Latest News

Civil Service Termination Payments 'Age Discriminatory'

Workplace practices that result in employees being treated less favourably because of their age may be justified if they are a proportionate means of achieving a legitimate aim. However, as an important Employment Tribunal (ET) case showed, establishing such...

Mental Health Problems Can Be Just as Disabling as Physical Incapacity

The word 'disabled' may bring to mind a person who is physically incapacitated, but the definition of the word in employment law terms is far broader than that. The point was made by a case in which an Employment Tribunal (ET) found that anxiety and...

Disciplinary Investigations - Any Lack of Fairness Will Cost You!

Workplace disciplinary investigations require careful handling and employers who fail to act fairly are likely to be hit hard in the pocket. That was certainly so in the case of a property manager who was ambushed at an investigatory meeting and left feeling...

Deposit order

Employers are often irritated by weak claims being made in the Employment Tribunal, especially since an employee no longer has a fee to pay to commence the claim. However, if the claim is weak, an employer can make an application to have the claim struck out...

Pursuing an insurer of an insolvent employer

A claimant may have difficulties in pursuing an employment claim where his employer or former employer has become insolvent and the company has gone into administration. The Insolvency Act states that where a company is in administration, no legal process...

Facing a Business Crisis? Don't Forget Your Employees' Rights!

It is only too easy for businesses dealing with office politics, poor trading or cashflow difficulties to take their eye off the ball when it comes to their employees' rights. As an Employment Tribunal (ET) decision strikingly showed, however, it is...

Underpaid Live-in Porter Wins Over £100,000 in Guideline Case

The National Minimum Wage (NMW) on the face of it imposes a straightforward duty to pay a minimum sum for every hour worked. However, as an important Court of Appeal ruling showed, it is not always as simple as that and a failure to understand the...

Holiday pay for permanent workers who work part of the year

A recent Court of Appeal decision (Harpur Trust v Brazel) has shown how holiday pay must be calculated for term time, casual or seasonal workers on irregular hours, and zero hours workers. It could have implications for the construction industry where...

Employee Shareholder Status Impacts Unfair Dismissal Claim

Few employees would say no if offered shares in the companies for which they work. However, as an important decision of the Employment Appeal Tribunal (EAT) showed, accepting such offers can in some circumstances involve the sacrifice of employment rights. ...

Vegetarianism is Not a Protected Characteristic, ET Rules

People have all sorts of reasons for choosing not to eat meat, and that prompted an Employment Tribunal (ET) to rule that vegetarianism is a lifestyle choice, rather than a philosophical belief protected under the Equality Act 2010 . The case concerned a...

Employers Cannot Be Forced to Re-Engage Unfairly Dismissed Workers

Can Employment Tribunals (ETs) or the courts force employers to re-engage employees who have been unfairly dismissed? In a ground-breaking decision, the Court of Appeal has answered that question in the negative ( Mackenzie v The Chancellor, Masters and...

Employer Not Liable for Worker's Offensive Facebook Post

Under Section 109(1) of the Equality Act 2010 , anything done by a person in the course of their employment must be treated as also done by the employer. That is to say employers generally bear legal liability for misdeeds committed by their employees in...

Hospital Whistleblower Compensated for Detrimental Treatment

Workplace whistleblowers who act in the public interest by exposing wrongdoing are protected by the full force of the law. In a case on point, a hospital worker who endured detrimental treatment after making protected disclosures was awarded substantial...

Effects of Brexit when recruiting and retaining EU workers

The current Brexit deadline is 31 October 2019. It is difficult to second guess what will happen between now and then but, stating the obvious, the UK will either come to an agreement, leave the EU without a deal or the deadline will be extended. How Brexit...

Constructive Knowledge - Employer Defeats Claim Thanks to Reasonableness Test

Under Section 15 of the Equality Act 2010 , an employer's duty to make reasonable adjustments for an employee who is disabled is only triggered if the employer has actual knowledge or could reasonably be expected to know (has 'constructive knowledge') of...

Trust in an Employee Misplaced? The Law Will Help You Pick Up the Pieces

In spite of the obvious risks involved, a great many businesses have no choice but to entrust confidential information to their employees. A High Court case showed that, where such trust turns out to be misplaced, judges have a range of powers to deal...

Photographer Subjected to Racial Harassment Wins Substantial Damages

If you have been ill-treated at work, Employment Tribunals (ETs) have the power to award damages against your employer and to compensate you for the indignity or injury to feelings you have suffered. In one case, a hard-working photographer who was sacked...

Gender pay gap reporting for public and private sectors

Public sector organisations with 250 employees or more on 31 March 2019 are required to comply with the gender pay gap reporting requirements. Private sector employers with 250 employees or more on 5 April 2019, also have to comply with these requirements....

