Are secret recordings admissible? In unfair dismissal cases, both the compensatory and basic awards can be reduced by the tribunal, potentially to zero, based on the employee's conduct before dismissal. Secret recordings of meetings by an employee can...
Protected characteristics and conduct Harassment has been in the legal news again this month. Anthony harasses Belinda if he does something in relation to a protected characteristic (race, sex etc) which has the purpose or effect of violating Belinda's...
Do we need to report our gender pay gap? The Government Equalities Office has told the Treasury Select Committee that it is planning to extend the gender pay gap reporting obligations. The gender pay gap refers to the fact that average pay for men is...
If employees are underpaid for their holiday, they can bring an unlawful deduction from wages claim. A claim must be submitted within 3 months of the underpayment, or the last in any series of deductions. Deduction from wages claims In the case of Bear...
According to a recent survey of 1000 vegan employees and 1000 employers, almost half of vegan employees have felt discriminated against by their employers. 31 per cent said they had felt harassed at work or treated unfairly due to their veganism. ...
PHI provides employees with pay during long term sickness or incapacity. Policies can define incapacity differently. Some policies define it as an employee's inability to return to their actual job. Some policies define it as an inability to return to...
What is indirect age discrimination? Indirect age discrimination is where a policy that is applied to all employees negatively affects people in a certain age group. An indirectly discriminatory policy can be justified if it is a proportionate means of...
What is re-engagement? If an employee wins their unfair dismissal claim, a tribunal can order compensation. They also have the power to order reinstatement (to the old job) or re-engagement (to a comparable job). Can an employee force an employer to...
Discrimination arising from disability happens when an employer treats an employee unfavourably because of something that arises because of their disability (and which cannot be objectively justified). However, an employer will not be liable if they...
The ever-increasing use of social media is having a knock-on effect on relationships in the workplace. The Employment Tribunal are seeing matters brought before them in relation to online discrimination and harassment, the question being whether the employer...
Proselytising is where someone preaches about religion with a view to converting other people to that religion. The Court of Appeal has recently examined when a dismissal for proselytising can be fair. Can you be dismissed for religious preaching at work? ...
The Court of Appeal has decided that it is not discriminatory for an employer to pay men on shared parental leave less than birth mothers on statutory maternity leave. The Court of Appeal looked at the issue in a series of joined cases, including Hextall v...
The holiday season is upon us and the next installment of the Flowers v East of England Ambulance Trust saga has arrived from the Court of Appeal. The case involves voluntary overtime and whether it should be included when calculating holiday pay....
No, held the EAT in iForce v Wood . Disability and fixed workstations iForce employed Ms Wood as a packer in their warehouse. Ms Wood was a disabled person for the purposes of The Equality Act 2010, suffering from Osteoarthritis. She worked at a fixed...
The government has issued a consultation document seeking views on new measures to prevent the misuse of non-disclosure agreements in situations of workplace harassment or discrimination. The consultation document is announced on the back of several...
A recent EAT judgement on Long Term Disability Benefits answered the following question: “Where an employer was contractually obliged to provide an employee with long-term disability benefits until his ‘return to work’, did that mean the...
Did an employee's lengthy suspension ground a claim for whistleblowing detriment or race discrimination? Not on the facts of this case, held the EAT in Uwalaka v Southern Health Foundation NHS Trust . Suspension for Alleged Misconduct Mr Uwalaka was...
A recent EAT, Nissa v Waverly Education Foundation , provides some guidance on what defines ‘long-term’ disability. This certainly isn’t black and white, and the case has been remitted to a different tribunal for reconsideration, but it...
Launched in February, the Frettens Client Portal has already received praise from a number of clients, who particularly like the user-friendly interface, as well as the security and simplicity of the software.
When claiming dismissal on grounds of assertion of an infringement of a statutory right, must there have been an actual infringement by the employer (rather than a mere intention or threat of infringement)? Yes, held the EAT in Spaceman v ISS Mediclean...
Acas has published new Guidance on Age Discrimination to help employers and line managers manage an age diverse workforce, prevent unfair treatment at work, and eradicate bias against older and younger workers. The Guidance includes a 'top ten...
Many of you will have seen in the news earlier this month that Hermes, the delivery firm, struck a deal with the GMB union to offer paid holiday and guaranteed rates of pay. The move comes in response to mounting media and political pressure on companies to...
Can complaining about defamation form the basis of a protected disclosure in a 'whistleblowing' claim? Yes, held the EAT in Ibrahim v HCA International, although on the facts the public interest test was not met. Whistleblower A...
The government has published another consultation paper, following a suggestion in the Taylor Review of Modern Working Practices . Currently, if a woman on maternity leave is selected for redundancy, she must be given priority over other redundant...
