? No, held the Court of Appeal, in The Independent Workers...
Was it appropriate to strike out a case because of the Claimant's correspondence to a witness and the Respondent's solicitor? Yes, held the EAT in A v B . The Claimant, a specialty doctor for an NHS Trust, brought a number of claims arising...
Can it still be indirect discrimination for an employer to require an employee to go to work regardless of childcare needs, even if the employer doesn’t actually penalise the employee for not complying? Yes, held the EAT in Hughes v Progressive...
Is the power to grant an interim relief order available in discrimination claims? No, held the Court of Appeal in Steer v Stormsure . Interim relief is a remedy available in certain trade union and whistleblowing dismissal cases, where a Claimant...
Is a belief that there are only two biological sexes in human beings, and that it is impossible for a human being literally to change sex, a ‘philosophical belief’ within the meaning of s10 Equality Act 2010 ? Yes, held the EAT in ...
Acas has published its long awaited report on dismissal and re-engagement. It’s very, very long. It’s a little bland and doesn’t really come to any clear conclusions or recommendations. This is lifted from the Executive...
Is it possible to seek 'rectification' of a collective agreement, even if it is not legally binding? Yes, held the High Court in Nexus v National Union of Rail, Maritime and Transport Workers & Unite , dismissing the Unions' strike-out...
New Regulations, The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 extend protection for health & safety detriments to workers (not just employees). In plain English: an employee can...
Does Article 157 of the Treaty on the Functioning of the European Union ('TFEU') have direct effect in equal pay claims made on the basis that Claimants are performing work of equal value to their comparators? Yes, held the Court of...
Does taking steps to prepare for, and take part in, industrial action, come within the scope of 'trade union activities'? Yes, held the EAT in Mercer v Alternative Future Group Ltd . Mrs Mercer is a member of the UNISON trade union. There was...
Does a tribunal have to reach a clear conclusion about the decision-maker's reason for dismissing an employee (in discrimination and unfair dismissal claims)? Yes, held the EAT in Cummins Ltd v Mohammed . The Claimant suffered from anxiety and...
In DPP Law Ltd v Greenberg , the Court of Appeal provided guidance on the role of the EAT when assessing an employment tribunal’s reasons. The Claimant was a solicitor who accepted £150 from a client’s father. The tribunal held that...
Is a minimum degree of obligation or commitment required in order to be a worker? Not always, held the EAT in Somerville v Nursing & Midwifery Council . The Claimant, who sat as a panel member for the regulatory body the Nursing & Midwifery...
The government has announced, as expected, that the COVID-19 adjusted right to work check process will remain in place until 20 June 2021 (previously 16 May 2021). It enables employers to carry out right to work checks over video calls (rather than in...
Acas has today published a new report, Estimating the Costs of Workplace Conflict , which estimates that workplace conflict costs UK employers £28.5bn every year, an average of just over £1,000 for every employee. This estimate is based on...
Are the provisions of the Equality Act 2010 dealing with remedies for unintentional unlawful indirect discrimination compatible with EU law? Yes, held the Court of Appeal in Wisbey v The Commissioner of the City of London Police and...
When disclosing privileged documents regarding specific issues, is a party required to show that other privileged documents are not relevant? No, held the EAT in Watson v Hilary Meredith Solicitors Limited , dismissing the Claimant's appeal. The...
When determining whether an impairment is 'long term' for the purposes of assessing disability status, can a tribunal consider events after the date of the discriminatory act? No, held the Court of Appeal in All Answers Ltd v W and...
Is failing to pay an allowance throughout maternity leave direct discrimination? Not where the employer was mistaken as to whether the allowance comprised 'pay', held the Court of Appeal in Commissioner of the City of London Police v Geldart ....
Was a collectively agreed term indicating that permanent posts would not be advertised when an employee was designated surplus apt for incorporation into an individual employment contract? No, held the EAT in Hamilton v Fife Council . The Claimant, a...
Are Addison Lee drivers ‘workers’? Yes, the Court of Appeal has held in Addison Lee v Lange , refusing permission to appeal from the decision of the Employment Appeal Tribunal. Following the Uber decision in the Supreme Court,...
Are foster carers 'workers' for the purposes of trade union listing (and recognition)? Yes, held the Court of Appeal in NUPFC v Certification Officer , upholding an appeal by the National Union of Professional Foster Carers that the...
The Lord Chancellor has appointed two new Regional Employment Judges. With effect from today, Regional Employment Judge Sian Davies becomes the REJ for the Wales region, and Regional Employment Judge Lorna Findlay becomes the REJ for...
Sometimes a judge really ought to be commended for their succinctness. Cox v Adecco is a case in point. Before making a strike out or similar order, said HHJ Tayler: "You can't decide whether a claim has reasonable prospects of...
Is the Chief Constable of Police liable for discrimination committed by the Independent Office for Police Conduct (IOPC)? No, held the EAT in Chief Constable of Avon & Somerset Constabulary v Eckland . This appeal raised three issues, one of...
Can a man on Shared Parental Leave base a sex discrimination claim on being paid less than a woman on Adoption Leave? No, held the EAT in Price v Powys County Council ; the two aren't comparable. The Claimant took Shared Parental Leave...
The Presidents of Employment Tribunals (England & Wales, and Scotland) have issued a joint updated road map to update the previous roadmap issued in June 2020. The full document should be read by all practitioners; here is a summary (and the...
The Presidents of the Employment Tribunals in England & Wales and Scotland have issued issued joint Presidential Guidance updating the bands of awards for injury to feelings, known as the Vento bands. In respect of claims presented on or...
How should a tribunal approach the 'common terms requirement', where Claimants in an equal pay claim seek to compare themselves to employees at a different establishment employed on different terms? As a threshold test, with a limited function, held...
Was a tribunal entitled to refuse an application for an adjournment and to strike out the Claimant's case where the tribunal was phoned on the morning of the hearing and told that the Claimant could not attend as she required emergency dental treatment? ...
Where a tribunal had previously made a case management order that the issue of whether a claim was in time should be determined at a Preliminary Hearing, was it open to the Employment Judge at the Preliminary Hearing to determine that the issue would be...
