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Paul Burton
 

What's the difference between unfair and wrongful dismissal

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An employee dismissed without notice will often claim both unfair and wrongful dismissal. These are two distinct claims.

What is unfair dismissal?

Unfair dismissal is concerned with the reasonableness of the employer’s decision to dismiss the employee.

What is wrongful dismissal?

Wrongful dismissal is a contractual claim centred around whether the employer was entitled to dismiss the employee without giving the full contractual notice required. That in turn depends on whether or not the employee was actually guilty of gross misconduct.

What is the flexible Furlough Scheme?

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What is the flexible furlough scheme and how will it work? An employment law expert gives an overview.

What is the coronavirus job retention bonus scheme?

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What is the job retention bonus? Who is eligible and how will it work?

NEWS FLASH: CJRS qualifying date changed

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The government has amended its guidance on the Coronavirus Job Retention Scheme (CJRS) again today and, while there is only one real change, it is a very important one. They have amended the qualification date for employees to be eligible for...

More government guidance on Job Retention Scheme

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The government has published not one, but two new sets of updates on the guidance relating to the job retention scheme over the last week or so. Paul Burton summarises the additional information and clarification provided by the government in...

Claiming wage costs for furloughed workers FAQs

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At the end of last week, the government released further details of the coronavirus job retention scheme, including the areas below. We have tried to summarise these details in this article, however the full government release can be viewed by clicking the...

Carrying over holiday after coronavirus furlough period

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Annual leave and the coronavirus

Workers who are unable to take all of their statutory annual leave entitlement by the end of 2020 due to the coronavirus outbreak will now be able to carry it over into the next two years.

Business secretary Alok Sharma announced on Friday that the measures would come into force.

The announcement comes after pressure from employers and the CBI. Furloughed workers returning may have to take a large amount of leave in a short space of time, leaving businesses short-staffed whilst trying to recover.

Employment law advice on coronavirus outbreak

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Paul Burton, Head of our Employment & HR team, has put together the following summary of advice for employers during the coronavirus outbreak. Including advice on SSP, termination, maternity, holiday accrual and qualification.

New measures to help self employed during coronavirus

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Paul Burton explains what the new measures mean for self-employed workers during the coronavirus outbreak. What will self-employed workers get and how do they claim financial support during the COVID-19 outbreak?

Coronavirus help for self-employed

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Paul Burton, head of our specialist employment team, explains:

  • What help is currently on offer for the self-employed during the coronavirus lockdown?
  • Why is it taking so long for the government to announce further help for the self employed?
  • When will the government announce the financial help for self-employed?
  • What is a self-employed worker?
  • How do I claim support as a self-employed worker?

Is dismissal for whistleblowing automatically unfair?

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A dismissal will be automatically unfair if the main reason for the dismissal is the fact that the employee has 'blown the whistle' on malpractice. The Supreme Court has recently decided that an employer was liable for automatic unfair dismissal...

Trans-phobia or Philosophical Belief

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In the high profile case of Forstater v CGD Europe, an employment tribunal has looked at whether the philosophical belief that humans cannot change sex is protected by the Equality Act 2010. The employee was a consultant charity worker. She tweeted extensively (in a private rather than work capacity) on proposed changes to the Gender Recognition Act 2004 (GRA).

In-house workplace investigations and misconduct

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Is a dismissal unfair if the employer changes an investigation report following advice from an in-house lawyer? Not in this case, said the Employment Appeal Tribunal in Dronsfield v The University of Reading.

GDPR: You will NOT receive next month's newsletter

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This year we have shared a form, asking you to re-register for our newsletter because the changes being implemented on 25th May regarding GDPR, meaning that if you have not signed up for our newsletter, you will no longer get the newsletter. We have not...

Mental health at work

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An independent review on how employers can better support the mental health of employees, including those with mental health problems or poor well-being, has been published recently. The Stevenson/Farmer review of mental health and employers, titled ...

