Labour and European Law Review

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

When deciding whether a dismissal is unfair, tribunals have to consider whether “in the circumstances” the employer acted reasonably or unreasonably.

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

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

To avoid a finding of unfair dismissal on the ground of capability, employers have to show they have a reasonable belief that the person is unable to return to work. In DB Schenker Rail (UK) Ltd v Doolan, the Employment Appeal Tribunal (EAT), said that the decision to dismiss was ultimately a managerial, not a medical one, and that employers have to make their own assessment (informed by experts) of the risks involved in a return to work.

04 August 2011

The Court of Justice of the European Union (CJEU) has held in Kratzer v R+V Allgemeine Versicherung AG that someone who applies for a job in order to bring a compensation claim cannot rely on EU law for protection. And if the only reason they applied for the job was to obtain an undue advantage, then their actions could constitute an abuse of rights.

28 September 2016

Although tribunals can engage in speculation when trying to work out compensation for a claimant, the Employment Appeal Tribunal (EAT) held in Kerry Ingredients (UK) Ltd v Little that they must spell out their findings and make clear the evidential basis on which they were made.

22 April 2015

The Court of Appeal said in 2013 that awards should be uplifted by 10 per cent in certain, defined circumstances. In Chawla v Hewlett Packard Ltd, the Employment Appeal Tribunal (EAT) held that these circumstances did not include awards for injury to feelings in discrimination cases brought in tribunals.

15 April 2015

The law provides that where a claimant contacts Acas and enters early conciliation (EC) during the limitation period, the period of EC stops the clock when calculating the time limit. In The Commissioners for HMRC v Garau, the Employment Appeal Tribunal (EAT) held that as the regulations only allow for one certificate, a second certificate could not extend the time period for bringing a claim.

17 May 2017

When a potential tribunal claim is successfully resolved by conciliation, the parties sign what is known as a COT3 agreement and the claimant withdraws their claim.

01 March 2017

The law requires prospective tribunal claimants to go through a process of early conciliation (EC) with Acas before they can lodge a claim. In Compass Group UK & Ireland Ltd v Morgan, the Employment Appeal Tribunal (EAT) held that the EC certificate issued by Acas can cover matters that occur after that date, as long as there is a connection between the matters in dispute at the time of the EC process.

20 October 2016

Section 1 ERA requires employers to give their employees details of their conditions of employment on starting work. In Born London Ltd v Spire Production Services Ltd, the Employment Appeal Tribunal (EAT) held that as employers did not have to state whether the information set out in section 1 was contractual or not, they did not have to state whether employee liability information under section 11 of TUPE was contractual or not.

24 May 2017

It is well established in law that courts and tribunals will not allow claimants to rely on a contract that is illegal to support a claim. In Hughes v The Coupers Partnership Ltd, the Employment Appeal Tribunal (EAT) confirmed that the claimant could not rely on an agreement that amounted to a fraud on Her Majesty’s Revenue and Customs (HMRC).

26 October 2016

The Equality Act 2010 provides protection from discrimination for both employees and those engaged personally to do work. In Windle and Arada v Secretary of State for Justice, the Court of Appeal held that tribunals can take into account a lack of “mutuality of obligation” when considering whether someone is engaged under a contract to do work personally.

22 June 2016

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

In claims of unlawful deductions of wages (such as unpaid holiday pay), claimants can apply to amend their original applications in certain circumstances …

07 June 2017

The Employment Appeal Tribunal (EAT) has held in Weatherilt v Cathay Pacific Airways Ltd that tribunals are entitled to determine issues about the construction of the contract or the implication of any term of the contract when …

07 June 2017

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

In order to bring certain tribunal claims, claimants have to show they are employees as opposed to workers or self-employed contractors. In Pimlico Plumbers Ltd and anor v Smith, the Court of Appeal held that a plumber who was ostensibly self-employed was, in fact, a worker because of the degree of control that the company exercised over him and the tribunal could therefore hear some of his claims.

22 March 2017

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

When claiming unfair dismissal and unfavourable treatment for disability discrimination, the Court of Appeal held in O’Brien v Bolton St Catherine’s Academy that although the tests for the two claims were different, both were objective and should therefore rarely (if ever) lead to different outcomes.