Where an employee or worker takes holiday but is not paid for it, does the decision of the CJEU in King v Sash Windows entitle them to a payment in lieu on termination where the claim would otherwise be out of time? No, held the EAT in ...
Is a 'sleep-in shift time work' for the purposes of the National Minimum Wage Regulations 1999 and 2015? No, and nor can it be 'work' in any other sense in the Regulations, holds the Supreme Court in Royal Mencap Society v...
In the main, Cloud Video Platform hearings have been a success. They avoid wasted hours travelling to far-flung tribunals, only to be told there is no judge available and the case is floating. For many or most cases, they are a workable and sensible...
Public Health England has issued new guidance to those categorised as extremely clinically vulnerable. It states that, from 1 April 2021, they are no longer advised to shield (and will no longer be eligible for SSP or similar benefits as a...
Must a tribunal consider physical features and auxiliary aids when assessing a reasonable adjustments case? Yes, held the EAT in Mallon v Aecom Ltd . The Claimant, a litigant in person, brought a claim for failure to make reasonable adjustments for...
The Fourth Edition of the Third Revision of the Employment Tribunals Principles for Compensating Pension Loss is now available. It has been comprehensively revised, taking account of the matters listed in an Addendum to the Joint...
The government has laid new Regulations which extend the provisions of s44(1)(d)+(e) to workers. In plain English: at the moment an employee can claim in a tribunal if subjected to a detriment because (in simple terms) they reasonably believed...
How should a tribunal assess the calculation of life-long damages in whistleblowing cases? Carefully, held the EAT in BMI Healthcare Ltd v Shoukrey . The Claimant was a gynaecologist who succeeded in a whistleblowing detriment claim against the...
Does the principle established by the European Court of Justice in ISS Facility Services NV v Govaerts that under the Acquired Rights Directive employees may transfer to multiple transferees also apply to a service provision change...
Was it religious discrimination to remove a magistrate who declined to order a same-sex adoption due to his Christian beliefs? No, held the Court of Appeal in Page v Lord Chancellor . The case concerned a lay magistrate in Kent who is also a...
The Supreme Court has handed down its decision in Uber v Aslam , reaching the same conclusion as earlier courts that Uber drivers are ‘workers’. The key points are:- a tribunal should examine the reality of the relationship between the...
Does a tribunal need to consider making a compensation uplift order where the Respondent is not on notice of such a claim? No, held the EAT in Levy v 34 & Co Ltd . Mr Levy brought a claim for unlawful deductions in the sum of £148.62,...
Does a pension scheme automatically include a 'non-discrimination rule' or must an amendment be made by trustees/managers before any rule takes effect? The inclusion of the non-discrimination rule is automatic, held the EAT in Sargeant v...
The government has announced that it will be revoking the Public Sector Exit Payments Regulations 2020 , which place a £95,000 cap on public sector exit payments. The Regulations came into force - in the face of considerable...
Can a judgment and reconsideration decision be legitimately set out within the same Notice of Appeal? Yes, provided they are distinguished within the Notice and have a connection justifying their inclusion together, held the EAT in Dafiaghor-Olomu v...
Was a tribunal entitled to reject an employer's conclusion that an employee had committed gross misconduct by installing a covert camera in his office while he was suspended from duty? Yes, on the facts of the case, held the EAT in Northbay...
Can an employer rely on the 'reasonable steps' defence to harassment where it provided training to the perpetrator of harassment and other employees? Not where that training had become "stale" and needed refreshing, held the EAT in ...
Is a reference to actions which 'may be discriminatory' in a grievance sufficient to amount to a protected act under s27 Equality Act 2010 ? Not necessarily, held the EAT in Chalmers v Airpoint . The Claimant brought claims, including a...
HMRC has published the list of all employers who made furlough claims during December 2020. Although HMRC has not explained its reason for doing this, it is doubtless in part to shame larger employers and discourage them from claiming, and in...
Can it be direct discrimination to discriminate against one group of disabled workers compared with another group of disabled workers? Yes, held the CJEU, in VL (C-16/19) , the judgment coming after the Advocate-General's opinion of June...
Can a case be reopened once a determination has been made? Yes, held the Court of Appeal in Head v Culver Heating Co Ltd , where it is necessary to do so to avoid real injustice. The case concerned Mr Head (deceased), the founder/owner/manager of...
Was the Claimant entitled to bring a claim for unfair dismissal despite living in the US and working on a Cayman Islands owned ship? Yes, held the EAT in Crew Employment v Gould . Mr Gould, a US resident, was the captain of a superyacht, the...
When considering the discriminatory impact of a PCP in relation to childcare, should the pool for comparison be limited to staff with childcare responsibilities? Yes, held the EAT in Cumming v British Airways . The case concerned BA's policy that...
HM Treasury has issued a new Treasury Direction . It's an amending Direction, not a comprehensive direction, and I haven't cross-referenced every paragraph. But it seems four points arise... 1. look at the document title of the document when...
Did the Claimant affirm a contract by raising a grievance? No, held the EAT in Gordon v J & D Pierce (Contracts) Limited . The Claimant's working relationship with his manager (Mr Pierce) deteriorated. He resigned and brought a claim of...
Was it open to a tribunal to reduce a compensatory award by a percentage amount to take account of a failure to mitigate when there was a more precise method of calculation? No, held the EAT in Hakim v The Scottish Trade Unions Congress . The...
Regional Employment Judge Wade has asked me to notify the users of London Central Employment Tribunal that Victory House remains closed to the public, staff and judiciary due to continued air ventilation problems. The vast majority of hearings are...
Is an employment tribunal a 'court'? Yes, for the purposes of determining an insurer's liability to pay out under an insurance policy, held the Court of Appeal in Irwell Insurance v Watson . Mr Watson brought claims against his employer. The...
The Presidents of Employment Tribunals (England and Wales) and (Scotland) have asked all Employment Judges and ET non-legal members to act in accordance with a memorandum issued by the Senior President of Tribunals on 15 January 2021 which states that with...
Is it helpful for an employment tribunal considering an extension of time for a discrimination claim to focus on the factors in s33 Limitation Act 1980 ? No, held the Court of Appeal in Adedeji v University Hospital Birmingham NHS Foundation...