Minimum wage - Are workers underpaid?

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The Low Pay Commission, who advise the government on minimum wage levels, have compiled a report which reveals that as many as 1 in 5 minimum wage workers could be receiving less than they are entitled to under the law. At its peak in the year, between...

Pay ratios between bosses and workers

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New corporate governance reforms have recently been announced which will mean that all listed companies will have to publish the pay ratio between bosses and workers. These are due to come into effect by June 2018. Comparing salaries of top...

Government publishes Data Protection Bill statement of intent

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The government has published a statement of intent on the planned Data Protection Bill. The Bill will provide for the repeal of the Data Protection Act 1998 (DPA) and incorporate the EU General Data Protection Regulation (“GDPR”) into UK law....

Holiday Pay: Voluntary Overtime

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Dudley Metropolitan Borough Council v Willetts The Employment Appeal Tribunal (EAT) has held that pay for voluntary overtime, normally worked, is 'normal remuneration' for the purposes of calculating holiday pay. The claimants were quick response...

Suspension is not a neutral act

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Agoreyo v London Borough of Lambeth The High Court has held in this case that the suspension of a teacher amounted to a breach of the implied term of mutual trust and confidence. In this case, a teacher was suspended because of the force she used with...

Can an employer protect themselves against Tribunal claims?

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The unpredictable nature of HR issues means that forecasting and budgeting are virtually impossible, and even with an experienced HR professional or team, it is not possible to avoid or foresee every situation that will arise. Good quality legal advice can...

Gender pay gaps

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Under a new legal requirement in force from April 2017, UK companies with 250 or more employees have to publish their gender pay gaps by April 2018. The pay gap is the percentage difference between average hourly earnings for men and women. Across...

Parental Bereavement (Pay and Leave) Bill introduced

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The Parental Bereavement (Pay and Leave) Bill was introduced to Parliament on 19 July 2017. Under the bill, employed parents who have lost a child would be entitled to statutory paid leave to allow them time to grieve away from the workplace. During the...

The Taylor Review

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Last month, the ‘Taylor Review of Modern Working Practices’ published its findings and recommendations with a series of proposals that aim to ensure all work is "fair and decent". The Review was launched at the end of 2016 after being...

Supreme Court rules on Employment Tribunal fees

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The Supreme Court has unanimously ruled that the government was acting unlawfully and unconstitutionally when it introduced fees in July 2013. This means the government will now have to repay as much as £32million to claimants. Fees ranged between...

Supreme Court rules employment tribunal fees are unlawful

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The Supreme Court has today unanimously ruled that the government was acting unlawfully and unconstitutionally when it introduced fees in July 2013. This means the government will now have to repay as much as £32million to claimants. Fees ranged...

Unpaid holiday pay and wages

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A study has found that employers are cheating British workers out of at least £1.5bn a year in holiday pay and a further £1.2bn of wages for hours worked each year to which they are legally entitled. It reported that 1 in 20 workers are not...

The Taylor Review

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Earlier this month, the ‘Taylor Review of Modern Working Practices’ published its findings and recommendations with a series of proposals that aim to ensure all work is "fair and decent". The review was launched at the end of 2016...

What the latest general election could mean for HR

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The result of the recent general election could create increased uncertainty for HR professionals, as promises on employment law and workplace policies are left up in the air. Despite the Conservatives winning the biggest number of seats and...

Shared parental pay

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Ali v Capita Customer Management Ltd A father, whose wife was advised to return to work to combat post-natal depression, has won a sex discrimination claim, after his employer told him that he would be paid full pay for only two weeks’ paternity...

Government review to order zero-hours contracts overhaul

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A government-commissioned inquiry into controversial working practices is set to call for employees on zero-hours contracts to be given the right to request a move onto fixed hours. The ‘right to request’ fixed hours will be similar to the...