26 April 2017

Although employers can dismiss an employee fairly for failing to abide by a clause in their contract, the Employment Appeal Tribunal (EAT) held in Kellog, Brown and Root (UK) Ltd v Fitton & Ewer that employers still have to act reasonably when instructing an employee to abide by, in this case, a contractual mobility clause.

29 March 2017

A new study published by the TUC warns that working people in both the UK and the EU are at risk from the erosion of workplace rights after Brexit – especially those in low-skilled jobs.

24 May 2017

According to research published by the charity, Citizens Advice, almost a fifth of employers have given contracted staff less than two days’ notice of their shifts.

25 January 2017

It is unlawful discrimination to treat someone less favourably because of something “arising in consequence of their disability” and which cannot be justified. In Buchanan v Commissioner of Police of the Metropolis, the Employment Appeal Tribunal (EAT) held that the employer had to be able to justify the actual treatment of Mr Buchanan, not just the underlying procedure they used for implementing the treatment.

09 November 2016

Following an announcement by the Ministry of Justice in June last year, employment tribunal decisions for cases heard in England, Wales and Scotland are now publicly available online.

22 February 2017

When considering an order for re-engagement, the Employment Appeal Tribunal (EAT) held in United Lincolnshire Hospitals NHS Foundation Trust v Farren, that tribunals have to ask whether it was practicable to order this particular employer to re-engage this particular claimant, as opposed to applying their own test.

22 February 2017

If a tribunal thinks a claim has little chance of success, it can require the claimant to pay a deposit order.

22 February 2017

Following the introduction of the gender pay gap regulations last month, the government has launched a gender pay gap “viewing service” giving the public access to the information that companies publish.

17 May 2017

According to a TUC analysis of government statistics on hours and earnings, women earn less than men annually at every stage in their careers. The analysis also found, however, that women over 50 suffer the widest gap, earning just over £85,000 less over the course of this decade than a full-time man.

20 October 2016

A report by the Institute of Fiscal Studies into the gender wage gap has found that women experience a gradual but continual rise in the gap once they have their first child.

31 August 2016

The Employment Appeal Tribunal has held in The Government Legal Service v Brooke, that a failure by an employer to offer a potential employee…

21 June 2017

A new report by the TUC has found that one in 13 black and minority ethnic (BAME) workers are in insecure jobs, compared to one in 20 white employees …

07 June 2017

According to a study by the TUC, only one in four people with a mental illness lasting for 12 months or more are in employment

31 May 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 Court of Appeal has held in R (on the application of AR) and the Chief Constable of Greater Manchester police and anor that it was not a breach of articles 6 and 8 of the European Convention on Human Rights (ECHR) for the police to disclose details of an allegation of rape and subsequent acquittal in an Enhanced Criminal Record Certificate.

13 July 2016

Article 8 of the European Convention on Human Rights gives everyone the right to “respect for his private and family life, his home and his correspondence”. In Garamukanwa v Solent NHS Trust, the Employment Appeal Tribunal (EAT) held that Article 8 did not apply where an employer relied on personal e-mails and photographs stored on an employee’s iPhone obtained from the police when dismissing them.

08 June 2016

Although graduate internships are a must for many top jobs, the think tank IPPR has recommended in new research that they should be limited to four weeks because of the risks of exploitation and poor working conditions.

03 May 2017

Although member states can restrict the concept of “worker” under national law, the Court of Justice of the European Union (CJEU) has held in Betriebsrat der Ruhrlandklinik gGmbH v Ruhrlandklinik gGmbH, that with regard to temporary workers, the critical issue is whether they are in an “employment relationship” under the temporary work agency directive.

08 February 2017

The law says that part-time workers cannot be treated less favourably than comparable full-timers who are employed by the same employer on the same type of contract. In The Advocate General for Scotland v Barton, the Court of Session held that a part time worker cannot compare themselves to another part-time worker even if that person has been assessed as a full timer for other purposes.

