Case law updates

22/07/2008

Case law update - Constructive dismissal: what is the cause of the employee’s resignation?

In Abbycars (West Horndon) Ltd v Ford , the EAT held that once a repudiatory breach of contract has been established, (i.e a breach so serious that it is capable of bringing a contract to an end), an employee is entitled to resign and claim constructive dismissal so long as the repudiatory breach is one of the reasons for the employee’s resignation. It does not matter if there are also other reasons influencing an employee’s decision to resign.

08/07/2008

Case law update - House of Lords changes the law on disability discrimination

The House of Lords has changed the way in which we interpret disability discrimination law, although in the long run the practical implications for employers may not turn out to be significant.

19/06/2008

Case law update – how to risk assess pregnant women or new mothers

The EAT confirms the technical requirements an employer must follow in carrying out a risk assessment for a pregnant woman or new mother, and also comments on best practice.

17/06/2008

Case law update - How should compensation for injury to feelings be assessed when there is more than one type of discrimination?

An employee may sometimes be discriminated against on more than one ground. We look at what happens when there are a series of unlawful discriminatory acts, some of which relate to one type of discrimination and some to another?

21/05/2008

Case law update - EAT ruling on part-time worker discrimination

Following a recent EAT judgment, part-time workers should now find it easier to bring their discrimination claims. We look at the case.

13/05/2008

Case law update - Sex discrimination may also lead to a constructive dismissal claim

The EAT has recently ruled that direct and indirect sex discrimination can also lead to a fundamental breach of an employee’s contract of employment. This is the first case at appeal level which examines the relationship between a breach of the Sex Discrimination Act 1975 (the SDA) and a constructive unfair dismissal.

09/05/2008

Case law update - Subject access requests, will the courts intervene?

Broadly speaking, under the Data Protection Act 1998, individuals have the right to ask to see what personal information you hold about them. In a recent case, the High Court has considered how much an organisation has to do to comply with such a request.

09/05/2008

Case law update - When deciding the reason for pre-transfer TUPE dismissals, only the motive of the decision maker is relevant

The Court of Appeal has held that, when deciding whether a pre-transfer dismissal was for an automatically unfair reason, only the motives of the person who decides to dismiss should be taken into account. It is immaterial that the surrounding circumstances indicate that dismissals were ‘stage-managed’ by the buyer.

08/05/2008

Case law update - When is a collectively agreed term incorporated into a contract of employment?

In Martland v Co-Operative Insurance Society Ltd, the EAT considered whether collectively agreed severance terms were incorporated into contracts of employment. We look at the case and its implications.

22/04/2008

Case law update – when is a re-organisation also a redundancy?

The classic case of redundancy is where a business closes down altogether, or closes in the place where the employee works. But the concept is wider. We look at the latest ruling and the implications for employers.

18/03/2008

Case law update - Is homophobia in the workplace discriminatory if the victim is not homosexual?

The EAT has held that homophobic banter does not amount to discrimination on the grounds of sexual orientation where the victim was heterosexual and accepted that those who were ‘teasing’ him did not actually believe that he was homosexual.

11/03/2008

Case law update - EAT rules on meaning of 'religion or belief' under discrimination legislation

The EAT has provided clarification of the meaning of 'religious or philosophical belief' under the Employment Equality (Religion or Belief) Regulations 2003 - we look at the case.

07/03/2008

Case law update - Dismissal for undergoing IVF treatment may amount to sex discrimination

The ECJ has held that the dismissal of a woman in connection with IVF treatment could amount to sex discrimination. We look at the implications for emloyers.

25/02/2008

Case law update: ill-health retirement must be considered before dismissing an employee for long-term sickness

The EAT has held that employers should give proper consideration to their ill-health retirement scheme before dismissing an employee for long-term sickness.

11/02/2008

Case law update – will a dismissal be fair where the employee's visa has expired?

The EAT held that it would usually be reasonable for an employer to dismiss, but there is no automatic right to do so. We look at the case and its implications for employers.

07/02/2008

Case law update - Court of Appeal rules on reliance on expired disciplinary warnings

The Court of Appeal has confirmed that it may be fair to dismiss for misconduct even when the employer has taken into account an employee’s previous similar misconduct (which was subject of an expired final warning).

04/02/2008

Case law update - Should you follow a misconduct or capability procedure over bizarre employee behaviour?

If you suspect an employee’s gross misconduct might be due to a mental illness, is it still safe to follow the disciplinary procedure? Probably not, following an EAT ruling.

01/02/2008

Case law update - Can the TUPE Regulations apply to transfers outside the UK?

