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When perseverance does not pay – repeated attempts to settle leave would-be claimant out of time

Since 6 May 2014 it has been a pre-condition of starting most Employment Tribunal claims that the employee first refers the matter to Acas for early conciliation. If that process fails for any reason then Acas will issue an early conciliation (EC) certificate to that effect which is essentially a green light to issuing proceedings … Continue Reading

Justification of Redundancy Following Disability-Related Absence

If because of your disability you are absent from work and if because of that absence your employer discovers that it doesn’t actually need you, does your resulting redundancy arise from your disability?  This is important because Section 15 Equality Act 2010 says that if A treats B unfavourably “because of something arising in consequence … Continue Reading

Whose lie is it anyway? Not for employer to decide if whistleblowing disclosure is protected

For a whistleblower to benefit from the statutory protections, his disclosure must be protected, i.e., be (usually) about the breach of a legal obligation and reasonably believed by him to be true and in the public interest.  If he deliberately lies or makes his disclosure only to advance his own interests or prejudice somebody else’s, … Continue Reading

One Racial Slur May Be Sufficient To Create a Hostile Work Environment, Says Second Circuit

The United States Court of Appeals for the Second Circuit held last week that a single racial slur might provide sufficient basis for a hostile work environment claim.  In the case, Daniel v. T&M Protection Resources, LLC,  Plaintiff Daniel, a black, gay man from the Caribbean, alleged he was harassed at work on the basis … Continue Reading

Treading the thin line between incompetence and discrimination

In a boost to the cause of inept line management everywhere, the Employment Appeal Tribunal held last month that it is not permissible to extrapolate without more from conduct which is unreasonable, incompetent and lackadaisical to that which is discriminatory. The point is not wholly new. Back in 1998 the then House of Lords heard … Continue Reading

Saliva tests, breathalysers, protection of whistleblowers: time for employers in France to update their internal rules

Several recent developments require companies with at least 20 employees in France to update their current internal rules: the new discriminatory criterion (i.e. the ability to speak another language) recently added by law to the list of prohibited ones, the so-called “Sapin Law II” which introduced legal protection for whistle-blowers and the obligation for employers … Continue Reading

Should a prospective employer search the new Employment Tribunal claims database when recruiting?

Last week (9 February) the Employment Tribunal announced that its decisions would be freely available online, allowing searches by name of employer or perhaps prospective employee. You know you want to give your candidate a quick once-over if you can (employers never being strong believers in the view that what you don’t know can’t hurt … Continue Reading

UPDATED – Additional Executive Order Issued with Immediate Impact on Travel to the United States

On Friday January 27, 2017, the president issued an Executive Order (EO) entitled, Protecting the Nation from Foreign Terrorist Entry Into the United States. The EO has yet to be posted on the White House website but the text can be found here. The purpose of this Executive Order, as stated, is to “protect our … Continue Reading

That’s another fine mess – a comedy of errors in Tribunal’s penalty regime

High up on the list of candidates for 2014’s Most Nakedly Transparent Political Gesture Awards was the introduction of a new Section 12A into the Employment Tribunals Act 1996. This was a measure designed to bring bad employers to heel in the Employment Tribunal by the imposition of financial penalties of between £100-£5,000 where the … Continue Reading

Do you want the good news or the bad news? Welcome back to Judges’ opinions

Long-time Employment Tribunal practitioners will recall more or less fondly the days when every so often the Judge would suddenly send the parties out of the room mid-hearing and then lean towards one of the representatives and say incredulously “Come on, really?”. When it was said to the other side, that was absolutely the Overriding … Continue Reading

Consultation on Employment Tribunal reform proposals – send for Judge Dredd

Last month saw the publication of the Government consultation document on reforming the Employment Tribunal system, a joint production between the Ministry of Justice and BEIS. For when the conversation falls into a flat spin at your next dinner party, here are the highlights, using the word at its most generous. In summary, the reforms … Continue Reading

“I do not like war. It is costly and the outcome uncertain”

So said Queen Elizabeth I in a very early glimpse into English Civil Court proceedings.  Should we therefore be heartened by a possible sign of things to come in the modern employment world, thanks to Lord Justice Briggs earlier this week? Addressing the Chartered Institute of Arbitrators on 26 September, Briggs LJ told of his … Continue Reading

Twenty-One States Join Forces to Oppose the FLSA’s New Overtime Rule

As most of you know, in May 2016 the Department of Labor (DOL) released its long-awaited Final Rule modernizing the Fair Labor Standard Act’s (FLSA) white-collar exemptions to the overtime requirements of the FLSA.  See our rundown of the changes in our earlier post here. The new rule is scheduled to take effect December 1, … Continue Reading

Arizona Attorney General Intervenes in Serial Arizonans with Disabilities Act Cases

Arizona is just one of many states in which business owners – many of them, small business owners – are being inundated with lawsuits filed by disabled individuals or disability advocacy organizations alleging inaccessible public accommodations.  These serial litigants allege that the defendants have failed to comply with the Americans with Disabilities Act (“ADA”) or … Continue Reading

Uber’s $100 Million Settlement Gets Wrecked

In a 35 page Order [PDF] issued on Thursday, August 18, Judge Edward M. Chen dealt a surprising blow in O’Connor v. Uber Technologies, Inc.:  he denied preliminary approval for a $100 million settlement.  In no uncertain terms, Judge Chen said the current terms of the settlement are “not fair, adequate, and reasonable.”  In the … Continue Reading

Beware the possible costs of rejecting a good offer in Australian Fair Work cases

The Fair Work jurisdiction in Australia is generally considered a ‘no costs’ jurisdiction, meaning that even if a party is successful in an action, it is usually unable to obtain a costs order against the loser. However in 2012 the Fair Work Amendment Act 2012 (Cth) widened the exceptions to the ‘no costs’ rule by … Continue Reading

Missing you already – Justice Committee torpedoes no-show Government review on Employment Tribunal fees

Those few of our readers who are inexplicably not committed followers of the House of Commons Justice Committee have missed a little cracker this week with the issue of its report on Court and Tribunal fees. As everyone in the business knows, the introduction of fees in 2013 knocked the bottom out of Employment Tribunal … Continue Reading

The German “Arbeitszeugnis” (reference): a sometimes dangerous mystery for non-German employers

Germany is considered a leading industrial nation in many areas of business and technology but when it comes to law and formal requirements it is still rather traditional. For entrepreneurs doing business in Germany for the first time this may come as a surprise. German legal practice still widely depends on original handwritten signatures and … Continue Reading

Driving Uber Crazy: Worker Class Action Lawsuits Ramp Up

Since it was launched back in 2009, Uber Technologies, Inc. has been in the national spotlight for developing and implementing its revolutionary “ridesharing” mobile application. Uber continues to appear in headlines for a multitude of reasons, many of which are desirable, and at least one of which is not: getting sued by its workforce. Despite … Continue Reading
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