Employment Law Cases

Trade union activities and detriment

When considering whether an employer has subjected a worker to a detriment with the sole or main purpose of penalising them for taking part in the activities of an independent trade union, the question of the employer’s ‘sole or main purpose’ is a subjective question, i.e., what was in the mind of the employer at the time.

Interim relief and discrimination claims

While the lack of interim relief for discriminatory dismissals does not breach EU law, it does violate the European Convention on Human Rights.

Settlement agreements and misrepresentation

Where COT3s or settlements are concerned, the protection afforded by the ‘without prejudice’ rule may fall away where there is an allegation of misrepresentation.

Agency workers' rights: EAT clarifies various aspects

The EAT has clarified the scope of certain rights under the Agency Workers Regulations 2010, principally the right to be informed of vacancies (reg.13) and the right to the same basic working conditions as directly employed hires (reg. 5).

Redundancy: reference period for collective consultation

In a collective redundancy situation, if the threshold number of dismissals is reached at any point across the 30- or 90-day period, consultation obligations apply in respect of those dismissals - and dismissals that occur before or after the given dismissal count towards the threshold.

Health and safety protections and 'workers'

‘Workers’ and not just employees should have protection from being subject to detriments on health and safety grounds and the right to be provided with PPE.

Cost considerations and justifying indirect discrimination

While saving costs can never of itself justify indirect discrimination, a need to reduce expenditure to live within budgetary constraints can be a legitimate aim for the purposes of justifying indirect discrimination.

Constructive dismissal: acceptance of breach

An employee’s failure to return to work after her maternity leave amounted to acceptance of a repudiatory breach for the purposes of an unfair constructive dismissal claim.

Whistleblowing time limits: one-off act or continuing act?

A change to or the imposition of a new employment contract is a one-off event with continuing consequences - not a continuing act for the purposes of bringing a whistleblowing detriment claim. Also, the tribunal should have considered an uplift in compensation because of a failure to follow the ACAS code of practice as the making of a protected disclosure was a grievance.

Employer not liable for injuries caused by practical joke

An employer was not liable for injuries inflicted on one of its contractors by one of its employees playing a practical joke.

Gender reassignment: gender fluid/non-binary employees

A gender fluid/non-binary employee was covered by the definition of gender reassignment in the Equality Act 2010.

Paranoid delusions and disability

An employee who suffered paranoid delusions was not disabled because although these had a substantial adverse effect, they were not long term or likely to recur.

Re-engagement and loss of trust and confidence

A breakdown in trust and confidence is relevant to the practicability of re-engagement, even if the dismissal was for capability and not for misconduct.

Bank workers and redundancy

An employer had not acted unreasonably by failing to place a redundant employee on a list of workers whose services could be called on if required – because doing so would not have avoided the redundancy.

Dismissal and internal appeals

If an internal appeal against dismissal overturns the dismissal, then in law it’s as if there was no dismissal – even if the employee makes it clear when appealing that they have no intention of returning to their job whatever the outcome of the appeal.

Equal pay: duration of the material factor defence

A ‘material factor’ defence continues to operate until a new pay decision.

Dismissal and absence of procedure

Where there has been an irretrievable breakdown in a working relationship, a complete lack of any procedure may not render a subsequent dismissal unfair.

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.

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