The Home Office has updated its Code of Practice on Preventing Illegal Working . The Code of Practice sets out the prescribed checks that employers should conduct to avoid a civil penalty in the event of illegal working. It replaces the Code issued in May...
It seems Employment Status features heavily in every update we issue at the moment. Another interesting judgement was published on 10th January, after last September’s hearing. Is the right to use a substitute consistent with employee status? Yes,...
After the chaos caused by last year’s ‘Beast from the East’, and the country’s ability to grind to an almost complete halt at the first hint of snow, many of you will have probably familiarised yourselves with an employer’s...
Is the award of an enhanced pension on medical retirement "unfavourable treatment"? under the Equality Act 2010 , if the amount is calculated based on part-time salary because the employee is working part-time as a result of a disability? The UK...
Operating your own business can be a rewarding and fulfilling venture, but, at times, it can also feel like sailing against a tide of rules and regulations. Knowing the laws that apply to your business and how to comply with them can help to make life...
In what has been hailed by the government as ‘the largest upgrade in a generation to workplace rights’ , the Good Work Plan’ was announced just before Christmas. The plan comes as a result of the Matthew Taylor Good Work Review and...
It is likely you have read or heard about this case as it has rumbled on for some time and has been afforded quite a lot of coverage in the mainstream media. Uber BV v Aslam & others The Court of Appeal judgement on the previous Employment Appeal...
Does an employee have a right to a statement of employment particulars when employed for less than two months? According to the recent judgement in Stefanko and others v Maritime Hotel Ltd , then yes they do, provided they have worked continuously for at...
Was it less favourable treatment to pay a part-time worker 50% of full pay for being on duty 53.5% of full time hours? Yes, held the Court of Appeal in British Airways v Pinaud . Mrs Pinaud worked a part-time contract of 14 days on and 14 days off. She had...
Paul Burton , the Head of our Employment Team has been shortlisted for ‘Lawyer of the Year’ at the prestigious Dorset Legal Awards , Sponsored by QuoStar . Paul was actually nominated for the award by two of his clients without his knowledge....
Is an employment tribunal entitled to use a "realistic and worldly wise" approach to determining employment status? Yes, held the EAT in Addison Lee v Lange & ors . Obligation to work The Claimants were all private hire drivers, who entered...
Is there an implied term that an employer will not dismiss an employee for incapability if that would thwart entitlement to long-term disability benefits? Yes, on the facts, held the EAT in Awan v ICTS . Long-term disability benefit plan Mr Awan commenced...
We are aware, from published statistics, that employment tribunal claims more than doubled in the period April to June 2018 compared to the same period in the previous year. This is no doubt down to the abolishment of employment tribunal fees by the Supreme...
Unfair dismissal is when an employee's employment contract is terminated and the employer did not have fair reason to do so. Unfair dismissal can also be claimed if the employer did have a fair reason, but handled the dismissal using the...
Can an employer be vicariously liable for injury caused at an impromptu work after party? If you are injured at the work Christmas party, who is at fault? Accidents can happen anywhere, and in some cases, injuries may not be the fault of the...
Can an individual be liable for a whistleblowing dismissal, along with the employer? Under UK legislation, an employee has the right not to be subjected to a detriment for making a protected disclosure, commonly referred to as “whistleblowing”. ...
References are often asked for in job applications.There is usually no legal obligation to provide a reference. However, employers that give references must make them fair and accurate. Accordingly, employers who ask for references must handle them...
Accruing annual leave during maternity leave It is relatively well known that an employee continues to accrue annual leave during their maternity leave, at the same rate as if they were still at work, based on their current contract of...
Does giving notice amount to an unambiguous act of resignation? Not necessarily, said the Employment Appeals Tribunal in East Kent Hospitals University NHS Foundation Trust v Levy . Resignation In this case, the Claimant worked as an Administrative...
In Lee v Ashers Baking Company Ltd , the Supreme Court has held that a bakery did not discriminate against a gay man when it refused to provide him with a cake bearing a message of support for same-sex marriage. The case has been publicised in national...
Can an employee prove disability without leading evidence on the impact of the employee's impairment on normal day to day activities? Does an employer have constructive knowledge of disability if an employee has denied having one? A recent case in the...
The Parental Bereavement (Leave and Pay) Act 2018 has now received Royal Assent. The related Bill was introduced to Parliament in July 2017. Under the bill, employed parents who have lost a child would be entitled to statutory paid leave to allow them...
The Transfer of Undertakings (Protection of Employment) Regulations 2006, known colloquially as TUPE, are the UK's implementation of the European Union Business Transfers Directive. It is an important part of UK labour law, protecting employees...
