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EAT hits employer with warning shot on disciplinary procedures (UK)

London Borough of Hammersmith and Fulham – v – Keable is an EAT case with everything in it – Nazis, Holocaust deniers, Momentum activists and Members of Parliament, though not necessarily all at the same time.  Oddly, despite this outstandingly diverse cast, the most important part of the decision for employers is actually the EAT’s … Continue Reading

COVID-19: what next for UK employers, Part 5 – are they at risk under the away goals rule?

Here is another good question from our What Next webinar a couple of weeks ago. More to follow soon. If someone whose role involves International travel has a medical condition which makes that travel undesirable in a post-pandemic World, would the capability dismissal process be applicable? Probably so, but we need to look at the … Continue Reading

Bogged down in pointless appeals? – The Law speaks (UK)

Periodically a case comes along to remind us that underneath all good dismissal practice, Acas guidance and the rest is The Law, and that The Law is sometimes less rigid in its requirements of a fair dismissal than all that guidance might suggest. Moore -v- Phoenix Product Development Limited is today’s such case, an everyday … Continue Reading

“You can go to the pub if off sick from work, says Tribunal” and other wild over-simplifications (UK)

This is of course not what the Newcastle Employment Tribunal said, nor is “Unless a company has specifically forbidden employees from socialising while ill they are free to do what they like” or “Going to the pub while off sick is not a sackable offence”.  However, the reality would not illuminate the pages of yesterday’s … Continue Reading

Not seeking references on new hires — help or heresy? (UK)

Interesting question from a client the other day  – what if we simply gave up asking for references on new hires?  Just stopped it altogether and so saved all the HR time and delay and cost implicit in the reference-checking process?  Instinctively your response is not to be so daft, everyone always seeks references so … Continue Reading

“Fair dismissal for not wearing face-mask” headlines hide full story (UK)

It’s not natural for our freedoms and permissions to be limited in the way they have been since last March, so whatever one’s own views, it is hardly surprising that some have found those restrictions hard to swallow and have railed against COVID-19 related rules, state imposed or otherwise. The requirement to wear masks in … Continue Reading

Watching the detectives – employee rights to monitor employer misconduct (UK)

Today’s word is “Avizandum”, which the internet tells me is the name of the King of the Dragons, mate of Zubeia and father Azymondias, respected by all the elves as the most powerful creature in the whole of Xadia. Clearly. Whether the elves would have taken the same view if aware that the King of the … Continue Reading

Representative’s reprimand for clear misconduct unlawful, says EAT (UK)

The Employment Appeal Tribunal has recently handed down a judgment which serves as a useful reminder for employers of the risks of taking disciplinary action against union representatives for behaviour which may look like misconduct but which actually constitutes union activity. By way of background, section 146(1)(b) of the Trade Union and Labour Relations (Consolidation) … Continue Reading

Employers needled by vaccine refusals, Part 3 – injecting some reality (UK)

In the earlier parts of this blog series (part 1 & part 2) we saw that for the most part, asking your employees to take the covid-19 vaccination will be a reasonable management request and that their refusal to do so will usually be deemed unreasonable at law. Against that background, how should the employer … Continue Reading

Arizona and Three More States Approve Recreational Marijuana Use: Hashing Out What This Means for Employers (US)

For citizens of Arizona, Montana, New Jersey, and South Dakota, 11/3 may become another 4/20, as on Election Day, voters in those states approved initiatives to joining 11 other US states that previously decriminalized recreational adult use of marijuana.[1] Employers in those states however may not be as enthusiastic, since approval of recreational marijuana use … Continue Reading

A Timely Redux: Walking The Tightrope: Dealing With Employees’ Different Viewpoints On COVID-19, Racial Justice, and Partisan Politics (US)

In June 2020, we added a post to Employment Law Worldview addressing the complicated situation employers are in when employees express – sometime respectfully, sometimes not – different, and indeed, opposite views on COVID-19 issues (e.g., legitimate public health emergency versus hoax or “plandemic”), racial justice (“Black Lives Matter” versus “All Lives Matter”), and politics … Continue Reading

All zeros and ones – EAT sums up burden of proof for disciplinary decisions (UK)

Back in March we posted here a piece about dismissing to protect the employer’s corporate reputation. In that case the employer made a very difficult choice between the claimed (ultimately, actual) innocence of the employee and the harm which continuing to employ him might do if he turned out to be guilty. On the facts, … Continue Reading

The Customer May Not Always Be Right When It Comes To Sexual Harassment (US)

We all know that employers have a legal obligation under federal law, as well as under various state and local laws, to provide their employees with a safe work environment free from sexual harassment, and that under certain circumstances, an employer can be held legally responsible for harassment directed at its employees. However, do companies … Continue Reading

And now for something completely different – EU abuse principles sink self-serving contract variation

Quite a fun little case on TUPE this week, if you like that sort of thing (and on the upside, even if you don’t, at least it has nothing to do with COVID-19). Regulation 4(4) of TUPE states that TUPE-related changes to terms of employment are void in most circumstances.  This has long been read … Continue Reading

Dismissing to protect corporate reputation – how to keep your good name in the Tribunal (UK)

If one of your employees is arrested and charged with something more than usually distressing and distasteful, the question will inevitably come up of whether he can be dismissed. The driver for that inquiry will often be a fear on the employer’s part of adverse publicity arising from its continued employment of him against that … Continue Reading

“A positive attitude may not solve all your problems but it will annoy enough people to make it worth the effort” – dealing with “attitude” at work, Part 1 (UK)

So said German lithographer Herm Albright in a rare moment’s cynicism, but of course if you really want to get on your colleagues’ nerves, a hostile or negative attitude is far more to be commended. So here is a question arising from a matter on which we were recently instructed. Client’s employee has a persistently … Continue Reading

Private investigations video doesn’t leave employer in dire straits (EU)

In January 2018 we wrote about Ribalda –v- Spain, a European Court of Human Rights case in which a number of supermarket employees were awarded compensation for breach of their privacy rights. They had been stealing quite handsomely from their employer over some months, as they freely admitted, but nonetheless thought it entirely improper that … Continue Reading

Summer Vacation Is Definitely Over At The NLRB (US)

Between August 29 and September 10, the National Labor Relations Board (“NLRB” or “Board”) issued four decisions that resolve important issues that have been the subject of long-running disputes.  It also issued an invitation to submit briefs in a case that provides an opportunity for the current Board majority members to revise the standard for … Continue Reading

Playback time – the rights and wrongs of covert recordings in the workplace (UK)

Phoenix House Limited -v- Stockman has been kicking round the Employment Tribunal system ever since Ms Stockman was dismissed in 2013.  It has something for all the family – discrimination, some victimisation, a touch of whistleblowing and a light dusting of trust and confidence.  However, on its second trip to the Employment Appeal Tribunal at … Continue Reading
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