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 647
  • More executive women needed
  • Injustice and hardship
  • Shifting the burden
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Weekly Issue 646
  • Disability pay gap
  • Burden of proof
  • Improper behaviour
Read Issue
Weekly Issue 645
  • Increase in older night workers
  • Contractual caps
  • Explicit refusal
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Agency workers

Weekly Issue 640

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.

Weekly Issue 616

Agency pay

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 (...).

Weekly Issue 592

Temporary agency

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 (…).

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 624

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.

Weekly Issue 614

Legitimating interests

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 (...).

Weekly Issue 592

Prompt resignation

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 (…).

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 645

Contractual caps

Breach of contract claims that are heard by tribunals are subject to a cap of £25,000. The Employment Appeal Tribunal has held in Ugradar v Lancashire Care NHS Foundation Trust that where an employee brings a claim for both contractual and statutory redundancy payments, when the £25,000 cap applies, statutory redundancy is not included within the cap and statutory redundancy pay should be awarded in addition to the £25,000 maximum (...).

Weekly Issue 642

One-Off Acts

When calculating injury to feelings in order to decide on the level of an award to a claimant, tribunals have to decide which of the “Vento bands” are appropriate. In Komeng v Creative Support, the Employment Appeal Tribunal held that there is no hard and fast rule that the lowest band should only be applied in situations where the act of discrimination or harassment was a one-off (...).

Weekly Issue 635

No breach of rights

The Court of Appeal has held in MacKenzie v The Chancellor, Masters & Scholars of the University of Cambridge that the remedy for non-compliance with a tribunal order for re-engagement is compensation. As there is no right to be re-engaged as such, claimants cannot bring a claim arguing that it has been breached. (...)

Conciliation and settlement

Weekly Issue 646

Improper behaviour

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 (...).

Weekly Issue 643

One-month extension

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 (...).

Weekly Issue 631

Rise in demand for ACAS

Conciliation service ACAS has just published its annual report recording a rise in demand for early conciliation by over 20 per cent compared with the year before (...).

Contract of employment

Weekly Issue 637

Removal Clause

The Supreme Court has held in Tillman v Egon Zehnder Ltd that if a restraint of trade clause in an employment contract is too broad, the offending words can be severed from the clause with the result that the rest of it can still be enforced. However, courts need to ensure that, by virtue of severing the words, the overall effect of the clause does not change.(...)

Weekly Issue 631

Apt for incorporation

The Employment Appeal Tribunal has held in Lozaique v Tesco Stores Ltd that just because a collective agreement is incorporated into an individual contract of employment, tribunals should not automatically assume that all terms are therefore incorporated. Instead, they need to consider whether each individual term of the agreement is apt for incorporation or not (...).

Weekly Issue 626

Variation on a bonus

The Employment Appeal Tribunal has held in Bluestones Medical Recruitment Ltd v Swinnerton that it is necessary for tribunals to carry out a detailed assessment and make clear findings of fact when deciding whether a discretionary bonus has been varied by custom and practice to become a contractual entitlement (...).

Deductions from wages

Weekly Issue 634

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]...”.

Weekly Issue 597

Constructing deductions

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.

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 (…).

Definition of a worker

Weekly Issue 644

Workers and employees

In order to bring a claim of discrimination claimants have to show they are “in employment” which covers workers and those who perform work personally. In Community Based Care Health Ltd v Narayan, the Employment Appeal Tribunal held that a GP who set up a limited company for payment purposes but who worked regular shifts for a not for profit organisation was “in employment” and a worker.

Weekly Issue 611

Employee Substitute

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 (...).

Weekly Issue 608

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 (...).

Disciplinary and dismissal

Weekly Issue 639

Secret recording

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 (...).

Weekly Issue 620

Seriously damaging

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 (...).

Weekly Issue 598

Meeting Failure

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 (...).

Employment rights

Weekly Issue 639

Enforcing workers’ rights

According to an analysis into the enforcement of workers’ rights, about one in 20 do not receive their paid holiday entitlement, despite being legally entitled to at least 28 days a year (...).

Weekly Issue 637

New collective rights needed

The TUC has published a report arguing for greater rights to collective bargaining for workers so that they have more influence over their working lives (...).

Weekly Issue 630

Labour market enforcment body

Following the Taylor review of working practices two years ago, the government has recently announced proposals to create a single labour market enforcement body (...).