Is time automatically extended when the limitation period expires on a non-working day? No, held the Employment Appeals Tribunal in Miah v Axis Security Services Ltd . Claim date Mr Miah's claim for unfair dismissal was received by the tribunal...
It is increasingly common for employees to have lengthy notice periods of 3 to 12 months within their employment contracts. Once a member of staff resigns with a long notice period, it is accepted that they will still uphold all elements of...
Can a worker be on a zero hours contract and also be considered to be an agency worker? Does it depend whether the position is considered temporary rather than permanent? Should workers like this to be considered entitled to the same basic working...
Can an employee, dismissed for gross misconduct just short of qualifying for unfair dismissal, add the week's statutory notice under s86(1) ERA to obtain the right to claim unfair dismissal? No. An Employment Appeal Tribunal upheld the employers appeal...
The Government has recently published its White Paper titled 'The Future Relationship between the United Kingdom and the European Union'. Paragraph 123 states a proposal that there be no regression in employment laws. No regression in employment...
A carer, who sleeps at a client's home, is technically 'on call' during the night. So are they entitled to the minimum wage while they are asleep? A case was considered on this topic in the Court of Appeal recently, MenCap v Tomlinson-Blake ....
Are employers prevented from discriminating against a staff member on grounds of philosophical belief, if for example, an employee is the only person to hold such a belief? Let’s look at a recent case in the Employment Appeals Tribunal, Gray v...
Parental leave is a statutory right, available to all employees, but it is not frequently used. However, it can come in handy for some parents who may have utilised all of their holiday entitlement, especially during the school holiday periods or towards...
Does 'misconduct' need to be 'gross' to make a dismissal fair (without prior warnings)? A recent case in the Employment Appeal Tribunal looked at this question. The case was Quintiles Commercial v Barongo . Dismissal The Claimant, Mr...
We have reported on the Uber and Pimlico Plumbers cases around worker status and the gig economy throughout the last 12 months. A Supreme Court ruling this month considered the Pimlico Plumbers v Smith ruling and whether the tribunal was entitled to...
Acas has produced a useful new guide on overtime for employers, covering: the different types of overtime working time limits on overtime payment for overtime overtime for part-time workers the impact of overtime on holiday calculations Define...
Frettens Solicitors were overwhelmed by the warm welcome during the official opening of their new Ringwood office, which took place on 2nd July 2018. With the cutting of the ribbon carried out by the Mayor of Ringwood, Cllr Tony Ring, the event was attended...
A transgender woman who was unable to access her pension was discriminated against by UK law, the European Court of Justice has found. Refused state pension In the UK, women born before 6 April 1950 can apply for a state pension at age 60, while men born...
Once, bosses fretted about absenteeism and the problem of staff not turning up for work. Now they are starting to worry about “presenteeism”, the long-hours culture and staff who simply won’t go home. From absenteeism to presenteeism ...
The Government Equalities Offices has published new guidance on Dress Codes and Sex Discrimination . Policies for men and women Kate Fretten , a Partner in our Employment Team , says “This guidance serves as a reminder to employers that dress...
The Equality Act 2010 makes it unlawful to discriminate against or treat someone unfairly because of religion or belief (or their lack of religion or belief). Religion or belief discrimination ACAS has launched new Guidance for Employers on Religion...
Is it acceptable for an employer to dismiss a member of staff for misconduct without prior warning after multiple issues have arisen, even if none of the individual issues are, by themselves, gross misconduct? What is considered a reasonable response? ...
If someone is employed under a zero hours contract, they are unable to make a claim under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. Or so you would think. Part-Time Workers (Prevention of Less Favourable Treatment)...
If an employer does not enhance shared parental leave pay in line with enhanced maternity pay, would this carry a risk of a direct sex discrimination claim? Shared parental leave An employee may be eligible for shared parental leave and statutory...
Where an employment contract does not specify when notice is deemed to be given, when does the notice of termination actually take effect? When has the notice period started? When an employer terminates an employee's contract, when is the notice period...
The first new employment legislation has been passed for a long time! The Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No.2) Order 2018 SI 2018/529 has been made recently. Written itemised pay statements The Order will amend Ss.8, 9, 11...
A gender pay gap is the difference between women’s and men’s earnings, expressed as a percentage of men’s earnings. The new Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 came into force on 6 April 2017. Starting from this...
What is ‘cancer’ for the purposes of the Equality Act 2010? Does it include, for example, a pre-cancerous lesion? Cancer is a disability Cancer is a ‘deemed' disability. Schedule 1, paragraph 6 of the Equality Act 2010...
In a redundancy case, must an employee specifically raise 'bumping' before an employer needs to consider it? What is bumping? Employees at risk of redundancy can be given the opportunity to ‘bump’ another employee out of their position,...
