Labour and European Law Review
Thompsons’ Labour and European Law Review (LELR) is recognised as an authoritative source of comment and discussion of rulings which fall under both UK and European law. Available to read here, and also via a weekly email bulletin, LELR offers considerable insight into the latest issues affecting trade unions and their members.
Where an agency and hirer are held equally liable for infringing the right to equal pay under the Agency Worker Regulations 2010, the Court of Appeal has held in London Underground Ltd v Amissah and ors that it would only be just and equitable in “exceptional” circumstances for a tribunal to order a hirer to pay less than the amount apportioned to them for the breach (...).
17 April 2019
The law defines an agency worker as someone who works “temporarily” for a hirer. In Brooknight Guarding Ltd v Matei, the Employment Appeal Tribunal held that an individual on a zero-hours contract can also be an agency worker if their position can be shown to be temporary (…).
17 October 2018
Courts will only imply a contract on the ground of necessity in certain circumstances. In Smith v Carillion the Court of Appeal held that, even in the case of a blacklisted worker, the question for courts was whether it was necessary to imply a contract between the worker in question and the end user by looking at how the parties conducted themselves.
06 May 2015
ICO "disappointed" about blacklisting
Following complaints by the GMB and human rights group Liberty about the failure to act against firms found to have been blacklisting trade unionists, the deputy Information Commissioner has said that there is nothing more his office can do.
06 September 2012
Breach of contact
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.
12 June 2019
Although there may be a legitimate public interest in the disclosure of certain information in order to ascertain whether large firms are fulfilling their social and moral duties towards their staff, the High Court held in Linklaters LLP and anor v Mellish that it could not justify disclosing sensitive confidential information which others had a legitimate interest in keeping confidential (...).
03 April 2019
Employees who have affirmed a breach of contact can resign and claim constructive dismissal if there is a subsequent breach. In Brown and anor v Neon Management Services Ltd and anor, the High Court held that employees who were working out their notice could still claim constructive dismissal after their employer committed further breaches during the notice period (…).
17 October 2018
Dismissal on grounds of capability
In the current climate of austerity and mass redundancies in both the public and private sectors, employers will often look for reasons other than redundancy to dismiss employees to avoid paying a redundancy payment.
05 September 2012
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. (...)
28 August 2019
The law says that employers must provide a statement of terms and conditions to their employees within two months of starting work. In Govdata Ltd v Denton, the Employment Appeal Tribunal held that even if the employer is late in complying with section 1, employees cannot claim an increase in compensation under section 38 of the Employment Act 2002 (...).
26 June 2019
Return to work
The Employment Appeal Tribunal has held in ICTS (UK) Ltd v Visram that a contractual entitlement to long-term disability benefits which applied until the employee was able to “return to work” was a reference to the job they had been doing prior to going off sick and not to any suitable job that the employer could offer them (...).
05 June 2019
Conciliation and settlement
According to tribunal rules, ACAS has to send an early conciliation certificate to claimants by email if the claimant provides an email address. In Galloway v Wood Group UK Ltd, the Employment Appeal Tribunal held that the expression "an email address" means an actual email address and not an address that has never been set up or registered to a user (...).
10 April 2019
Contract of employment
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.(...)
11 September 2019
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 (...).
31 July 2019
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 (...).
26 June 2019
Deductions from wages
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]...”.
21 August 2019
The law says that tribunals can only hear breach of contract claims on termination of employment. In the conjoined case of Agarwal v Cardiff University and Nexus v Anderson and ors, the Court of Appeal held that tribunals can hear unlawful deduction of wages claims, even if they involve construction of the claimant’s contract of employment.
21 November 2018
The Employment Rights Act 1996 stipulates that claims for unauthorised deductions from wages have to be brought within three months of the last deduction. In Coletta v Bath Hill Court (Bournemouth) Property Management Ltd, the Employment Appeal Tribunal (EAT) held that for claims brought before January 2015, there was no limitation on arrears as long as the claim was brought within the time limit (…).
