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Kate Fretten
 

Redundancy - alternative employment and trial periods

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A dismissal for redundancy is likely to be unfair unless the employer has considered whether there is suitable alternative employment within the business (or group). If suitable alternative employment is offered, it might be subject to a statutory 4 week...

Guidance on Confidentiality or Non-disclosure Agreements

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The guidance discourages the habitual use of gagging clauses when settling discrimination claims. It suggests they are only used in specific circumstances such as a case where a worker does not want the details of their discrimination case to become public.

The guidance also advises employers to tailor the clause to the individual case rather than using a standard template. The guidance also suggests that employers might still need to investigate claims, which are settled to show they have taken steps to prevent discrimination in the workplace.

The 'innocent' discriminator

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If another person influences a decision-maker in a discriminatory way, can that person be considered a joint decision-maker? Recently, the Employment Appeal Tribunal in Metropolitan Police v Denby held that, yes, they could be. The...

Discrimination against part time workers

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If a part-time worker works more than 50% of full-time hours, but is paid only 50% of full-time salary, it is less favourable treatment. British Airways v Pinaud In the above case, the Employment Appeals Tribunal (EAT) concluded that...

Tribunal Fees - Stay on Cases has been removed

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Earlier this month, the Presidents of the Employment Tribunals issued an order staying all claims and applications arising from the Unison decision by the Supreme Court that employment tribunal fees are unlawful. Last week, in another order, that stay has...

Discrimination: Unfavourable Treatment

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Trustees of Swansea University Pension & Assurance Scheme & Anor v Williams. The Court of Appeal has held that ‘unfavourable treatment’ is not to be equated with detriment, for the purposes of a claim of discrimination in consequence of...

TUPE and Garden Leave

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ICAP Management Services Ltd v Berry In this case, the High Court has held that, where a Senior Executive was placed on garden leave, the circumstances were such that a TUPE transfer did not enable him to object to it and terminate his garden leave. Mr...

British employment reaches record high

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The level of people in employment in the UK reached a new record high in the first quarter of the year, as unemployment hit its lowest since 1975. Unemployment in the UK fell to 4.6% in the first quarter, according to the Office for National Statistics...

Some other substantial reason dismissal

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Ssekisonge v Barts Health NHS Trust The Employment Appeal Tribunal (EAT) has confirmed in this case there is not a particularly high threshold for an employer dismissing an employee because of a 'substantial reason'? The Claimant was a nurse who,...

Discrimination due to Disability

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Peninsula Business Services v Baker The Employment Appeal Tribunal (EAT) held that a Claimant cannot successfully claim harassment by simply asserting s/he has a disability without establishing s/he is disabled under the Equality Act 2010. The Claimant...

Social media - Employee fairly dismissed for historic tweets

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Creighton v Together Housing Association Ltd A long serving employee who was dismissed for making derogatory comments about his colleagues and his employer on social media has had a claim for unfair dismissal rejected by an employment tribunal. The...

News - Gender Pay Reporting

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

Long-term stress a disability?

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Herry v Dudley MBC The Employment Appeal Tribunal (EAT) has held in this case that long-term stress does not amount to a disability unless there is something else on top of the stress. The Claimant asserted he had two disabilities, namely dyslexia and...

Christmas party assault

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Bellman v Northampton Recruitment In this controversial case the High Court has held a company is not vicariously liable for injuries caused by an employee after a work Christmas party had ended. A manager was assaulted by a director after a Christmas...

Redundancy consultation

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Thomas v BNP Paribas Real Estate The Employment Appeal Tribunal (EAT) decided in this case that a 'perfunctory and insensitive' redundancy consultation is likely to make a redundancy dismissal unfair. The Claimant had over 40...

Rest Breaks

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Grange v Abellio London The Employment Appeal Tribunal (EAT) held in this case that an employee is not required to ask for a rest break before claiming to have been refused a rest break? The Claimant was contracted to work an eight...

