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Updates to end of 2021

[edit]

The following need updating:

  • Immigration rights and free movement
  • General shortening
Legislation
Scope, contract, minimum standards
  • Uber BV v Aslam [2021] UKSC 5, worker and employee coverage
  • Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8, on sleeping and minimum wage calculation
  • King v The Sash Window Workshop Ltd C-214/16 was referred to the CJEU for a decision as to whether Mr King could claim payment in lieu for several years of annual leave. In this case, Mr King was a self-employed salesman, whom the Employment Tribunal later determined was actually a worker. As a worker, he would have been entitled to 5.6 weeks’ annual leave a year. Although he had taken some annual leave during his time as a ‘self-employed’ salesperson, it was unpaid, and he claimed that the unpaid nature of his leave was a deterrent to him taking leave. He was therefore claiming 13 years’ unpaid leave. The CJEU held that, where an employer denies a worker the right to paid annual leave, the worker can continue to accrue annual leave up until the point when the employer makes facility for that person to take paid annual leave and, if the employment is terminated, the worker is entitled to pay in lieu of notice.
Union rights
  • Kostal UK Ltd v Dunkley [2021] UKSC 47 an employer wrote to employees, re-stating a pay offer the union had rejected and if it was not accepted by 18 December, no Christmas bonus would be paid (as was in the offer). In January 2016, it wrote to the employees saying non-acceptance could lead to dismissal. Employees claimed this was an unlawful inducement under TULRCA 1992 s 145B with a "prohibited result" that the workers' terms of employment "will not (or will no longer) be determined by collective agreement". Tribunal found it was unlawful. Court of Appeal, Singh LJ reversed, finding in employers' favour. Supreme Court held that an offer by employers to workers violated TULRCA 1992 s 145B if workers terms would not be set by collective agreement, or there was a real possibility. This should be assumed where there was an agreed collective bargaining procedure that was not complied with. Lady Arden and Lord Burrows, [126]-[129] would have gone further: an employer breached s 145B where (i) an offer, if accepted, would constitute contracting out of collective bargaining on that occasion so that the offer satisfied the "prohibited result" requirement; and (ii) the employer's main purpose was to achieve that result rather than having a genuine business purpose. On that interpretation, it did not necessarily follow that the employer escaped liability just because the collective bargaining process had been exhausted.
  • Lidl Ltd v CAC [2017] EWCA Civ 328 decided that proposed bargaining unit was appropriate
  • Hartley v King Edward VI College [2017] UKSC 39 any wage deductions for strike action must be proportionate and in accordance with contract or collective agreement.
Discrimination
  • Stefanko v Doherty and Maritime Hotel Ltd [2019] IRLR 322 (EAT) failure to apply burden of proof and race discrimination
  • Royal Mail Group Ltd v Efobi [2021] UKSC 33, Royal Mail employee made 30 job applications unsuccessfully, and claimed race discrimination, victimisation and harassment after not getting any. ET upheld claims of victimisation and harassment, and said the others did not disclose a prima facie case. He claimed this failed EA 2010 s 136, and the RM should have called decision-makers to give evidence, and ET should draw adverse inferences from this. UKSC said there is a burden on the claimant under EA 2010 s 136. Adverse inferences could be drawn from the fact the employer failed to call evidence from decision makers, and instead supplied others familiar with recruitment processes.
  • Asda Stores v Brierley [2021] UKSC 10, whether female retail workers should be paid the same as male distribution centre workers because they do work of equal value & there's not a material factor justifying the difference in terms relating to pay.
  • Dobson v North Cumbria NHS Foundation Trust [2021] IRLR 729 (EAT) Dobson claimed that NHS Trust's demand for "flexible" work at weekends amounted to indirect sex discrimination, because it disadvantaged her in her care for 3 children, two of whom were disabled. The Tribunal decided there was no particular disadvantage because other women could do it, and so could the only man in the team. Choudhury J, reversing the Tribunal, found that the Tribunal was wrong in comparing only people in the team, as the proper comparison would be all people who were required to work flexibly. It was uncontroversial that there was a disparity in child care burdens for women. Tribunals could and should take judicial notice of this matter, even if it is not pleaded.
  • Ali v Capita Customer Management Ltd [2019] EWCA Civ 900, [73] Court of Appeal rejects that there is sex discrimination in men being paid less for shared paternity leave than women who receive higher statutory maternity pay.
  • Bessong v Penning Care NHS Foundation Trust [2019] IRLR 4 (EAT), third party harassment does not make an employer liable without discriminatory conduct by them in failure to take steps. EA 2010 ss 40A and 124A from Worker Protection (Amendment of Equality Act 2010) Act 2023 (reasonable steps to prevent sexual harassment, or 25% compensation uplift) reverses this.
Job security