Does an employment tribunal have the power to make an Order for disclosure against a party who is not present in Great Britain? Yes, held the Court of Appeal in Sarnoff v YZ . The Claimant brought a claim against the Respondent, a board member of a...
Regional Employment Judge Wade has asked me to update the users of London Central Employment Tribunal. Victory House remains closed to the public. HMCTS continues to test the mechanical air ventilation system to ensure a COVID-secure environment, with...
HMRC has updated its guidance to state that employers can (not must) furlough employees whose health has been affected by coronavirus (COVID-19) or any other conditions, including if they are unable to work from home, or working reduced...
The President of Employment Tribunals (England & Wales), Judge Barry Clarke, has issued the following letter to tribunal users . You will see it states that, for the time being, "...the aim is for physical attendance at an Employment Tribunal...
The President of the Employment Tribunals (Scotland), Judge Shona Simon, has sent this update to all tribunal users. It contains strong encouragement for parties to agree to hearings by CVP. And in practical terms, it asks the following:- ...
When considering disputes as to which party is an employer, should a tribunal consider a document drawn up without the knowledge of one of the parties? Rarely, held the EAT in Clark v HWR & others . The Claimant, a barrister, was dismissed from...
The Lord Chief Justice has issued a statement on the latest Covid-19 restrictions . Whilst (rightly) falling short of an instruction to make all court hearings remote, it does make it clear that remote hearings should be the "default position in...
Is it open to an employer to justify a trade union detriment on the basis that the trade union action amounts to insubordination? No, held the EAT in UCL v Brown . For 14 years, a departmental email account existed at UCL which allowed unmoderated emails...
I have been asked by Judge Barry Clarke, President of Employment Tribunals in England and Wales, to circulate the message below. HMCTS closed Victory House, the hearing venue used by London Central Employment Tribunal, on Thursday 17 December 2020....
Is there power for an employment tribunal to grant interim relief for a discrimination claim? No, but the absence of interim relief is probably unlawful, held the EAT in Steer v Stormshore Ltd . Ms Steer worked for the Respondent for a...
The Lord Chief Justice recently appeared before the Justice Select Committee, and was asked a question about employment tribunals (at 15:34:20 here ). He said he would ask the Senior President of Tribunals to reply. The Senior President's...
The Presidents of the Employment Tribunals, Judges Shona Simon and Barry Clarke, have asked me to circulate the following message: The functionality of the ET3 Response Form has been improved so it is possible to save a part completed form and...
I have been asked by Judge Barry Clarke, President of Employment Tribunals in England and Wales, to circulate the message below. To ensure the safety of all tribunal users, Victory House, the hearing venue used by London (Central) Employment...
The Chancellor, Rishi Sunak, has just announced the furlough scheme is being extended for an extra month, until the end of April 2021. He has also announced the government will continue to pay 80% of wages until the end of the Scheme, i.e. that the...
The Employment Lawyers’ Association has produced a new guide, A Practical Guide to Remote Hearings in the Employment Tribunal . It is an excellent guide on all aspects of remote hearings, with the sections on preparing an electronic bundle being...
Are agency workers entitled to apply and be considered for vacancies on the same terms as directly-recruited employees under the Agency Workers Regulations 2010 ('AWR')? No, held the EAT in Angard Staffing Solutions Ltd & anor v Kocur &...
Is it appropriate for a tribunal to limit the size of a bundle as part of its case management powers? Yes, beyond doubt, held the Employment Appeal Tribunal in Miron v Adecco . The EAT's observations were made in the context of dismissing an appeal...
The Employment Tribunal hearing centre in Dundee will stop hearing cases on 18 December 2020. From January 2021, tribunal staff and hearings will be based at: Ground Floor, Endeavour House, Greenmarket, Dundee, DD1 4BZ. Tel: 01382-221578 . The building has...
The Department for Business, Energy and Industrial Strategy has issued a consultation paper on measures to reform post-termination restrictive covenants . It is considering two things. First, altering the law so that post-termination restrictive...
Does a person need to undergo or intend to undergo any medical treatment to have the protected characteristic of gender reassignment? No, held the Birmingham Employment Tribunal in Taylor v Jaguar Land Rover Ltd . These bulletins don’t usually...
Does the manner in which a redundancy situation arises affect whether or not a redundancy situation exists? No, held the EAT in Berkeley Catering Limited v Jackson . The Claimant was the Managing Director of the Respondent. The company's owner...
The new rules on Acas Early Conciliation come into force today (see bulletin 18 September 2020 ). It means that there is now a standard six week Acas early conciliation process (rather than a one month process, with a possible extension of...
Should a claimant be allowed to refer to 'without prejudice' material in support of an argument that a COT3 agreement could not be relied upon because of misrepresentation? Yes, held the EAT in Cole v Elders Voice . A COT3 agreement can be...
When dealing with an application for specific disclosure, should an Employment Judge use the test from the Civil Procedure Rules ('CPR')? Yes, held the EAT in Santander v Bharaj , as well as considering whether disclosure is in accordance with...
The Court of Appeal has dismissed the appeal in the long-running and complex case Simpson v Cantor Fitzgerald . It covered a lot of ground. Most of the grounds of appeal were rejected on the basis they were attempts to dress up challenges to facts as...
Yesterday it was disclosed that an internal government report had found that Home Secretary Priti Patel had breached the Ministerial Code by bullying staff at the Home Office. To mark the end of anti-bullying week, I thought I would create a short (14...
You probably know about the (new) tight timescales for lodging a furlough claim with HMRC. Broadly, the claim has to be submitted within two weeks of the end of the previous calendar month (see below) unless there is a “reasonable excuse for failing to...
On 13 November 2020, HM Treasury published The Coronavirus Act 2020 Functions of her Majesty’s Revenue and Customs (Coronavirus Job Retention Scheme) Direction . This is the fourth such Treasury Direction to be issued (you can view the previous...
The Coronavirus Job Retention Scheme Guidance has just been updated with an important change (heralded as a possibility in the guidance earlier this week, now confirmed). For claim periods starting on or after 1 December 2020, an employer cannot claim for...
Should workers have protection from being subjected to detriments on health and safety grounds, and the right to be provided with PPE, in the same way as employees? Yes, held the High Court in The Independent Workers' Union of Great Britain v The...