For the first time, the EAT has considered whether the TUPE Regulations have the potential to apply to transfers of businesses outside the UK (and outside the EU). The EAT has ruled that they can.

31/01/2008

Case law update - Next step in the long-term sickness and holiday pay saga

The Advocate-General has held that workers who are on long-term sick leave should continue to accrue statutory annual leave, but that they should not be able to take this paid leave during the sick leave.

14/01/2008

Case law update: Collective consultation and protective awards

In 2004, the Court of Appeal ruled that protective awards are penal in nature and that 90 days' pay should be awarded unless there are good reasons for awarding less. The EAT has recently confirmed that this 90-day approach to protective awards is also correct where smaller scale collective redundancies are proposed.

20/12/2007

Case law update - EAT issues judgment on religious discrimination

To date there have been few cases in the higher courts on discrimination on grounds of religion or belief under the Employment Equality (Religion or Belief) Regulations, even though they came into force back in 2003. The EAT has, however, recently heard a case concerning a Rastafarian who wore his hair in dreadlocks, and who alleged he had been discriminated against as a result. We look at the case and its implications.

07/12/2007

Case law update - Dismissal for smoking is fair

In Smith v Michelin Tyre PLC, a tribunal found that an employee’s dismissal for a one-off breach of the company’s no-smoking policy constituted gross misconduct and was fair.

14/11/2007

Case law update - Is it fair to dismiss employees if you genuinely, but mistakenly, believe they can't work for you?

The Court of Appeal has recently considered whether an employer’s mistaken but genuine belief that its employee could no longer lawfully work in the UK was a fair reason for dismissal. We look at the case and its implications for employers.

02/11/2007

Case law update EAT judgment deals with malingering, tip-offs, the importance of medical evidence and covert surveillance

What should an employer do when it is ‘tipped off’ by one employee that a fellow employee may be malingering? What happens where an employer is faced with conflicting medical advice from an employee’s GP and its own occupational health doctor? And can an employer undertake covert surveillance of an employee? All of these issues interplayed in a recent EAT judgment.

01/11/2007

Case law update - TUPE cannot create for employees rights that did they did not have prior to the transfer

The Court of Appeal has recently confirmed that TUPE cannot be relied on to create an entitlement to a contractual benefit which was not previously enjoyed by an employee before the transfer of their employment.

29/10/2007

Case law update - Can you withhold sick pay if you doubt the reason for absence?

In Merseyrail Electrics 2002 Ltd v Taylor , the Employment Appeal Tribunal (EAT) considered whether an employer could rely on a clause in an employment contract which stated that ‘payment of sick pay may be withheld if there is any doubt that the absence is due to reasons other than health’.

26/10/2007

Case law update -Employers must consult about the reason for redundancy

In UK Coal Mining v NUM, the Employment Appeal Tribunal (EAT) departed from earlier case law to decide that the obligation to consult over avoiding proposed redundancies where a workplace is closing also requires consultation over the reason for the closure.

24/10/2007

Case law update - ECJ rules that compulsory retirement is lawful

17/09/2007

Case law update - employees who won't comply with reasonable instructions are not entitled to pay

The Court of Appeal has now ruled on a case we reported in an earlier update. The case involves an employee who raised bullying allegations but did not accept the findings of an enquiry into the allegations, and then refused to come back to work.

10/09/2007

Case law update - EAT ruling on mild dyslexia as a disability under the Disability Discrimination Act 1995

The EAT has recently concluded that, under the DDA, an individual with mild dyslexia was disabled. Existing case law had already suggested that mental impairments such as dyslexia could constitute such a disability. The facts of this case, however, illustrate the potentially wide ambit of the DDA - this individual only became aware of his dyslexia relatively late on, and at a senior level of, his career.

07/09/2007

Case law update - EAT awards its first penalty for a breach of the Information and Consultation Regulations 2004

In March this year, we reported the CAC’s ruling against Macmillan Publishers Ltd (Macmillan), for failing to properly comply with the Information & Consultation of Employees Regulations 2004. The EAT has now awarded its first penalty for that breach – Macmillan was ordered to pay the sum of £55,000. We look at the case and its implications for employers.

 

07/08/2007

Case law update- Pay in lieu of notice clauses cannot be implied

A pay in lieu of notice clause could not be implied into a contract of employment where there was an express right to 12 months’ notice. We look at a new Court of Session ruling.

02/08/2007

Case law update - Unfair dismissal and compensation for loss of statutory rights

An employee who is unfairly dismissed will, unless reinstated or re-engaged, lose the right to claim a number of statutory employment protection rights. We look at a recent EAT ruling.

