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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.

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LATEST ISSUES

Weekly Issue 575
  • Pay ratios under scrutiny
  • Unduly technical
  • Claim relabelling
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Weekly Issue 574
  • Generational pay gap grows
  • Limitation period
  • Pregnancy test
Read Issue
Weekly Issue 573
  • Record low strike record
  • Application details
  • Extending time
Read Issue

Agency workers

Weekly Issue 567

Agency rate of pay

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 Employment Appeal Tribunal (EAT) held that agency workers cannot be compensated for less holiday and/or a lower rate of pay for rest breaks with an enhanced hourly rate. (…).

Weekly Issue 514

Impact of the NMW

In its analysis of the recent increase in the minimum wage, the Low Pay Commission has estimated that 8.5 per cent of workers are now on one of the minimum wage rates, up from 7.3 per cent last year.

Weekly Issue 514

A matter of interpretation

When trying to decide whether a claimant is an employee, a worker or a self-employed contractor, the Employment Appeal Tribunal (EAT) has held in Capita Translations and Interpreting Ltd v Siauciunas and anor that it is an error of law for tribunals not to consider the doctrine of mutuality of obligation.

Blacklisting

Weekly Issue 418

Contractual necessity

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.

Weekly Issue 330

Blacklisting at Crossrail

The business secretary Vince Cable last week referred evidence of ongoing blacklisting of trade unionists at a major building project to the Information Commissioner’s Office.

Weekly Issue 285

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.

Breach of contact

Weekly Issue 518

Construing the contract

The law says that tribunals can only hear breach of contract claims on termination of employment. In Agarwal v Cardiff University and anor, the Employment Appeal Tribunal (EAT) held that tribunals cannot therefore hear unlawful deduction of wages claims if they depend on construction of the claimant’s contract.

Weekly Issue 517

Receipt of letter

Although an employment contract has to state the length of notice of termination, it does not have to state how notice should be given.

Weekly Issue 476

Contractual check-off

In May 2015, the Department for Work and Pensions (DWP) ended their system of check-off for Public and Commercial Services union members' subscriptions. However, in Cavanagh and ors v Secretary of State for Work and Pensions, the High Court held that the department was in breach of two PCS members' contracts when it withdrew the system and that the union had the right to enforce the arrangements.

Capability

Bi-annual LELR - Autumn 2012 [130]

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.

Weekly Issue 283

Competency bar

It is important for employers to be consistent in a redundancy situation when deciding whether they can offer alternative employment instead of dismissing the employee.

Weekly Issue 253

Workers’ skills being underused

According to a report published this month by The Work Foundation, employers are underusing workers’ skills, resulting in lost productivity both for businesses and the economy as a whole.

Compensation

Weekly issue 554

Long, hard road

In terms of assessing compensation for injury to feelings, courts have long followed the guidance provided by the “Vento bands”, which was updated in 2017. In Durrant v Chief Constable of Avon & Somerset Constabulary, the Court of Appeal held that the revised amounts can be used in cases prior to the update in circumstances where it is justified to do so.

Weekly issue 536

Pay ratios

Following a consultation on corporate governance, the government has said that it will introduce legislation to require listed companies to reveal the pay ratio between bosses and their workers.

Weekly issue 532

160 years to earn one year of top CEO pay

Despite a drop of almost a fifth in the pay of FTSE 100 CEOs in 2016, research has found that it would still take the average worker 160 years to earn what they are paid in just one year.

Conciliation and settlement

Weekly issue 563

Increase in ACAS notifications

In order to submit a claim at the Employment Tribunal there is a requirement to submit an Early Conciliation notification with ACAS (…).

Weekly issue 545

Forms and certificates

Before starting tribunal proceedings, claimants have to submit separate early conciliation (EC) forms to Acas for each employer against whom they want to submit a claim. In De Mota v ADR Network and The Co-operative Group Ltd, the Employment Appeal Tribunal (EAT) held that even if the claimant fails to submit separate forms, that does not mean the EC certificate issued by Acas is invalid.

Weekly issue 533

Multiple Identities

The law requires prospective claimants to ensure that the employer’s name on the Early Conciliation (EC) Certificate is the same as on the ET1 claim form, but what happens when the employer has multiple names?

