Labour and European Law Review
Thompsons’ Labour and European Law Review (LELR) is recognised as an authoritative source of comment and discussion of rulings which fall under both UK and European law. Available to read here, and also via a weekly email bulletin, LELR offers considerable insight into the latest issues affecting trade unions and their members.
Articles shared by Thompsons relating to coronavirus (COVID-19) are correct on the time of publication. You should check the government's guidelines for the latest information and advice at https://www.gov.uk/coronavirus.
Agency Hours of Work
The law states that agency workers are entitled to the same basic working conditions as employees after 12 weeks’ employment in the same job. In Kocur v Angard Staffing Solutions Ltd and Royal Mail Group Ltd, the Court of Appeal held that agency workers are not, however entitled to the same standard hours of work as permanent employees.
02 October 2019
Where an agency and hirer are held equally liable for infringing the right to equal pay under the Agency Worker Regulations 2010, the Court of Appeal has held in London Underground Ltd v Amissah and ors that it would only be just and equitable in “exceptional” circumstances for a tribunal to order a hirer to pay less than the amount apportioned to them for the breach (...).
17 April 2019
The law defines an agency worker as someone who works “temporarily” for a hirer. In Brooknight Guarding Ltd v Matei, the Employment Appeal Tribunal held that an individual on a zero-hours contract can also be an agency worker if their position can be shown to be temporary (…).
17 October 2018
Courts will only imply a contract on the ground of necessity in certain circumstances. In Smith v Carillion the Court of Appeal held that, even in the case of a blacklisted worker, the question for courts was whether it was necessary to imply a contract between the worker in question and the end user by looking at how the parties conducted themselves.
06 May 2015
ICO "disappointed" about blacklisting
Following complaints by the GMB and human rights group Liberty about the failure to act against firms found to have been blacklisting trade unionists, the deputy Information Commissioner has said that there is nothing more his office can do.
06 September 2012
Breach of contact
Breach of confidentiality
It is common for settlement agreements to contain a confidentiality clause whereby each party agrees not to disclose the fact of the settlement and the amount agreed. In Duchy Farm Kennels Ltd v Steels, the High Court held that if an ex-employee breaches the confidentiality clause, that did not necessarily release the company from its obligations to continue paying them under the terms of the agreement, as it was not a condition.
19 August 2020
Realisation of a breach
Although directors of a limited company cannot be held liable for inducing breach of contract if they are acting lawfully, the High Court has held in Antuzis and ors v DJ Houghton Catching Services and ors that they can be held liable if they were aware that their actions would have the effect of breaching their employees’ contract.
12 June 2019
Although there may be a legitimate public interest in the disclosure of certain information in order to ascertain whether large firms are fulfilling their social and moral duties towards their staff, the High Court held in Linklaters LLP and anor v Mellish that it could not justify disclosing sensitive confidential information which others had a legitimate interest in keeping confidential (...).
03 April 2019
Dismissal on grounds of capability
In the current climate of austerity and mass redundancies in both the public and private sectors, employers will often look for reasons other than redundancy to dismiss employees to avoid paying a redundancy payment.
05 September 2012
Liable for the remedy
Once a tribunal has found that an employer is liable for a claim at the liability hearing, it may then award damages at the subsequent remedy hearing. In Wilson Barca LLP and ors v Shirin, the Employment Appeal Tribunal held that an employer cannot raise a point about time limits for the first time at the remedy hearing if they had not already raised it at the earlier liability hearing (...).
09 September 2020
Compensation lump sum
In indirect discrimination claims, tribunals have to decide what was the “relevant treatment” meted out to the claimant and whether it was unfavourable. In Chief Constable of Gwent Police v Parsons and Roberts, the Employment Appeal Tribunal held that it was unfavourable treatment to cap the compensation lump sum to which the two disabled police officers were entitled.
08 July 2020
Tribunals are entitled by law to reduce a complainant’s compensation by an amount that is “just and equitable”, depending on the circumstances of their dismissal. In Parkview Care Ltd v Fenn, the Employment Appeal Tribunal held that a five per cent reduction was perversely low, given that the employee had disappeared for two hours in a company car and then lied about where he had been and what he had been doing (...).
