Tag Archives: employment tribunal

New EAT employee status decision fails to make a virtue out of necessity (UK)

There is a long-established legal principle that you can only imply an employment relationship in the face of a contract saying something different if it is necessary to do so, i.e. if the found facts of the relationship are not consistent with any other explanation, in particular, worker status or genuine self-employment.  Until the Court … Continue Reading

New redundancy criteria decision not all that it seems (UK)

So, quick, answer me this – when making redundancies outside the collective consultation rules, do you need to consult with the affected employees about the selection criteria relied upon or only as to the proposed impact of those criteria on that person? Traditional wisdom would point to the latter. The selection criteria are a matter … Continue Reading

Keeping it real – the quest for reason in whistleblowing cases (UK)

In earlier posts on this blog you will find a handful of cases which consider the distinction between the fact of a protected whistle-blowing disclosure and the manner of it.  Accepted wisdom, thanks in part to the unimprovable words of then Mr Justice Underhill in Martin -v-Devonshires Solicitors here is that an employer can in … Continue Reading

UK government publishes its response to workplace menopause consultation – but is it right?

It certainly wasn’t the main talking point in Westminster in the middle of the country’s own meteorological hot flush earlier this month but on 19 July the government published its Response to Menopause and the workplace: how to enable fulfilling working lives, an independent report commissioned by the then Minister for Employment and published in … Continue Reading

When voluntary redundancy goes bad – precautions for employers (UK)

Employee volunteers for redundancy, is then made redundant on the terms offered and yet still claims unfair dismissal.  A non-starter, surely? That was the view taken by the Employment Tribunal in White –v- HC-One Oval Limited at the back end of 2020.  Ms White had volunteered for redundancy so could reasonably dispute neither the existence … 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

Whistleblowing webinar questions, Part 2 – interim relief (UK)

In our webinar last week we touched on the existence of a largely unique remedy for whistleblowing dismissals, the concept of interim relief, more recently and lucidly known as a contract continuation order (“CCO”).  Time did not permit a full rehearsal of the ins and outs of this potentially devastating employee tool, so here is … Continue Reading

Lost in space – useful pointers for health and safety dismissals (UK)

Back in May last year we posted a piece on the protections available to employees who choose to leave their workplace because of serious health and safety fears.  As the RTO process begins to warm up, here is an Employment Tribunal case (possibly the first, but certainly not the last) which looks at the practical application … Continue Reading

EAT refuses to swallow stale discrimination training – keeping up the statutory defence (UK)

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

2020’s parting gift to UK employers – you really shouldn’t have

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

Unwinding termination agreements – looking behind the without prejudice curtain (UK)

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

Post-lockdown flexible working, Part 6 – when childcare goes bad (UK)

Time to answer another interesting question which came up at our Managing Working Parents webinar a couple of weeks ago: Where the employee is unable to come into work for childcare reasons, what are my duties to provide him with work suitable to be done from home?  This was a question which we might have … 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

Procedure-free dismissal found fair – don’t try this at home (UK)

“Loss of trust and confidence” is often pleaded as a basis for a fair dismissal, but rarely successfully.  Employment Tribunals are astute to employers using it as a short cut to address performance or conduct issues without going through a proper procedure.  After all, a dismissal without a fair procedure is going to be unfair … Continue Reading

Post-lockdown working, Part 4 – whistleblowing for beginners (UK)

On top of the flexible working rules (see Parts 1-3), another piece of existing law likely to get a pandemic-related dusting-off in the months to come is our old friend whistleblowing. If you face what is otherwise a fairly clear redundancy situation because Covid-19 has gutted your employer’s market, what better way of upping the … Continue Reading

Are the grounds for dismissal the rationale or the reason? (UK)

Exploring the difference between why you do something and why it happens sounds like one of those abstract A-level Philosophy questions about whether you are a prince dreaming you are a butterfly or the other way around, but without the ability to ask whether anyone cares anyway. However, the question is also key to determining … Continue Reading

When taking a stand on discrimination becomes misconduct

Rochford – v – WNS Global Services is a small (9 page) but perfectly formed UK Court of Appeal decision around when you can stand on your principles in the face of discrimination by your employer and when it just gets you sacked. Mr Rochford had been absent for an extended time with a bad … Continue Reading

Context or causation – the role of race in unfavourable treatment

Statutory construction can be a bit like nuclear fusion – you take an atom of something relatively ordinary and then subject it to such pressure that it explodes into a million flaming pieces and lays waste to your entire afternoon.   Employment Tribunals and Courts do the same to words, taking perfectly mundane sentences and phrases … Continue Reading
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