Cake discrimination decision upheld

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Lee & Ashers Baking Company The Northern Ireland Court of Appeal has handed down its decision in the so-called 'gay cake' case, deciding the question of whether religious beliefs trump the law against discrimination in the supply of...

Equal pay claim at Asda

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Brierley and others v Asda Stores Limited The Manchester Employment Tribunal has ruled that a group of Asda store workers can compare themselves to distribution depot workers for the purpose of an equal pay claim. A group of mainly female...

Reasonable Adjustments can include higher pay

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G4S Cash Solutions (UK) Ltd v Powell The Employment Appeals Tribunal (EAT) has said the duty to make reasonable adjustments for a disabled employee can extend to continuing to pay a higher salary when an employee is moved to a lesser role in this case. ...

Victimisation and knowledge of protected disclosure

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Royal Mail Group v Jhuti The Employment Appeal Tribunal (EAT) has held in this case that it is automatically unfair to dismiss someone for making a protected disclosure if the person who made the decision to dismiss had incomplete knowledge of...

Attorney General says Hijab ban is direct discrimination

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Bougnaoui v Micropole SA In this case the Court of Justice of the European Union’s (CJEU) Advocate General has advised that it is unlawful to ban a Muslim employee from wearing her Islamic headscarf when in contact with clients....

ACAS Code of Practice and ill-health dismissals

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Holmes v Qinetiq The Employment Appeal Tribunal (EAT) has held the ACAS Code of Practice on Disciplinary and Grievance Procedures does not apply to ill health dismissals. The Claimant was dismissed on the grounds of ill health. It...

Meaning of philosophical belief

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Harron v Dorset Police The Employment Appeal Tribunal confirmed in this case that a belief that public service is improperly wasteful of money can potentially be protected as a 'philosophical belief' under the Equality Act 2010....

No injury to feelings award for breach of Working Time Regulations

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Santos Gomes v Higher Level Care Limited The Employment Appeal Tribunal (EAT) has held a worker cannot claim compensation for injury to feelings if they are not allowed rest breaks under the Working Time Regulations. The Claimant won compensation from an...

Disability: no imputed knowledge

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Gallop v Newport City Council The Employment Appeal Tribunal (‘EAT’) has said in this case that knowledge by Occupational Health of a disability cannot be imputed to the employer. The EAT found, following Court of...

Apprenticeship Levy

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

Gender pay reporting

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New draft regulations, regarding the new gender pay reporting requirements, have now been produced. The new requirements are now intended to come into force in October 2016, with the first reports to be published in April 2017. The draft Regulations set out...

Zero hours contracts

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The long awaited protection for zero hour contract workers has finally been introduced. From 11 January 2016, The Exclusivity Terms in Zero Hour Contracts (Redress) Regulations 2015 provide that:- any...

Mitigation of loss

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Cooper Contracting Ltd v Lindsey The Employment Appeal Tribunal (“EAT”) has summarised the main principles in decisions on mitigation of loss in this case. An employee is under a duty to mitigate their loss if unfairly dismissed by...

Instruction to speak English not discrimination

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Kelly v Covance Laboratories Ltd The Claimant in this case was a Russian national who worked at a laboratory which was involved in animal testing. The Respondent was concerned that the Claimant might be an animal rights infiltrator as she would...

Fee Remission in Tribunals

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Her Majesty's Courts and Tribunal Service (“HMCTS”) have made some changes to the fee remission system. From 28 October 2015, the fee remission process changed its name to “Help with Fees” and a new 'Help with Fees form',...

Zero Hour Contracts

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A Guide for Employers on Zero-Hour Contracts has been released by the Department for Business, Innovation and Skills. The guide explains to employers how zero-hour contracts work in practice, explains the difference between appropriate and inappropriate...

Shared (Grand) Parental Leave

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The government recently announced its plans to extend shared parental leave to include grandparents. The planned changes seek to increase flexibility and choice in parental leave arrangements and support working parents with the costs of childcare during the...

TUPE long term sick employee not 'assigned'

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BT Managed Services Ltd v Edwards In this case, the Employment Appeal Tribunal (“EAT”) held that an employee who is permanently off work sick cannot be assigned to an organised grouping of employees in the event of a TUPE transfer. The...