17 February 2016

Under the Data Protection Act (DPA) 1998, individuals can ask a data controller for details of information held about them…

14 June 2017

In the conjoined cases of Ittihadieh v 5-11 Cheyne Gardens RTM company and ors and Deer v University of Oxford, the Court of Appeal has provided guidance on how judges should exercise their discretion…

14 June 2017

The European Court of Human Rights has decided in the case of Bărbulescu v Romania that it was not a breach of an employee’s right to privacy for their employer to access their professional internet account.

20 January 2016

Tackling workplace stress

01 February 2017

According to a new survey of health and safety reps published this week by the TUC, nearly half of UK workplaces have never had a health and safety inspection.

22 September 2016

Provisional figures from the Health and Safety Executive (HSE) have revealed that there were two more deaths at work in 2015/2016 compared to 2014/2015. The construction sector had the highest level of fatalities, with 43 workers killed.

10 August 2016

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

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

Article 11 of the European Convention on Human Rights stipulates that states cannot restrict the right to freedom of peaceful assembly and association except by law or to protect the rights and freedoms of others.

21 May 2014

The European Court ruled last week that although secondary industrial action in the UK was protected by Article 11 of the European Convention on Human Rights (the right to freedom of peaceful assembly and association with others), the government could ban it to protect the rights and freedoms of others.

16 April 2014

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

Section 188 of the 1992 Trade Union and Labour Relations Consolidation Act (TULRCA) states that employers must consult when "proposing" to dismiss an employee. The Supreme Court has decided in United States of America v Nolan that the obligation also applies to employers who are classified as public administrative bodies or sovereign states.

25 November 2015

Section 188 of the Trade Union and Labour Relations Consolidation Act 1992 (TULRCA) states that employers have to consult employees before dismissing them if they intend to make 20 or more of them redundant within a certain timescale. In E Ivor Hughes Educational Foundation v Morris and ors, the Employment Appeal Tribunal (EAT) held that the obligations are triggered even if the decision to close is a provisional one.

12 August 2015

An employment tribunal judge has ruled that offering a man two weeks paid leave following the birth of his child amounted to discrimination …

14 June 2017

New regulations governing shared parental leave came into force last week. The regulations are intended to enable parents greater flexibility in how they share the care of their child for the first year after birth.

10 December 2014

Under section 57A of the Employment Rights Act 1996 (ERA), employees can take a reasonable amount of time off work if (for instance) their partner gives birth, as long as they tell their employer “as soon as reasonably practicable”.

12 November 2014

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 government this week launched a nationwide campaign to increase awareness among low paid workers about their rights in relation to pay.

01 March 2017

The government has published a list of the strangest excuses given by employers for failing to pay the National Minimum Wage (NMW).

18 January 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

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

Although it is advisable for claimants to obtain medical evidence, the Employment Appeal Tribunal (EAT) in Hampshire County Council v Wyatt held that there was no principle of law whereby tribunals could not make a personal injury award without it.

25 January 2017

The law says that unions cannot request statutory recognition if there is an agreement in force allowing another union to collectively bargain on behalf of the relevant workers. In Pharmacists’ Defence Association Union (PDAU) v Boots Management Services Ltd the Court of Appeal held that if the relevant workers want to be represented by the non-recognised union, the onus is on them to bring the bargaining arrangements with the recognised union to an end.

29 March 2017

Unions cannot request recognition under the Trade Union and Labour Relations (Consolidation) Act (TULRCA) 1992 if there is a collective agreement in force allowing another union to collectively bargain on behalf of the relevant workers.

19 March 2014

Unions cannot request recognition under the Trade Union and Labour Relations (Consolidation) Act (TULRCA) 1992 if there is another collective agreement in force allowing a union to collectively bargain on behalf of workers in the relevant bargaining unit.

02 May 2013

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

When carrying out a redundancy consultation prior to dismissing an employee, employers have to ensure that the consultation is meaningful and not a sham.

21 December 2016

Section 148 of the Employment Rights Act says that after a four-week layoff employees can issue a notice claiming a redundancy payment from their employer. In Craig v Bob Lindfield & Son Ltd, the Employment Appeal Tribunal (EAT) held that it could not imply a contract term stipulating the length of time which might be reasonable in relation to lay off periods and short-term working.