Employment tribunal claims are on the rise

The Ministry of Justice publishes quarterly statistics for claims in the employment tribunal, which is a mix of good and bad news. The latest statistics show single claims, for the period 1 January to 31 March 2019 in comparison to the same period in 2018,...

What Counts as 'Time Work'?

A recent case illustrates that decisions as to whether time spent by a worker who is on call counts as 'time work' for the purposes of the National Minimum Wage (NMW) legislation are highly dependent on the individual facts ( Frudd and Another v The...

Phase Two of the 'Good Work Plan' - Protecting Vulnerable Workers

In July 2017, Matthew Taylor published his independent review on modern working practices, entitled 'Good Work' . The Government published its response to the review in February 2018 and launched consultations on how best to implement many of the...

Written Statement of Employment Particulars - Late Provision

The Employment Rights Act 1996 provides that all employees, whether part-time or full-time, are entitled by law to be given a written statement setting out the main particulars of their employment, provided their employment lasts for one month or more....

Disability Discrimination and the Meaning of 'Long-Term'

Employment disputes often arise because an employer does not consider that an employee's condition is a disability that qualifies them for protection under the Equality Act 2010 . It is therefore important that the definition of disability is understood and...

Specialist re-joins as Head of Employment Team

Employment law and HR expert Julie Temple has returned to her roots after 15 years – re-joining leading Essex law firm, Birkett Long, as Partner and Head of Employment and BLHR. She previously trained and qualified as a solicitor with the firm. ...

Gay Headteacher a Victim of Unconscious Discrimination, EAT Rules

Whether discrimination is subliminal or deliberate often makes little difference to the pain and distress it causes. The point was strikingly made by a case in which an openly gay primary school headteacher suffered the consequences of unconscious bias ( ...

Profoundly Flawed Disciplinary Process Costs Engineering Company Dear

Workplace disciplinary proceedings must be thorough, fair and impartial and a failure to meet those standards can be costly, both in reputational and financial terms. In a case on point, an engineer won almost £70,000 in compensation after the...

Accountant Who Worked Exclusively for One Client Became an Employee

The distinction between employment and self-employment is a continuing source of controversy and a ruling by the Employment Appeal Tribunal (EAT) that an accountant who worked exclusively for one client fell into the former category has added a new wrinkle...

Disability discrimination

Disability discrimination can occur if an employer treats an employee unfavourably because of something arising in consequence of their disability and cannot show that the treatment was justified. The employee has to show the “something” arising...

Employers "aggravated" breaches of employment law - £20,000 penalty

Since 6 April 2014, a tribunal has the power to order an employer, who has lost a case, to pay a financial penalty to the Secretary of State where the tribunal considers that a breach of the employee’s rights had aggravating features. With effect from...

Discrimination and the Burden of Proof - Court of Appeal Gives Guidance

Once an employee succeeds in establishing facts that arguably support a finding of discrimination, the burden of proving that there was no such discrimination falls upon the employer. The Court of Appeal has confirmed that approach in a guideline decision ( ...

An employee's guide to mental health in the workplace

According to the World Health Organisation, good mental health is “a state of wellbeing in which every individual realises his or her own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a...

Equal Pay Comparability - Supermarket Workers Win Important Victory

In Asda Stores Limited v Brierley , the question before the Court of Appeal was whether or not thousands of women who worked at Asda's retail stores could compare themselves with male members of staff who worked at the company's distribution depots for...

Even Highly Offensive Workplace Banter May Not Amount to Harassment

Irreverent and foul-mouthed banter is commonplace in some working environments and does not necessarily amount to harassment or victimisation. An Employment Tribunal (ET) made that point in rejecting a compensation claim brought by a salesman who gave as...

Round up of employment law changes

There are a number of important employment law changes taking place this year of which businesses should be aware. I’ve set out some changes that are happening imminently below. All public sector organisations with over 250 or more employees as at 31...

Judges and Firefighters Triumph in Age Discrimination Test Case

To defeat a claim of direct discrimination under the Equality Act 2010 , the employer must show that the treatment complained of is in pursuit of a legitimate aim and is a proportionate means of achieving that aim. The aim must be objectively and reasonably...

Untaken Paid Holiday - Does Failure to Request Leave Result in its Loss?

The Court of Justice of the European Union (CJEU) has supported the opinion of the Advocate General that the mere fact that a worker did not apply to take annual leave cannot automatically mean the loss of the right to payment in lieu of untaken leave at the...

Deliveroo Riders Are Self-Employed, High Court Rules

The High Court has dismissed a claim by the Independent Workers' Union of Great Britain (IWGB) seeking to overturn a decision of the Central Arbitration Committee (CAC) that Deliveroo riders are self-employed, not workers within the meaning of Section...

