Employment Law Cases

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.

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 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.

Holidays: carry-over of right to payment

There is no right to carry over annual leave where annual leave was taken but was unpaid and therefore no right to payment for that annual leave on termination.

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.

Protected acts: specificity of alleged discrimination

An employee’s comment in a written grievance that her employer’s actions ‘may amount to discrimination’ was insufficient to amount to a protected act under the Equality Act for the purposes of her victimisation claim.

Affirmation of contract: grievance procedure

For the purposes of a constructive dismissal claim, an employee did not affirm his contract by engaging in his employer’s grievance procedure.

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