Employment Law Cases

Agency Workers Regulations: 'temporary' work requirement

A worker who had an open-ended contract of employment with an agency was nonetheless supplied to work ‘temporarily’ for an end user.

TUPE: employment contract can be split between transferees

In a transfer to multiple transferees under the Acquired Rights Directive, the contract of a transferring worker can be split between each of the transferees in proportion to the tasks performed by the worker, provided that such a division is possible and does not adversely affect the worker’s rights and working conditions.

Causation and discrimination arising from disability

For a claim under s. 15 of the Equality Act  a claimant cannot argue that ‘but for’ their disability they would not have been put in a situation that led to unfavourable treatment – rather the focus is on the reasons for the treatment itself.

Witness anonymity and unfair dismissal

A dismissal based on anonymous witness evidence will not necessarily be unfair, even where that witness declines to participate in the disciplinary process.

Employer undertaking as a reasonable adjustment

Giving an undertaking not to make an employee work with those she claimed had bullied and harassed her, or to offer her a severance package if this wasn’t feasible, was a reasonable adjustment.

Objective justification of discrimination arising from disability

In assessing justification where discrimination arising from disability is concerned, it’s the balance between the employer’s needs and the discriminatory impact on the employee that is relevant, not the process by which the employer settled on the unfavourable treatment.

Continuous employment: working before start date

Work carried out before a formally agreed start date may not count for continuity of employment purposes.

Redundancy and competitive interview process

Although an employer can take a ‘forward thinking’ approach using a competitive interview process when considering redundant employees for alternative employment, especially where the role is at a high level and involves a promotion, in this case, where the employees were not consulted with and were essentially applying for their own jobs, rather than applying a scoring matrix, this rendered their dismissals unfair.

TUPE and pre-transfer changes to T&Cs

When employees improved their contractual benefits in view of a pending TUPE transfer these variations were void.

COT3 agreements and confidentiality clauses

An employee’s breach of a confidentiality clause in a COT3 settlement did not free his employer of its obligation to continue making instalment payments of the agreed settlement sum.

Constructive dismissal and the 'last straw'

Just because a last straw was not actually a last straw did not mean that a constructive unfair dismissal claim could not proceed.

Worker status under the Working Time Directive

The ECJ has held that a courier appeared to have been correctly classified as self- employed rather than as a worker, given his independence and the lack of subordination.

Homophobic comments in media interview contravened Equal Treatment Directive

A lawyer’s statement in a radio interview that he’d never recruit a homosexual person for his firm was covered by the EU Equal Treatment Directive, even if no recruitment procedure was in existence at the time such a statement was made.

Coronavirus, administration and the Job Retention Scheme

Administrators can place a company’s employees on furlough and claim for their wages under the Job Retention Scheme.

Employer not liable for employee's data breach

An employer was not vicariously liable for the actions of one of its employees who, to damage his employer, leaked personal staff data on a file-sharing website.

Automatic unfair dismissal: designation to perform health and safety functions

For an employee to have been ‘designated’ by their employer to carry out health and safety activities, he or she must have been selected by the employer to carry out specific activities in connection with preventing or reducing risks to health and safety at work, over and above their ordinary job duties.

PHI benefits and long-term disability

An employee was rightly compensated for loss of entitlement to benefits under a PHI policy when he was unable to ‘return to work’ following sickness absence. The ‘return to work’ was a return to the work he had been doing when he went off sick, not a return to any work.

One-off acts and discrimination

For a one-off act to amount to a ‘provision, criterion or practice’ in a discrimination claim, there must be some indication of consistency in how similar cases are generally treated or how they would be treated in the future.

Suspension and injunction

A suspended employee successfully obtained an injunction against her employer allowing her to resume most of her duties because there was no justification to restrict such duties.

Attribution of knowledge: relevance to fairness of dismissal

In an unfair dismissal case, an investigator’s failure to share a material fact with the dismissing officer could be relevant when assessing whether the employer had acted reasonably in dismissing.

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