The extended Furlough Guidance has been amended less than 48 hours after being issued. It corrects a discrepancy regarding the expiry of fixed term contracts and rehiring. There was a clash between the guidance notes which referred to the...
A couple more points on yesterday's extended furlough guidance . 1. There seems to be a mistake in the guidance concerning TUPE. It says that employees who TUPE into a business must have "been employed by their prior...
Can cost alone be enough to justify something which would otherwise amount to indirect discrimination on grounds of age? Not if the sole reason for the action is to reduce costs for its own sake, held the Court of Appeal in Heskett v Secretary of...
The Guidance for the extended Coronavirus Job Retention Scheme has just been released. I've been through the two most important sets of updated guidance. although there are actually thirteen :- - Check which employees you can...
We have just 55 days until 31 December 2020, which is the date the transition period for withdrawing from the European Union ends (and the deadline for extending it has now run out). So in 56 days' time, the UK is on its own. Eighteen months ago,...
The Chancellor, Rishi Sunak, has announced that the Coronavirus Job Retention Scheme (also known as the furlough scheme) will remain open until 31 March 2021. For claim periods running to January 2021, employees will receive 80% of their usual salary for...
When considering an illegality defence, should a court (or tribunal) apply the 'common sense' test of Lord Toulson in Patel v Mirza ? Yes, held the Supreme Court in Stoffel & Co v Grondona , a case arising from a fraudulent mortgage...
Would lead a fair-minded and informed observer conclude that there was a real possibility that an employment tribunal was biased because a lay member sat on two cases involving the same Claimant and employer Respondent? No, held the EAT in Lyfar-Cisse...
HMCTS has prepared guidance to assist people attending in-person hearings in the Glasgow Tribunals Centre. In addition to the hand sanitiser and anti-bacterial wipes available in all hearing rooms, steps have been taken to minimise the amount of...
Last week the ICO published the Right of Access detailed guidance . The guidance doesn’t alter the existing law but rather provides clarification for employers on how to deal with subject access requests ('SAR'). Following consultation,...
Did an employee's failure to return to work after her maternity leave amount to acceptance of a repudiatory breach for the purposes of constructive unfair dismissal? Yes, held the EAT in Chemcem Scotland Ltd v Ure . The Claimant went on maternity...
HMRC has published a policy paper containing more details on the Job Support Scheme. The schemes will now be known as JSS Open and JSS Closed , the latter being for those businesses which have been required to close under...
Chancellor Rishi Sunak has announced a further amendment to the Job Support Scheme , which is due to begin on 1 November 2020. When originally announced, the JSS required employees to work a minimum of 33% of their normal hours. This has now been...
We are seeing a big increase in interim relief applications, mainly flowing from two areas: First, there are a lot of cases of alleged furlough fraud – cases where an employee has asserted that an employer has made false claims under the Job Retention...
Chancellor Rishi Sunak has announced an extension to the Jobs Support Scheme , which is due to begin on 1 November 2020. Last month, the government announced how the Jobs Support Scheme would contribue 1/3rd of the shortfall of wages (capped at...
One of the biggest issues for employers right now is how to deal with employees who are anxious about coming into work. No matter what precautions the employer has taken to make the workplace safe, if an employee reasonably believes there is...
Can an employment tribunal make a six figure costs award when a claimant made covert recordings and sought to wrongly implicate colleagues with WhatsApp messages in order to support his claim? Yes, held the Central London Employment Tribunal in Tan v...
Did the imposition of a new contract amount to a continuing act for the purpose of whistleblowing time limits? No, held the EAT in Ikejiaku v British Institute of Technology Limited . The tribunal had rejected the Claimant's argument that the...
The Treasury has issued a Treasury Direction with details of the Job Retention Bonus. As always, you need to read the document. Or, if you're not someone who enjoys legalese, the government has produced this simpler guidance...
The Judicial Appointments Commission has opened a competition to appoint 19 lay members for the Employment Appeal Tribunal. Lay Members hear cases alongside the Judge, asking pertinent questions on law or mixed fact and law; deliberate with the judge on...
New Regulations have been made tonight (Sunday) which come into force at midnight (in England only). The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 are complex. They set out mandatory periods...
More details of the new Jobs Support Scheme are emerging, as the Government publishes different papers. First, Quentin Colborn has sent me a copy of the Government's Winter Economy Plan which provides:- " 2.4 Job Support...
Rishi Sunak sat down, and I sent out my summary (below). Then, within minutes, HM Treasury sent out a tweet which shows the new Jobs Support Scheme is quite different from what (I thought) Rishi Sunak just said in his statement to the House of Commons. ...
The Chancellor, Rishi Sunak, has set out the government's new job retention measures in a statement to the House of Commons. This is my summary, not the formal statement. The furlough scheme will come to an end, as planned, on 31 October...
The following joint statement has been issued by Susan Clews (Chief Executive, Acas), Dame Carolyn Fairbairn (Director-General, CBI) and Frances O'Grady (General-Secretary, TUC), to help businesses and workers deal with the impact of possible...
Following the Prime Minister's announcement yesterday, the The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) (No. 3) Regulations 2020 have been published. ...
The Financial Times (£) is reporting that the Chancellor, Rishi Sunak, is considering a new style job subsidy scheme for when the Coronavirus Job Retention Scheme ends on 31 October. One possibility, proposed by the CBI, is a state subsidy...
My update ' New Tribunal Procedure Rules ' on 17 September 2020 contained the following sentence:- "Fifth, the rules are changing to allow multiple Claimants and Respondents to use the same forms where reasonable, to avoid multiple...
Further to yesterday’s bulletin , The Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 have now been laid before Parliament. The statutory instrument...
A new statutory instrument is being laid before parliament today (but is not yet available on the gov.uk website ) to amend the tribunal procedural rules. First, the rules are being changed to allow more flexibility over virtual hearings. The details are...
HM Courts & Tribunal Service has issued an Operational Notice about Victory House . One member of staff at Victory House has tested positive for Covid-19 in the last week, and two others are exhibiting symptoms are have been advised to take a test. All...