Contract of employment

Weekly issue 540

Far from neutral

Although views might differ generally as to whether suspension of an employee is a neutral act, the High Court confirmed in Agoreyo v London Borough of Lambeth that, as far as the courts are concerned, it is not neutral. In the circumstances of this case, it amounted to a breach of the implied term of mutual trust and confidence.

Weekly issue 534

Property in emails

As part of an application for an injunction in Capita plc v Darch and ors, the question arose as to whether an employer had a claim to property in corporate emails.

Weekly issue 530

Truthful answers

The High Court has held in MPT Group Ltd v Peel and Birtwhistle and anor that although the duty of good faith includes the duty to answer questions truthfully, that does not mean that employees who have resigned from their job have to explain confidential and/or nascent plans to set up in lawful competition with their former employer

Deductions from wages

Weekly Issue 574

Limitation period

The Employment Rights Act 1996 stipulates that claims for unauthorised deductions from wages have to be brought within three months of the last deduction. In Coletta v Bath Hill Court (Bournemouth) Property Management Ltd, the Employment Appeal Tribunal (EAT) held that for claims brought before January 2015, there was no limitation on arrears as long as the claim was brought within the time limit (…).

Weekly Issue 564

Construing contracts

Although tribunal judges are not supposed to interpret contractual clauses, the Employment Appeal Tribunal (EAT) held in Tyne and Wear Passenger Transport Executive t/a Nexus v Anderson and ors that they can do so in relation to claims for unlawful deductions from wages under PART 11 of the Employment Rights Act (ERA). Thompsons was instructed by the RMT to represent its members (…).

Weekly issue 531

Broken Chain

The Employment Appeal Tribunal (EAT) has reaffirmed its earlier decision in the case of Fulton and Baxter v Bear Scotland Ltd that a gap of three months or more between two successive alleged under payments or non-payments of wages breaks the chain in a “series” of deductions as set out in the Employment Rights Act 1996.

Definition of a worker

Weekly issue 553

In reality

When deciding whether drivers were workers in Uber BV v Aslam and ors, the Employment Appeal Tribunal (EAT) held that, although the relationship between the parties was presented in the written documentation as being one of agency, the tribunal was right to focus on what happened in reality between them.

Weekly Issue 522

Civil servant

According to the rules governing employment in the civil service, appointments have to be made on the basis of fair and open competition. In Secretary of State for Justice v Betts and ors

Weekly Issue 516

The fallacy of flexibility

An inquiry by the Work and Pensions Committee into self-employment and the “gig” economy has highlighted illegal and unintelligible clauses in the contracts issued by certain companies.

Disciplinary and dismissal

Weekly issue 560

Inclusion/exclusion

The law states that evidence of pre-termination negotiations cannot be used in any subsequent tribunal proceedings except in limited, specified, circumstances. In Basra v BJSS Ltd, the Employment Appeal Tribunal (EAT) held that if the effective date of termination is disputed, tribunals first have to establish the date before considering what evidence can be included or excluded (…).

Weekly issue 556

Cake and eating it

The law states that evidence of pre-termination negotiations cannot be used in any subsequent tribunal proceedings. In Graham v Agilitas IT Solutions Ltd, the Employment Appeal Tribunal (EAT) held that an employer cannot rely on part of a protected conversation during a disciplinary hearing while at the same time arguing that the meeting was covered by without prejudice privilege (…)

Weekly Issue 521

Substantial conduct reason

If an employer can show they dismissed their employee for “some other substantial reason”, it will be fair. In Ssekisonge v Barts Health NHS Trust, the Employment Appeal Tribunal (EAT) upheld the tribunal’s decision that the dismissal of a nurse whose identity was being investigated by the Home Office could be fair for “some other substantial reason”, even though conduct played a part in the reason to dismiss.

Employment rights

Weekly Issue 570

Enforcement of pay and rights

The government’s Director of Labour Market Enforcement has published a report calling for a state agency to enforce holiday pay (…).

Weekly Issue 565

Shifting the risk

The TUC has published a report estimating that about five million UK supply chain workers are being cheated out of their rightful holiday pay and the national minimum wage because of a lack of accountability (…).