Claim of victimisation 'by association' should not have been struck out

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Thompson v London Central Bus Company Ltd In this case, the Employment Appeal Tribunal (“EAT”) found that the tribunal was wrong to strike out a claim of victimisation ‘by association’. The Claimant was employed as a bus driver...

New ACAS Guides on Equality

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ACAS has recently published three new guides on equality, titled: ‘ Equality and Discrimination: Understand the basics’ , ‘ Prevent Discrimination: Support Equality’ and ‘Discrimination: what to do if it happens.’ The...

Indirect age discrimination

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West Midlands Police v Harrod & Ors The Employment Appeal Tribunal (“EAT”) confirmed in this case that it is not indirectly discriminatory on the grounds of age to retire police officers entitled to receive a pension, in order to...

News - Gender pay gap consultation launched

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The Government has confirmed that it will legislate under the Equality Act 2010 to make it necessary for companies with 250 or more employees to publish gender pay gap information. A consultation paper has been published on the detail of the regulations to...

Tribunal fees review announced

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The government has announced its long-awaited review of employment tribunal fees. It is expected to conclude towards the end of the year. There is no mention of any intention to consult with stakeholders or users of the system, although the government has...

Rejection of claim with incorrect early conciliation number

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Sterling v United Learning Trust The Employment Appeals Tribunal (EAT) has held that an employment tribunal was entitled to reject a claim that was submitted out of time, due to the Claimant entering the wrong ACAS early conciliation number. In this...

New government appointments relating to employment

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Following the general election 10 Downing Street has announced the ministers filling the roles of relevance to employment issues. They are as follows: Secretary of State for Business, Innovation & Skills: Sajid Javid Secretary of State for Justice:...

Collective consultation - Woolworths decision

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The ECJ has held that ‘establishment’, in the collective redundancy legislation, refers to an individual workplace (or, more accurately, the entity to which the workers made redundant are assigned to carry out their duties), not to the employer...

Holiday pay again - the Lock decision

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Lock v British Gas Following the much publicised holiday pay cases in the European Court of Justice (ECJ) and Employment Appeals Tribunal (EAT) in recent months, the employment tribunal in Leicester has handed down its long awaited decision in this case. ...

Meaning of establishment and collective redundancy consultation

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The Woolworths saga (which we have reported on several occasions before) continues and has taken another dramatic, but not yet decisive twist this month. The European Court of Justice’s Advocate General has said the EU Collective Redundancies...

Shared parental leave calculator

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Last week the Department of Business, Innovation and Skills published an online calculator to help prospective parents calculate their eligibility for shared parental leave and their pay entitlements. Click Here to follow the link to the...

Employee in Australia can claim unfair dismissal

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Lodge v Dignity & Choice in Dying The EAT has held in this case that an employee who returned to Australia, at her own request, but who continued to work for a UK company, could bring an unfair dismissal claim. Ms Lodge was an Australian citizen...

Redundancy - place of employment

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EXOL Lubricants v Birch In this case the EAT decided that there was no redundancy situation when employees lost the benefit of free parking near their homes. The Claimants were employed as delivery HGV drivers. They lived in...

Disability discrimination - reasonable adjustments

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The Court of Appeal has held in this case that it is not a reasonable adjustment under the Equality Act 2010 to require a bus company to have a policy requiring non-wheelchair using passengers to move if occupying a space required by a wheelchair user. Mr...

News - Cap on holiday pay claims

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The government has introduced the Deduction from Wages (Limitation) Regulations 2014 following on from the recent Bear Scotland case involving holiday pay. The new regulations do two things:- 1. Limit the majority of unlawful deductions claims to...

Effect of not objecting to contract variations

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Wess v Science Museum Group In this case the Employment Appeal Tribunal (“EAT”) has held that an employment tribunal was entitled to find that an employee had impliedly accepted a variation of her contract of employment by continuing to work,...

