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Case Law
It's important for you as an employer to keep up to date on the latest legal developments on inclusion, diversity and equality. That's why we've teamed up with DAC Beachcroft LLP to provide members with top legal advice to make sure you've dotted all your 'i's' and crossed all your 't's'.
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Employment Law Reform – Updated Timetable Back in January we gave you a timetable of when proposed employment law reforms were planned to come into force. Some of these dates have been pushed back and this month we bring you an updated timetable. In particular, it is now unclear when the provisions in the Equality Act relating to third party harassment and discrimination questionnaires will be repealed (this had been expected in April). April 2013 |
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An employer may dismiss after a second disciplinary process in exceptional circumstances. |
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When seeking to justify a dismissal for “some other substantial reason” citing a breakdown in trust and confidence is unlikely, on its own, to be enough, where neither party acted as if the employment relationship had broken down. April 2013 |
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TUPE: administrator's dismissal of employees before the business was sold was automatically unfair In this case, the EAT considered whether the decision made by the employer's administrator to dismiss employees before the business was sold was automatically unfair. April 2013 |
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Acas Disciplinary Code: fair dismissal where employer had not fully complied with the Acas Code In this case the EAT considered whether an employer’s decision to dismiss was fair, despite non-compliance with the Acas Code of Practice on Disciplinary and Grievance Procedures. This is one of only a handful of cases which have considered the impact of the Acas Code. |
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Disability Discrimination: an obese employee was disabled under discrimination law Although obesity in itself is not an impairment for the purposes of disability discrimination protection, its effects may constitute an impairment. April 2013 |
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This EAT case considered the fairness of a redundancy selection procedure which included a series of competency tests normally used in the context of recruitment and disregarded past appraisals. April 2013 |
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The recent Budget has tax implications for many LLPs. April 2013 |
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Government consults on changes to pension protection following TUPE transfer The Government has issued a consultation on changing the Transfer of Employment (Pension Protection) Regulations, in relation to pension protection arrangements following a TUPE transfer. The consultation closes on 5 April 2013. March 2013 |
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This is the first Employment Tribunal case dealing with the failure by an employer to provide adequate information about agency workers during their collective consultation exercises concerning mass redundancies and TUPE transfers. The case shows the potential for significant awards against employers for breach of this legislation which was introduced by the Agency Workers Regulations 2010. March 2013 |
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Remedy: Tribunal should not have apportioned liability between respondents in a liability case In this case the Court of Appeal considered apportionment of liability and compensation between respondents. March 2013 |
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Achieving a balance between the right to freedom of expression and employee confidentiality This unusual case highlights the tension between the right to freedom of expression, which recognises the legitimate right to make fair comment, and the right of an employer to restrict disclosure of confidential information which might adversely affect its reputation. March 2013 |
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Following the Judgment of the European Court of Human Rights, delivered in January 2013, the UK’s Equality and Human Rights Commission has issued a guide for employers on managing requests in the workplace, arising from an employee’s religion or belief. March 2013 |
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Direct Age Discrimination was objectively justified by a strong social policy objective In this case the Employment Appeals Tribunal (EAT) considered whether an enhanced redundancy payment for workers over 35 constituted direct age discrimination. The “public interest” test set out in Seldon v Clarkson, Wright and Jakes (A Partnership) was applied. March 2013 |
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Discrimination: Requiring Christian care worker to work on Sundays was not discriminatory |
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In this case an employment tribunal considered whether new contracts of employment issued to agency workers by a temporary work agency complied with the "Swedish derogation" provisions of the Agency Workers Regulations 2010. |
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In this case the High Court considered whether an employee's assistance of a competitor while on garden leave breached the terms of his employment contract and compromise agreement. It also considered whether a clause in the compromise agreement which made him a Good Leaver only if he complied with certain obligations was a penalty and therefore unenforceable. Jan 2013 |
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What to Expect in 2013: BIS announces changes coming in this March and April |
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Companies Act 2006: BIS Proposals to promote transparency in gender balance Quoted companies to be forced to provide breakdowns of numbers of female employees. Nov 2012 |