23 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

Acas, the conciliation service, has published a new report looking at how social networking is influencing relations in the workplace and the conduct of some industrial disputes.

15 September 2011

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

According to the government’s own impact assessment, the Trade Union Bill will cost trade unions many millions of pounds to implement.

27 January 2016

Section 3(3) of the TUPE regulations state that immediately before a service provision change (SPC), there has to be an organised grouping of employees whose “principal purpose” is to carry out the client’s activities.

12 April 2017

There is a service provision change (SPC) under TUPE when “activities” which used to be carried out by one contractor are carried out by another contractor, and they remain “fundamentally the same”. In The Salvation Army Trustee Company v Bahi and ors, the Employment Appeal Tribunal (EAT) held that it is not an error of law for a judge to define “activities” in terms of their difference as opposed to their similarities.

16 November 2016

Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), there is a service provision change (SPC) when activities cease to be carried out by one contractor and are carried out instead by another contractor “on the client’s behalf”. In CT Plus (Yorkshire) CIC v Stagecoach and ors, the Employment Appeal Tribunal (EAT) held that if there is a change in the identity of the client post transfer, there cannot be an SPC.

20 October 2016

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

The Industrial Law Society has announced that it is holding its spring conference on Saturday 14 May on the very topical theme of EU law and Brexit.

04 May 2016

A report published this month by the Women and Equalities Select Committee has accused the government of being complicit in a system that perpetuates the gender pay gap.

30 March 2016

Although unlawful direct discrimination can occur when a person makes stereotypical assumptions about someone else, the Employment Appeal Tribunal (EAT) held in Chief Constable of Kent Constabulary v Bowler that a finding of unreasonable conduct is not enough for a tribunal to draw an inference of less favourable treatment on grounds of race.

03 May 2017

When considering unfair dismissal claims, tribunals have to first identity the reason for dismissal and then consider whether it is fair.

01 March 2017

When considering whether a dismissal is unfair, tribunals have to have regard to the reason shown by the employer and to the circumstances of the particular case.

15 February 2017

Research published by the TUC last week found that the number of people in insecure work has gone up by more than a quarter over the past five years.

15 February 2017

The number of workers who lack access to key employment rights has nearly doubled in a decade to 1.5 million, according to a new TUC report published last week.

21 December 2016

The UK Commission for Employment and Skills (UKCES) is inviting proposals from employers and partners about how to enhance opportunities for women in low paid sectors such as cleaning, commercial catering and adult social care.

27 May 2015

If a worker “blows the whistle” they have to believe that it was in the public interest and that it “tends to show” a failure to comply with a legal obligation.

01 February 2017

Under the whistleblowing provisions, claimants making a qualifying disclosure have to show they have a reasonable belief that it is “in the public interest”. In Morgan v Royal Mencap Society, the Employment Appeal Tribunal (EAT) held that it was reasonably arguable that an employee could consider health and safety complaints were in the wider interests of employees generally and therefore in the public interest.

11 May 2016

Under the law on whistleblowing, claimants have to show that they have a “reasonable belief” that the disclosure falls within one of the definitions of a qualifying disclosure. In Kilraine v LB of Wandsworth, the Employment Appeal Tribunal (EAT) held that the issue for tribunals to consider is not whether a given phrase or paragraph constitutes information or an allegation, but whether it is a disclosure of information.

04 May 2016

The Working Time Regulations (WTR) state that workers are entitled to a rest break if their daily working time is more than six hours.

21 December 2016

The Court of Appeal has upheld the tribunal and Employment Appeal Tribunal decisions in British Gas Trading Ltd v Lock and anor that the Working Time Regulations (WTR) have to be interpreted to comply with the European Working Time Directive when calculating holiday pay. That means they can include results-based commission payments.

23 November 2016

Following the prime minister’s announcement that she wants workers to be represented on company boards, a TUC report says the change could be law within a year.

12 October 2016

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

According to the latest figures from the Office for National Statistics (ONS), the number of people on zero-hours contracts has risen by 15 per cent since 2014.

16 March 2016

The government has recently published draft regulations preventing employers from enforcing exclusivity clauses in zero hours contracts.

28 October 2015