  • Steer v Stormsure Ltd [2021] EWCA Civ 887 the CA has found that the lack of interim relief under the Equality Act is not discriminatory under the ECHR. There is no legislative reading in or declaration of incompatibility needed.
  • Hammersmith and Fulham LBC v Keable [2021] EAT, Katherine Tucker J held that the Tribunal had not erred in ordering that reinstatement was a practicable remedy, after an unfair dismissal. He was politically active and described himself as an anti-Zionist. He was filmed saying he thought that Zionists collaborated with the Nazis, agreeing they were not welcome in Germany, it went on social media and the Labour council leader said this anti-semitism brought the Council into disrepute. He was suspended, investigated and dismissed. Tribunal held dismissal was unfair because the employee had no chance to respond to the interpretation of his comments. He could be reinstated because the employer was of large size and there was no evidence it had lost trust and confidence in the employee.
Useful, not pathbreaking
  • National Union of Professional Foster Carers v Certification Officer [2021] EWCA Civ 548, the Certification Officer found that the foster carer union was not entitled to be listed as a trade union under TULRCA 1992 s 2 because it did consist "wholly or mainly of workers" under s 1, thinking that a "foster care agreement" with local authorities was not contractual. This violated ECHR article 11. Court of Appeal reversed the decision, and foster carers were entitled to unionised.
  • Carillion Services Ltd v Benson [2021] EAT, Carillion Services Ltd, part of the 18,000 person multinational group, went into liquidation and dismissed Benson and others without consulting under TULRCA 1992 ss 188-189. The employer argued it was only clear on 14 January 2018 that liquidation would happen, after short term financing proved impossible. Tribunal rejected that this was a "special circumstance" and that the business was on a downward path since July 2017. Choudhury J in the EAT dismissed the employer's appeal, holding that employees should receive a protective award.
Interesting, but not that important
  • Robinson v HRH Al Qasimi [2021] EWCA Civ 862 Singh LJ upheld EAT decision that there was no illegality from the claimant, Robinson not paying tax from 2007 to 2014 when this was the sham tax arrangement that Sheikh Khalid Bin Saqr Al Qasimi, a deputy dictator in the United Arab Emirates. Any illegality did not affect Robinson's claim for unfair dismissal. Also Cumming v British Airways Plc [2021] IRLR 270, per Shanks J.
  • Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23, Underhill LJ approving the refusal of a claim that was 3 days late under the Equality Act 2010
  • Burn v Alder Hey Childrens NHS Foundation Trust [2021] EWCA Civ 1791, [37] and [45]-[48] an implied duty to act fairly in disciplinary processes, on top of duties of mutual trust & confidence. Fails to acknowledge that this was already established in West London Mental Health NHS Trust (Respondent) v Chhabra [2013] UKSC 30.
  • DPP Law v Greenberg [2021] EWCA Civ 672, a solicitor and brown envelopes, the CA held the EAT wrongly allowed an appeal from an appropriate and standard Burchell unfair dismissal decision.
  • Stuart Delivery Ltd v Augustine [2021] EWCA Civ 1514, a courier for a delivery company claimed unlawful wage deductions and working time rights. The Tribunal held he was a worker, not an independent contractor during the times he committed to fixed slots whereby he had to be available in a certain geographic zone for a stipulated period of time. He was obliged to perform that work personally, had no right of substitution, and therefore had worker status pursuant to the guidance in Pimlico Plumbers Ltd v Smith [2017] EWCA Civ 51. EAT and Lewis LJ in the Court of Appeal upheld.
  • Sullivan v Bury Street Capital Ltd [2021] EWCA Civ 1694, an employee had a delusional disorder of being stalked by a Russian gang, and had two spells. This was not a long-term disability, or the employer did not have enough knowledge. Court of Appeal upheld Tribunal.
  • Page v Lord Chancellor [2021] EWCA Civ 254, Underhill LJ, the Lord Chancellor and the Lord Chief Justice had not victimised a lay magistrate by removing him from office after he gave a BBC television interview in which he expressed his objection, as a Christian, to same-sex couples adopting children. He was not removed for the protected act of alleging that he had been discriminated against, but for publicly declaring that in cases involving adoption by same-sex couples he would proceed not on the basis of the law and the evidence but on the basis of his own beliefs.
  • Amdocs Systems Group Ltd v Langton [2021] EAT, an employee was not entitled, in a claim on insured benefits, to all costs as the employer ran a defence that had no reasonable prospect of success.
  • Opalkova v Aquire Care Ltd [2021] IRLR 921 (EAT), unlawful wage deductions, remitting claim to Tribunal on whether worker should be paid minimum wage for compulsory training
  • Thompson v Informatica Software Ltd [2021] EAT, dismissal of a senior employee for breaching his employer's anti-corruption policy by authorising an expensive trip for a customer amounted to gross misconduct and was fair, even though the employee had not intended to make a corrupt payment or breach the policy. Wilful disregard of the policy could cause as much damage to the employer as a deliberate breach and dismissal was therefore within the range of reasonable responses.