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Contracts of Employment: Employee was bound by an unsigned contract because he’d relied on it In this case the High Court looked at whether an employee was bound by the terms of an unsigned contract. The employee argued he wasn't because he wanted to avoid his restrictive covenants. The principles in this case apply to any employer seeking to rely on an unsigned contract. Nov 2012 |
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Harassment: Offensive language did not amount to harassment on the grounds of religion This case concluded that a comment made in the newsroom about the Pope did not amount to harassment on the grounds of religion. The case is a good reminder that context will be important when determining whether harassment has occurred. Nov 2012 |
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Equal Pay: Civil courts should hear equal pay claims which would be out of time in a tribunal. |
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TUPE and service provision change: Client must stay the same The Court of Appeal has confirmed the earlier EAT decision that the client must remain the same for there to be a service provision change under TUPE. Nov 2012 |
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The EAT has held that the 2006 TUPE Regulations did not apply on the appointment by administrators of solicitors to undertake work previously handled by the in-house lawyer. This principle can apply to other professional advisors appointed in similar circumstances. Nov 2012 |
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Employment Law Reform: More changes and consultations announced |
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Post-TUPE Harmonisation: Re-engagement at pre-transfer pay rate ordered for unfair dismissal |
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Vetting and Barring: New regime comes into effect on 10 September |
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TUPE: Refusing offer of self-employment was not a failure to mitigate |
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TUPE: Directors were not assigned to the contract so didn't transfer |
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In this case the EAT quashed an employment tribunal's finding that the dismissal of two employees, who had taken preliminary steps to compete in the future, was fair. Aug 2012 |
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Unfair dismissal: Further confirmation that redundancy selection criteria can be subjective |
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Age discrimination: ECJ upholds Swedish Retirement Age of 67 The ECJ have examined whether a default retirement age of 67 was justified. It held it was despite the fact that this particular retiree had an inadequate pension to retire on. Aug 2012 |
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Termination dates: Effective date of termination was varied by internal appeal |
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Redundancy: Subjective selection criteria did not make redundancy dismissal unfair |
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Redundancy: Reduction in headcount not required for there to be a redundancy In this case the EAT considered whether there must be a reduction in the number of employees carrying out work of a particular kind to satisfy the statutory definition of redundancy. July 2012 |
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Holidays: An employee who becomes sick while on annual leave can take their holiday later This case considers the vexed issue of whether an employee who falls ill while on annual leave should be allowed to take their annual leave at a later date. July 2012 |
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A number of employment reforms have been rolled up into this bill which is currently making its way through Parliament. July 2012
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July 2012
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In this case the Court of Appeal looked at whether a divisional manager had breached a fiduciary duty and/or the duty of fidelity when he did not tell his employer about meetings with clients during his notice period as he sought to set up in competition. The Court of Appeal has overturned the High Court's decision. There are some important practical lessons from this case. July 2012 |
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TUPE: Employee who worked only on one contract was not an organised grouping of employees This is yet another service provision change case and follows the line of reasoning in the recent Eddie Stobart case that employees, or in this case an employee, who spend time working for a particular client do not necessarily form an organised grouping which will transfer. |
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This case explores whether an employer is entitled to withhold a payment in lieu of notice to an employee who is dismissed summarily, in accordance with their contract, but is subsequently discovered to have committed gross misconduct before the dismissal. June 2012 |
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Equality Matters: Consultations launched about whether to repeal some of the Equality ActThe government are committed to cutting what they see as "red tape", and have issued a number of consultations to reduce the burden on business, and made a number of other commitments on equality matters. The consultations close on 7 August 2012. June 2012 |
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Employment Tribunal Reform: Enterprise and Regulatory Reform Bill The Enterprise and Regulatory Reform Bill has been laid before Parliament which provides for changes to resolve employment disputes, picking up on a number of the matters covered by the Government's consultation last year. June 2012 |