The President of the Employment Tribunals (England & Wales), Judge Barry Clarke, has issued three new Presidential Guidance documents which take effect today. First is the Presidential Practice Direction on remote hearings and open justice . This sets...
Did an employee who suffered from paranoid delusions that affected his timekeeping have a disability for the purposes of the Equality Act 2010 ? No, held the EAT in Sullivan v Bury Street Capital Limited . The Claimant's condition caused him to...
The Queen has approved the appointment of six new High Court judges , two of whom are employment law experts. The Honourable Mrs Justice (Mary) Stacey, as she will become on 1 October 2020, has sat as a circuit judge in the Employment Appeal Tribunal for...
Should parties avoid using a 'narrative' style in their ET1s and ET3s? Yes, held the EAT in C v D . The Claimant appealed against the refusal of an application to amend to add claims of disability harassment and reasonable adjustments failures. In...
Did an employer who failed to place a redundant employee on a list of ad hoc workers act unreasonably within the meaning of s98(4)(a) of the Employment Rights Act ? No, held the EAT in Aramark (UK) Ltd v Fernandes . Mr Fernandes was made redundant by...
Was it fair to dismiss a teacher accused of possessing a computer with indecent child images, when he wasn't prosecuted; it was unclear who had downloaded the images, basing a decision on a risk that the teacher might have done so? No, held the EAT in ...
Today marks the very visible beginning of the end for the Coronavirus Job Retention Scheme. From today, 1st September 2020, employers have to contribute at least 10% of salary for those benefitting from the furlough scheme (adding to the payments of...
Can an employment tribunal order re-engagement where the employer believes that trust and confidence has broken down? No, not if the belief is rationally held, held the EAT in Kelly v PGA European Tour . The Claimant was dismissed for poor...
In an equal pay case, was it open to a tribunal to find that a successful material factor defence explaining a difference in pay had ceased to operate at a later point in time? Not on the facts of the case, held the Court of Appeal in Walker v...
Can an employee be fairly dismissed without any procedure (including an appeal), after a breakdown in working relations ? Yes (in rather unusual circumstances), held the EAT in Gallacher v Abellio Scotrail . The Claimant was a senior manager in...
The Minutes for the Employment Tribunals National User Group meeting on 30 June 2020 have been published. Key points:- - the coronavirus crisis is causing a significant increase in the tribunal backlog, increasing by about 1% with each passing...
Acas has updated its Guidance on Managing Staff Redundancies . If you’re thinking about making (or advising on) redundancies yourself, I am now offering a free daily email with information about carrying out a redundancy process....
UPDATE: The statutory instrument has now been laid, and can be seen here (thanks to Daniel Ferguson for the tip-off). Two things leap out:- 1. why use one complicated bit in a Regulation when you can use dozens...
The Department for Business, Energy & Industrial Strategy has announced this morning that it is bringing in a new law to ensure all furloughed employees receive redundancy payments at 100% of their normal pay, rather than a reduced furlough...
Employment Judge James Tayler, currently sitting at London (Central) employment tribunal, has been appointed as a senior circuit judge of the Employment Appeal Tribunal. He takes up his appointment on Monday, 27 July 2020. You can see the...
Yesterday the government published its response to the consultation on proposed regulations restricting public sector exit payments. The Small Business Enterprise and Employment Act 2015 (as amended by the Enterprise Act 2016) gives the...
Can employees assigned to an undertaking which is fragmented upon transfer be transferred to multiple transferees? Yes, held the Court of Justice of the European Union (‘CJEU’) in ISS Facility Services NV v Sonia Govaerts & Atalian ...
Should an unfair dismissal claim be struck out if there is a reasonable prospect of success, but where no compensation will be awarded? No, held the EAT in Evans v London Borough of Brent . The tribunal struck out the Claimant's claim as having...
Many readers will have watched, with some bemusement, the panic on Twitter over the last fortnight caused by a sentence in HMRC guidance which said that employers can use the coronavirus job retention scheme to pay statutory notice. Some people were...
The Ministry of Justice has launched a three month consultation on whether to raise the judicial retirement age for judges (including tribunal judges), magistrates and coroners. Current legislation, passed 27 years ago, sets the mandatory retirement age for...
Does a tribunal need to consider the issue of 'substantial adverse effect' before the question of impairment in a disability discrimination claim? No, held the EAT in Khorochilova v Euro Rep Limited . The Claimant was employed by the...
Where a written agreement provides that a professional sportsperson is not an employee and is paid by lottery grants and sponsorship, must that person be considered as an employee or worker (contrasted with genuinely self-employed)? No, held the EAT...
When considering if discrimination arising from a disability has occurred, should a tribunal consider if the treatment complained of was 'because of' disability, rather than 'but for' disability? Yes, held the Court of Appeal in ...
"Employers may be forced to return cash to taxpayer as Sunak redefines furlough" So ran the clickbait headline in The Telegraph on Saturday 4 July. Is there any truth to it? Almost certainly not. The article derives from a new...
Was it outside the range of reasonable responses to dismiss someone in reliance on the evidence of an anonymous witness? Not in the circumstances, held the EAT in Tai Tarian v Christie . The Respondent (R) is a housing association, who employed the...
Can a discrimination 'recommendation' include making an employer undertake to pay a redundancy payment to someone who is not redundant? Yes, held the EAT in Hill v Lloyds Bank . The Claimant was disabled by depression, which she said was a...
The government is seeking views on what workplace laws could be used, or introduced, to support the survivors of domestic abuse within the workplace. The availability of flexible working, unplanned leave and other employment needs will be examined, along...
HMRC has published the CJRS Treasury Direction , which is rewritten for the flexible furlough scheme (taking the form of a new 30 page Schedule). I will be updating my template furlough agreement to comply with the new flexible furlough scheme over...
Is it unlawful to discriminate against one group of disabled employees by comparison with the treatment of other disabled employees? Yes, indicates the Advocate-General in a preliminary ruling for the Court of Justice of the European Union in VL (Case...
Does an 'unless' order always mean that non-compliance leads to an entire case to be struck out? Not unless that is what the order says, held the EAT in Ijomah v Notts Healthcare . After two preliminary hearings, the Claimant (Dr Ijomah) was...