Weekly issue 557

Responding to Taylor

Following the publication of the Taylor review last July which considered the impact of working practices in the “gig economy” on workers, the government has published its response, along with four consultations (…)

Employment tribunals and tribunal fees

Weekly Issue 575

Unduly technical

The Employment Appeal Tribunal (EAT) has held in Aynge v Trickett t/a Sully Club Restaurant that when a claimant is unrepresented, tribunals should not take an unduly technical approach, particularly in a case where the claimant was unlikely to know the difference between an actual and a constructive dismissal (…).

Weekly Issue 573

Application details

The Court of Appeal has held in The Trustees of the William Jones’s Schools Foundation v Parry, that although the claimant had not provided any particulars about her claim in her ET1 form (the application form), the school knew enough details about the claim to be able to submit a defence (…).

Weekly Issue 573

Extending time

Section 123 of the Equality Act lays down a three-month time limit for bringing a claim, unless the tribunal thinks it is “just and equitable” to extend the limit. In Abertawe Bro Morgannweg University Local Health Board v Morgan, the Court of Appeal held that there was no requirement in the legislation for tribunals to find a “good reason” for the delay before deciding it was “just and equitable” to extend the limit (…).

Equal pay

Weekly issue 557

Arrears of pay

The Employment Appeal Tribunal (EAT) has held in Graysons Restaurants Ltd v Jones that potential compensation awards arising from equal pay claims can constitute “arrears of pay” under the law, meaning they form debts to be paid from the National Insurance Fund in the event of an insolvency. This is the case even if the claims still have to be determined (…)

Weekly issue 552

Gender pay gap sanctions

The Equality and Human Rights Commission (EHRC) has warned businesses that they could face a number of sanctions if they fail to comply with gender pay gap reporting regulations, such as unlimited fines and convictions.

Weekly issue 547

Gender pay gap reporting

Government research has found that, despite the introduction of the gender pay gap reporting regulations in April 2017, a third consider reducing the gender pay gap a low priority.

Equality, discrimination and harassment

Weekly Issue 575

Pay ratios under scrutiny

Under new laws laid in Parliament last week, big companies will have to publish and justify the pay differences between chief executives and their staff from 2020 (…).

Weekly Issue 575

Claim relabelling

The Employment Appeal Tribunal (EAT) has held in Reuters Ltd v Cole that adding a complaint of direct discrimination to an existing claim which includes indirect discrimination is more than a “relabelling exercise” not least because a different factual inquiry was needed and a more onerous test would have to be applied (…).

Weekly Issue 574

Pregnancy test

Section 18 of the Equality Act states that it is pregnancy discrimination for an employer to treat a worker less favourably because she is pregnant. In Really Easy Car Credit Ltd v Thompson, the Employment Appeal Tribunal (EAT) held that an employer does not have to revisit a decision to dismiss a worker once they had learnt that the woman was pregnant after the decision to dismiss was made (…).

European Law

Weekly issue 551

EU equivalence

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.

Weekly issue 546

Home base

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”.

Weekly Issue 503

Temporary incapacity

To come within the definition of disability under EU law, the physical or mental impairment has to be “long’term”.

Fixed-term, flexible and part-time workers

Weekly issue 562

Unfair fixed-term

The Employment Appeal Tribunal (EAT) has held in Royal Surrey County NHS Foundation Trust v Drzymala that it is not automatically fair to dismiss an employee when their fixed-term contract expires, just because the employer complied with the Fixed-Term Employees Regulations (…).

Weekly issue 544

Half and Half

The law says that part-time workers cannot be treated less favourably than full-timers. In British Airways v Pinaud, the Employment Appeal Tribunal (EAT) held that it is less favourable treatment for an employer to require a part-timer to work more than half of the hours of a full-timer but only pay them half of the salary.

Weekly issue 538

Flexible working for parents

In a study looking at the uptake of flexible working by new parents, Acas has found that organisations treat mothers and fathers differently…

Freedom of information and data protection

Weekly issue 562

Immediate termination

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 (…).

Weekly issue 561

Covert breach

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 European Court of Human Rights (ECrtHR) held that by installing covert surveillance in the workplace, the employer had breached the rights of their former employees under Article 8 (…).

Weekly issue 560

Firms not ready for privacy law changes

According to a recent study, only a minority of small businesses are prepared for the introduction of new data protection regulations which come into force at the end of May (…).

Health and Safety

Weekly Issue 567

Work and mental health

A new report by the Chartered Institute of Personnel and Development (CIPD) has found that one in four workers feels their job negatively affects their mental health. (…).