Acas has published its most recent quarterly statistics, covering nine months between April 2017 and December 2017. Notification of intention to make a claim Kate Fretten , Partner in Frettens' Employment Team, summarises the key points. "The...
What is a detriment? A detriment is unfair action taken by an employer against an employee during employment but does not go as far as dismissing the employee. It would include treatment by your employer that is demeaning or detrimental. Examples...
Can stand-by time spent at home but within a short distance of a workplace be counted as 'working time'? On stand-by at home A recent case in the Court of Justice of the European Union looked at this issue. The case was Ville de Nivelles...
The Employment Rights (Increase of Limits) Order 2018 has been laid before parliament, coming into force on 6 April 2018. It contains the normal annual increases to maximum and minimum tribunal awards. Maximum tribunal awards The key increases which...
The National Minimum Wage (Amendment) Regulations 2018 have been laid before parliament. Increases to the national minimum wage They provide for the annual increase to the minimum wage and national living wage with effect from 1 April 2018. The...
Paul Burton , Head of Frettens' Employment Team, counts down last year's most significant employment judgments… Assessing things for businesses to be aware of to avoid costly mistakes in 2018. 5. Enhanced shared parental pay for fathers? ...
The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 are designed to prevent fixed-term employees being treated less favourably than similar permanent employees, and to limit the use of successive fixed-term contracts. When a...
A ruling yesterday at the Royal Courts of Justice for former 'Look North' host Christa Ackroyd could have impact on more BBC presenters, who may face tax bills for thousands of pounds. The case pivots on whether Ackroyd was self-employed or employed...
Last month we looked at data protection laws in the context of staff rights to privacy and a company’s ability to use surveillance cameras and referenced a case from a Montenegro University. Another recent case has touched upon some similar issues...
Employers are required to allow workers a 20 minute rest break under the Working Time Regulations. Can an employer still fulfil this entitlement by breaking down more rest breaks of a shorter duration? A case at the Employment Appeal Tribunal has ruled that...
Employees can potentially be demoted if they have been on long term sick leave and return to work but unable to complete the same level of work as before. However, this can be deemed as discriminatory depending on the circumstances. If the employee believes...
Uber's application to 'leapfrog' an appeal to the Supreme Court has been refused. Worker status We reported last month on the Employment Appeal Tribunal which dismissed Uber's appeal in Uber BV v Aslam , upholding the employment...
Can an employer be indirectly liable for the criminal actions of a rogue employee in breach of the Data Protection Act? Employee with a grudge breaches data rules A High Court case, Various Claimants v Wm Morrisons Supermarkets plc , has upheld that, yes,...
Employers have the right to monitor activities in many situations at work, including: recording on CCTV cameras & videoing outside the workplace opening mail or e-mail & use of automated software to check e-mail checking phone logs or...
If a non-disabled job applicant is rejected because of a perception or anticipation that a condition could become a disability in future, is this direct disability discrimination? Disability discrimination by perception In an Employment Appeal...
Last month, we asked whether, as an employer, you could rely on parts of a 'protected conversation ' as evidence, whilst at the same time using those rules as a shield. Continuing this theme, we are looking at whether you could include...
As an employer, can you rely on parts of a 'without prejudice discussion' or a 'protected conversation' as evidence whilst at the same time using those rules as a shield? An interesting case highlighted this issue, where the Claimant was...
According to breaking news reported on Sky, Uber has submitted a petition to appeal directly to the Supreme Court - 'leapfrogging' the Court of Appeal. This is an attempt to overturn the EAT's decision on 10th November, which upheld that...
In a discrimination claim, does a Claimant have to prove facts which imply discrimination before the burden shifts to the Respondent? Yes, ruled the Court of Appeal in its judgment in Ayodele v Citylink . This overruled a previous decision in the...
In a landmark legal battle at the European Court of Justice, a British window salesman has won his claim due to not receiving paid holiday for 13 years. Conley King worked for a sash window firm on a self-employed basis, but has been found to have...
Is it a whistleblowing dismissal if the person who made the decision to dismiss was ignorant of the protected disclosure, and was deliberately misled by the employee's line manager to believe the reason was poor performance? No, held the Court of Appeal...
Following on from our article in August, which shared the announcement that the Supreme Court had ruled that Tribunal Fees were illegal , you may be left wondering what will happen next. It's now been nearly three months since the Supreme Court ruling...
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 Claimant in this case...
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 ...
ACAS has published a report that suggests employers are not doing enough to support parents who take an extended period of leave for parental and caring responsibilities. According to the report, although employers encourage women to take maternity leave,...
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...
Frettens Solicitors is delighted to report that it has been recognised in specialist areas of 'The Legal 500' again for 2017-18. This marks the eighth year in a row that the firm has been recognised by the independently researched guide to law firms...
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 this is less...
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 executives with...