02/08/2007

Case law update - Volunteers and redundancy: resignation or dismissal?

A recent EAT judgment considers a subject which often perplexes employers – whether employees who volunteered for redundancy should be treated as having been dismissed by reason of redundancy.

31/07/2007

Case law update - What is 'pay' under a sick pay scheme?

The recent EAT case of Beattie v Age Concern is a useful reminder to employers to make sure that they spell out the method of calculating pay under any sick pay scheme.

17/07/2007

Case law update - Severe disfigurement under the Disability Discrimination Act 1995

The Northern Ireland Court of Appeal has recently considered a specific provision contained in the Disability Discrimination Act 1995, the effect of which is to deem an impairment consisting of a severe disfigurement as having ‘a substantial adverse effect on the relevant person’s ability to carry out normal day-to-day activities’.

13/07/2007

Case law update - Clarification on agreement of collective bargaining terms

A recent EAT case confirms that where terms resulting from a collective agreement have been offered but not accepted by union representatives, those terms can still be withdrawn by the employer.

19/06/2007

Case law update: Disability Discrimination – burden of proof in reasonable adjustment cases

Project Management Institute v Latif is the first EAT decision which addresses the issue of how a tribunal should apply the burden of proof when dealing with a claim for failure to make reasonable adjustments under the Disability Discrimination Act 1995 (the DDA).

It also is a good reminder for employers of the scope of their duty to make all reasonable adjustments: the fact that an employer has made some adjustments may not be enough if further or different adjustments would have been reasonable.

11/06/2007

Case law update: Racial harassment - liability for acts of a third party

In Gravell v Bexley Council , the EAT has considered for the first time the effect of section 3A of the Race Relations Act 1976 in relation to a claim of racial harassment due to the acts of a third party.

08/06/2007

Case law update - Disability discrimination and reasonable adjustments

A recent Scottish case serves as a reminder that reasonable adjustments should be made not only to an employee’s existing job, but also to any offer of alternative employment during a redundancy exercise.

07/06/2007

Case law update - In a constructive dismissal case, to what extent are an employee’s motives relevant in resigning?

In deciding whether or not there has been a constructive dismissal, as long as part of the employee’s reason for resigning is the ‘repudiatory’ breach by the employer, it does not matter that there are also other reasons behind the resignation.

07/06/2007

Case law update - When does voluntary overtime become contractual?

In North Lanarkshire Council v McDonald and another, employees habitually worked 2.5 hours of overtime a week for over a year. There was no express agreement to provide the overtime either when the contract was first entered into, or subsequently. The EAT found that the contract was not varied by the fact that the overtime had been worked for over a year.

06/06/2007

Case law update - Requiring an employee to take leave on a particular day

With appropriate notice, the Working Time Regulations 1998 allow employers to fix when their workers can take their working time holiday. The EAT has confirmed that an employer can require a worker to take working time leave in single days. It does not matter that in fact no work was available on a day designated as working time holiday, provided that the employer had a contractual right to ask the employee to work on that day.

06/06/2007

Case law update - Failing to consult on Disability Discrimination

There have been conflicting decisions in the Employment Appeal Tribunal (EAT) on the question of whether an employer’s failure to consult with a disabled employee could in itself amount to a ‘failure to make reasonable adjustment’ under the DDA. In Spence v Intype Libra Limited, the EAT has revisited the question again and concluded that an employer’s failure to obtain an up-to-date medical report, and consult upon it, did not amount to a failure to make reasonable adjustments.

04/06/2007

Case law update - Why probationary periods need to be carefully managed

The EAT has recently considered an employer’s right to extend a probationary period. We look at what can be learned from the case.

01/06/2007

Case law update - Clarification of the meaning of ‘the same job’ on return from maternity leave

The EAT has considered the scope of an employee’s right to return to work from a period of maternity leave to ‘the job in which she was employed before her absence’.

31/05/2007

Case law update - Resignation or dismissal?

The Court of Appeal has recently considered the thorny issue of ‘dismissal by enforced resignation’. Overturning the decisions of the employment tribunal and the EAT, it held that there had been a dismissal notwithstanding that the employee in this instance had agreed to terms for his departure and had signed a letter confirming mutual termination. We look at the main issues.

24/05/2007

Case law update - Irish case on age discrimination during the recruitment process

The Director of the Equality Tribunal in the Republic of Ireland has published a decision on age discrimination which, though not legally binding in the UK , is still likely to influence employment tribunals here.