13 June 2018
Definition of a worker
The requirement to carry out a task personally is usually an indicator that the person is an employee., The Employment Appeal Tribunal has held in Chatfeild-Roberts v Phillips and Universal Aunts Ltd that just because an individual is permitted to provide a substitute to cover for their days off, does not mean they cannot claim employee status (...).
13 March 2019
Reality “on the ground”
When deciding whether drivers were workers in Uber BV v Aslam and ors, the Court of Appeal has held that, although the relationship between the parties was presented in the written documentation as being one of self-employment, the tribunal was right to focus on what happened in reality between them (...).
20 February 2019
When reviewing the rejection of an application for union recognition in R (on the application of The Independent Workers’ Union of Great Britain) v CAC and anor, the High Court held that as the Deliveroo drivers were not in an “employment relationship” they could not rely on Article 11 of the European Convention on Human Rights which gives everyone the right to form and to join trade unions to protect their interests (...).
30 January 2019
Disciplinary and dismissal
The Court of Appeal has held in North West Anglia NHS Foundation Trust v Gregg that employers do not need to wait until a police investigation has been completed before initiating their own disciplinary procedures unless they do so with the aim of destroying or seriously damaging the relationship with their employee (...).
15 May 2019
Although employers are usually expected to follow a fair process (including holding a meeting with the employee) before dismissing them, the Employment Appeal Tribunal (EAT) held in Hawkes v Ausin Group (UK) Ltd that it is not necessarily unfair not to hold a meeting with an employee before dismissing them for some other substantial reason (...).
28 November 2018
The law states that a dismissal can be fair if it is for a reason which “relates to the conduct of the employee”. In Quintiles Commercial UK Ltd v Barongo, the Employment Appeal Tribunal held that, as there is no legal requirement for the dismissal to amount to “gross misconduct”, the dismissal could still be fair if the misconduct was only deemed to be “serious” (…).
22 August 2018
Employment tribunals and tribunal fees
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 (...).
03 July 2019
When deciding whether someone is an employee, a worker or self-employed contractor, tribunals have to balance a number of factors which include the extent to which the person is integrated into the business. In Exmoor Ales Ltd and anor v Herriot, the Employment Appeal Tribunal (EAT) held that someone who was paid £1,000 quarterly in return for an “exclusivity arrangement” was an employee. More …
24 April 2019
If a claim is lodged out of time because of a failure by the claimant’s solicitor, then usually it will be rejected because of their unreasonable conduct. In North East London NHS Foundation Trust v Zhou, the Employment Appeal Tribunal held that it might not be unreasonable conduct if the claimant instructed the solicitors that she would fill in the application form but failed to do so correctly (...).
24 October 2018
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 (...).
10 July 2019
Equality, discrimination and harassment
Tackling class discrimination
Following a report showing that people from working-class backgrounds are not treated the same as those from wealthier homes, the TUC has called for a new law to tackle class discrimination in the workplace (...).
18 September 2019
Not in the course of employment
Although posting an offensive image on Facebook could constitute an act done “in the course of employment”, the Employment Appeal Tribunal held in Forbes v LHR Airport Ltd that when an image is posted on the employee’s own computer at home, did not refer to their employer or any employees, it could not be said to be done in the course of employment (...).
18 September 2019
Although it is unlawful to discriminate against a worker because of their religious beliefs, the Employment Appeal Tribunal has held in Page v NHS Trust Development Authority that it is not discriminatory to dismiss them because of the “manner” in which they express those religious views as opposed to the fact that they hold them. (…)
11 September 2019
The Supreme Court has held in P v Commissioner of Police of the Metropolis that police officers must have the right to bring claims of treatment contrary to EU law to a tribunal in order to comply with the principles of effectiveness and equivalence. Likewise, national rules in relation to judicial immunity have to be consistent with EU law.
20 December 2017
The Court of Justice of the European Union (CJEU) has decided in Nogueira and ors v Crewlink Ireland Ltd and Osacar v Ryanair Designated Activity Company (formerly Ryanair Ltd) that, in order to decide where a cabin crew member habitually carries out their work, a number of different factors have to be considered, not just the place that has been designated as their “home base”.