26 February 2020
Conciliation and settlement
Prior to lodging a tribunal claim, complainants have to obtain an early conciliation certificate in relation to their employer. In Patel v Specsavers Optical Group Ltd, the Employment Appeal Tribunal held that, as the claimant in this case had failed to do so in relation to the correct employer, he could not continue with his claims (...).
01 July 2020
The law says that evidence of pre-termination negotiations is inadmissible except in claims of automatically unfair dismissal or improper behaviour. In Harrison v Aryman Ltd, the Employment Appeal Tribunal considered the proper approach a tribunal should take when determining when the exceptions applied (...).
13 November 2019
The law states that, once the Early Conciliation process has come to an end, claimants have one month in which to lodge their tribunal claim. In Pearce v Merrill Lynch, the Employment Appeal Tribunal held that if the claimant has not adhered to the three-month time limit in which to submit their claim, they cannot then benefit from the one-month extension (...).
23 October 2019
Contract of employment
In order to decide when a period of continuous employment has started, the law says that it is the day when the employee started work. In O’Sullivan v DSM Demolition Ltd, the Employment Appeal Tribunal held that tribunals have to distinguish between work that started on an unofficial basis (which does not count) and work done under a contract (which does) (...).
26 August 2020
The Court of Appeal has held in ICTS (UK) Ltd v Visram that a contractual entitlement to long-term disability benefits which applied until the employee was able to “return to work” was a reference to the job they had been doing prior to going off sick and not to any other work that the employer could offer them (...).
15 July 2020
If a contract of employment has been performed illegally, the employee cannot enforce any rights under it. In Robinson v Al Qasimi, however, the Employment Appeal Tribunal held that they can enforce their rights (such as bringing an unfair dismissal claim) once the breach has been rectified (...).
23 March 2020
One step forward and two back
Despite the introduction of legislation to ensure that furloughed employees receive full redundancy pay, the government has simultaneously cut back on furlough pay grants to employers and is encouraging a return to the workplace in the face of local flare-ups (...).
05 August 2020
Deductions from wages
Limit on claims
The Limitation Act says that contract and statutory claims to recover sums taken as unauthorised deductions from wages are limited to six years from when the claim is brought, unless another statutory period of limitation applies (,,,).
28 November 2019
Series of deductions
The Court of Appeal of Northern Ireland has held, in Chief Constable of the PSNI and anor v Agnew and ors, that contrary to the decision in Bear Scotland v Fulton a series of deductions regarding holiday pay is not broken by a gap of three months or more where there is a "sufficient similarity of subject matter, such that each event is factually linked with the next...in the alleged series [of deductions]...”.
21 August 2019
The law says that tribunals can only hear breach of contract claims on termination of employment. In the conjoined case of Agarwal v Cardiff University and Nexus v Anderson and ors, the Court of Appeal held that tribunals can hear unlawful deduction of wages claims, even if they involve construction of the claimant’s contract of employment.
21 November 2018
Definition of a worker
Putting the boot in
Courts use a number of tests when deciding the employment status of an individual, including mutuality of obligation and the degree of control that the employer has over them. In Commissioners for Her Majesty’s Revenue and Customs (HMRC) v Professional Game Match Officials Ltd, the Upper Tax Tribunal held that part-time football referees were not employees (...).
12 August 2020
Real right of substitution
The Court of Justice of the European Union has indicated in B v Yodel Delivery Network Ltd that a delivery driver whose contract allowed him to appoint a substitute and who was not in a relationship of subordination to the company (provided that was what happened in reality) was not a worker and could not therefore claim holiday pay under the Working Time Directive (...).
05 August 2020
When determining if someone is an employee, tribunals will apply certain tests such as whether there is a requirement for personal service, the degree of control by the employer and other factors consistent with a contract for service. In Augustine v Econnect Cars Ltd, the Employment Appeal Tribunal held that Mr Augustine was not an employee but a worker because he retained some control by deciding when he could work (...).
