Employment Law Cases

Seeking to take parental leave

On a straightforward reading of the relevant regulations, there was no absolute requirement that an employee must have given notice to take parental leave for them to have ‘sought’ to take parental leave.

COVID-19: appropriate steps in the face of serious and imminent danger

A tribunal wrongly rejected a claim for automatic unfair dismissal brought by an employee who was dismissed after demanding to be allowed to work from home and be furloughed during the COVID-19 pandemic.

Working from home and the return to the office

A senior employee’s request to work permanently from home was justifiably rejected by her employer, despite the fact that she had successfully been doing so since the start of the pandemic.

Settlement agreements and future claims

Unknown future claims arising under the Equality Act 2010 may be waived in a settlement agreement provided that the types of claims are clearly identified.

Constructive dismissal and affirmation

The passage of time before an employee resigns will not necessarily by and of itself amount to the employee affirming their contract and therefore losing the right to claim unfair constructive dismissal.

Redundancy consultation must be with the workforce at the formative stage

Irrespective of whether proposed redundancies are collective or individual, consultation in a redundancy situation should take place with a workforce at a formative stage to explore ways of avoiding redundancies. And selection criteria imposed by a parent company in another country are not necessarily going to pass the same tests of reasonableness in the UK.

Deliveroo riders, union recognition and 'worker' status

Riders for Deliveroo are not in an ‘employment relationship’ for the purposes of European law such as to enable them to seek compulsory union recognition.

Resignation in the heat of the moment

The EAT re-examines the current legal position surrounding the retraction of a resignation made in the heat of the moment. Subjective intention is irrelevant and a reasonable bystander test applies.

Bonus clawback and restraint of trade

A contractual clause requiring an employee who had given notice to repay a discretionary bonus was not a restraint of trade, and the employer was entitled to rely on it and receive the repayment.

Menopause and disability

An employer treated an employee unfavourably because of something arising from her disability of menopause and failed to make reasonable adjustments.

TUPE: transfer of share incentive plan

The right to participate in a share incentive plan transferred to a new employer under TUPE, even though the employee’s entitlement to participate in the plan arose under an agreement separate from and not referred to in his contract of employment.

Reasonable adjustments: scope of duty to enquire

An employer’s failure fully to enquire into a dyspraxic job applicant’s needs when he was applying online led to a finding of disability discrimination for failure to make reasonable adjustments.

Postponement of employee's termination date

An employee was not unfairly dismissed when his employer extended his termination date multiple times to give him a chance to return to work from sickness absence.

Whether contract was varied or terminated

An employee’s contract had been terminated by the employer’s unilateral imposition of new terms and conditions.

Meeting with employee prior to dismissal

The lack of a meeting between an employee and the dismissing officer will not in and of itself, in all circumstances, make a dismissal unfair.

Discrimination: perception of harassment

Only unwanted conduct of which a claimant is aware can be taken into account in a claim for harassment.

Philosophical belief discrimination and transgender issues

‘Gender-critical’ beliefs, including a belief that biological sex is real, important, immutable and not to be conflated with gender identity, are protected under the Equality Act and the European Convention on Human Rights.

Religion or belief: manifestation of and assessing proportionality

Employers cannot discipline an employee for manifesting a protected belief because someone else may be offended - unless they have also considered whether the action is both necessary and proportionate.

Discriminatory dismissals: identifying decision maker

A decision to dismiss based on tainted information given by a line manager to the dismissing manager could not make the dismissal discriminatory unless the dismissing manager was motivated by the relevant protected characteristic (here pregnancy).

Holiday pay on termination: 'relevant agreement'

When calculating pay for accrued but untaken statutory holiday at the end of employment under the Working Time Regulations, an employment contract (or other agreement) cannot stipulate a formula for calculating that holiday pay which would result in a worker being paid less than the usual amount they would have been paid for working.

Redundancy and the duty to consider furlough

An employee made redundant in the early months of the COVID-19 pandemic was unfairly dismissed because her employer hadn’t considered furloughing her as an alternative to redundancy.

Calculation of furlough pay and CJRS

An employee’s furlough pay can be calculated in accordance with the terms agreed upon by the employer and employee through a variation in the employee’s contractual terms. The formula set out in the Treasury Directions governing the Coronavirus Job Retention Scheme (CJRS) was not mandatory for employers to use and did not supersede existing employment law rights and obligations.

Vicarious liability: close connection

A congregation of Jehovah’s Witnesses was not vicariously liable for the rape of a member of its congregation by a former elder. While the relationship between the elder was akin to employment, the rape was not so closely connected with what the elder was authorised to do that it could fairly and properly be regarded as committed by him while acting in the course of his quasi-employment.