... more suggestions? Please just add them here! Wikidea 23:41, 21 December 2021 (UTC)[reply]

https://www.legislation.gov.uk/uksi/2019/535/contents/made Kaihsu (talk) 12:10, 18 January 2023 (UTC)[reply]

2022 updates

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Unfair dismissal
  • London Borough of Hammersmith and Fulham v Keable, council employee made anti-Zionist statements in a rally, posted on social media, dismissed for misconduct. EAT upheld claim of unfair dismissal because claimant's statements did not bring the Council into disrepute. Reinstated.
  • Robinson v HRH Al-Qasimi, CA upheld unfair dismissal claim, and rejected employer's argument that non-payment of tax prevented Ms Robinson bringing an unfair dismissal claim, because there was no causal link, applying the purpose test in Patel v Mirza.
  • Kelly v PGA European Tour, CA held that to reengage a worker, a lack of trust and confidence from an employer had to be based on a genuine and rational belief. Here, Kelly had done covert recordings of the employer. Under s 116(5) though the ET should ignore if the job has been filled, this does not extend to ignoring whether other suitable jobs were filled.
  • Gwynedd Council v Barratt two sport teachers were not rehired to a new institution after a college was closed and everyone dismissed and asked to reapply. They were given no right to appeal. CA held the dismissal was unfair, especially since the employer was a local authority, so lack of appeal was startling.
Equality
  • Avsar v Wilson James Ltd, Eady J said discriminatory treatment will also be a breach of mutual trust and confidence, and an injunction is available.
  • All Answers Ltd v W, CA held that when considering long lasting disability, 'likely to last for at least 12 months' it should be assessed at the time of discrimination, and not take into account whether it did in fact last at Tribunal date.
  • Rooney v Leicester CC, EAT overruled ET's rejection of sex discrim claim after claimant had menopause. She told her manager she had hot flushes, and reply was manager also felt hot. Warning for sickness went to all male panel.
  • R (Cornerstone) v Office for Standards in Education, CA rejected C's appeal in a JR. C said carers must abstain from sexual sins including homosexual behaviour', and OfECSS said this policy had to be removed.
  • Allay (UK) Ltd v Gehlen [2021] ICR 645, EAT held that under the Equality Act 2010 s 109(4) the reasonable steps defence, that an employer took all reasonable steps to prevent discrimination, was not made out. An employer gave training, but this was years ago and stale, so no defence to racist remarks repeatedly received by the claimant.
  • K v Tesco, CJEU held that TFEU art 157 can be relied on in equal value claims in national courts. Claimants can compare themselves to comparators at different establishments of the same employer if a single source.
Working time