Employment tribunals and tribunal fees

Weekly Issue 647

Injustice and hardship

The Employment Appeal Tribunal has held in Pontoon (Europe) Ltd v Shinh and Anor that, when considering whether to allow an amendment to a claim, tribunals have to take all the circumstances into account. Although some of these were set out in the earlier case of Selkent, the EAT made clear in that case that they are not exhaustive (...).

Weekly Issue 627

Effective time limit

Claimants have to lodge a complaint of unfair dismissal within three months of being dismissed (extended by the early conciliation process), unless it is not reasonably practicable to do so. In Wray v Jewish Care, the Employment Appeal Tribunal held that it was for the tribunal to decide based on the evidence before it whether it had been reasonably practicable for the claimant to present their complaint in time (...).

Weekly Issue 617

Trouble brewing

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 …

Equal pay

Weekly Issue 635

Implausible data

Although all relevant organisations have now reported their gender pay gap for 2019, the Equality and Human Rights Commission is now investigating those which submitted “implausible data”. (...)

Weekly Issue 628

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 (...).

Weekly Issue 618

Negotiating with employers

According to a survey on recruitment and retention, just over half of the male respondents said they would negotiate with an employer on a job offer, compared to just four in ten women (...).

Equality, discrimination and harassment

Weekly Issue 647

More executive women needed

If the target of 33 per cent women on the boards of FTSE 350 companies is to be met by next year, half of all senior leadership appointments in 2020 need to go to women (...).

Weekly Issue 647

Shifting the burden

The law says that once a worker has established facts from which discrimination could be inferred, the burden of proof passes to the employer. In Base Childrenswear Ltd v Otshudi, the Court of Appeal held that, if an employer initially hides the true reason for dismissing someone, then that, in itself, is enough to shift the burden of proof (...).

Weekly Issue 646

Disability pay gap

At the beginning of November, the average disabled worker stopped getting paid, according to new analysis published by the TUC (...).

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 643

Returning to work

The government has issued guidance for people looking to return to work focusing on those who have taken a break of over a year for caring reasons (..).

Weekly Issue 640

Inflexible Workplaces

According to a recent survey, over three quarters of working mothers feel stuck in their current job because of a lack of flexibility offered in other workplaces.

Weekly Issue 620

Working flexibly

A new study looking at how families combine work and family life has found that although flexible working is widespread, it remains patchy in some sectors (...).

Freedom of information and data protection

Weekly Issue 601

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 (...)

Weekly Issue 585

Workplace snooping

A report into workplace surveillance by the TUC has found that most workers believe that they are being monitored by their employer at work (…).

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 (…).

Health and Safety

Weekly Issue 645

Increase in older night workers

According to analysis published by the TUC, there are now nearly one million night workers aged over 50 in Britain (...).

Weekly Issue 641

Mental ill-health at work

According to a recent report, two in five UK workers (39 per cent) have experienced symptoms of poor mental health related to their work in the past year.

Weekly Issue 606

Reasonably foreseeable

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 (...).

Human rights

Weekly Issue 624

Open justice

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.

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.

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 583

Economic activity

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 (…).

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.

Maternity/Parental rights

Weekly Issue 638

Stereotyping assumptions

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 (…).

Weekly Issue 630

Men and maternity

In the conjoined appeals of Ali v Capita Customer Management Ltd and anor and The Chief Constable of Leicestershire Police v Hextall and anor, the Court of Appeal has held that it is not discriminatory to pay men on Shared Parental Leave less than women on maternity leave (...).

Weekly Issue 613

Parental leave policies

A report by a consultancy company has found that only a small minority of employers are in a position to comply with a Bill currently making its way through parliament (...).

National minimum wage and National living wage

Weekly Issue 640

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.

Weekly Issue 634

More pay and increased holiday

The New Economics Foundation has produced a report arguing that increased holidays and wages for the lowest paid can increase demand and productivity (...).

Weekly Issue 627

Available for work

Workers paid according to the number of hours they are at work are classed as doing “time work” under the National Minimum Wage Regulations 1999 and so entitled to the national minimum wage (NMW). In Frudd v Partington Group, the Employment Appeal Tribunal held that a husband and wife team who were working on call after their shift finished were doing time work and therefore entitled to be paid NMW (...).

Pensions

Weekly Issue 608

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 (...).

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.

Personal Injury

Weekly Issue 621

Increase in stress at work

The conciliation service ACAS has produced a new report showing that two thirds of workers in the UK have felt stressed or anxious about work over the last year (...).

Weekly Issue 600

Critical Assault

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 (...).

Weekly Issue 580

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 (…).