Dismissal and 'without prejudice' letter

A letter amounted to an effective letter of termination for the purposes of an unfair dismissal claim, despite the letter being marked ‘without prejudice.’

WhatsApp messages and misuse of private information

The High Court has refused to strike out a claim for misuse of private information which was brought by an employee against her former employer. In so doing, the court considered the extent to which there can be a reasonable expectation of privacy in private WhatsApp messages that had been found at work.

Dismissal, disability and long-term sickness

A disabled employee’s dismissal was not discrimination arising from a disability because it was a proportionate means of achieving the employer’s legitimate aim of maintaining good staff attendance.

Disciplinary process and double jeopardy

It was not unfair to dismiss an employee after reopening a previously concluded disciplinary process that had led to a final written warning.

Marital status discrimination

A director who was dismissed while divorcing her husband, a director at the same company, was not subjected to marital discrimination.

COVID-19: dismissal for refusal to return to work

An employee dismissed for leaving work and refusing to return because of COVID-19-related concerns was not automatically unfairly dismissed.

PCP: disability and non-compliance

It was not a reasonable adjustment simply to slot a disabled employee into a new structure as part of a redundancy exercise.

Internal appeals and 'vanishing' dismissals

A successful appeal against a dismissal will automatically result in reinstatement back into employment unless the employee objectively and unequivocally withdraws their appeal against dismissal before the appeal is decided. This remains the case even where the employee expressly says to the appeal decision maker that they do not want to return to work.

Redundancy consultation and selection criteria

An employer acted unfairly when it did not consult on redundancy selection criteria, where the sole selection criteria inevitably led to a redundancy pool of one.

Discrimination and 'gender critical' philosophical belief

A barristers’ chambers discriminated against a barrister due to her protected belief that a woman is defined by her sex (a ‘gender critical’ belief).

Whistleblowing: relevance of conduct when making protected disclosure

An employee was not automatically unfairly dismissed after making protected disclosures because her dismissal was for conduct reasons that were separable from the disclosures themselves.

Dismissal for failure to disclose bankruptcy

An employee was fairly dismissed for failing to disclose his bankruptcy, despite the absence of an express contractual requirement or policy requiring him to do so.

Benefits under long-term sickness scheme

An employer was liable to pay the level of income protection payments set out in an offer letter and summary of benefits provided by the employee’s original employer prior to a TUPE transfer, even though those benefits were no longer covered under the employer’s insurance policy.

Fire and rehire: implied terms and injunctions

An employer was entitled to dismiss and offer to re-engage employees on new terms (fire and rehire) to remove pay protection it had originally referred to as ‘permanent’. An earlier injunction preventing it from doing so was overturned.

Holiday pay for those with irregular hours

Entitlement to holiday pay under the Working Time Regulations 1998 does not need to be pro-rated for part-year workers

Philosophical belief: employee's refusal to use preferred pronouns in the workplace

An employee’s belief that a person cannot change their sex/gender at will, and his lack of belief in ‘transgenderism’, were protected under the Equality Act 2010. However, a tribunal had correctly held that his employer’s response to his refusal to use transgender service users’ preferred pronouns was not direct or indirect discrimination or harassment.

Justifying discrimination arising from disability

A failure to give a disabled employee a reasonable trial in a role at a different location meant that the employer could not show that her dismissal was objectively justified.

Constructive dismissal and the fundamental breach

A fundamental breach of contract can be established even where the employer’s actions do not indicate an intention to end the employment relationship.

Unlawful inducements and collective bargaining

An employer’s imposition of a pay award, at a time when negotiations with the union were stalled, was an unlawful inducement.

COVID-19: redundancy, furlough, consultation, and Facebook

A complete lack of any consultation or selection process, allied to notifying staff of redundancies via a Facebook post, led to unfair dismissal.

Reasonable adjustments and fairness of dismissal

A failure to make reasonable adjustments as part of a dismissal process doesn’t mean that the dismissal itself is necessarily unfair.

Voluntary redundancy and unfair dismissal

An employee who requests voluntary redundancy does not necessarily have no reasonable prospects of success in a claim for unfair dismissal.

Industrial action and protection from detriment

Workers are not protected against being subject to a detriment by their employer for participating in industrial action.

Resignation, dismissal and PILONs

Where an employee resigns and the employer brings forward the termination date by exercising its right to make a contractual payment in lieu of notice, there is no dismissal.

Establishing 'worker' status: no minimum obligation required

An ‘irreducible minimum of obligation’ is not a prerequisite of ‘worker’ status. Such a status will exist when an individual undertakes to do work personally for someone who isn’t a client or customer.

