Labour and European Law Review

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. (…).

25 April 2018

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.

05 April 2017

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.

05 April 2017

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

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.

01 August 2013

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

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.

03 May 2017

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

26 April 2017

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.

29 June 2016

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

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.

27 August 2012

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.

26 January 2012

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

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.

06 September 2017

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.

09 August 2017

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

28 March 2018

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.

08 November 2017

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?

16 August 2017

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.

04 October 2017

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.

23 August 2017

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

26 July 2017

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

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.

02 August 2017

Research carried out by Middlesex University into the non-payment of wages estimates that £1.2 billion of wages and a further £1.5 billion of holiday pay remain unpaid every year

21 June 2017

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.

17 January 2018

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

31 May 2017

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.

20 April 2017

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 (…).

07 March 2018

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 (…)

07 February 2018

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.

24 May 2017

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

16 May 2018

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 (…).

11 April 2018

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 (…)

14 February 2018

Although the rules relating to tribunal costs stipulate that they have to relate to those incurred "while legally represented", the Employment Appeal Tribunal (EAT) has held in Sunuva Ltd v Martin that there was nothing in the wording to say that they had to be limited because they were incurred at a particular stage of the proceedings or indeed to costs incurred after they had begun (…).

09 May 2018

When deciding whether to grant an amendment to extend time to introduce a new claim to existing proceedings, the Employment Appeal Tribunal (EAT) has held in Galilee v Commissioner of Police of the Metropolis that tribunals do not always have to determine limitation points at that time (…)

14 February 2018

Following its announcement last month that the first people eligible for a refund of tribunal fees could apply, the government has now opened up the scheme to everyone who is eligible.

29 November 2017

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 (…)

14 February 2018

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.

10 January 2018

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.

22 November 2017

The Equality Act states that an employer is not under a duty to make reasonable adjustments if they do not know (or could not reasonably be expected to know) that the worker has a disability. In Toy v Chief Constable of Leicestershire Police, the Employment Appeal Tribunal (EAT) held that an employer cannot be expected to know that a worker has a disability if the worker only has a “strong belief” that he has dyslexia (…).

23 May 2018

Paragraphs 6 and 7 of Schedule 1 of the Equality Act 2010 state that certain medical conditions, such as cancer, HIV and multiple sclerosis constitute “deemed disabilities”. The Employment Appeal Tribunal (EAT) held in Lofty v Hamis t/a First Café that, as the Equality Act does not distinguish between invasive and non-invasive cancerous conditions, it includes pre-cancerous conditions even if they do not develop into cancer. Thompsons was instructed by Unite the Union to represent its member. (…).

16 May 2018

In its latest annual survey on health and well-being at work the Chartered Institute of Personnel and Development (CIPD) found that only a minority of employers offer training in how to manage someone with a disability (…).

09 May 2018

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

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

18 January 2017

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 (…).

21 March 2018

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.

01 November 2017

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

20 September 2017

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

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 (…).

14 March 2018

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 (…).

07 March 2018

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. (…).

25 April 2018

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” (…).

21 March 2018

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.

20 December 2017

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

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.

29 March 2017

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

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

05 July 2017

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.

05 September 2016

Workers have the right not to be subjected to a detriment by their employer when taking part in the activities of an independent trade union.

27 June 2014

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

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.

15 November 2017

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.

28 September 2016

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 (…).

23 May 2018

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

21 February 2018

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.

25 October 2017

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 (…).

18 April 2018

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.

08 November 2017

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

21 June 2017

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

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.

02 November 2016

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.

11 October 2017

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.

15 February 2017

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.

25 January 2017

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

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

28 June 2017

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 (…).

18 April 2018

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…

13 September 2017

The Employment Appeal Tribunal (EAT) has held in Green v London Borough of Barking & Dagenham that the test in unfair dismissal cases by reason of redundancy is always the same even if

31 May 2017

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

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.

07 March 2013

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

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).

14 December 2016

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

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” (…).

25 April 2018

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..

10 January 2018

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

09 August 2017

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.

24 January 2018

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.

20 December 2017

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.

30 November 2016

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. (…).

23 May 2018

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 (…).

09 May 2018

The Employment Appeal Tribunal (EAT) has held in Baker v Abellio London Ltd that it is unfair to dismiss an employee for contravening an immigration statute if they already had the right to live and work in the UK but were unable to provide the correct documentation to prove those rights.

24 January 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

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”.

06 December 2017

The National Crime Agency (NCA) announced last week that modern slavery and human trafficking in the UK is far more prevalent than previously thought.

16 August 2017

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

02 May 2018

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 (…)

21 February 2018

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.

13 December 2017

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 (…).

16 May 2018

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 (…).

02 May 2018

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 (…).

18 April 2018

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.

17 January 2018

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.

13 December 2017

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.

15 September 2016