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.
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
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
Employees who have affirmed a breach of contact can resign and claim constructive dismissal if there is a subsequent breach. In Brown and anor v Neon Management Services Ltd and anor, the High Court held that employees who were working out their notice could still claim constructive dismissal after their employer committed further breaches during the notice period (…).
17 October 2018
A claim for constructive dismissal can arise where an employee resigns in response to a series of acts which when taken together amount to a fundamental breach of contract - so called “last straw” cases. In Kaur v Leeds Teaching Hospitals NHS Trust, the Court of Appeal clarified that where an employee has affirmed earlier breaches, their right to claim constructive dismissal is “revived” if they resign in response to a further breach (…).
18 July 2018
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
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.
24 January 2018
Conciliation and settlement
According to tribunal rules, ACAS has to send an early conciliation certificate to claimants by email if the claimant provides an email address. In Galloway v Wood Group UK Ltd, the Employment Appeal Tribunal held that the expression "an email address" means an actual email address and not an address that has never been set up or registered to a user (...).
10 April 2019
Before lodging a tribunal claim, complainants usually have to engage in early conciliation through Acas. In Luton Borough Council v Haque the Employment Appeal Tribunal (EAT) held that sections 207B(3) and 207B(4) of the Employment Rights Act (ERA) which extend the time for bringing proceedings have to be read in sequence rather than as alternatives (…).
04 July 2018
Contract of employment
Reasonable and proper cause
The Court of Appeal has held in The Mayor & Burgesses of the London Borough of Lambeth v Agoreyo that it is not a breach of the implied term of trust and confidence for an employer to suspend an employee if they have “reasonable and proper cause” to carry out the suspension (...).
08 May 2019
The law currently states that employees are entitled to a written statement of the particulars of their employment no later than two months after starting their job. The Employment Appeal Tribunal has held in Stefanko and ors v Maritime Hotel Ltd and anor that an employee who has worked for more than one month but less than two is also entitled to a statement (...).
27 February 2019
Although it is not always easy for courts to know when to infer acceptance by an employee of a change to their terms and conditions, the Court of Appeal held in Abrahall and ors v Nottingham City Council and anor that if there is a reasonable alternative explanation for why the employees continued to work, then they cannot be deemed to have accepted the new terms (…).
11 July 2018
Deductions from wages
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
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 (…).
13 June 2018
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 (…).
04 April 2018
Definition of a worker
The requirement to carry out a task personally is usually an indicator that the person is an employee., The Employment Appeal Tribunal has held in Chatfeild-Roberts v Phillips and Universal Aunts Ltd that just because an individual is permitted to provide a substitute to cover for their days off, does not mean they cannot claim employee status (...).
13 March 2019
Reality “on the ground”
When deciding whether drivers were workers in Uber BV v Aslam and ors, the Court of Appeal has held that, although the relationship between the parties was presented in the written documentation as being one of self-employment, the tribunal was right to focus on what happened in reality between them (...).
20 February 2019
When reviewing the rejection of an application for union recognition in R (on the application of The Independent Workers’ Union of Great Britain) v CAC and anor, the High Court held that as the Deliveroo drivers were not in an “employment relationship” they could not rely on Article 11 of the European Convention on Human Rights which gives everyone the right to form and to join trade unions to protect their interests (...).
30 January 2019
Disciplinary and dismissal
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
The law states that a dismissal can be fair if it is for a reason which “relates to the conduct of the employee”. In Quintiles Commercial UK Ltd v Barongo, the Employment Appeal Tribunal held that, as there is no legal requirement for the dismissal to amount to “gross misconduct”, the dismissal could still be fair if the misconduct was only deemed to be “serious” (…).
22 August 2018
Employment tribunals and tribunal fees
When deciding whether someone is an employee, a worker or self-employed contractor, tribunals have to balance a number of factors which include the extent to which the person is integrated into the business. In Exmoor Ales Ltd and anor v Herriot, the Employment Appeal Tribunal (EAT) held that someone who was paid £1,000 quarterly in return for an “exclusivity arrangement” was an employee. More …
24 April 2019
If a claim is lodged out of time because of a failure by the claimant’s solicitor, then usually it will be rejected because of their unreasonable conduct. In North East London NHS Foundation Trust v Zhou, the Employment Appeal Tribunal held that it might not be unreasonable conduct if the claimant instructed the solicitors that she would fill in the application form but failed to do so correctly (...).
24 October 2018
Although the law says that claimants have to present their complaints to a tribunal within three months, the process of early conciliation extends the time limit by at least a month. In Miah v Axis Security Services Ltd, the Employment Appeal Tribunal held that the time limit for presenting a statutory claim, such as unfair dismissal, could not be extended by rules governing tribunal practice (…).
10 October 2018
Commonality of terms
When bringing equal value claims, women can compare themselves with men working for the same employer but at a “different establishment” if common terms apply. In Asda Stores Ltd v Brierley and ors, the Court of Appeal held that, as Asda applied common terms tor retail workers and separate common terms to the distribution workers, the women in retail could compare themselves with the men in distribution (...).
20 March 2019
When lodging a tribunal claim involving multiple claimants, the Court of Appeal has held in the conjoined appeals of Brierley and ors v Asda Stores Ltd; Ahmed and ors v Sainsbury’s Supermarkets Ltd; Fenton and ors v Asda Stores Ltd that it is an “irregularity" for two or more claimants to submit a single claim form if their claims are based on a different set of facts although tribunals can override the irregularity, allowing the claim to continue (...).