Agency workers: right to be informed of vacancies

Regulation 13 of the Agency Workers Regulations 2010 gives agency workers a right to be informed of vacancies in the same terms as permanent workers: it does not give them a right to apply.

Work outside the contract and unauthorised deductions

An employee could not make a claim for an unlawful deduction/underpayment of wages where he took up a more senior position but did not receive a contractual salary increase.

Holidays: carry-over of right to payment

A worker who took unpaid holiday because his employer refused to pay for it accumulated the right to paid annual leave for which he was entitled to compensation on termination.

Menopause and harassment

An employer’s derogatory and inappropriate remarks about a female employee’s age, in particular that she might be menopausal or be experiencing stereotypical menopausal symptoms, amounted to harassment on the grounds of sex and age.

Employee status and franchisees

Owner-driver franchisees who carried out delivery and collection services for DPD were neither employees nor workers.

Employer not liable for injuries caused by practical joke

An employer was neither directly or vicariously liable for injuries inflicted on one of its contractors by one of its employees playing a practical joke.

Raising grievances and impact on the fairness of dismissal

An employee’s dismissal for using a grievance process in a frivolous and vexatious manner was fair.

COVID-19: automatic unfair dismissal and refusal to allow homeworking

An employee had not been automatically unfairly dismissed because of her employer’s refusal to allow her to work from home during the pandemic. Her belief that there were circumstances of serious and imminent danger was not objectively reasonable given that her employer had assessed the risks and addressed the need for increased levels of hygiene and social distancing.

COVID-19: redundancy and failure to consider furlough

An employee’s dismissal for redundancy was unfair, in part because the employer hadn’t considered continuing her employment on furlough. If a genuine consultation had taken place which considered furlough and the available project work, she may not have been made redundant.

Flexible working and agreements to extend

An employee had not agreed to an extension to the normal three-month time frame for deciding flexible working requests when he agreed to attend an appeal outside that three-month period.

NMW and expenses

Payments made by a driver to rent his vehicle and uniform should have been taken into account when working out whether he had been paid the National Minimum Wage (NMW).

Direct pay offer to employees was an 'unlawful inducement'

An employer who directly offered its employees a package of revised terms and conditions - going over the head of the recognised trade union – unlawfully induced them to cease collective bargaining.

Associative indirect discrimination: returning to work full time

An employee who cared for her disabled mother was indirectly discriminated against on the grounds of disability, despite not having a disability herself.

Dismissal for breach of anti-corruption policy

The dismissal of an employee was fair because he’d acted in ‘wilful disregard’ of an anti-corruption policy, even though he’d not deliberately intended to breach the policy and had no corrupt intent.

Worker status and substitution clauses

A delivery courier was a ‘worker’ despite his agreement containing what purported to be a substitution clause.

Collective redundancy consultation and the 'special circumstances' defence

Compulsory liquidation is not a ‘special circumstance’ allowing an employer to escape liability for a failure collectively to consult before making redundancies.

Asserting breach of a statutory right: when does the claim crystalise?

An employee can bring a claim for automatic unfair dismissal if they are instructed to infringe their statutory rights, even if the infringement has not actually occurred.

Reasonableness of warnings

A tribunal did not need to ‘look behind’ a final written warning to consider its fairness.

Privilege and unfair dismissal

An email between an employer and its HR consultant was protected by litigation privilege despite indicating a pre-determined decision to dismiss.

Dismissal, lack of appeal and fairness

Where a dismissal is because of an irretrievable breakdown in the employer/employee relationship, the failure to offer/carry out an appeal post-dismissal will not always render a dismissal unfair.

Reasonable adjustments and pay protection

It was not a reasonable adjustment to continue to pay an employee their previous higher rate of pay after being moved to a lower-paid role because of their disability.

Redundancy dismissal and continuing furlough

The dismissal of an employee for redundancy, despite the existence of the furlough scheme, did not make his dismissal unfair.

Redundancy and suitable alternative employment

In deciding whether an entitlement to a redundancy payment is lost by the refusal of an offer of suitable alternative work, it’s important to consider the practical effects of any differences between the old role and the new role.

Dismissal and medical evidence

Up to date medical evidence is vital when defending the fairness of an ill-health capability dismissal, although only if it’s obtained before a dismissal.

Criminal offences and unfair dismissal

An employee was fairly dismissed for some other substantial reason when he was charged with a criminal offence but never prosecuted.

Discrimination and the burden of proof

The burden of proof remains on a claimant in a discrimination case to prove, on the balance of probabilities, facts from which (absent any other explanation) a tribunal could infer that an unlawful act of discrimination had taken place. The change in wording to the balance of proof provisions in the Equality Act 2010 did not introduce a substantive change to the law.