2023 updates

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Work status
  • IWGB v CAC [2023] UKSC 43, [2021] EWCA Civ 952, right to collective bargaining failed to be recognised, holding that cyclists were not even workers. Lord Lloyd-Jones and Lady Rose.
  • Sejpal v Rodericks Dental Ltd, a dentish on an 'associate contract' claimed discrimination, and ET held she was not in employment or a worker under the EA 2010. EAT held the ET should (1) find the agreement's true nature in light of purpose (2) the right of substitution had to be unfettered to be relevant (3) mutuality of obligation only mattered for whether there was a contract at all, in between assignments, in the case of casual work, and it was not an additional requirement on top of personal service.
  • Catt v English Table Tennis Association Ltd, a non-executive director working 15-20 days a year for £1500 honorarium found to not be a worker given lack of subordination. EAT held lack of subordination relevant to whether the ETTA was a client or customer, but not to whether there was personal performance of work, as was at issue. It was arguable on the ET's findings that there was a work contract.
Collective bargaining
  • Mercer v Alternative Future Group Ltd [2022] EWCA Civ 379, [2021] IRLR 620, Mercer was suspended after organising strikes as a trade union representative. The employer claimed this was not protected under TULRCA 1992 s 146, as protection for sanctions short of dismissal did not extend to strikes. Tribunal held that such an interpretation would go against the "legislative scheme". The Secretary of State intervened. EAT, Choudhury J held TULRCA 1992 s 146 could be interpreted compatibly with ECHR article 11, to protect the right to industrial action. Although on a proper construction protection fell for strike action fell under s 152, not s 146, it could be possible to effectively add a new sub paragraph (c) that time in working hours on strike was protected. To permit disciplinary action against workers simply for exercising the right to strike would fundamentally contradict the ECtHR authorities. Lord Burnett CJ, Bean LJ and Singh LJ restored the ET, and held that it was neither possible to interpret section 146 compatibly, nor was it appropriate to issue a declaration of incompatibility.
  • Kostal UK Ltd v Dunkley [2021] UKSC 47, leading to Jiwanji (ET), and INEOS (EAT)
Whistleblowing
  • Kong v Gulf Bank International (UK) Ltd [2022] ICR 1513, K questioned colleague's competence and professional integrity. ET found the manner of disclosure was reasonable, and there was not an element of invention. CA held that counter-claims, that manner of raising the disclosure were abusive, could be separated from the disclosure itself.
Working time
  • Harpur Trust v Brazel [2022] UKSC 21, Ms Brazel, visiting music teacher, had a year long contract but was paid only during term time, and 5.6 weeks annual leave under WTR 1998 regs 13 and 13A, deemed to be taken in three tranches during school holidays. Calculation of holiday pay could either be by (1) average earnings over 12 weeks before leave taken, ignoring any weeks without pay, as under ERA 1996 s 224, as she claimed, or (2) weeks actually worked in the 46.4 week year, by hours at each end of term, and 12.07% of that, as the employer claimed based on Directive wording. Lady Rose and Lady Arden held that the part-year worker's annual leave does not need to be pro rata to a full-time worker.
  • Chief Constable of the Police Service of Northern Ireland v Agnew [2023] UKSC 33, claim for holiday pay on correct calculation, and how many years back
Discrimination
  • Forstater v CGD Europe [2021] UK IRLR 706 Choudhury J held that a belief in immutability of sex is protected under the Equality Act 2010 section 10, overturning ET.
    • Followed by Mackereth v Department for Work and Pensions [2022] EAT 99 Christian doctor referring trans people was required to call them by preferred name and pronouns under the workplace equality policy. He claimed he had a lack of a belief in "transgenderism". EAT found there was not discrimination or harassment. People without Dr Mackereth's beliefs would have been treated in the same way. Belief was different to manifestation.
  • Sullivan v Bury Street Capital Ltd, EAT upheld finding that sales exec with paranoid delusions had a disability that adversely affected work, but it was not substantial and long term under EA 2010 s 6 and Sch 1, para 2
  • Stott v Ralli Ltd, paralegal claimant was dismissed for poor performance, and then she raised a grievance of anxiety and depression, as a disability. First time employer had been told about the disability. Claimant lost in the EAT.
  • Allen v Primark Stores Ltd [2022] EAT 57, EAT set aside an ET decision rejecting a claim for indirect discrimination where a woman was required to work a late Thursday shift and two comparators were men who also had child care. The woman had been required to guarantee availability, whereas the men had not.
  • Hilaire v Luton BC, EAT reasonable adjustments
  • Parr v MSR Partners, CA on s 123 time limits
  • British Coal v Keeble, EAT time limits and just and equitble to extend
  • Concentrix GVC Intelligent Contact Ltd v Obi, EAT same
  • Warburton, victimisation
Unfair dismissal
  • Hope v British Medical Association [2022] IRLR 206 Choudhury J in EAT, no need to consider if misconduct is gross for dismissal. Claimant had brought numerous grievances that were baseless, and fired. Dismissal held to be fair. CA appeal pending.
  • Pubbi v Your-Move.co.uk, EAT held it was fair to dismiss a financial consultant for an estate agency who failed to disclose bankruptcy even though there was no term to do so.
  • Rodgers v Leeds Laser Cutting [2022] EWCA Civ 1659 CA, laser operator refused to come back to work until Covid-19 lockdown eased, because his 7 month old child had sickle disease, he was dismissed, and he claimed it was automatically unfair under s 100(d). ET held that there was no unlawful detriment because concerns about the workplace were general, he only wanted to stay home until the lockdown was over, and R could have averted the danger by abiding by govt guidance. CA held the danger had to be specific to the workplace, otherwise the question of leaving the workplace would not arise.
  • Scottish Federation of Housing Associations v Jones [2022] EAT 114, claimed dismissal because of political opinions under s 108(4) when asked to run as Scottish Labour candidate. Contract clause precluded political activity, and she accepted her opinions were nothing to do with her dismissal. Lord Summers, EAT, held dismissal fair.

2024

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Discrimination
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