Whistleblowing

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Beatt v Croydon Health Services NHS Trust The Court of Appeal has held that where the making of a disclosure is the principal reason for a dismissal, the decision-taker's belief about whether the disclosure is protected is not relevant. The...

Discrimination: Adjustments for Candidate with Asperger's Syndrome

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The Government Legal Service v Brookes The Employment Appeal Tribunal (EAT) held in this case that a job applicant with Asperger's Syndrome was discriminated against by being required to sit a psychometric test. The Government Legal Service (GLS) was...

Indirect discrimination

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Naeem v Secretary of State for Justice The Supreme Court has held in this case that it is not necessary to establish the reason for the particular disadvantage to which a group is put, compared to another to succeed with an indirect discrimination claim. ...

Sleeping at work

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Focus Care Agency v Roberts The Employment Appeal Tribunal (EAT) has revisited the issue of whether workers sleeping at work on ‘on-call’ are entitled to the national minimum wage during that time in three cases that were joined together. The...

Tribunal awards £2 for breach of right to be accompanied

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Gnahoua v Abellio London Ltd In an unusual case, an employment tribunal has awarded nominal compensation of £2 for a breach of an employee's right to be accompanied to a disciplinary hearing. The tribunal awarded such a small amount because it...

Businesses face action over self-employment rights

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DX, a delivery company which is widely used in the legal sector, is the latest business to face threats of action over the treatment of workers as self-employed people. The company, which was formed in 1975, was one of the first businesses to challenge Royal...

Lush workers get pay rise as company becomes Living Wage employer

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Lush is to give 1,000 workers at its Poole factory a pay rise worth up to £2,184 after announcing it will become a Living Wage employer. The move which applies to 3,555 staff across the UK comes as the global cosmetics brand reveals a 76 per cent rise...

TUPE: Service Provision Change - 'Principal Purpose' Test

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Tees Esk & Wear Valleys NHS v Harland When assessing the 'principal purpose' of an organised grouping of employees under TUPE, the Employment Appeal Tribunal (EAT) has held that an employment tribunal is entitled to look at the actual...

News - IR35: HMRC publishes employment status checker

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On 2 March 2017, HMRC published a new employment status checker for the purposes of determining whether the IR35 (intermediaries) legislation will apply to a particular set of facts. The legislation will apply only where the worker would (for tax or NICs...

Trade Union Act 2016

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Six statutory instruments have been made under the Trade Union Act 2016, which now make it clear the Act will come into force on 1 March 2017. The Trade Union Act prohibits industrial action (more accurately, the industrial action will not be protected by...

News - National Minimum Wage Increase

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The draft National Minimum Wage (Amendment) Regulations 2017 (‘the regulations’) have been published as follows and they will come into effect from 1st April 2017: The National Living Wage for 25 year olds and...

Employment Status

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Pimlico Plumbers & Charlie Mullins v Gary Smith In this latest case involving the employment status of workers, the Court of Appeal has dismissed an appeal by Pimlico Plumbers from an Employment Appeal Tribunal’s decision. The Court of Appeal...

Type 2 diabetes can be a disability

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Taylor v Ladbrokes Betting & Gaming Ltd The Employment Appeal Tribunal (EAT) has held in this case that type 2 diabetes can be a disability under the Equality Act 2010. After the Claimant's dismissal, he asserted he had been disabled for almost a...

Gross negligence and gross misconduct

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Adesokan v Sainsbury's Supermarkets Ltd The Court of Appeal has confirmed in this case that gross negligence can constitute gross misconduct. The Claimant was a Regional Manager who became aware that a HR Manager had issued an...

Personal injury awards in tribunals

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Hampshire County Council v Wyatt The Employment Appeals Tribunal (EAT) held in this case that an employee does not have to provide an expert report when bringing a personal injury claim in the employment tribunal. An employment tribunal had held that a...