10/05/2007

Case law update – Court of Appeal on work-related stress

The Court of Appeal qualifies some of the guidance previously given by the Court of Appeal in the landmark decision of Sutherland v Hatton on the approach the courts should take when deciding if an employer is liable for work-related stress.

10/05/2007

Case law update - Truth hurts or blaming the victims?

In St Helen’s Borough Council v. Derbyshire, the House of Lords held that the Council had victimised the claimants when it sent letters to employees pointing out that if the claimants succeeded at the tribunal it would imperil the future of the school meals service in which they worked.

01/05/2007

Case law update - Can a witness statement given in confidence be disclosed in the Tribunal?

In Arqiva Limited v Sagoo, the EAT considered the circumstances in which statements given by employees to an employer in confidence during an investigation must nevertheless be disclosed in tribunal proceedings.

30/04/2007

Case law update - When might an individual be entitled to compensation for a breach of the Data Protection Act?

If you collect, use or store personal information about your employees in a way that breaches the Data Protection Act 1998, what factors will affect whether that individual can be compensated for your breach?

30/04/2007

Case law update – Why great care is needed when contemplating increasing an employee’s disciplinary penalty on an appeal

Premier Foods plc v Garner provides a tale of caution for employers thinking of increasing a disciplinary penalty on appeal. In this case, the employer’s failure to recommence the statutory dismissal procedure resulted in a finding of automatic unfair dismissal.

27/04/2007

Case law update - Court of Appeal ruling on sick leave pay

Court of Appeal ruling means employers will rarely be obliged to pay disabled employees more than non-disabled employees whilst on sick leave

25/04/2007

Case law update - Part-timers’ entitlement to bank holidays

The Court of Session has recently considered whether part-time employees who do not work on Mondays are entitled to a pro-rata apportionment of extra time off in respect of Monday bank holidays.

17/04/2007

Case law update - EAT judgment on religious discrimination

The Employment Appeal Tribunal (EAT) has recently ruled that a Muslim teaching assistant was not subjected to direct discrimination on the ground of religion or belief by a requirement that she remove her veil while teaching. It also held that although the ‘no veil policy’ was indirectly discriminatory on the ground of religion, it could be justified.

04/04/2007

Case law update - Can you take into account the views of a third party during a redundancy exercise?

In Loosley v Social Action for Health , the EAT found that in some limited circumstances it is legitimate for an employer to take into account the views of a third party when considering to whom it will offer alternative employment.

30/03/2007

Case law update - UK sex discrimination legislation does not comply with EU law

The High Court has ruled that the UK ’s sex discrimination laws do not currently comply with European law. We look at the implications of this ruling.

30/03/2007

Case law update – do not rely on expired disciplinary warnings

The EAT has confirmed that that an expired disciplinary warning could not be relied on to justify the dismissal of an employee for misconduct in circumstances where his fellow employees, guilty of the same misconduct but with clean disciplinary records, were not dismissed.

27/03/2007

Case law update - who is a worker and why does it matter?

In the recent case of James v Redcats (Brands) Ltd , the EAT looked at how to identify workers. We explain what this will mean for you.

15/03/2007

Case law update - redundancies must be made after a TUPE transfer and not before

A Scottish court answers a key question facing employers involved in TUPE transfers and concludes that redundancies must be carried out by the new employer after the transfer has taken place.

02/03/2007

Case law update - protective awards obtained by a trade union can only be enforced by employees for whom that union is recognised

In Transport and General Workers Union v Brauer Coley Ltd (in administration) , the EAT has confirmed that a protective award obtained by a trade union for a failure on the employer’s part to collectively consult cannot be enforced by employees who, even though they are members of the trade union, are not represented by it for the purposes of collective bargaining.

01/03/2007

Case law update - how to respond if your employees ask for an information and consultation agreement

The Central Arbitration Committee (CAC) has recently ruled against Macmillan Publishers Ltd (Macmillan) for failing to respond properly to a valid employee request under the Information & Consultation of Employees Regulations 2004 (the ICE Regulations) to put in place information and consultation arrangements.

01/03/2007

Case law update - can employers make temporary changes to employees’ duties and location?

The EAT has confirmed that even where there is no expressly agreed right, in exceptional circumstances there may be an ‘implied’ right to make contractual changes temporarily.

01/03/2007

Case law update - what triggers the duty to make reasonable adjustments to help a disabled employee back to work?

In NCH Scotland v McHugh, the EAT has clarified that when an employee with a disability is off sick, the employer does not have a duty to make reasonable adjustments to help the employee back to work until the employee indicates that he or she is ready to return.

24/01/2007

Case law update - A compromise agreement must relate to particular proceedings