04 March 2020
Disciplinary and dismissal
Although it is good employment practice for an employee to ask their employer for permission to record a meeting, the Employment Appeal Tribunal has held in Phoenix House Ltd and Anor v Stockman that it is not automatically misconduct to do so. Instead, tribunals have to assess the particular circumstances that apply in each case (...).
25 September 2019
The Court of Appeal has held in North West Anglia NHS Foundation Trust v Gregg that employers do not need to wait until a police investigation has been completed before initiating their own disciplinary procedures unless they do so with the aim of destroying or seriously damaging the relationship with their employee (...).
15 May 2019
Although employers are usually expected to follow a fair process (including holding a meeting with the employee) before dismissing them, the Employment Appeal Tribunal (EAT) held in Hawkes v Ausin Group (UK) Ltd that it is not necessarily unfair not to hold a meeting with an employee before dismissing them for some other substantial reason (...).
28 November 2018
Given that tribunals have discretion under the rules to postpone a hearing, the Court of Appeal has confirmed in Morton v Eastleigh Citizens Advice Bureau (CAB) that it is essentially a case management issue. It was not therefore an error of law in this case for the tribunal to refuse a postponement to allow a medical report to be prepared (...).
02 September 2020
Out on a limb
Following an application for judicial review of the decision to exclude “limb b” workers from the Coronavirus Job Retention Scheme and Statutory Sick Pay, the High Court has ruled in R (on the application of Adiatu and anor) v Her Majesty’s Treasury that the provisions introduced by the government were not unlawful (...).
29 July 2020
Employment tribunals and tribunal fees
According to the rules of the Employment Appeal Tribunal, an appeal cannot be said to have been lodged properly until all the relevant documentation has been received. In Fincham v Alpha Grove, however, the EAT held that it was appropriate to grant an extension of time in a case where the last page of the original ET3 was missing (...).
15 July 2020
There are certain general principles governing the ways in which tribunals can assist someone without legal representation (known as a litigant in person). In Paul v Virgin Care Ltd, the Employment Appeal Tribunal confirmed that where a litigant in person withdraws a claim, tribunals must be satisfied that their decision to do so is clear, unambiguous, and unequivocal (...).
24 June 2020
Although tribunals have a lot of discretion when deciding whether to allow proceedings to be recorded, the Employment Appeal Tribunal held in Heal v The Chancellor, Master and Scholars of the University of Oxford and ors said that claimants still have to show a complete or partial inability to take contemporaneous notes that would result in a substantial disadvantage to them (...).
23 March 2020
Equal pay debt
The Court of Appeal has held in Graysons Restaurants Ltd v Jones and Secretary of State for BEIS that potential compensation awards arising from equal pay claims can constitute “arrears of pay” under the law. As such, they form debts to be paid from the National Insurance Fund in the event of an insolvency, whether or not the claims still have to be determined (...).
10 July 2019
Equality, discrimination and harassment
Because of, or but for?
Section 15 of the Equality Act states that it is discrimination to treat a disabled person unfavourably “because of” something arising in consequence of their disability. In Robinson v Department of Work and Pensions the Court of Appeal has confirmed that claimants cannot therefore argue in a section 15 claim that “but for” their disability, they would not be in the situation that led to the unfavourable treatment (...).
23 September 2020
No particular order
When considering the question of disability discrimination, tribunals have to consider two issues – the fact of the impairment and whether it had a substantial adverse effect on the claimant’s day-to-day activities. In Khorochilova v Euro Rep Ltd, the Employment Appeal Tribunal held that tribunals do not have to consider the two questions in any particular order (...).
23 September 2020
The Employment Appeal Tribunal has held in Hill v Lloyds Bank plc that there is no reason in principle why tribunals cannot require employers to give an employee a guarantee that they do not have to work with someone who has bullied them. In the event that the undertaking becomes unsustainable, a financial package would be a reasonable adjustment (...).