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Disciplinary procedures: Right to a fair trial not invoked when dismissing for misconduct In this case the Court of Appeal looked at the claims of a consultant cardiologist that his Article 6 rights under the European Convention on Human Rights to a fair trial were engaged in internal disciplinary procedures because his dismissal allegedly prevented him practising his profession. June 2012 |
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Discrimination: Illegal worker had no right to bring discrimination claim |
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Bonuses: Bankers entitled to bonuses from guaranteed minimum bonus pool announced in a "Town Hall" meeting |
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Resignations: Termination date was when employer received resignation letter |
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Discrimination: Requirement for a law degree puts older workers at a disadvantage This case is one of the first Supreme Court decisions on age discrimination. It looks at whether a requirement for a 62 year old to have a law degree in order to be ranked at the top grade, following a restructure, was indirectly discriminatory. May 2012 |
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When the end justifies the means: Mandatory retirement of partner can be justifiedThe Supreme Court has rejected an appeal from a former partner in a law firm, Mr Seldon, finding that his mandatory retirement, following a long period of service, was not age discriminatory. This long awaited decision examined a part of the age regulations ( now in the Equality Act) which specifically dealt with partners rather than employees in general. However, it is now relevant to all employers who need to justify any potentially age-discriminatory practices. April 2012 |
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The EAT has decided that the expiry of fixed-term contracts did not come within the definition of redundancy (under section 195 of Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) so should not be included in the numbers for calculating whether it's necessary to collectively consult. March 2012 |
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TUPE: No service provision change where employees were organised by shift rather than by client This case looked at whether there was an organised grouping of employees for the purposes of TUPE 2006 where shift patterns and working practices on the ground meant that some employees worked principally on a contract which went to another provider. March 2012 |
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Redundancy: Selection pool of one person made dismissal unfair This case looks at the difficult issue of who should be in a pool for redundancy selection. March 2012 |
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This case explores whether a requirement to work overtime can arise merely because an employee is asked to do more work than can be accomplished within their normal working day. March 2012 |
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TUPE: No service provision change where employees were organised by shift rather than by clientThis case looked at whether there was an organised grouping of employees for the purposes of TUPE 2006 where shift patterns and working practices on the ground meant that some employees worked principally on a contract which went to another provider February 2012
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Redundancy: Selection pool of one person made dismissal unfairThis case looks at the difficult issue of who should be in a pool for redundancy selection. February 2012 |
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Redundancy consultation: Expiry of fixed-term contracts did not trigger collective redundancy consultationThe EAT has decided that the expiry of fixed-term contracts did not come within the definition of redundancy (under section 195 of Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA)) so should not be included in the numbers for calculating whether it's necessary to collectively consult. February 2012 |
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Contractual terms: Employees required to co-operate with overtime requests but not entitled to payment for itThis case explores whether a requirement to work overtime can arise merely because an employee is asked to do more work than can be accomplished within their normal working day. February 2012 |
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The Aim justified the meansThe Employment Appeal Tribunal’s decision in the latest age discrimination case gives considerable comfort to employers undertaking redundancy exercises. January 2012 |
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Industrial action: Identifying those entitled to vote in the ballotIn this case the High Court refused to grant an injunction to prevent a strike where the Union had allegedly failed to tell its members of the full extent of the proposed industrial action and had invited a significant number who would not take part in the action to vote in the ballot. January 2012 |
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Employment status: University sponsorship contract was not a contract of employmentIn this case the EAT looked at whether a contract to sponsor a former apprentice during a university degree was a contract of employment entitling him to claim unfair dismissal, or a training contract which didn't give him that right. January 2012 |
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Discrimination: Employer who exempted employee from hot desking policy disadvantaged the employee when implementedThe cases on reasonable adjustments are coming thick and fast. This one looks at whether a disabled employee who was exempt from a hot desking policy was still put at a disadvantage by that policy. January 2012 |
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Discrimination: EU law does not oblige employers to disclose information requested by claimants In this ECJ case an Advocate General has given his opinion about whether an employer, who refused to disclose information about a recruitment decision, was in breach of European discrimination legislation. January 2012 |