Weekly issue 562

New health and safety standard

The TUC has published a guide to a new health and safety standard published last week to try to ensure that it does not turn into yet another piece of “pointless paperwork” (…).

Weekly issue 551

Risk assessment

The Court of Justice of the European Union (CJEU) has held in the case of Eida Otero Ramos v Servicio Galego de Saude and anor that employers must carry out a specific risk assessment for workers who are breastfeeding. If they fail to do so, they will be guilty of direct sex discrimination.

Human rights

Weekly Issue 515

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.

Weekly Issue 513

A fair Brexit

Britain’s leading equality organisation, the Equality and Human Rights Commission, has warned the government that its Brexit plans reflect a lack of ambition for equality and human rights standards.

Weekly Issue 455

UK ratifies forced slavery agreement

The UK has ratified a landmark ILO agreement to combat forced labour, people trafficking and other forms of modern slavery. Along with Niger and Norway, it is one of the first nations to sign the international convention.

Industrial Action

Weekly Issue 573

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. (…).

Weekly Issue 527

Strike Payment

Employers are entitled to withhold payment when their employees go on strike, but how should it be calculated?

Bi-annual LELR - Autumn 2016 [138]

Industrial action and picketing

The Trade Union Act 2016, which received royal assent on 5 May, represents the most significant changes to the law on industrial action and picketing in a generation.

Information and consultation

Weekly issue 547

Employment unit

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.

Weekly issue 546

Changes without consultation

A poll carried out by the TUC earlier this month has found that workers do not generally feel that they are listened to at work.

Weekly Issue 489

Effective management

The law states that if an employer does not agree a valid request for recognition for collective bargaining purposes from a union, the union can ask the Central Arbitration Committee (CAC) to decide whether the proposed bargaining unit is appropriate. In R (on the application of Lidl Ltd) v CAC and GMB, the High Court held that the union’s proposed bargaining unit was compatible with the need for effective management and therefore was appropriate in nature.

Maternity/Parental rights

Weekly Issue 571

The mystery of Shared Parental Leave

A report just published by the Government Equalities Office has found that parents do not understand Shared Parental Leave, (SPL) nor are they necessarily aware that it is a legal entitlement for eligible parents, despite the fact that the regulations were introduced over three years ago (…).

Weekly issue 558

Shared parental leave

The government has launched an advertising campaign to encourage more parents to take up Shared Parental Leave in their baby’s first year (…)

Weekly issue 543

Parental Bereavement Leave

New legislation published earlier this month will entitle employed parents who have suffered the death of a child under the age of 18 to two weeks’ paid leave. The Parental Bereavement (Leave and Pay) Bill gives employed parents the right from the first day of employment to parental bereavement leave to allow them time to grieve. The leave has to be taken within 56 days of the date of the child’s death. In the event of the death of more than one child, the parent is entitled to leave in respect of each of them.

National minimum wage and National living wage

Weekly Issue 566

Minimum wage increases

As a result of above-inflation increases in the National Minimum Wage (NMW) and the National Living Wage (NLW) earlier this month, the Low Pay Commission says in its 2018 analysis that all minimum wage workers are entitled to receive real terms increases (…).

Weekly issue 545

Sleep-in payments

Following a recent key judgement on payment for sleep-in shifts (LELR 525), the government has launched a scheme to ensure that social care providers now pay workers what they are owed.

Weekly Issue 525

Time work

The law states that “time work” includes time when the worker is available at or near their place of work unless they are at home

Pensions

Weekly Issue 515

Objective justification

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.

Weekly Issue 505

Survivor pension

The Court of Justice of the European Union (CJEU) has held in Parris v Trinity College Dublin that it was not discrimination on the grounds of sexual orientation and/or age for a pension fund to refuse a retrospective claim for a survivor’s pension to the surviving spouse or civil partner.

Weekly Issue 494

Gendered pension

Up until 2014 when same-sex marriage became legal, anyone with a full certificate of gender recognition was entitled to a state pension according to the rules relating to their acquired gender, unless they were married. In MB v Secretary of State for Work and Pensions, the Supreme Court asked the Court of Justice of the European Union whether EU law precludes national law from requiring a transgender person to be unmarried to qualify for a state pension.