16 September 2020
Under Article 8 of the European Convention on Human Rights, individuals have the right to respect for their private life. In López Ribalda and ors v Spain, the Grand Chamber of the European Court of Human Rights held that installing covert surveillance did not violate the privacy rights under Article 8 of former employees caught stealing from their employer (...).
08 January 2020
The Supreme Court has held in P v Commissioner of Police of the Metropolis that police officers must have the right to bring claims of treatment contrary to EU law to a tribunal in order to comply with the principles of effectiveness and equivalence. Likewise, national rules in relation to judicial immunity have to be consistent with EU law.
20 December 2017
The Court of Justice of the European Union (CJEU) has decided in Nogueira and ors v Crewlink Ireland Ltd and Osacar v Ryanair Designated Activity Company (formerly Ryanair Ltd) that, in order to decide where a cabin crew member habitually carries out their work, a number of different factors have to be considered, not just the place that has been designated as their “home base”.
15 November 2017
Fixed-term, flexible and part-time workers
Freedom of information and data protection
Liability for motive
For an employer to be held vicariously liable for the actions of their employees, there has to be sufficient connection between their job and the wrongful conduct. In Wm Morrison Supermarket plc v Various Claimants, the Court of Appeal held that there was no exception to the rule of vicarious liability where the employee’s motive was to cause financial or reputational damage to the employer by causing harm to a third party (...)
19 December 2018
The law says that if a contract is terminated by notice, then the effective date of termination (EDT) is the date on which the notice expires but if no notice is given, then it is the date on which the termination takes effect. In Cosmeceuticals Ltd v Parkin, the Employment Appeal Tribunal (EAT) held that in a summary dismissal that is communicated to the claimant straight away, the effective date of termination is immediate (…).
21 March 2018
Health and Safety
Health and safety
The law says that it is automatically unfair to dismiss a designated health and safety representative for raising concerns about health and safety in the workplace. In Castano v London General Transport Services Ltd, the Employment Appeal Tribunal held that an employee who has not been designated as a health and safety rep cannot claim automatic unfair dismissal (...).
22 July 2020
Coronavirus (COVID-19) and SSP
Further to the news that statutory sick pay will be paid from the first day of sickness, the government has now announced that it will also be temporarily available to people who cannot work because they have been told to self-isolate (…).
18 March 2020
When deciding whether to restrict reporting in a case involving allegations of sexual misconduct, the Employment Appeal Tribunal has held in A and B v X, Y and the Times Newspapers Ltd that when carrying out the balancing exercise between the interests of accuser and accused, the principles of open justice must be fully taken into account.
12 June 2019
Protect workers’ Human Rights
The European Convention on Human Rights and the UN Guiding Principles on Business and Human Rights place duties on the State to protect against human rights abuses by businesses and provide access to remedy for victims.
12 April 2017
Record low strike record
According to figures produced by the Office for National Statistics (ONS), the number of stoppages last year in the UK were the lowest since records began in 1891. The number of workers involved in labour disputes was also the lowest ever recorded. (…).
06 June 2018
Information and consultation
The Information and Consultation of Employees Regulations (ICE) require “undertakings” which carry out “an economic activity” to inform and consult with their employees about a wide range of issues. In Advisory, Conciliation and Arbitration Service (ACAS) v Public and Commercial Services Union (PCS), the Employment Appeal Tribunal (EAT) held that ACAS fell within the category of an undertaking that carried out an economic activity, rendering it subject to the regulations. Thompsons was instructed by PCS to act on behalf of their members (…).
15 August 2018
The law says that when an employer proposes to dismiss as redundant 20 or more employees at one “establishment”, they have to consult with the appropriate representatives. In Seahorse Maritime Ltd v Nautilus International, the Employment Appeal Tribunal (EAT) held that the territorial scope of the obligation to collectively consult was dependent on the individual employee’s connection to the UK.
22 November 2017
When women go on maternity leave, they are entitled to continue to receive all their existing rights and benefits, with the exception of pay. In The Commissioner of The City of London Police v Geldart, the Employment Appeal Tribunal held that it was direct sex discrimination to fail to pay a serving police officer all her London Allowance for the whole of her maternity leave (...).