Annual leave and bank holidays for part time employees

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Working out annual leave can be a complicated process for employers when they have a lot of part time staff. Annual leave will of course be calculated on a pro-rata basis, which sounds simple enough. But for staff that work on a Monday, Bank Holidays...

Re-engagement

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United Lincolnshire Hospitals NHS Foundation Trust v Farren The Employment Appeals Tribunal (EAT) has decided in this case that, when considering whether an employer’s lack of trust and confidence in an employee renders it impracticable for the...

Article 50 and Brexit

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The Divisional Court upheld an application earlier this month against the government, deciding that the government does not have prerogative power to invoke Article 50 without a vote by Parliament. Parliament will need to vote in favour of doing so before...

Brexit and employment law

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The House of Commons Library has produced a short briefing paper on what the implications might be for employment law following Brexit. Click here for the link . Comment "The briefing paper actually says...

Inquiry into 'Gig economy'

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

TUPE: Service Provision Change

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C T Plus (Yorkshire) CIC v Stagecoach The Employment Appeals Tribunal (EAT) held in this case that there was no service provision change (SPC) under the TUPE Regulations when a Council-tendered 'park and ride' service closed after a...

1 October changes

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

The working Dad bonus in your pay packet

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Recent research by the TUC union and the Institute for Public Policy Research (IPPR) has shown that working dads are taking home a 21% bonus on their salary compared to men without children – and the more children you have the better the bonus....

Owen Smith sets out manifesto on employment rights

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Labour Leader challenger Owen Smith published his workplace manifesto containing 25 pledges to improve worker rights earlier this month. They include:- abolition of fees for employment tribunals; employment...

Changes to taxation of termination payments

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

Carrying over paid annual leave when sick

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Kratzer v R+V Allgemeine Versicherung AG The Court of Justice of the European Union (CJEU) has confirmed that the provisions of the Equal Treatment Directive 2007 do not apply to a job applicant who is purely seeking compensation. In...

MPs say businesses should be banned from sacking new mums

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“Urgent action” is needed to give pregnant women and new mothers more protection at work after a “shocking” increase in discrimination, MPs say. The Women and Equalities Committee is calling for a German-style system, where it is...

Subconscious direct discrimination

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Geller v Yeshurun Hebrew Congregation The Employment Appeal Tribunal (EAT) held in this case that there can sometimes be subconscious or unconscious discrimination. A husband and wife worked for a joint salary and were made redundant....

Resigning and taking gardening leave

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Have you decided to leave your job? The first thing you must do is check your contract to see what notice you need to give your employer. The notice period is the time that you are required to work for the company after you have informed them in writing of...

Indirect religious discrimination

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Pendleton v Derbyshire County Council The Employment Appeal Tribunal (EAT) has decided in this case that is indirect religious discrimination to dismiss a teacher for refusing to leave her husband after his conviction for sex offences....

ACAS research on early conciliation

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ACAS has just published a lengthy research paper on the effect of its conciliation processes in employment tribunal claims. There is an enormous amount of material in the report for those interested in employment tribunal statistics. One...

News - Government to investigate non-compete clauses

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

Contractual absence policy in staff handbook

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Department of Transport v Sparks The Court of Appeal had held in this case that an absence management policy in a staff handbook was contractual, the Department of Transport's appeal against an employment tribunal finding. The...

Restrictive covenants

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Bartholomews Agri Food v Thornton In this case the High Court resoundingly rejected the reasonableness of a restrictive covenant in an employment contract on various grounds. First, the Court ruled that a covenant which was unenforceable when it was...

Pulling a 'sickie'

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Metroline West v Ajaj The Employment Appeal Tribunal (‘EAT’) has confirmed in this case that 'pulling a sickie' is dishonest and a fundamental breach of contract. Mr Ajaj was a bus driver. He wrongly claimed to be more sick than he...