Personal Injury

Weekly issue 541

Injury liability

The law says that employers are liable for any harm that results from discrimination caused at work. The Court of Appeal has held in BAE Systems (Operations) Ltd v Konczak that the job of the tribunal is to identify the harm caused by that discrimination and (broadly) the part of the suffering that results from it.

Weekly Issue 507

Long-term stress

A person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Weekly Issue 504

Christmas assault

Although employers can be held vicariously liable for conduct carried out by their employees, it has to be closely connected with the acts that the employee was authorised to do.

Recognition

Weekly issue 559

Direct Offer

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. (…).

Weekly issue 555

Roorecognition

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).

Weekly Issue 526

Fragmented Bargaining

The law states that unions can request recognition for collective bargaining purposes if the proposed bargaining unit is deemed to be “appropriate”

Redundancy and Protective Awards

Weekly Issue 572

Bumping out

The Employment Appeal Tribunal (EAT) has held in Mirab v Mentor Graphics (UK) Ltd that, in a redundancy situation, the onus is not necessarily on the employee to raise the possibility of “bumping” someone else out of their job to save them from redundancy. Instead it is for the tribunal to determine whether, on the particular facts of the case, what the employer did fell within the range of reasonable responses (…).

Weekly Issue 566

In good time

The Employment Appeal Tribunal (EAT) has held in Keeping Kids Company (In Compulsory Liquidation) v Smith and Others that events which occur after a proposal to make more than 20 employees redundant cannot be used as a defence for failing to consult under section 188 Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). However, it might make a difference to the size of the award. Thompsons were instructed by Unite the Union to represent its member (…).

Weekly issue 537

Consultation rights

The Court of Appeal has decided in Vining v London Borough of Wandsworth that the right to be consulted is one of the essential elements protected by article 11 (freedom of association) of the European Convention on Human Rights…

Social media

Bi-annual LELR - Spring 2016 [137]

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.

Weekly Issue 407

Offensive tweets

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.

Weekly Issue 309

Facebook views

The growing use of social media has inevitably raised questions about whether employees who post their political or religious views on their Facebook page can be found to have brought their employer into disrepute.

Trade union information

Weekly issue 563

Fair disposal

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 (…).

Weekly Issue 500

Reason for detriment

If a worker complains that they have been penalised for taking part in the activities of an independent trade union, the employer has to establish the main purpose for what they did (or did not do).

Weekly Issue 467

Workers' Memorial Day

The theme of this year’s Workers’ Memorial Day, which takes place on 28 April, is “Strong Laws, Strong Enforcement and Strong Unions”. The purpose behind the annual event is to raise awareness of the number of workers who lose their lives every year as a result of their work by “remembering the dead and fighting for the living”. In other words, to remember all those killed through work, while at the same time ensuring that such tragedies are not repeated.

Transfers of Undertakings

Weekly Issue 567

Fragmented activities

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) state that there is a service provision change (SPC) when “activities” that were carried out by one contractor are carried out by a different contractor and remain fundamentally the same. In London Care Ltd v Henry and ors the Employment Appeal Tribunal (EAT) held that, when deciding whether there has been a transfer, judges must clearly identify the “activities” (…).

Weekly issue 552

Transfer of equipment

The Court of Justice of the European Union (CJEU) has held in Securitas v ICTS Portugal and anor that there can be a transfer of an undertaking in circumstances where the activity carried out by a new contractor is done by utilising the same equipment as the previous contractor..

Weekly issue 532

Pre-pack

When an insolvent business is sold, the contracts of existing employees do not automatically transfer under the European Acquired Rights Directive to the buyer…

UK Law

Weekly issue 554

Loss of rights after Brexit

A group of equality organisations and human rights experts, including the Equality and Human Rights Commission (EHRC), has warned the government that the EU (Withdrawal) Bill will not protect workers’ rights.

Weekly issue 551

Unpaid overtime

Although half of UK employees who did overtime last year received a premium of 10 per cent or more, 14 per cent reported that they were not paid any overtime at all in their main job, according to a report by the Resolution Foundation.

Weekly Issue 498

Government flip flops on workers' rights

Branded at the time as a way of creating a flexible workforce, the government quietly shelved its plan for creating so-called owner-employees in last week’s Autumn Statement.