06 March 2019
Equality, discrimination and harassment
Untainted by race
Although employers will sometimes be able to provide an explanation in race discrimination claims that is “completely untainted” by considerations of race, the Court of Appeal held in Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust that the employer had not provided a sufficient explanation to refute the allegation of discrimination (...).
22 May 2019
When trying to decide if someone has been treated less favourably because of a protected characteristic, tribunals can make a comparison with someone hypothetical. In Governing Body of Sutton Oak Church of England Primary School and ors v Whittaker, the Employment Appeal Tribunal confirmed that, if they do, there can be no material differences between the circumstances of the comparator and the worker (...).
15 May 2019
It is unlawful discrimination for an employer to treat a worker less favourably as a result of “something arising in consequence of” that worker’s disability. In Iforce Ltd v Wood, the Employment Appeal Tribunal held that an employer cannot, however, treat a worker less favourably as a consequence of a mistaken belief held by the worker, unless the mistaken belief and the disability were connected (...).
08 May 2019
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
Less favourable half
The law says that part-time workers cannot be treated less favourably than full-timers. In British Airways v Pinaud, the Court of Appeal held that it was clearly 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 (...).
09 January 2019
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
Although employers have a duty of care towards their employees, the High Court has held in Piepenbrock v The London School of Economics and Political Science that the university did not breach the duty of care nor was the employee’s depressive illness reasonably foreseeable following an unsubstantiated claim of improper sexual behaviour (...).
06 February 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
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.
03 February 2016
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
The Court of Justice of the European Union held in Tribunalul Botoşani and anor v Dicu that member states are not prevented from legislating that holiday does not accrued during parental leave despite a worker retaining their worker status.
21 November 2018
National minimum wage and National living wage
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
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.
01 February 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
The Equality Act 2010 states that it is discrimination to treat a woman unfavourably because she is on maternity leave. In SW Yorkshire Partnership NHS Foundation Trust v Jackson and ors, the Employment Appeal Tribunal held that sending an urgent email to a woman on maternity leave to a work email address that she could not access constituted unfavourable treatment (...).
01 May 2019
The Employment Appeal Tribunal has held in George v London Borough of Brent that, given that the Council had conceded that the failure to offer a trial period was unlawful, it was hard to understand how the tribunal could then conclude that the claimant’s dismissal was “fair and reasonable” (...).
27 March 2019
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 Court of Appeal held that for a unit to constitute an establishment, a workforce just has to be assigned to it, irrespective of whether the owner of the unit is also the employer (...).
13 February 2019
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
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
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.
28 April 2016
Transfers of Undertakings
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
Under the Transfer of Undertakings (Protection of Employment) Regulations 2006, employers cannot vary a contract if the reason for the variation is the transfer. In Tabberer and ors v Mears Ltd and ors, the Employment Appeal Tribunal held that employers can, however, vary a contract if the relevant contractual term is outdated and unfair (...)
07 November 2018
In cases of misconduct, it is good practice for employers to carry out an investigation. However, in Beattie v Condorrat War Memorial Social Club and ors, the Employment Appeal Tribunal held that even though the employer did not carry out an investigation into missing stock, the warning they issued was still valid and appropriate (...).
01 May 2019
The law says that it is automatically unfair to dismiss an employee if the reason is because they asserted that the employer had infringed a relevant statutory right. In Spaceman v ISS Mediclean Ltd t/a ISS Facility Service Healthcare the Employment Appeal Tribunal held that the infringement must have already happened as opposed to one that may or may not happen in the future (...).
10 April 2019
In SD (Aberdeen) Ltd v Wright and ors, the Employment Appeal Tribunal held that a tribunal was entitled to conclude that two companies were associated employers as both were controlled and represented by the same “principal actor” who could have shed light on their legal structure at the hearings but who failed to turn up to do so (...).
27 February 2019
Vulnerable and migrant workers
Right to work
Under UK immigration law employers may be liable to pay a penalty if they employ someone who they know is not allowed to work in the UK. In Afzal v East London Pizza Ltd t/a Dominos Pizza, the Employment Appeal Tribunal (EAT) held that even if an employer genuinely believes a worker does not have the right to work, they cannot deprive them of a right of appeal unless it would have been futile (…).
12 September 2018
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 (…).
28 March 2018
Fact of suspension
Even though a worker has made a protected disclosure (blown the whistle), the Employment Appeal Tribunal held In Uwalaka v Southern Health Foundation NHS Trust they will not necessarily be deemed to have suffered a detriment just because they were subsequently suspended, if the facts show that the suspension was the result of an unrelated allegation (...).
22 May 2019
The law says that when bringing a complaint about making a protected disclosure, claimants have to show that there is a disclosure of information which tends to show a breach of a legal obligation. In Ibrahim v HCA International Ltd, the Employment Appeal Tribunal held that although a complaint about defamation could constitute a protected disclosure, Mr Ibrahim had not made it “in the public interest” (...).
13 March 2019
Working time and holiday pay
The Court of Justice of the European Union has held in Max-Planck-Gesellschaft.v Shimizu that in relation to EU holiday, unless the employer can show that they gave the worker every opportunity to take the annual leave and the worker deliberately chose not to take it in the year it accrued, they retain their entitlement even if they fail to apply for the leave before the employment relationship comes to an end (...).
16 January 2019