ACAS Early Conciliation

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ACAS has now published the first six months’ figures showing how early conciliation is working since it became compulsory for prospective cases in the employment tribunal in May 2014. The key figures are as follows:- ACAS has...

Discrimination - meaning of employee

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Halawi v WDFG UK Limited The Court of Appeal has unanimously held that UK discrimination law does meet the requirements of EU law in protecting employees in this case. The Appellant worked through her own company as a beauty consultant in a duty-free...

Claim rejected for non-compliance with early conciliation rules

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Thomas v Nationwide Building Society An employment judge has rejected a claim for failure to comply with the ACAS early conciliation procedure. However, he went on to find that the rejection could be reconsidered on the basis that the Claimant had...

Costs and insurance cover

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Mardner v Gardner The Employment Appeal Tribunal (“EAT”) held in this case that an employment tribunal, when deciding whether to award costs, should not take into account the fact the receiving party has had their legal expenses paid by an...

Labour will scrap current employment tribunal system

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Speaking live at the TUC Congress two weeks ago, Shadow Business Secretary Chuka Umunna announced that the next Labour Government will “scrap” the Government’s employment tribunal system and replace it with “a fairer system to ensure...

Constructive Dismissal

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Atkinson v Community Gateway Association The Employment Appeal Tribunal (“EAT”) has held an employee is not prevented from claiming constructive dismissal even if he has breached his contract of employment. An employee who might be dismissed...

Illegality defence in discrimination claims

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Hounga v Allen The Supreme Court has held that an illegal immigrant can bring a claim for discrimination, despite the fact the contract of employment is illegal. Miss Hounga, a Nigerian national, arrived in the UK in January 2007 having falsely obtained...

Can an employer increase a disciplinary sanction on appeal?

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McMillan v Airedale NHS Foundation Trust The Court of Appeal (CA) held in this case that an NHS Trust’s disciplinary policy did not permit it to impose a more severe sanction upon an employee’s appeal. Ms McMillan, a consultant employed by...

News - Employment Tribunal fees

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Her Majesty’s Court & Tribunal Service (HMCTS) has just reported that the fee income generated from employment tribunal fees was just under £4.5m in the 8 months between 29th July 2013 and 30th March 2014, equivalent to about £6.7m...

First report published for non-compliance with auto-enrolment pension

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The Pensions Regulator has issued its’ first report under Section 89 of the Pensions Act 2004 in relation to Dunelm Soft Furnishings Ltd (Dunelm), for non-compliance in the Government’s workplace pension scheme. Employment...

Employment law reforms announced in Queen's Speech

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The proposed legislation announced in the Queen’s Speech will focus on employment related measures. There is to be a ‘crack-down on on costly tribunal delays’ and on preventing abuses of the national minimum wage (NMW). Zero hours contracts...

Employment Tribunal Fee remission changes

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The Ministry of Justice has just announced a simplification of the fee remissions structure for employment tribunals, which will become effective on 30th June 2014. The changes include: applicants no longer need to provide original...

Constructive unfair dismissal and affirming the contract

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Cockram v Air Products Plc The Employment Appeal Tribunal (“EAT”) has held in this case that an employee lost the right to claim constructive unfair dismissal because they gave longer than the contractual minimum notice period. Mr Cockram...

Unfair dismissal or redundancy?

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Question : I worked for a company for a year on an annual renewable contract. I was initially given the option of PAYE or self-employed and chose PAYE. After a year I wasn’t given the option to choose and was forced to become self-employed. I had...

News - interim report on zero-hours contracts published

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Parliament’s Scottish Affairs Committee has published an interim report on zero-hours contracts which recommends changes, but states that ‘in the majority of cases’ zero-hours contracts should not be used at all. The release of the interim...

The manner of complaining in whistleblowing cases

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Panayiotou v Kernaghan In this case the claimant was a police officer. He made protected disclosures under the whistleblowing legislation relating to other officers’ treatment of victims. An investigation largely upheld his concerns, but the...