Religious discrimination and dress bans

A ban on workers wearing any visible sign of political, philosophical or religious belief in the workplace does not amount to direct discrimination under EU law, provided that such a rule is applied in a general and unconditional way.

COVID-19: dismissal of employee stuck abroad

The dismissal of an employee who remained abroad at the start of the pandemic was automatically unfair on health and safety grounds.

Constructive dismissal and harassment

Departing from previous authority, the EAT has held that a constructive dismissal can amount to harassment under the Equality Act.

Whistleblowing: material influence

Because a whistleblower’s behaviour after he’d blown the whistle was separate and distinct from his act of whistleblowing, his subsequent dismissal was not automatically unfair.

Indirect discrimination and the 'childcare disparity'

Tribunals must accept as fact that women still bear the primary burden of childcare responsibilities and this hinders their ability to work certain hours.

COVID-19: unfair health and safety-related dismissal

An employee was unfairly dismissed for raising health and safety issues about lack of PPE and other workplace COVID-secure measures.

Interim relief and discrimination claims

The power to grant an interim relief order is not available in discrimination claims.

Equal pay: comparisons based on EU law

The treaty which forms the basis of the right to equal pay in European law has direct effect in respect of claims where work is said to be of equal value, and not merely in respect of other instances of ‘equal work’ under UK legislation (i.e. like work or work rated as equivalent). It therefore can be invoked in legal proceedings between individuals directly.

TUPE and a substantial change in working conditions

A contractual right to vary contractual terms does not prevent a dismissal claim under TUPE.

Constructive dismissal and incorporated terms

An incorporated collectively agreed term was not apt for incorporation into an individual employment contract so as to enable an employee to rely on a breach of it as giving rise to a constructive dismissal claim.

Constructive dismissal: employer tries to make amends

Where the actions of an employer amount to a fundamental breach of contract, nothing that the employer does after that point can cure that breach.

Automatically unfair health and safety dismissals

An employee dismissed because of the friction caused in the workplace by the way he’d instituted a new health and safety regime had been automatically unfairly dismissed.

Re-engagement, loss of trust and confidence and capability dismissals

An employer’s genuine and rational lack of belief in an employee’s capability can render it not practicable for the employee to be re-engaged following an unfair dismissal.

Determining 'disability'

When considering whether an impairment has a substantial effect on someone’s ability to carry out day-to-day activities, it’s the statutory definition of ‘substantial’ which should be the focus and not the gloss on it provided in the statutory guidance.

Equal pay and comparability of pay terms

For the purposes of equal pay law, two distinct parts of a workforce (here female shop floor workers and higher-paid male distribution centre workers) can compare their pay, even if they are located at different sites, in different parts of the organisation/group, and with very different pay arrangements/management structures.

Standby periods and 'working time'

Where a worker must be contactable and attend work in a specified response time, he or she will only be working for the purposes of the Working Time Directive if such constraints ‘objectively and very significantly’ affect the worker’s ability to devote that time to his or her own interests.

When does sleep count as 'work' for NMW purposes?

‘Sleep-in’ residential care workers are only entitled to the National Minimum Wage (NMW) when they are awake and ‘actually working’, not when they are asleep and therefore simply ‘available for work’.

Specificity required to be a qualifying disclosure

Deciding whether a disclosure attracts protection under whistleblowing law involves looking at the context in which it was made, rather than simply the words used. And it is not necessary for such a disclosure expressly to identify the specific type of wrongdoing alleged on the part of the employer.

TUPE: splitting liability between transferees

An ECJ decision that EU law requires contracts of employment to be split where there is a transfer to multiple transferees applies to ‘service provision changes’ under TUPE.

Employee - not employer - carrying out surveillance in the workplace

It was unreasonable for an employer to dismiss an employee for gross misconduct because the employee had installed a camera in his office whilst he was suspended from duty.

Fair dismissal for refusal to wear a face mask

A lorry driver was fairly dismissed for refusing to wear a face mask while on a client’s premises but still in his cab.

Uber drivers are 'workers' says Supreme Court

Drivers for Uber are workers and therefore entitled to paid holiday, minimum wage and rest breaks.

Whistleblowing: 'public interest' despite private purpose

Even though a whistleblower’s primary purpose in making a disclosure was private in nature, it could still pass the test of showing that it was ‘made in the public interest’ and thereby acquire legal protection.

Defending discrimination - 'all reasonable steps'

When considering an employer’s defence that it took ‘all reasonable steps’ to prevent an employee discriminating against another employee, it is legitimate to consider how effective the steps that have been taken were likely to be when they were taken and how effective they have proved to be in practice.