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Discrimination: Paid work experience requirement was unjustified indirect sex discrimination This case looked at whether a requirement for a job candidate to have two years' paid work experience over a five-year period had a disproportionate adverse impact on women, and was indirect sex discrimination. January 2012 |
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Discrimination: Equal pay claim about a discretionary share option scheme could not proceed In this case the Court of Appeal considered whether a claim for less favourable treatment in the allocation of share options could be brought under the now repealed Equal Pay Act. This case remains relevant under the provisions of the Equality Act 2010. December 2011 |
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In the particular facts of this case the High Court found, among other things, that employees who learnt of confidential matters about a competitor's business in the course of exploring potential employment with that business were not bound to pass that information on to their existing employer. December 2011 |
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Limits on employment tribunal awards to increase from 1 February Tribunal compensation limits will increase from 1 February 2012. There are clearly budgetary implications for any organisations planning redundancies, where you pay statutory levels of pay, after this date. December 2011 |
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Sickness absence dismissals: length of service not relevant to reasonableness of investigation In this case the EAT have confirmed that an employee's length of service is irrelevant when considering the reasonableness of an employer's investigation into sickness absence. December 2011 |
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TUPE: Service provision change provisions not applicable to the supply of goods TUPE will not apply to a change in service provide where the activities carried on by the employee providing the service consist wholly or mainly of the supply of goods for the client's use. This case explored whether the exclusion relating to the supply of goods applied where a contract for the supply of parts for vans terminated, and a third party started providing the parts. December 2011 |
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TUPE: No service provision change where identity of client changed The EAT has held for the first time that there will be no service provision change under TUPE 2006 where the client to whom service are being provided changes at the same time as the change in service provider. December 2011 |
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The Court of Appeal has held that a pre-transfer dismissal can be "connected with the transfer" and therefore potentially automatically unfair, regardless of whether the identity of the transferee was known (or even contemplated) when the dismissal was carried out. December 2011 |
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Age discrimination: Bailey retirement decision may go to the Court of Appeal In our May 2011 alert we reported on the EAT's decision in Bailey v R&R Plant Limited. In this case the EAT held that a retirement notice which did not specifically reference paragraph 5(3) of the 2006 Age Regulations was invalid. As a result the employee's dismissal was deemed unfair and age discriminatory. We understand that the employer has been given leave to appeal this decision. November 2011 |
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In a speech given on 10 November 2011, David Cameron confirmed that the government is to consult on the introduction of "protected conversations." Such conversations would enable an employer and their employee to have a frank conversation at either party's request concerning subjects such as retirement or performance, without the risk of employment tribunal proceedings. November 2011 |
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Annual Leave: Workers only entitled to statutory holiday pay if they ask for it In this case the EAT held that an employee on long-term sick leave must request annual leave in order to be paid for it. November 2011 |
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Annual Leave: ECJ limits carry over by sick workers In this case the ECJ held that national rules limiting carry-over of holiday by workers on long-term sick leave to 15 months after the end of the relevant leave year were lawful under the European Working Time Directive. November 2011 |
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Tribunal Reform: Government issues response to consultation The government has published its response to the Resolving Workplace Disputes consultation on reforming the employment tribunal system. November 2011 |
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In this case the EAT have helpfully clarified how injury to feelings and aggravated damages should be calculated by an employment tribunal in whistleblowing claims. November 2011 |
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This case concerns three claimants who alleged they had suffered a detriment because they blew the whistle about the extent of a colleague's qualifications. Overturning the EAT's decision the Court of Appeal found that the detriment suffered in this case was not materially influenced by the disclosures and rejected the claimants' whistleblowing complaints. November 2011 |
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Compensation for Unfair Dismissal: Failure to mitigate by unreasonable refusal of new role A claimant who rejected an offer of alternative employment made by her employer on the basis that the nature of the post could not be guaranteed in the medium term was found to have behaved unreasonably. She could not therefore recover any compensation for loss of earnings.