12 February 2020
Although tribunals can draw on the experience of panel members when coming to a decision about a case, the Employment Appeal Tribunal held in Commerzbank AG v Rajput that they cannot independently decide that a claim has emanated from stereotypical assumptions without prior notice having been given to the parties and witnesses, as that is a type of specialist knowledge which has to be disclosed in advance (…).
18 September 2019
National minimum wage and National living wage
Minimum wage transfer
As a worker’s employment does not cease in the event of a TUPE transfer but transfers over to the transferee, the Employment Appeal Tribunal held in Mears Homecare Ltd v Bradburn and ors that the obligation on the employer to maintain records with regard to the national minimum wage and to produce those records when requested to do so, also transfers over.
02 October 2019
In need of protection
In Secretary of State for the Home Department and ors v Sargeant and ors (heard jointly with Lord Chancellor and ors v McCloud and ors), the Court of Appeal has held that the government was not pursuing a “legitimate aim” when it introduced transitional pension arrangements (...).
20 February 2019
The Supreme Court has held In the matter of an application for judicial review by Denise Brewster that the requirement for a cohabiting partner to be nominated by a scheme member in order to be eligible for a survivor’s pension cannot be objectively justified.
12 April 2017
Although employers can be held vicariously liable for their employees’ conduct, it has to be closely connected with the acts that the employee was authorised to do. In Bellman v Northampton Recruitment Ltd, the Court of Appeal held that that an assault committed at a drinks event following a company party could be said to have been carried out in the course of the employee’s employment (...).
12 December 2018
No hard feelings
The law states that the first £30,000 of any payment made on termination of employment is exempt from tax, but what about payments made for injury to feelings? In Moorthy v HM Revenue and Customs (HMRC), the Court of Appeal held that payments for injury to feelings in the context of an age discrimination claim were exempt from tax but that any awards should be modest (…).
25 July 2018
The Employment Appeal Tribunal (EAT) has held in Kostal UK Ltd v Dunkley and ors that employers cannot go over the heads of unions recognised for collective bargaining purposes and make offers directly to the workforce, if the purpose and effect is so that the workers’ terms will not be determined by collective agreement negotiated by the union.Thompsons was instructed by Unite the Union’s Strategic Case Unit to act on behalf of its members. (…).
28 February 2018
When considering an application for union recognition in Independent Workers’ Union of Great Britain v RooFoods Limited T/A Deliveroo, the Central Arbitration Committee (CAC) held that, as the drivers had a genuine right to substitute which operated in practice, they could not be workers under section 296 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).
31 January 2018
Redundancy and Protective Awards
When dismissing employees for redundancy, employers must act fairly and reasonably by applying a fair procedure. In Gwynedd v Barratt and anor, the Employment Appeal Tribunal (EAT) held that the absence of any consultation, the use of a competitive interview process and the failure to provide a right of appeal rendered the dismissals unfair (...).
09 September 2020
Social media and the employment relationship
Social media refers to online networks that enable individuals to share and exchange an extremely broad range of information and ideas, the most well-known being Facebook, Twitter and LinkedIn.
17 March 2016
Although employees have a right to use social media, the Employment Appeal Tribunal (EAT) held in Game Retail Ltd v Laws that it has to be balanced with their employers’ need to minimise any risk to their reputation from communications that could be read by customers and other employees.
18 February 2015
Trade union information
The Court of Appeal has held in Kostal UK Ltd v Dunkley and ors that it is not against the law for an employer to go over the head of a union recognised for collective bargaining purposes and make an offer directly to the workforce if the employer’s aim is just to ensure that a single term is not determined by collective agreement on a one-off basis (...).
14 August 2019
Although communication between a lawyer and their client is covered by legal professional privilege (and therefore does not have to be disclosed to a court), the same principle does not apply between a member and their union. However, in Dhanda v TSB Bank, the Employment Appeal Tribunal (EAT) held that although this communication is not privileged, it is still confidential and should only be disclosed when necessary to fairly dispose of the proceedings (…).