National Minimum (and Living) Wage

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

Disability discrimination - meaning of 'day-to-day activities'

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Banaszczyk v Booker The Employment Appeal Tribunal (‘EAT’) has overturned an employment tribunal’s decision in this case, in deciding that ‘warehouse operations', such as manually lifting and moving cases of up to 25...

Holiday pay and commission

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Lock v British Gas The Employment Appeal Tribunal (‘EAT’) has held in this case that domestic legislation can be interpreted in a way which conforms to EU law on holiday pay. The EAT upheld the submissions by Unison, who...

Employment Tribunal Fees update

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The Supreme Court decided on Monday 29 February 2016 to grant Unison permission to appeal the Court of Appeal's decision rejecting Unison's judicial review application of the employment tribunal fee regime. Comment...

National Living/Minimum Wage

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The National Minimum Wage (Amendment) Regulations 2016 have now been finalised and come into force on 1 April 2016. The new minimum wages from 1 April 2016 will be:- age 25+ - £7.20ph (the National Living Wage) 21-25 -...

Monitoring employees' use of the internet

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Barbulescu v Romania The European Court of Human Rights (“ECHR”) has, in this well-publicised case, decided that an employee’s right to respect for private life and correspondence is not breached if their employer monitors...

Summary dismissal and gross misconduct

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Farnan v Sunderland Association Football Club The Claimant was the Marketing Director at Sunderland Football Club (“the Club”). The Club summarily dismissed the Claimant without notice for sending sexist emails, making derogatory comments...

Detriment and Race Discrimination

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Singh v Cordant Security Ltd The Employment Appeal Tribunal (“EAT”) were asked in this case to consider whether the failure to investigate a (groundless) grievance would amount to discrimination where the employee had not suffered a...

Unfair Dismissal: Consistency of Treatment

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MBNA Limited v Jones This case involved two employees; Mr Jones and Mr Battersby. Both employees were asked to attend a corporate social event and were warned that normal standards of behaviour and conduct would apply. Ignoring these instructions, the...

Long Term Absence and the Dangers of Disability Discrimination

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Monmouthshire County Council v Harris In this case, the Claimant was disabled and worked partly at home. The claimant was signed off sick and was subsequently dismissed after a period of absence. The employment tribunal held that the Claimant...

Unfair Dismissal: Allegations of Bad Faith

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Secretary of State for Justice v Lown The Employment Appeal Tribunal (“EAT”) has found that, in an unfair dismissal case where allegations of bad faith are crucial to the employment tribunal's reasoning, the allegations must be...

Working Time: Time When Sleeping

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Shannon v Clifton House Residential In this case, the Employment Appeal Tribunal (“EAT”) considered whether an on-call night worker who lived at his place of work was entitled to the National Minimum Wage (“NMW”) for all...

Unfair Dismissal: Allegations of Bad Faith

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Secretary of State for Justice v Lown The Employment Appeal Tribunal (“EAT”) has found that, in an unfair dismissal case where allegations of bad faith are crucial to the employment tribunal's reasoning, the allegations must be...

Presenting a tribunal claim in time

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Software Box Ltd v Gannon In this case, the Employment Appeal Tribunal (“EAT”) considered whether an Employment Judge had make a mistake in allowing a time extension for an unfair dismissal claim to be brought out of time after an initial...

Law Society calls for Employment Tribunal reforms

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The Law Society has recently published a discussion document titled: Making Employment Tribunals Work For All. The document proposes that all employment law disputes should be dealt with in a single jurisdiction consisting of four levels and endorses the...

Working Time - Travel time to first job of the day

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Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL The European Court of Justice (“CJEU”) has found that, in the case of mobile workers, time spent travelling from home to customers' premises is...

Agency Workers Regulations

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Coles v Ministry of Defence This case involved a Claimant, an agency worker for the Ministry of Defence (“MoD”), who was left without work after the MoD began redeploying redundant permanent employees and filled the Claimant’s...

