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 ....
Employment Law Vault
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: -...
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 ....
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...
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 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...
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...
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...
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...
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...
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 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 . ...
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 ...
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...