28 March 2018
Transfers of Undertakings
The law says that variations to a contract are void if the sole reason for the variation is because of a TUPE transfer. The Employment Appeal Tribunal has held in Ferguson and ors v Astrea Asset Management Ltd that the variations made to the contracts of four employees were void, despite the fact that they were advantageous to them (...).
26 August 2020
Although a dismissal under the Transfer of Undertakings (Protection of Employment) Regulations 2006 can be fair for economic, technical or organisational reasons, the Court of Appeal held in Hare Wines Ltd v Kaur and anor that there is no category in law whereby it is fair to dismiss an employee for personal reasons relating to a transfer. More …
24 April 2019
Public health transfer
The Employment Appeal Tribunal has held in Nicholls and ors v London Borough of Croydon that if a public health commission team was an “economic entity” under the Transfer of Undertakings (Protection of Employment) Regulations 2006, the tribunal needed to explain why it did not constitute a relevant transfer under the regulations (...).
05 December 2018
When considering whether a dismissal for gross misconduct is fair, tribunals have to consider whether the employer genuinely believed that the person was guilty of the misconduct and whether dismissal was a reasonable response. In Tai Tarian Ltd v Christie, the Employment Appeal Tribunal held that it was not unreasonable for the employer to rely on the evidence of an anonymous witness (...).
16 September 2020
When deciding whether an employee has been wrongfully dismissed, the Employment Appeal Tribunal has held in East Coast Main Line Company Ltd v Cameron that it is not always appropriate for tribunals to take the individual’s length of service into consideration.
19 August 2020
Last in a series
When claiming constructive unfair dismissal, claimants have to show that they resigned in response to a fundamental breach of contract which may be the last in a series of less serious acts. In Williams v Alderman Davies Church in Wales Primary School, the Employment Appeal Tribunal held that even if the last act was “innocuous”, the employee may still have the right to resign in response to it (...).
12 August 2020
Vulnerable and migrant workers
Immune from claims
The Employment Appeal Tribunal has held in Basfar v Wong that foreign diplomats based in the UK can claim immunity from tribunal complaints made by domestic servants on the basis that they do not fall within the exception of a “commercial activity exercised … outside … official functions” (...).
12 March 2020
The law says that an employee who has the right to work in the UK because they are married to a national from the European Economic Area does not have to produce evidence of it. In Badara v Pulse Healthcare Ltd, the Employment Appeal Tribunal confirmed that the tribunal was wrong to conclude that a claimant with the right to work under the relevant legislation could be required by his employer to produce evidence of it before allowing him to work (...).
15 January 2020
Calls for reform of whistleblowing law
The charity Protect, which offers free, confidential whistleblowing advice and which recently succeeded in calling on HMRC to re-open its fraud reporting hotline, is campaigning to reform the Public Interest Disclosure Act (...).
02 September 2020
The law protects workers from suffering a detriment (or disadvantage) as a result of blowing the whistle. The Court of Appeal has held in Jesudason v Alder Hey Children’s NHS Foundation Trust that tribunals should not focus on the employer’s motive in telling their side of the story when deciding whether the worker has suffered a detriment or not (…).
18 March 2020
Working time and holiday pay
Four-week carry over
Although case law has established that workers are entitled to carry forward annual leave from one year to the next as a result of sickness, the Court of Justice of the European Union has held in the conjoined cases of TSN v Hyvinvointialan liitto ry and AKT ry v Satamaoperaattorit ry that annual leave in excess of the four weeks provided by the Working Time Directive does not have to be carried over (...).
29 January 2020
Under the Employment Rights Act, workers have the right not to be subject to a detriment or dismissal if they refuse to comply with a requirement imposed on them by their employer in contravention of the Working Time Regulations. In Pazur v Lexington Catering Services Ltd, the Employment Appeal Tribunal held that workers must communicate that refusal to their employer in order to be protected by the legislation (...).
06 November 2019