News - statutory sick pay no longer reclaimable

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With effect from 6th April 2014, it is no longer possible for employers to reclaim statutory sick pay from the government. Previously, employers could reclaim any amount of SSP which exceeded 13% of its national insurance contributions in the month. The...

Summary Dismissal: what are your rights?

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Question : An employee worked for a company for 9 weeks and was on a 6 month probationary period. He was told on his penultimate day that there was a meeting tomorrow to discuss a change in his working hours. This meeting turned out to be a performance...

Discrimination - dismissal after maternity leave

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Lyons v DWP Jobcentre Plus The Employment Appeal Tribunal (“EAT”) held in this case that a dismissal for absences due to post-natal depression arising after maternity leave did not amount to sex and/or pregnancy and...

ACAS produce guide on discrimination questionnaires

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Statutory questionnaires are being abolished in discrimination cases with effect from 6th April 2014. Up until now, Claimants in discrimination cases could serve questionnaires on Respondents about any alleged discrimination. If Respondents did not answer...

News - Labour seeks annulment of the TUPE amendments

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Earlier this month Labour tabled an early day motion in parliament, calling for the annulment of the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014, which came into force on 31st January 2014. ...

Employer not liable for an assault on a customer by their employee

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Mohamud v Morrisons Supermarket The Court of Appeal (“CA”) has held that a supermarket was not liable for an assault by one of their petrol station assistants on a customer. In March 2008, a customer visited a Morrison’s supermarket and...

Lying not automatically unreasonable conduct

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Kapoor v Governing Body of Barnhill Community School In this case the Employment Appeal Tribunal (“EAT”) overturned a tribunal’s decision to order a Claimant to pay £8,900 as a contribution towards the Respondent’s costs in...

Q & A about contractual hours

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Twice a month I have to work Saturdays. This puts my hours up to 52 for that week. I don’t get any extra pay or time off in lieu. Is this legal? This would not be an unlawful arrangement if those are your contractual hours and...

News - Early conciliation

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The new rules of procedure regarding early conciliation by ACAS for all new tribunal matters have been published. They confirm that early conciliation will come into force on 6th April 2014. Under the new rules, Claimants will need to contact ACAS before...

News - Judicial review application on tribunal fees dismissed

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The decision on the long-awaited judicial review application by UNISON regarding tribunal fees has been released. The High Court has ruled that the imposition of fees for Claimants to bring employment tribunal fees is lawful. However, there is some scope for...

Protected disclosures

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Norbrook Laboratories v Shaw In the above case the Claimant, who managed a sales team, had sent separate emails to different managers expressing concerns over the hazards of staff driving in snowy conditions. He alleged that his later...

Unfair Dismissal - Relevance of previous warnings

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Rooney v Dundee City Council In this case the Employment Appeal Tribunal held an employment tribunal can decide that it is within the range of reasonable responses for an employer to dismiss an employee taking into account a final written...

News - Woolworths case drags on

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The well-known Woolworths case ( USDAW v Woolworths ), in which the Employment Appeal Tribunal (“EAT”) held last year that the words ‘in one establishment’ should be ignored when deciding whether collective consultation obligations...

Right to be accompanied

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Roberts v GB Oils Ltd In the above case, the Employment Appeal Tribunal (“EAT”) decided that a worker’s right to be accompanied at a disciplinary or grievance hearing is limited only by the reasonableness of the...

Unfair Dismissal - Ill-health absence

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BS v Dundee City Council In the above case the court has held the critical question to be decided in dismissals on grounds of ill-health is “whether any reasonable employer would have waited longer before dismissing the employee”. It...

Case report - National Minimum Wage

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Whittlestone v BJP Home Support Ltd In the above case,Ms Whittlestone was a care worker. She was paid £6.35 per hour for time spent attending to clients at their homes, but nothing for travel time. She also undertook “sleepovers” at...

Case Report - Unfair Dismissal - Extension of Time

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Norbert v Hutton In the Employment Appeal Tribunal (“EAT”) in the above case, it was held that a Tribunal does have jurisdiction to hear a claim outside of the time limit, where the claimant brought it as soon as he was able to, having not had...

