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Automatic Unfair Dismissal: Parental Leave

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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 ....

Health and Safety Dismissal

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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  ...

Unfair Dismissal: Band of Reasonable Responses

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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...

Belief Discrimination

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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...

Whistleblowing: Dismissal as an Act of Detriment

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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...

Tribunal Procedure: Strike-Out

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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...

Agency Workers

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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...

Increase In Tribunal Compensation Limits From 6 April 2024

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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: ...

Tribunal Procedure: Reasonable Adjustments

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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...

Government Publishes Updated Code of Practice on 'Fire and Rehire'

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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...

Unless Orders

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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...

Labour to Extend Equal Pay to Race and Disability (Update)

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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...

Labour to Extend Equal Pay to Race and Disability

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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...

Strike-out

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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...

Age Discrimination

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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...

MyHMCTS Portal Update

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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...

TUPE: Transfer Of Liability

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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...

Extension of Time: Discrimination

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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 ...

Worker Status: Job Applicants

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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...

MyHMCTS Portal - Planned Downtime

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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...

Whistleblowing Dismissals - Decision Maker's Knowledge

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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,...

Victimisation

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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...

New Paternity Leave Regulations published

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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: -...

Constructive Dismissal: Affirmation

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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 ....

Settling Future Claims

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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...

New government guidance on Holiday Pay

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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...

Employment Tribunal Compensation

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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...

Carer's Leave Regulations

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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: - ...

Flexible working to become a Day One right from April 2024

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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...

Protection from Redundancy: Pregnancy and Family leave

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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...

State Immunity

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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...

myHMCTS portal

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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...

Agency Workers

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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...

Redundancy Consultation

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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...

Heat of the Moment Resignations

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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...

Abuse of Process

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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...

National Minimum Wage Increase

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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...

Trade Union Recognition

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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...

Equality Act Amendments

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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 Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023

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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...

Gender Recognition Act

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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...

Audio Recordings of Employment Tribunal Hearings

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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...

Rehabilitation of Offenders

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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...

Sexual Harassment

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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...

Predictable Working Pattern Requests

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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...

Race Discrimination

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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...

New Supreme Court Justice: Dame Ingrid Simler

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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...

New government guidance on Fit Notes

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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...

Important Case: Holiday Pay

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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...

Whistleblowing Detriment

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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...

Workers (Predictable Terms and Conditions) Act 2023

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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...

EAT Practice Direction 2023

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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...

The Evolution of Employment Tribunals

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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....

ET1 and ET3 Online Submission Service

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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 ...

Employment Appeal Tribunal Rules

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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...

Worker Protection (Amendment of Equality Act 2010) Bill

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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...

Termination of Employment

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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...

ET1 online submission service

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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,...

TUPE

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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...

Reasonable Adjustments

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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. ...

Artificial Intelligence and Employment Law - new paper

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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...

MyHMCTS portal

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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...

Extension of Time

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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...

New ET1 and ET3 forms

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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....

Updated Acas Guidance on Sickness Absence

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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; ...

Giving Evidence from Abroad

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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...

Extension of Time

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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...

Redundancy Payment

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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...

Apparent Bias

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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

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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)...

Strikes and Agency Workers

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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...

Presidential Guidance on Alternative Dispute Resolution

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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...

Employment Status

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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...

Disciplinary Procedure

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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...

Harassment

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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...

AI to take minor judicial decisions

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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) ...

Manifestation of Religion or Belief

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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...

Reconsideration

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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...

Holiday Pay on Termination

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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,...

Update - London Tribunal Building

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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...

Discrimination

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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...

Strike Out

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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...

Royal Assent for new Family Friendly Legislation

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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...

Race Discrimination

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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...

Health & Safety Detriments

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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 &...

Furlough and Redundancy

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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....

Indirect Discrimination

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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...

Government Consultation - Open Justice: the way forward

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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...

Employment (Allocation of Tips) Act 2023

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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...

Government Abandons Sunset Clause Part 2

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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...

Government Abandons Sunset Clause

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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, ...

Proposals to Limit Non-Compete Clauses

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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)...

Important: Government Announces Brexit Changes to Employment Law

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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...

Knowledge of Disability

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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...

Furlough Pay

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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...

Time Limits

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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...

Civil Procedure Order

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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 . ...

Restrictive Covenants

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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 ...

Tribunal Procedure

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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...

Employment Tribunal User Group - September 2022

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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...

Apparent Bias

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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...