According to an article in today’s Times newspaper (£) , the Ministry of Justice has written to the Law Commission inviting it to “provide recommendations for creating a coherent system for charging and updating fees in the...
Can a Respondent overturn a tribunal judgment on liability by raising a time point at a later remedy hearing? No, held the EAT in Wilson Barca LLP v Shirin . The Claimant worked at a solicitors practice, she resigned after being subjected to...
Last night, HMRC released details of the flexible furlough scheme, which starts on 1 July 2020. Under the flexible furlough scheme, employees no longer need to avoid doing any work for the employer, but can work for some of the week and be furloughed...
The President of Employment Tribunals (Scotland) has issued a Practice Direction and further informal guidance on the fixing and conduct of remote hearings. One interesting aspect is that the parties will have to conduct tests with a...
The President of the Employment Appeal Tribunal, Choudhury P., has issued an EAT Practice Direction on Remote Hearings which takes effect today. It revokes and replaces paragraph 19 of the 2018 Practice Direction, and covers: - the procedure for sitting...
Some little things you might have missed... 1. It is now too late to put somebody on furlough for the first time. Yesterday was the last day. But if someone is or has previously been on furlough, they are eligible to continue until the...
Redundancy Quick Guide: Using a 'Pool of One' Sometimes, choosing a redundancy selection pool is pretty easy; for example, where there’s a specific role that is disappearing and just one employee who does it. An often quoted example...
Can a decision to dismiss a church minister because his marriage has broken down amount to marriage discrimination? Yes, but not on the facts of this case, held the EAT in Gould v St John's Downshire Hill . The Claimant, who was the vicar of an...
May an employer reasonably use an interview process when considering redundant employees for alternative employment? Yes, held the EAT in Gwynedd Council v Barrett , particularly when the applications are not for the same or a substantially similar...
This morning, newly appointed President of Employment Tribunals (England & Wales), Judge Barry Clarke, took part in an online Q&A session for tribunal service users, split equally between lawyers, employers and employees. He spoke for about 20...
The Presidents of the Employment Tribunals (E&W, and Scotland) have updated their FAQ document containing details of how tribunals will operate during the coronavirus crisis. There is a new road map (from page 19). You need...
Chancellor Rishi Sunak has announced reforms to the Coronavirus Job Retention Scheme. We are awaiting updates to the Treasury Direction and the Employer's Guidance - and the devil will always be in the detail - but these are the headline points...
The Presidents of Employment Tribunals (England & Wales and Scotland) have carried out a second review of their Joint Direction, first issued on 19 March 2020, amended on 24 March 2020 and subject to a first review on 29 April 2020, regarding...
Entitlement to statutory sickpay has been extended, under The Statutory Sick Pay (General) (Coronavirus Amendment) (No. 4) Regulations 2020 , to people who have been told to isolate under the new ' Test and Trace ' system, which...
Was a refusal to postpone a hearing to allow a medical report to be obtained an error of law? Not on the facts of the case, held the Court of Appeal in Morton v Eastleigh CAB . The Claimant was dismissed in November 2016. She brought claims of...
Did unofficial work prior to a formal start date count towards a period of continuous employment? Not on the facts, held the EAT in Mr R O'Sullivan v DSM Demolition Ltd . Mr O'Sullivan needed two years' continuous employment to pursue a...
Can an employer avoid paying out on a settlement if an employee breaches a confidentiality clause? No, held the High Court, in Duchy Farm Kennels v Steels , unless confidentiality is (genuinely) a condition of the agreement. The High Court heard an...
Are contract variations beneficial to an employee void if made by reason of a TUPE transfer? Yes, if made by the transferor, held the EAT in Ferguson and ors v Astrea Asset Management Ltd . The Claimants were directors of a company which lost an...
Many employers are now compelling employees to take annual leave while on furlough, mainly to prevent them accruing eight months’ worth of holiday (furlough now being known to last between 1 March and 31 October 2020) being due when they return to work...
Is the absence of a garden leave set-off clause fatal to a non-compete clause? No, held the High Court (QBD) in Square Global Limited v Leonard . The Caimant purported to resign on 19th November 2019 with immediate effect as he claimed the...
Is an employee's length of service relevant to the question of whether they have been wrongfully dismissed? No, held the EAT in East Coast Main Line Company Ltd v Cameron . The Claimant had been employed by the Respondent since 1981, most...
The government has published OUR PLAN TO REBUILD:The UK Government’s COVID-19 recovery strategy , setting out its roadmap to bring the UK out of Covid-19 lockdown. The proposals on work are set out at p26 (p29 of the pdf) and take effect from...
Are part-time football referees employees, whose match fees and other payments are subject to PAYE, or independent contractors? Independent Contractors, held the Upper Tribunal (Tax and Chancery Chamber) in Revenue and Customs v Professional Game...
Acas has issued guidance for employers on handling disciplinary and grievance processes during the coronavirus crisis. It's worth a read; perhaps bearing in mind that it aspires to set out best practice, meaning some parts may be a little...
If a final straw is 'entirely innocuous' does that mean all previous conduct by an employer is irrelevant? No, held the EAT in Williams v Alderman Davies Church in Wales Primary School . The Claimant failed in a claim of constructive unfair...
The Presidents of the Employment Tribunals (England & Wales, and Scotland) have produced a Joint Practice Direction on the use of electronic signatures in employment tribunals. The Practice Direction makes clear that an employment tribunal...
The Treasury has published its Direction to HMRC giving statutory footing for the government's self-employed income support scheme . Some points arising:- - a claim may only be made in relation to a trade, the business of which has been adversely...
The latest edition of the Employer's Guidance on the Coronavirus Job Retention Scheme was published yesterday. There are two new aspects. First, it is made clear that "Whilst on furlough, employees who are union or non-union...
The Presidents of the Employment Tribunals (England & Wales, and Scotland) have carried out the first review (due on 29 April) of the Joint Presidents' Direction (amended 24 March 2020) on ET Hearings during the Covid-19 pandemic. As a result, the...
Is a contractor with an unfettered right of substitution entitled to receive holiday pay under the Working Time Directive ? No, if he is genuinely independent and is not subordinate, held the CJEU in B v Yodel Delivery Network Ltd . A...
