King –v- Sash Window Workshop Company was a particularly difficult European Court of Justice case for businesses in the gig economy. It suggested that where a worker was not provided with an adequate facility to take the paid leave to which he was entitled by that status under the Working Time Regulations (in particular, because … Continue Reading
ISS Facility Services – v – Govaerts was a European Court of Justice case in March 2020 concerning what happened where the work being done by a group of employees was split up and all sold or contracted off in different directions. Traditionally the UK view has been that the employee would go with whichever … Continue Reading
As a rule, an employer will be liable for the discriminatory acts of its employees towards each other unless it has taken all reasonable steps to prevent them doing that sort of thing (section 109(4) Equality Act, often known as the “statutory defence”). Allay (UK) Limited –v- Gehlen is one of really not very many … Continue Reading
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
It is easy to dismiss some EAT decisions as a storm in a teacup, legally-speaking, all very traumatic for those bobbing about in them, but of little significance to the wider world of employment law or practice. Steer – v – Stormsure Limited earlier this month is not one of those decisions. It has the … Continue Reading
All the smart money is on 2021 to see an increased number of grievances and Employment Tribunal claims as the pandemic support regime winds down. Therefore this is probably a good moment to look at the practical lessons to be taken from Cole – v – Elders Voice in the Employment Appeal Tribunal last month … Continue Reading
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
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
It’s all about the numbers in Brooks -v- Nottingham University Hospitals NHS Trust, a new case on when an Employment Tribunal can order costs against an unsuccessful participant – 18 alleged protected disclosures, 40 detriments, a 27-day hearing, a witness statement of 214 pages and over a thousand paragraphs and a hearing bundle of well … Continue Reading
Male manager repeatedly massages shoulders of seated female subordinate in open office causing her distress and embarrassment, claims he is doing so to “encourage her” and then gives evidence denying it which the Tribunal does not swallow for a second. Sexual harassment? Quick, yes or no?… Continue Reading
In all the hoo-hah around the use of NDAs in settlement agreement, no one yet seems to have asked the question of what happens if you sign such an agreement and are then called as witness to the Employment Tribunal anyway. Can you (or your former employer) rely on the NDA as a reason for … Continue Reading
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
I gave a talk last week on constructive knowledge of disability, i.e. the point where the employer didn’t actually know its employee was disabled, but is nonetheless held liable because on the facts it ought to have done.… Continue Reading
Forget the law for a moment and answer me this. If: despite having no reasonable grounds to hold that view, I genuinely believe that someone made a racist remark about me; and I sit on that belief without a murmur of complaint for four years; and when my work is entirely justifiably criticised, I then … Continue Reading
They do say that maternity in the workplace can be an unsettling and confusing time, leaving you confronting new questions and situations that no one has really prepared you for, and where the guidance comes at you from a range of sources as wide as they are inconsistent. Anyway, enough about employers.… Continue Reading
The Ministry of Justice and Her Majesty’s Courts and Tribunals Service have now rolled out the details of the scheme to refund claimants and respondents who paid a fee at an Employment Tribunal or the Employment Appeal Tribunal between 29 July 2013 and 26 July 2017. This is of course the necessary result of the … Continue Reading
It is a basic plank of a fair disciplinary dismissal that it be preceded by a reasonable investigation. But what is that, exactly? How much detail must you include in your enquiry, how many witnesses must you grill, how far back do you have to go, how far must you challenge or test the evidence … Continue Reading
Rumbling around at the less well-publicised end of the holiday pay saga is the question of just how far back such claims can go. Changes to the Employment Rights Act 1996 limited this to two years for claims brought after 1 July 2015, but thanks to Bear Scotland Limited, the actual exposure may be very … Continue Reading
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
Fans of the unnecessary medicalisation of management issues in the workplace will be sadly disappointed by a new Employment Appeal Tribunal decision at the end of December. For everyone else, Herry – v – Dudley MBC represents a very sensible and timely reminder of where the line lies between being disabled on the one hand … Continue Reading
All the lawyers are saying that Brexit won’t make any difference to English employment law (and in terms of black and white statute law that is probably true) but here is one of those very few cases which might genuinely have gone the other way if it had been brought after the UK leaves the … Continue Reading
UK employers take note – the Employment Appeal Tribunal has recently ruled that an employer was obliged to continue paying a disabled employee his full salary even though he had been redeployed into a less well paid role because he could no longer carry out his normal duties as a result of his disability. Such … Continue Reading
Right, there it is, and still no one really any the wiser as to what to do about it. The decision of the Employment Appeal Tribunal in British Gas -v- Lock Lock v British Gas reaches the inevitable conclusion that some commissions must be included in the calculation of holiday pay, but offers no help … Continue Reading
A finding of race discrimination in the UK requires the employee to show both (a) that he was less favourably treated on grounds of race; and (b) that he suffered a detriment. The need to establish (b) separately is often overlooked, in that less favourable treatment is, by itself, pretty invariably a detriment. However, the … Continue Reading