Unfair dismissal

Weekly Issue 572

Historic breach

It is well established in law that to claim constructive dismissal, there has to be a fundamental breach of contract in response to which the employee resigned promptly. The Employment Appeal Tribunal (EAT) confirmed in Pets at Home Ltd v MacKenzie that employees cannot rely on historic breaches which the employee had accepted by virtue of continuing to work (…).

Weekly Issue 571

Duty to disclose

In order to decide whether a dismissal is unfair, tribunals have to ascertain whether the employer acted reasonably when deciding whether the reason warranted dismissal, among other things. In Reilly v Sandwell Metropolitan Borough Council, the Supreme Court held that the tribunal had been entitled to find that non-disclosure by a headteacher of her relationship with a convicted sex offender not only amounted to a breach of duty, but also merited her dismissal. (…).

Weekly Issue 569

Breach of rights

In order to succeed in a claim of constructive unfair dismissal, a tribunal has to find that the claimant resigned in response to a fundamental breach of their contract. In Mruke v Khan, the Court of Appeal held that claimants do not need to be aware of their rights under their contract to bring a claim of breach of those rights (…).

Vulnerable and migrant workers

Weekly Issue 574

Generational pay gap grows

According to a new report by the TUC, the pay gap between young and older workers has increased by more than half in the last 20 years (…).

Weekly issue 563

Immigration rules

The Employment Appeal Tribunal (EAT) has held in Okedina v Chikale that even if someone is working in breach of immigration law, that does not automatically mean that their contract of employment is illegal. This is because the immigration rules only apply to the sanctions that employers face if they knowingly breach them when employing someone (…).

Weekly issue 549

Diplomatic claims

Although foreign diplomats in the UK enjoy diplomatic immunity from a range of potential claims, the Supreme Court has held in Reyes v Al-Malki and anor that a Saudi diplomat and his wife could not claim immunity from employment law claims brought by a former domestic servant as they did not relate to his “official functions”.

Whistle-blowing

Weekly Issue 568

EU whistleblowing

The European Commission has proposed legislation in order to provide better protection for whistleblowers across the EU as a whole (…).

Weekly issue 558

Self-interest

In order to succeed in a claim of unfair dismissal for making a protected disclosure (blowing the whistle), claimants have to show a reasonable belief that it was in the public interest. In Parsons v Airplus International Ltd, the Employment Appeal Tribunal (EAT) upheld the tribunal decision that if a disclosure is made solely in self-interest it cannot qualify as a protected disclosure (…)

Weekly issue 550

Poor performance

Under section 103A of the Employment Rights Act 1996 (ERA), it is automatically unfair to dismiss a worker because they made a protected disclosure (blew the whistle). In Royal Mail Group Ltd v Jhuti, the Court of Appeal held that it was not a whistleblowing dismissal if the dismissing officer believed it was for another reason, in this case poor performance.

Working time and holiday pay

Weekly Issue 570

Working time compensation

Under the Working Time Regulations 1998 (WTR), workers are entitled to rest breaks of 20 minutes if they have worked more than six hours. In Santos Gomes v Higher Level Care Ltd, the Court of Appeal held that if an employer fails to provide the proper rest breaks, the worker is only entitled to compensation for the time they have lost calculated on their rate of pay and not to compensation for injury to feelings (…).

Weekly Issue 568

Holiday pay cap

Although part-time workers cannot be treated less favourably than full timers, the Employment Appeal Tribunal (EAT) has held in Brazel v The Harpur Trust that there is no principle to the opposite effect. As such, the Trust could not justify capping holiday pay for a part-time teacher just because it would mean that her holiday pay would be more favourable than that of a full timer (…).

Weekly Issue 566

Eight minute gap

The Court of Justice of the European Union (CJEU) has held in Ville de Nivelles v Rudy Matzak that the determining factor when deciding whether stand-by time is working time within the meaning of the Working Time Directive is the extent to which the worker is constrained from carrying out other activities during that time (…).

Zero hours contracts

Weekly issue 553

Bill to define workers’ rights

A bill eliminating zero-hours contracts and providing greater protection for workers in precarious work is due to have its second reading in parliament tomorrow.

Weekly issue 550

Zero hours, zero choice

A new TUC poll has found that the reason that so many workers remain on zero-hours contracts is because it is the only type of work available to them.

Weekly Issue 487

Yet more people on zero hours

According to figures published last week by the Office for National Statistics (ONS), the number of people on zero-hours contracts has increased by a fifth compared to a year ago.