The Law Commission has today published a report on Employment Law Hearing Structures . The report is long and makes many recommendations; some of the key ones are set out below: 1. expansion of the contractual jurisdiction of the employment...
Can discriminatory remarks made by an employer in a radio interview come within the EU's Equal Treatment Directive and so found a discrimination claim? Yes, held the European Court of Justice in NH v Associazione Avvocatura per i diritti LGBTI...
It's an unresolved issue. If employees have agreed to accept 80% of their salary while on furlough, is their notice pay also paid at 80%, or does it revert by operation of law to 100%? I've been thinking about this a lot, and I've set out my...
Will ambiguity in a dismissal letter be a factor in permitting a dyslexic claimant to extend the limitation period for bringing a claim? Yes, held the Court of Appeal in Lowri Beck v Brophy . The Claimant brought claims for unfair dismissal and...
I have been given permission by HMRC to publish this letter . The author of the letter works within the office of Jim Harra, HMRC Chief Executive and First Permanent Secretary, and is speaking on his behalf. It deals with the seeming discrepancy...
The Coronavirus Job Retention Scheme online portal opened on Monday morning. It appears to be working remarkably well. In its full day of operation (until midnight on Monday): - 185,000 firms submitted claims - 1,300,000 were employees reported as...
New Presidential Guidance has been issued by the President of the Employment Tribunals (England & Wales) on Vulnerable Parties and Witnesses in Employment Tribunal Proceedings. The guidance covers, amongst other things: - factors to...
The Ministry of Justice has announced four new Regional Employment Judge appointments. Employment Judge Wade MBE has been assigned to the London Central Region with effect from 1 May 2020. Employment Judge Foxwell has been assigned to the...
Does an employer need an employee's written agreement to doing no work under their employment contract before they can make a valid claim under the Coronavirus Job Retention Scheme? Why are some people saying that the Employee's written...
Two changes to statutory sickpay (and thanks, respectively, to Charles Wynn-Evans from Dechert and Daniel Ferguson from the House of Commons Library, for telling me about them):- 1. HMRC has updated its statutory payments manual to provide...
The Treasury has issued a Direction to HMRC under powers conferred by the Coronavirus Act 2020 , containing authority and instructions for making payments under the Coronavirus Job Retention Scheme. Although amendments are possible, it is likely to be...
It's a Friday afternoon, so I've been clicking 'refesh' to see what important announcement the government sneaks out... And my wait was not in vain. In the last few minutes, HM Treasury has announced the coronavirus job retention scheme (the...
The Treasury Direction to HMRC relating to the Coronavirus Job Retention Scheme has now been out for just over 24 hours. So has the most recent version of the Guidance for Employers . The first iteration of the Employer’s Guidance stated that...
Demonstrating a penchant for publishing revisions of the Scheme when nobody is at work, HMRC has just published the third version of the Coronavirus Job Retention Scheme guidance for employers . Three big changes, and several little ones. The big ones:- -...
The President of the Employment Appeal Tribunal, Choudhury J., has asked for this to be distributed to all EAT users... http://emplawservices.co.uk/wp-content/uploads/2020/04/2020_04_09_EAT-Covid-19-Announcement-002.pdf ...
Here are six things that happened yesterday... 1. HMRC told a Parliamentary Select Committee that the online portal will open on 20 April, with the first reimbursements made on 30 April. See this recording (the relevant bit is at 9:55:48 - thanks to Mike...
The government has published further guidance for apprentices , as well as for employers, training providers, end-point assessment organisations and external quality assurance providers. It's long. Very long. Truth be told, it's also very dull....
Can someone be vicariously liable for the actions of an independent contractor? Not necessarily, says the Supreme Court in Barclays Bank plc v Various Claimants . Barclays required certain new employees to receive a medical assessment prior to their...
Two sets of amendments to the National Minimum Wage (“NMW”) come into force on 6th April 2020. The first simply uprates the NMW in line with the Low Pay Commissions Recommendations. The second, the National Minimum Wage...
Is an employer vicariously liable when an employee commits a tort as a personal vendetta? No, held the Supreme Court in Morrisons v Various Claimants , upholding the employer's appeal. The case involved a disgruntled employee, an internal...
Was a tribunal right to strike out a disability discrimination claim on the ground of a Claimant's refusal to engage with joint medical experts to establish her disability? Yes, held the EAT, on the facts in Itulu v London Fire Commissioner . Mrs...
Is an employment tribunal at a full hearing required to stick to the List of Issues decided at case management preliminary hearing? No, held the Court of Appeal in Mervyn v BW Controls Ltd . Ms Mervyn, who was not legally represented, claimed she had...
Are Uber drivers genuinely self-employed? No, held the French Court of Cassation (the country’s highest court for civil matters) in a landmark ruling yesterday ( already available in English translation ), confirming the Paris Court of Appeal’s...
Is the fact that legal expense insurers have authorised litigation enough for a 'get out of jail free' card when the Claimant faces a costs application? No, held the EAT in Radia v Jefferies International Limited . Costs do not follow the...
Does ‘return to work’ mean return to any work for the purposes of long-term disability benefit? No, held the Court of Appeal in ICTS (UK) Limited v Visram . Mr Visram was an International Security Coordinator for American...
Could an extension of time be granted for an appeal, where the last page of the ET3 was missing? Yes, in this "exceptional" case, held the EAT in Fincham v Alpha Grove . The Claimant, acting in person, filed an appeal within the time...
Health Secretary Matt Hancock has said that those in self-isolation on medical advice should be treated as on sick leave and may be eligible for statutory sickpay. Is that right? I've been thinking about it, but have been beaten to it by Emma...
Was capping compensation for two disabled police officers unfavourable treatment under section 15 Equality Act 2010 ? Yes, held the EAT in Chief Constable of Gwent Police v Parsons and Roberts . The two Claimants were in their forties and had...
I'm receiving loads of emails (well, more than ten) from people asking for my views on how employers should deal with COVID-19 (coronavirus). So I've written a short summary (and anyone is free to reproduce this). An important...
Can an employer fairly dismiss an employee on the basis of concern for its reputation when the employee is charged with, but not convicted of, a criminal offence? Yes, held the EAT in Lafferty v Nuffield Health , in what it called " quite a...