Individuals Personally Liable for Whistleblowing Dismissal, Court of Appeal Rules

In a landmark judgment, the Court of Appeal has confirmed that individual managers can be held personally liable for dismissal in whistleblowing claims ( Timis and Another v Osipov and Another ). The case concerned the former CEO of an oil exploration...

Not well enough!

It is not uncommon, just before a disciplinary hearing or a tribunal hearing for an employee to say they are not well enough to attend the hearing and ask for the matter to be adjourned. Sometimes it is often suspected that the employee is not genuinely ill,...

Naming and shaming

A scheme exists where employers who have underpaid the National Minimum Wage (NMW) are named. This “naming and shaming” is done with a view to deterring employers from paying less than the NMW. Since April 2016, financial penalties can be...

Employee Copyright Agreement Achieved Legitimate Aim

Many employers require their staff to sign copyright agreements by which they give up their intellectual property rights to designs or other works created in the course of their employment. In an important decision concerning a luxury leather goods...

Job Interviews and the Risks of Asking Off the Cuff Discriminatory Questions

Questions asked of job applicants at interview should be carefully considered in advance and formulated with the benefit of legal advice. In one case where that signally did not happen, a 67-year-old man who was turned down for a park attendant's job...

Court of Appeal Rules Uber Drivers Are Workers

The Court of Appeal has ruled that drivers who use online taxi company Uber's app are 'workers' within the meaning of the Employment Rights Act 1996 (ERA), rather than self-employed contractors, but has given the company permission to appeal to the...

Vicarious Liability - Impromptu Post Christmas Party Gathering

Employers can be found vicariously liable for the actions of their staff when these occur in the course of their employment, which can include during an office function, but what is the position when one employee suffers injury at the hands of another at an...

The Rules on Time Limits for Employment Tribunal Claims

An employee wishing to bring an unfair dismissal claim must do so within three months of their effective date of termination. Time limits for presenting claims to the Employment Tribunal (ET) are normally strictly enforced. If the deadline is missed, Section...

Staff Christmas Parties - Don't Take Unnecessary Risks!

A Christmas party is a chance for staff to relax and enjoy each other's company. It's also a wonderful opportunity for employees to celebrate their achievements over the last year and for you to thank them for all their hard work. However, it's...

Employers - Are You Treating Misconduct Cases Consistently?

Some forms of workplace misconduct may appear so serious as to obviously justify dismissal as a matter of common sense. However, as an instructive decision of the Employment Appeal Tribunal (EAT) showed, the need for even-handed fairness and consistency is a...

Looking after your staff so you can get on with business

Managing your people, and making sure they operate as efficiently as possible, is time consuming and sometimes costly, but there is help out there to give you back control of running your business, profitably. Getting back to business When I was training...

Whistleblowing - Information or Allegation?

In Cavendish Munro Professional Risks Management Limited v Geduld , the Employment Appeal Tribunal (EAT) established the principle that, for the purposes of the whistleblowing provisions of the Employment Rights Act 1996 , to qualify for protection a...

Zero Hours Contracts - Legal Protections Are Not All One Way!

The debate about zero hours contracts has very much focused on the perceived lack of protection they provide to workers. However, as a case concerning a student who worked part time in a restaurant shows, they do not necessarily work in the employer's...

Unfair Dismissal - What is the Legal Effect of a Successful Internal Appeal?

If an employee is dismissed but that decision is subsequently overturned following an internal appeal, does the latter decision wipe out the effect of the former? The Court of Appeal tackled that issue in a guideline decision ( Patel v Folkestone Nursing...

Risk Assessments for Breastfeeding Mothers

EU Directive 92/85/EEC is aimed at protecting the health and safety of women in the workplace who are pregnant, have recently given birth or are still breastfeeding. Under UK law as it currently stands, an employer need only undertake a risk assessment...

University Lecturer Strikes Important Blow for Part-time Workers

In Roddis v Sheffield Hallam University , the Employment Appeal Tribunal (EAT) held that the fact that the claimant was employed under a zero-hours contract did not mean that his contract could not be compared with that of a colleague who worked full time...

Central Arbitration Committee Can Hear Claims Against Acas

The EU Information and Consultation Directive 2002 established minimum requirements for companies with more than 50 employees for consulting and informing them on a wide variety of subjects. The Information and Consultation of Employees Regulations 2004 ...

The 'Final Straw' and Constructive Dismissal

It is an implied term of any contract of employment that an employer should not act in a way that is likely to destroy or seriously damage the trust and confidence which an employee can expect from them. A serious breach of an implied contractual term or...