October 2011 |
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Discrimination and the cost of reasonable adjustments In this case the EAT tackled head-on the question of the extent to which cost alone can make a proposed adjustment unreasonable for the purposes of disability discrimination law.
October 2011 |
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Post-TUPE transfer agreed variation was valid This case shows that it is possible for post-transfer changes to be valid on the basis that they are unconnected to the transfer.
October 2011 |
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Post-TUPE dismissals not connected with transfer An employee dismissed for refusing to accept a proposed variation to an employment contract after a TUPE transfer will be able to claim automatic unfair dismissal if the employer's sole or principal reason for the dismissal is either the transfer itself, or a reason connected with the transfer (unless there is an economic, technical or organisational reason).
October 2011 |
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Termination: Dismissal notice issued by mistake could not be withdrawn This case demonstrates that it is difficult for employers to withdraw a notice of dismissal even if it is issued by mistake.
October 2011 |
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Unfair Dismissal: Work permit expiry should not have limited unfair dismissal compensation This case considered the effect of the expiry of an employee's work permit on damages for unfair dismissal, where the employee had applied for indefinite leave to remain in the UK.
October 2011 |
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Disability discrimination: Career break is not a reasonable adjustment This case looks at what reasonable adjustments an employer should make to help a disabled employee return to work. September 2011 |
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This EAT decision looks at whether there needs to be a real prospect of an adjustment alleviating the disadvantage suffered by a disabled employee for that adjustment to be a reasonable one or whether a lesser prospect is enough. September 2011 |
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References: No negligence where outstanding allegations mentioned It is well established that references must be true, accurate and fair. In this case a former employer appealed to the Court of Appeal following a High Court decision that they had been negligent in giving reference because, while it was true and accurate, it was not fair. September 2011 |
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Unfair dismissal: Employee was unfairly dismissed for making minor derogatory comments on Facebook This employment tribunal decision looks at the increasingly common issue of when it is fair to dismiss an employee for comments made on Facebook. September 2011 |
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Unfair dismissal: Employee unfairly dismissed for working in second job while on sick leave In this case the EAT considered the position of an employee with two jobs who was dismissed for taking sick leave from one job while continuing to work in the other job. September 2011 |
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This case looks at whether a chief executive of an NHS Trust had made a protected disclosure when he informed the Trust board of an opinion from counsel that it and the Primary Care Trust would be acting unlawfully if they did not consult on proposed changes to its services. September 2011 |
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Working Time Regulations: No breach where security guard remained on call during his rest breaks This case looks at whether the Working Time Regulations were breached when a security guard remained on call during his rest breaks. September 2011 |
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Under the Agency Worker Regulations 2010, the definition of "Pay" for agency workers excludes occupational and personal pension scheme benefits, so that employers are exempt from having to provide pension benefits for agency workers. However agency workers will be covered by new automatic pension enrolment requirements which will be phased in from October 2012. September 2011 |
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Salary sacrifice: Changes to VAT regime for flexible benefits packages The HMRC have revised their view of the VAT implications of providing employee benefits under salary sacrifice arrangements. Benefits affected include cycle to work schemes, face value vouchers and food vouchers. Childcare vouchers are exempt. August 2011 |
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The Court of Appeal has made a decision which reiterates that an equal pay claim can be pursued where a distinct term in a claimant's contract is less favourable than a distinct term within a comparator's contract, even if overall the claimant's contract is more favourable. August 2011 |
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Unfair dismissal: Failure to respond to employer's letter did not constitute self-dismissal
This case looks at whether an employee was 'self-dismissed' when he failed to reply to a letter stating he would be taken to have resigned unless he contacted the employer.
