Employment Law Cases

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.

Whistleblowing: attribution of motive

When determining the reason for dismissal, only in very rare instances will the motives of anyone but the decision maker be attributed to the employer.

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.

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.

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.

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