When refusing to add a new Respondent to an existing claim, is it relevant that the Claimant failed to go through Acas Early Conciliation with them? Yes, held the EAT in Patel v Specsavers Optical Group Ltd . The Claimant issued proceedings against...
From April, Glasgow employment tribunal will list cases on a Thursday evening between 5.30pm and 7.30pm, for litigants who would like an evening slot. There will be a maximum of 2 judges available to hear the cases listed. If there is enough interest then...
The Supreme Court has refused permission to appeal in the case of Chief Constable of Leicestershire v Hextall. That means the Court of Appeal's decision remains binding. Last year, the Court of Appeal held that it is not discriminatory to pay men on...
Does the rule of attribution in Royal Mail Group v Jhuti apply only to the reason for dismissal, or does it also apply to whether a dismissal is fair? Both, held the EAT in Uddin v London Borough Of Ealing . Mr Uddin failed (by a...
Can a one-off decision amount to a provision, criterion or practice (PCP) for the purposes of complaints under the Equality Act 2010 of failing to make adjustments or indirect discrimination? Sometimes, held the Court of Appeal in Ishola v...
Is a Claimant prevented from bringing claims by a historic period of illegality in the performance of a contract? No, held the EAT in Robinson v Al Qasimi . The Claimant worked for the Respondent from March 2007 to May 2017. Up to July 2014, the...
When should an employment tribunal allow litigants to record proceedings? Hardly ever, and only then under strict limits, held the EAT in Heal v University of Oxford . The Claimant said his disabilities, which included dyslexia and dyspraxia, made it...
Can a Claimant rely on detriments taking place during the 12 month period after which they qualify as disabled? No, held the EAT in Tesco Stores Limited v Tennant . The Claimant, a checkout manager, was absent from work due to depression from...
If an employee is unlawfully dismissed and then re-instated by a court order, is the employee entitled under EU law to annual leave for the interval between dismissal and re-employment? Yes, is the preliminary ruling of the Advocate-General to the European...
Can an employer, seeking to defend its reputation, subject a worker to a detriment in the way it denies the truth of a protected disclosure? Yes, held the Court of Appeal in Jesudason v Alder Hey Children’s NHS Foundation Trust . Mr Jesudason...
Today the EAT has handed down judgment in the case of Basfar v Wong. This case becomes the first to be granted permission for a 'leapfrog' appeal from the EAT straight to the Supreme Court. Does a diplomat’s employment of a...
Few will have missed the newspaper reports earlier this month expressing surprise at a tribunal finding that an ethical vegan had a protected belief under the Equality Act 2010 . The written reasons in the case, Casamitjana Costa v The League...
Does the Equality Act 2010 protect people in the UK who apply to work on foreign ships operating outside of UK waters? No, held the EAT in Walker v Wallem Ships Management , dismissing (with regret) the Claimant's appeal against...
When considering striking out a tribunal claim for breach of an 'Unless' Order, should a tribunal specifically consider the seriousness of a party's default, as well as any reason for the default? Yes, held the EAT in Duncan Lewis...
One of the questions I hear most frequently from employers is: 'Do we need to hold a separate investigation hearing?' The answer is no, no, and thrice no. Unless you do. The Acas Code, at paragraph 5, states: "It is important to carry out...
Is a belief that there are two biological sexes in humans, and that it is not possible for a human being to change sex, a ‘philosophical belief’ within the meaning of section 10 of the Equality Act 2010 ? No, held Employment Judge Tayler...
Does a substitution clause in a person's service contract automatically mean they are denied 'worker' status? Not on the facts, held the EAT in Stuart Delivery Ltd v Augustine . Mr Augustine was a delivery courier, undertaking fixed...
Does the EAT have the power to re-open orders made by an employment tribunal, other than by the means stipulated in the applicable rules and case law? No, held the EAT in MacLeod v The University Court of the University of Glasgow . The Claimant had...
The Fourth Edition of the Principles for Compensating Pension Loss was issued in August 2017, and the First Revision in November 2019. A significant feature of the First Revision was the inclusion in Appendix 2 of extracts from the Ogden Tables at the new...
Was it direct sex discrimination for the City of London Police not to pay a police officer on maternity leave her 'London Allowance'? Yes, held the EAT in City of London Police v Geldart , dismissing the force's appeal. The Claimant was...
Does TUPE apply to limb 'b' workers, as well as traditional employees? Yes, according to the decision of an employment tribunal sitting in London in Dewhurst v Revisecatch & City Sprint . We never normally send out employment tribunal...
If a manager decides to engineer the dismissal of an employee, and fakes an admissible reason which fools the (more senior) dismissing officer, what is the ‘principal reason’ for dismissal? The hidden reason operating in the mind of the manager,...
The Labour party has published its manifesto for the 12 December 2019 general election. It's policies on employment law and industrial relations appear from page 59. Key manifesto pledges are:- - living wage of £10 per hour for all...
In a whistleblowing detriment case, does a tribunal need to make specific findings as to whether the Claimant subjectively believed the disclosure was in the public interest, and whether or not that belief was reasonable? Yes, held the Court of Appeal...
Is a member state of the EU obliged to permit carry over of annual leave from one leave year to another due to sickness absence? Not any in excess of the 4 weeks provided for in the Working Time Directive , held the CJEU in TSN v Hyvinvointialan...
Can an alleged act of discrimination be part of "conduct extending over a period" within the meaning of s123 of the Equality Act 2010 where the alleged act is found not to be discriminatory? No, held the EAT in South Western...
Was a dismissal for trade union activities automatically unfair because of the involvement of a senior manager, when both managers who heard the disciplinary and appeal hearings were 'innocent' of this? Yes, held the EAT in Cadent Gas Limited...
When considering, under s123 of the Equality Act 2010 , whether discriminatory acts extend over a period of time (to determine if it is just and equitable to extend time to hear a complaint), should a tribunal hear evidence? Yes, held the EAT...
Can a dismissal amount to a detriment for the purposes of s13 and s15 Equality Act 2010 even if the Claimant is later reinstated? Yes, held to the EAT in Jakkhu v Network Rail . The Claimant was potentially at risk of redundancy, and...