August 2011 |
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Annual leave: Sick worker's entitlement to paid statutory holiday carried over to next leave year In this case the EAT looked at what statutory holiday entitlement a worker who did not take, or seek to take, any holiday during her sickness absence (which spanned the whole of the leave year) was entitled to. July 2011 |
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In this case the Court of Appeal considered whether a gay employee who had "come out" at work had been subjected to direct sexual orientation discrimination and harassment. July 2011 |
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Discrimination: ECJ finds compulsory retirement at 65 potentially justified The European Court of Justice (ECJ) has handed down a decision dealing with the justification of German retirement laws. Of particular interest are the comments on whether costs savings alone can be a legitimate aim. July 2011 |
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Discrimination: Employer must consider request to work beyond retirement in good faith This case looks at whether there is an obligation to consider a request to work beyond retirement age "in good faith" in the sense that the person exercising it must "genuinely consider" whether to accept the request. July 2011 |
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Discrimination: Tribunal has wide discretion when making recommendations Before the Equality Act 2010 came into force tribunals had limited powers to recommend that an employer takes action to obviate or reduce the adverse effect on the complainant of any act of discrimination or harassment to which a discrimination complaint relates. In this case the EAT looked at whether a Tribunal went too far in the recommendations it made. July 2011 |
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Employment status: Reality of relationship trumps written contractual terms when they differ In this case the Supreme Court looked at whether car valeters were employees even though their contracts stated that they were self employed. July 2011 |
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TUPE: Transfer of care services not caught by legislation This case looks at whether either a standard TUPE transfer or a service provision change occurred, where residential care was transferred from an NHS Trust to private sector care providers. July 2011 |
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Unfair dismissal: No lucky escape principle for seriously negligent employees This case looks at whether a tribunal was right to find that because there were no actual serious consequences for the company two lorry drivers, who had let their HGV licences expire, were unfairly dismissed. July 2011 |
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Legal representation at internal disciplinary and appeal hearings Overruling a Court of Appeal decision we reported last year, the Supreme Court has decided that employees do not have the right to legal representation at disciplinary / appeal hearings other than in very limited circumstances. Even where dismissal could lead to a process capable of preventing the individual from practising their profession, employees will only be entitled to legal representation where the outcome of the disciplinary proceedings will have a substantial influence on the subsequent decision to "bar" the individual from continuing with their profession. However, where (as was the position in this case) the process to consider possible barring is sufficiently independent of the dismissal decision, there will be no right to legal representation at the internal hearings. Consequently, the circumstances in which the right to legal representation will be applicable will be much more limited going forwards. June 2011 |
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Collective redundancy: no ballot required if election uncontested
This case looks at whether a ballot needs to be held to elect employee representatives where there are the same number of candidates standing as employee representative positions.
June 2011 |
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Disability discrimination: changing redundancy selection criteria was not reasonable adjustment
In this case the EAT considered whether changing certain redundancy selection criteria was a reasonable adjustment under the Disability Discrimination Act 1995 where the disabled employee would have been selected for redundancy in any event.
June 2011 |
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Age discrimination: retirement date read into retirement notice
The EAT has held that a retirement notice, which stated retirement would take place "after" an employee's 65th birthday, should be read as intending to retire him on his 65th birthday.
June 2011 |
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Notice pay and ex gratia payments: if the payment is really notice pay make sure that's clear
This case looks at whether a payment that was called "ex gratia" really was or whether it was in fact a notice payment as the employer asserted.
June 2011 |
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This case looks at whether an employer's notification of retirement was defective. In particular it looks at whether the employer's failure, to tell the employee that any request to stay on must state that it is made under paragraph 5(3) of Schedule 6 of the 2006 Age Regulations, meant that the dismissal was unfair.
May 2011 |
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Consultations: Government issues two consultations on wide–ranging employment issues
In May the government issued two significant consultations on a range of employment issues.
May 2011 |
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Discrimination: Career-long loss should be a rarity
May 2011
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Discrimination: Refusing to allow employee time off to attend Friday prayers was not discriminatory
In this case the EAT looked at whether refusing an employee permission to leave work to attend Friday prayers at a Mosque was discriminatory.
May 2011
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May 2011 |
Please be aware that these updates do not contain specific legal advice - they are general legal updates provided in good faith. Please seek specific advice for any legal queries.