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 618

Redundant email

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 (...).

Weekly Issue 613

Reasonable dismissal

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” (...).

Weekly Issue 607

Collective 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 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 (...).

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 633

One-off inducement

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 (...).

Weekly Issue 624

Trade union membership rises

According to recent government figures, the number of people who were trade union members rose by just over 100,000 to a total of 6.35 million in 2018.

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 (…).

Transfers of Undertakings

Weekly Issue 617

Personal transfer

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 …

Weekly Issue 599

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 (...).

Weekly Issue 595

Outdated payment

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 (...)

UK Law

Weekly Issue 614

Employees should have a say on pay

A parliamentary committee has said that companies should have an employee representative on their remuneration committees to keep a lid on excessive executive pay levels (...).

Weekly Issue 603

Pay of top bosses

New pay ratio regulations introduced by the government which came into force at the beginning of January mean that companies are now required to justify the pay of top bosses (...).

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.

Unfair dismissal

Weekly Issue 642

Reason for Dismissal

The Employment Appeal Tribunal has held in Upton-Hansen Architects Ltd v Gyftaki that, when faced with a claim for constructive dismissal, employers cannot just issue a generic denial of the claim. Instead, as the onus is on them to identify the reason for dismissal, they must make clear the potentially fair reason that they relied on for dismissing the person (...).

Weekly Issue 635

Genuine misunderstanding

Tribunal claims usually have to be presented within three months less one day of the effective date of dismissal. In Lowri Beck Services Ltd v Brophy, the Employment Appeal Tribunal held that it had not been reasonably practicable for the claimant to lodge his unfair and wrongful dismissal claim on time as he had genuinely misunderstood the date when he was dismissed. (...)

Weekly Issue 629

Patient forms

Although European law recognises the right to freedom of religion, the Court of Appeal held in Kuteh v Dartford and Gravesham NHS Trust that it was not unfair to dismiss a nurse for proselytising when filling in a pre-operative form about a patient’s religion. This was not only inappropriate, but it was also contrary to a reasonable management instruction not to engage with patients unless asked by them to do so (...).

Vulnerable and migrant workers

Weekly Issue 642

Supply Chain Abuse

Research by the charity Oxfam has uncovered a range of human rights abuses on farms linked to major European supermarkets (...).

Weekly Issue 641

Immigration breach

Under immigration rules, only employers face a penalty and/or criminal sanctions if they knowingly employ someone who does not have leave to remain in the UK.

Weekly Issue 633

Insecurity of work

New analysis by the TUC has found that one in nine workers are in precarious jobs across every region in England, Wales and Scotland (...).

Whistle-blowing

Weekly Issue 643

In the public interest

When claiming unfair dismissal for making a protected disclosure (blowing the whistle), claimants have to show a “reasonable belief” that it was made in the “public interest”. In Okwu v Rise Community Action the Employment Appeal Tribunal held that the issue for tribunals was not whether the information disclosed was true but whether the claimant reasonably believed it to be in the public interest (...).

Weekly Issue 636

Self-interest or public interest?

For a whistle-blowing claim to succeed, the worker has to show that they had a “reasonable belief” that the disclosure was in “the public interest”. In Dray Simpson v Cantor Fitzgerald Europe, the Employment Appeal Tribunal held that the claimant’s complaints about commission payments could not be said to engage the public interest but rather were motivated by his own self-interest (...).

Weekly Issue 621

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 (...).

Working time and holiday pay

Weekly Issue 645

Explicit refusal

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 (...).

Weekly Issue 641

Holiday Pay Calculator

The Court of Appeal has held in The Harpur Trust v Brazel and anor that, when calculating holiday pay for a “part-year” worker on a permanent contract, employers cannot apply the pro rata principle. Instead, they have to apply section 16 of the Working Time Regulations which states that workers are entitled to be paid on the basis of their average earnings over a 12-week period prior to them going on leave.

Weekly Issue 632

Normal remuneration

It is well established in law that workers are entitled to be paid “normal remuneration” when their holiday pay is calculated. In Flowers and ors v East of England Ambulance Trust, the Court of Appeal held that holiday pay should also include voluntary overtime that is sufficiently regular and settled when calculating “normal remuneration” as opposed to overtime that is “exceptional and unforeseeable” (...).

Zero hours contracts

Weekly Issue 608

Zero-hours, zero sum game

According to research by the TUC, workers on zero-hour contracts are more likely to do night shifts and to be paid less than other workers (...).

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.