Burden of proving discrimination

In a radical departure from accepted wisdom and practice, the EAT has held that employees don’t have to establish a prima facie case of discrimination before the burden of proof ‘shifts’ to the employer.

Employer pension contributions and a 'week's pay'

Contrary to long-established practice, employer pension contributions do count towards the calculation of a ‘week’s pay’ says the EAT.

Stigma claim for 'career-ending' termination following whistleblowing

Where an employee’s employment has been terminated due to a protected disclosure a tribunal can award compensation for long-term loss of earnings or ‘stigma damages’ even if the employee didn’t actually advance such a claim.

Voluntary overtime and holiday pay

In the first binding authority to consider the issue, the EAT has held that entirely voluntary overtime counts as ‘normal remuneration’ for the purposes of calculating statutory holiday pay under reg. 13 of the Working Time Regulations (i.e. the 20 days’ leave provided for by the Working Time Directive).

Pension benefits for same-sex partners

Surviving civil partners and spouses in same-sex marriages must be provided with pension death benefits on the same basis as would apply to a marriage between a man and a woman. In particular, such benefits cannot be limited to the member’s pensionable service completed on or after 5 December 2005.

Whistleblowing 'in the public interest'

To base the test of whether a whistleblowing disclosure is ‘in the public interest’ purely on the numbers affected would be ‘too mechanistic’ says the Court of Appeal. The question of whether a disclosure is in the public interest depends on the character of the interest served by it, rather than simply on the numbers of people sharing that interest.

Fair dismissal for derogatory Facebook post

The dismissal of a long-serving employee following derogatory comments about her employer on Facebook was fair.

Procedural failing in dismissal process didn't make dismissal unfair

Elmore v The Governors of Darland High School

 

Neither a failure to explain why an employee’s appeal had been rejected nor a failure to call witness evidence of the appeal at the tribunal hearing made an employee’s dismissal unfair.

Proving discrimination

Talbot v Costain Oil Gas & Process Ltd

 

When drawing inferences of discrimination, it’s the overall picture which is important.

Workers 'prevented' from taking holiday if it is unpaid and can roll over entitlement until paid holiday offered or they leave

King v Sash Windows Workshop Ltd

 

In an important Opinion given by the European Court of Justice (ECJ), the Advocate General says that employers must give workers the facility to take paid holiday, workers do not have to take holiday to be able to claim payment for it, refusal to pay is considered as ‘prevention’ and workers can claim unpaid holiday for the whole of their employment or up to the date when paid holiday was offered, whichever is the earliest.

Father entitled to the same rate of enhanced shared parental pay as mother

Ali v Capita Customer Management Ltd

 

An employment tribunal has held that a male employee was subjected to direct discrimination when his employer refused to allow him to take 12 weeks shared parental leave at full pay when a female comparator would have been entitled to it

It's not up to the employer to decide if a whistleblowing disclosure is 'protected'

Beatt v Croydon Health Services NHS Trust

 

It is irrelevant that the employer genuinely believes an employee’s disclosure is not protected. A disclosure will be protected if it meets the statutory conditions in the Employment Rights Act 1996 - and this is an objective test. If the employer dismisses the employee for making a disclosure that a tribunal later finds was protected, the dismissal will be automatically unfair.

 

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