Employment Law Cases

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.

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.

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.

Deliveroo riders, union recognition and 'worker' status

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

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

The dismissal of an employee who’d expressed concerns about commuting during COVID-19 and who asked to be furloughed was not automatically unfair.

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.

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.

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.

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