News - Investigation into pregnancy and maternity discrimination

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The Equality and Human Rights Commission (EHRC) is to undertake a comprehensive new research project into the scale of pregnancy and maternity discrimination in the workplace. The project will investigate employers’ practices towards employees who are...

Case Report - Constructive Unfair Dismissal - The correct test

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Wright v North Ayrshire Council In the above case, the Employment Appeal Tribunal (“EAT”) has said it was sufficient that the behaviour of the employer only “played a part” in the employee’s decision to resign and was not...

Zero hours contracts - Disposable workers?

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Since Ed Milliband’s speech to the TUC, there has been a lot written about zero-hours contracts. The Unite union estimates up to 5.5 million workers are employed in this manner. Business Secretary Vince Cable said he feared that these contracts were...

Case Report - Redundancy/Reorganisation

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Somerset CC v Chaloner In the above case, the Employment Appeal Tribunal (“EAT”) held that an employer cannot fairly consider a potentially redundant candidate for an alternative role if one person is aware of the full job description for the...

News - Financial penalties for employers in tribunal cases

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The new Enterprise and Regulatory Reform Act 2013 gives tribunals the power to impose financial penalties on employers when they breach a worker’s rights and there are “aggravating features”, which means that the employer has done something...

Case Report - Suitable alternative employment test clarified

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In the case of Devon Primary Care Trust v Redman , the Court of Appeal has decided that the test for whether an employee is being reasonable in refusing what appears to be a suitable alternative to redundancy, is to consider: “whether...

Employment Tribunal statistics published

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The government has published the latest quarterly set of employment tribunal statistics for April – June 2013. The number of claims received by employment tribunals was up 10% against the same period last year, although the overall trend on the number...

Third party harassment law repealed

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When the Equality Act 2010 was passed, it combined and clarified all of the different pieces of discrimination legislation. It contained a provision which meant that an employer could be liable for harassment of a worker by a third party,...

Gross misconduct and mitigating circumstances

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In order for an employer to fairly dismiss an employee with the requisite 2 years’ service requirement, not only do they have to have a fair reason to dismiss, for example conduct, capability or redundancy, but they also have to show that the dismissal...

Tougher sanctions for employing illegal immigrants proposed

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The Government published a consultation in July this year on proposals to strengthen and simplify the current civil penalty scheme which is aimed at preventing illegal migrant working. Employers already have a responsibility to check that their employees...

Redundancy payments and custom & practice

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The Court of Appeal has decided in Shumba & others v Park Cakes Ltd that previous enhanced redundancy payments can potentially become contractually binding through custom and practice The Claimants, who had been subject to a business...

New employee shareholders status commencement date

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The Government has confirmed that the legislation implementing the highly controversial new employee shareholders status will come into force on 1st September 2013. The legislation creates a new type of employment status, whereby employees give...

Scottish challenge to introduction of Tribunal fees

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The Governments’ proposed introduction of Employment Tribunal fees scheduled to come into force at the end of July, has met with challenges both north and south of the border. The Court of Session sitting in Edinburgh in early July refused an interim...

ACAS Imitators

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ACAS (Advisory, Conciliation and Arbitration Service) is warning employers of companies claiming to be part of and/or acting on behalf of ACAS. Kate Fretten our Employment partner, says “They typically offer initial advice, which...

Are mothers discriminated against at work?

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The BBC has reported today the results of a survey which suggests that more than a quarter of mothers in the UK feel discriminated against at work since having their children. Read the full article here. http://www.bbc.co.uk/news/education-23600465 The...

Tribunal fees are coming into force for now at least

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Tribunal fees came into force on Monday 29th July 2013, despite two applications for judicial review to determine if they are unlawful. Employment partner Kate Fretten , says “These applications have been made on the...

Covert surveillance can be lawful in dismissal cases

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The Employment Appeal Tribunal (“EAT”) has held in City and County of Swansea v Gayle that an employer was not in breach of an employee’s Article 8 right to privacy by using evidence from covert surveillance to dismiss him. ...