Dealing With Employee References

Contrary to popular belief, except in certain sectors (e.g. education and financial services), employers are not legally obliged to provide those who leave their employment with a reference unless they have given express agreement to do so. Where a reference...

Enforcing restrictive covenants

Employers who have restrictive covenants in their contracts of employment will appreciate the recent Court of Appeal decision in Dyson Technology Limited (Dyson) v Pellerey, where the Court of Appeal upheld the High Court’s decision to grant an...

Umbrellas shield you from the rain... but not your taxes

In 2014, the government indicated that it was concerned whether umbrella companies were being used to avoid employment obligations, tax or paying the national minimum wage. An umbrella company invoices the client (end user) for an individual’s...

Disability Discrimination - An Expectation to Work Long Hours

In United First Partners Research v Carreras , an employee who had returned to work after he was injured in a cycling accident claimed that a 'requirement' that he work long hours constituted a provision, criterion or practice (PCP) for the...

When can an employer withhold wages?

Only in exceptional circumstances can an employer withhold wages . The fundamental terms of an employment contract are that the employee provides his services and the employer pays him for those services. Call Reggie today who will offer a fixed fee...

Workplace Whistleblowing Protection

The Public Interest Disclosure Act 1998 – often referred to as the 'Whistleblowing' Act – gives workers legal protection when disclosing information relating to crimes, breaches of legal obligations, miscarriages of justice, dangers to...

Supreme Court Rejects Pimlico Plumbers' Appeal in Employment Status Case

There have been a number of recent cases looking at the precise nature of the employment status of those working for employers who like their operatives to appear to clients as their representatives but who operate a model of self-employment. One such...

Small Family Company Overturns Pregnancy Discrimination Finding

Quite apart from any breach of sex discrimination law which might occur, it is automatically unfair dismissal if an employer dismisses a female employee for reasons connected with her pregnancy or the birth of her child. In determining whether or not a...

Bullied Transgender Shop Assistant Wins Compensation

There can really be no excuse for a modern employer not to have in place comprehensive anti-discrimination policies that are fully understood by all workers. In one case that illustrates the consequences of failing to comply with the law in this respect, a...

Are You Ready for the World Cup?

The 2018 Fédération Internationale de Football Association (FIFA) World Cup starts on Thursday 14 June with a match between Russia and Saudi Arabia. England’s first match, against Tunisia, is on Monday 18 June at 7:00pm. Employers should...

Mental Health Awareness Week - Acas Guidance for Employers

This year, Mental Health Awareness Week (14-20 May), which is hosted by the Mental Health Foundation, is focusing on stress. Whilst not a mental health problem in itself, stress can lead to depression, anxiety and other mental health problems. A recent...

Settlement Agreements and the Date of Termination

Where there is an existing employment dispute, the communications that take place in order to reach a settlement agreement are normally subject to 'without prejudice' privilege under common law – i.e. they are inadmissible as evidence before...

Is a worker entitled to be paid for all hours whilst "on call"?

A recent decision of the European Court has brought this issue back into the news. In the case the Court heal that stand-by time spent at home but within 8 minutes travel of a workplace was 'working time'.   The question of whether a worker...

Millennials

By the year 2020, almost half of the workforce will consist of millennials. These individuals are talented, dynamic and have a very different outlook on work than the previous generation. They do not seek ‘jobs for life’ roles but instead seek...

Age discrimination and retirement of the older employee

Before the Age Discrimination Regulations came into force, an employer could include a retirement clause in the contract of employment stating that employment will terminate upon the employee reaching their 65th birthday. An employee aged 65 or over did...

Ageism and the Hazards of Referring to Seniority or Length of Service

References to 'seniority' or 'length of service' can all too easily be read as impermissible references to an employee's age, a point which was made by one case in which a sporting body narrowly defeated its former group marketing...

Perceived Disability Discrimination

Under the Equality Act 2010 , direct discrimination occurs when the reason for a person being treated less favourably than another is one of the protected characteristics covered by the Act. This means that someone who does not have a protected...

Government Consults on Aspects of the Parental Bereavement Bill

The Parental Bereavement (Leave and Pay) Bill was introduced into Parliament as a Private Members' Bill in July 2017. The Bill is being supported by the Government and is now wending its way through Parliament. The aim of the Bill is to give parents...

Video Surveillance at Work

Two recent decisions of the European Court of Human Rights (ECHR) have looked at a worker's right to privacy under Article 8 of the European Convention on Human Rights, which protects the right to respect for private and family life. In such cases, the...

Auto-Enrolment - Increase in Minimum Required Contribution Levels

Under the Pensions Act 2008 , every employer in the UK has a duty to enrol certain staff into a pension scheme and contribute towards it. Employers are reminded that the minimum required contribution levels to auto-enrolment pension schemes or qualifying...