On September 20, 2017, the Seventh Circuit in Severson v. Heartland Woodcraft, Inc. held that a long-term leave of absence is not a reasonable accommodation under the Americans with Disabilities Act (“ADA”). As we all know, the ADA prohibits employers from discriminating against “qualified individuals” with disabilities, defining such individuals as applicants or employees who, with … Continue Reading
How many letters have you written suspending an employee facing some form of disciplinary enquiry or dismissal, assuring him earnestly that it is a neutral act and in no way presumes any guilt?… Continue Reading
Where an employee is absent without leave, how long would it be before dismissal of that employee would be fair? Two weeks? One month? Six months? How about 20 months? That is the question that was faced by the employer in the recent case of Brighton & Sussex University Hospitals NHS Trust v (1) Akinwunmi … Continue Reading
This past May, 2017, The US Court of Appeals for the Second Circuit granted en banc (meaning all the judges on the Second Circuit will hear the case instead of a three-judge panel) a review in Zarda v. Altitude Express, the case of a New York skydiving instructor who was fired from his job because … Continue Reading
State-registered medical cannabis patients may now sue a private employer for discrimination under Massachusetts’ law if they are fired for their off-the-job marijuana use, according to landmark ruling issued July 17, 2017, by the Massachusetts Supreme Judicial Court. Citing the Massachusetts Medical Marijuana Act, the court states that patients shall not be denied “any right … Continue Reading
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
The ever-vexed question of whether a worker is an employee or independent contractor has once again come before the Australian courts. The recent decision of Balemian v Mobilia Manufacturing Pty Ltd & Anor provides a reminder to employers of the potential financial ramifications of getting this wrong.… Continue Reading
Following recent differing decisions of the Fair Work Commission (FWC) it seems that Australian employers must still tread a fine and uncertain line in determining whether employee misconduct on social media is a valid reason for dismissal. In the recent case of Stephen Campbell v Qube Ports Pty Ltd t/a Qube Ports & Bulk in … Continue Reading
Ever think that you don’t really know your staff? Here is a case about how far that feeling can justify dismissal. Elizabeth Ssekisonge gained indefinite leave to remain in the UK in 2000, qualified as a nurse in 2007 and started work with the Barts Health NHS Trust in 2011. In early 2007 she received … Continue Reading
If we assume that your asking an employee and his manager to try to mediate a falling-out between them is a reasonable management request, what rights do you have as employer if one of them refuses? This came up at the 1st February Civil Mediation Council seminar on introducing mediation as a proactive part of … Continue Reading
In Stratford v Auto Trail VR Ltd the EAT held that an expired warning can be taken into account when considering whether a dismissal was fair or unfair under s98(4) Employment Rights Act 1996. Mr Stratford had the sort of disciplinary record which requires real commitment (17 incidents in less than 13 years). The most … Continue Reading
As the Festive Season reaches its peak Down Under, we have taken a look back at the more ‘interesting’ cases of 2016 to help Santa prepare his Naughty or Nice List for Australian employers: First to be considered for Santa’s list is a labourer who, in the midst of a heated discussion, somewhat unchantably called … Continue Reading
Statistically-speaking, your CEO is difficult, challenging, demanding, at times unreasonable and also stands a reasonable chance of being part psychopath, so says a recent report, almost. A new study of 261 senior professionals in the US has found that more than one in five (21%) can technically be classed as psychopaths, which is apparently the … Continue Reading
Williams, Turner and Stoker -v- The Whitbread Beer Company back in 1995 is one of my favourite Tribunal cases, the sad story of an employer trying to do something nice for its staff and being roundly punished for it. Whitbreads ran a staff seminar and laid on a free bar afterwards. As the evening wore … Continue Reading
In a recent case Cass. Soc. Sté Cegedim v. S, the French Labour Supreme Court upheld the decision of the Court of Appeal that an employee’s dismissal was void, on the ground that his freedom of expression had been violated. The employee had criticised the company’s management in an email sent to all his colleagues … Continue Reading
Although drug and alcohol testing is generally recognised in Australia as forming part of an employer’s armoury for managing its health and safety obligations, a recent Fair Work Commission decision has provided a salutary reminder that employers in Australia which fail to follow best practice when conducting such tests risk being on the wrong end … Continue Reading
Earlier this week, the Second Circuit Court of Appeals revived plaintiff Andrea Vasquez’s wrongful termination and retaliation lawsuit against her former employer, holding that under the “cat’s paw” theory, the retaliatory intent of any company employee – not just supervisory personnel – can be imputed to the company. The “cat’s paw” theory traces its roots … Continue Reading
Large-scale redundancies may not be happening (fortunately) to the same extent as in the aftermath of the financial crash of 2008 (and it’s too early to talk meaningfully about the possible implications of Brexit), but we are still often asked to advise clients in connection with smaller-scale redundancy exercises, often arising as a result of … Continue Reading
So there it is – to no-one’s really very great surprise, the Government consultation document on the simplification of the tax and NI treatment of termination payments turns out not to be about simplification after all, but just a naked tax grab. This was reasonably apparent from the chronically ill-considered nature of the original consultation … Continue Reading
Two recent federal appellate decisions suggest that even the hallowed employment at-will doctrine is not without its limitations. The first is Swindol v. Aurora Flight Sciences Corp., a case decided by the Fifth Circuit Court of Appeals on August 8, 2016. The employee in that case was fired for parking his truck in the company … Continue Reading
An employee of West Australian Newspapers Limited (WAN) who moonlighted for Uber was caught in the act when, one Saturday night, he picked up a WAN manager. Despite being well and truly busted, the employee (who worked night shifts as WAN’s newspaper machinist) denied having any affiliation with Uber, saying that his wife had the … Continue Reading
Do you know your Charmanders from your Bulbasaurs? Did you have a preferred method for catching Snorlax? Was your favourite move Hydro Pump? If you have any idea what I am talking about, excellent. If not, please be assured that I am reminiscing about the nineties/noughties phenomenon that was Pokémon and do not require the … Continue Reading
Article 16 of the Japanese Labour Contracts Act provides that “If a termination lacks objectively reasonable grounds and is not considered to be appropriate in general social terms, it is treated as an abuse of rights and is invalid”. Obviously the terms “objectively reasonable grounds” and “appropriate in general social terms” are ambiguous but here … Continue Reading
It is a common issue facing employers; you want to start or take next steps with a grievance or disciplinary investigation. To do the right thing you want to meet with the employee to discuss your concerns but the worker is on sick leave or goes sick, often citing work-related stress. Can you contact the … Continue Reading