Consultation on Simplifying Tax Treatment of Termination Payments

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The government is consulting on streamlining the tax treatment of termination payments. As it currently stands, the first £30,000 of any non-contractual termination payment benefits from no tax or national insurance deductions. The government is...

Choice of Companion at Disciplinary Hearing

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Stevens v University of Birmingham The Claimant, who was an academic at the Defendant University, was the subject of allegations concerning his role as Chief Investigator to clinical trials of patients suffering with diabetes. The Claimant was...

Social Media Dismissal

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British Waterways Board v Smith The Employment Appeal Tribunal (“EAT”) held that the employer acted fairly when dismissing an employee for the comments he made on Facebook, despite the employee’s claims that these comments were untrue. ...

News - Inquiry Launched Into Tribunal Fees

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An inquiry into court and tribunal fees has been launched by the Commons Justice Select Committee, with a specific emphasis on whether access to justice has been affected through the introduction of fees. There are noticeable differences between the Commons...

Carrying over holiday pay when sick

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Plumb v Duncan Print Group Limited The Employment Appeal Tribunal (“EAT”) held in this case that an employee on sick leave is not obligated to show he was unable, by reason of illness, to take holiday for it to be carried forward....

News - ACAS Early Conciliation: First Year Statistics

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ACAS has recently revealed statistics of the impact of the first year of Early Conciliation. Through the introduction of the new Employment Tribunal fees regime in July 2013 and the new ‘Early Conciliation’ service in April 2014, the landscape in...

Working time - travel

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Federación de Servicios Privados del sindicato Comisiones Obreras The Advocate General at the European Court of Justice has suggested the time that workers, who are not assigned to a fixed or habitual place of work, spend travelling from home to...

New HMRC employment test tool

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Determining whether a worker is employed or self employed is not always easy and HMRC has updated and improved its test tool to help with this. The Employment Status Indicator (ESI) tool enables you to check the employment status of an individual or group of...

No implied duty to disclose own misconduct

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The Basildon Academies v Amadi The Employment Appeal Tribunal (EAT) has held in this case that there is no implied term in an employment contract that an employee should disclose their own misconduct. Mr Amadi was a Cover Supervisor...

Suspending disciplinary hearing for grievance

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Jinadu v Dockland Buses The EmpIoyment Appeals Tribunal (EAT) decided in this case that an employer is not obliged to put a disciplinary process on hold whilst the employee's grievance is dealt with. The employee was employed as a bus driver. Owing...

Gay v Religious Beliefs

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Ashers Bakery A Northern Ireland Court has held that a gay customer's rights to access goods and services, is more protected than the service provider's religious belief. The bakery had been sued following the manager's decision to cancel an...

Exclusivity clauses in zero hours contracts banned

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As of 26 May 2015, the government has prohibited the use of exclusivity clauses in zero-hours contracts. This and other employment law-related measures were contained in the Small Business, Enterprise and Employment Act 2015. Further regulations are awaited,...

Whistleblowing

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Chestertons v Nurmohamed The Employment Appeals Tribunal (“EAT”) has held in this case that a disclosure can be made in the ‘reasonable belief it is in the public interest’ if it relates to a contractual dispute affecting a group...

New - Criminal record requests by employers

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

Sports Direct faces multimillion-pound claim from zero-hours contract workers

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Sports Direct is facing a claim for millions of pounds from nearly 300 workers excluded from the retailer’s generous bonus scheme because they were on zero-hours contracts. The employees were excluded from a bonus scheme that paid out about £160m...

Election manifestos & employment tribunal fees

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With there being loud calls for the employment tribunal fees system to be reviewed and reformed, we thought we would highlight what the major political parties are saying about them in their election manifestos. Conservative : no change at...

Type 2 diabetes not necessarily a disability

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Metroline Travel v Stoute The Employment Appeals Tribunal (EAT) has confirmed in this case that Type 2 diabetes controlled by diet does not automatically qualify as a disability. The Claimant argued that he was a disabled person because he had...