15 November 2017
Fixed-term, flexible and part-time workers
Less favourable half
The law says that part-time workers cannot be treated less favourably than full-timers. In British Airways v Pinaud, the Court of Appeal held that it was clearly less favourable treatment for an employer to require a part-timer to work more than half of the hours of a full-timer but only pay them half of the salary (...).
09 January 2019
Freedom of information and data protection
Liability for motive
For an employer to be held vicariously liable for the actions of their employees, there has to be sufficient connection between their job and the wrongful conduct. In Wm Morrison Supermarket plc v Various Claimants, the Court of Appeal held that there was no exception to the rule of vicarious liability where the employee’s motive was to cause financial or reputational damage to the employer by causing harm to a third party (...)
19 December 2018
The law says that if a contract is terminated by notice, then the effective date of termination (EDT) is the date on which the notice expires but if no notice is given, then it is the date on which the termination takes effect. In Cosmeceuticals Ltd v Parkin, the Employment Appeal Tribunal (EAT) held that in a summary dismissal that is communicated to the claimant straight away, the effective date of termination is immediate (…).
21 March 2018
Health and Safety
Although employers have a duty of care towards their employees, the High Court has held in Piepenbrock v The London School of Economics and Political Science that the university did not breach the duty of care nor was the employee’s depressive illness reasonably foreseeable following an unsubstantiated claim of improper sexual behaviour (...).
06 February 2019
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.
12 June 2019
Protect workers’ Human Rights
The European Convention on Human Rights and the UN Guiding Principles on Business and Human Rights place duties on the State to protect against human rights abuses by businesses and provide access to remedy for victims.
12 April 2017
Record low strike record
According to figures produced by the Office for National Statistics (ONS), the number of stoppages last year in the UK were the lowest since records began in 1891. The number of workers involved in labour disputes was also the lowest ever recorded. (…).
06 June 2018
Information and consultation
The Information and Consultation of Employees Regulations (ICE) require “undertakings” which carry out “an economic activity” to inform and consult with their employees about a wide range of issues. In Advisory, Conciliation and Arbitration Service (ACAS) v Public and Commercial Services Union (PCS), the Employment Appeal Tribunal (EAT) held that ACAS fell within the category of an undertaking that carried out an economic activity, rendering it subject to the regulations. Thompsons was instructed by PCS to act on behalf of their members (…).
15 August 2018
The law says that when an employer proposes to dismiss as redundant 20 or more employees at one “establishment”, they have to consult with the appropriate representatives. In Seahorse Maritime Ltd v Nautilus International, the Employment Appeal Tribunal (EAT) held that the territorial scope of the obligation to collectively consult was dependent on the individual employee’s connection to the UK.
22 November 2017
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 (…).
18 September 2019
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 (...).
24 July 2019
National minimum wage and National living wage
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 (...).
03 July 2019
In need of protection
In Secretary of State for the Home Department and ors v Sargeant and ors (heard jointly with Lord Chancellor and ors v McCloud and ors), the Court of Appeal has held that the government was not pursuing a “legitimate aim” when it introduced transitional pension arrangements (...).
20 February 2019
The Supreme Court has held In the matter of an application for judicial review by Denise Brewster that the requirement for a cohabiting partner to be nominated by a scheme member in order to be eligible for a survivor’s pension cannot be objectively justified.
12 April 2017
The Court of Justice of the European Union (CJEU) has held in Parris v Trinity College Dublin that it was not discrimination on the grounds of sexual orientation and/or age for a pension fund to refuse a retrospective claim for a survivor’s pension to the surviving spouse or civil partner.
01 February 2017
Although employers can be held vicariously liable for their employees’ conduct, it has to be closely connected with the acts that the employee was authorised to do. In Bellman v Northampton Recruitment Ltd, the Court of Appeal held that that an assault committed at a drinks event following a company party could be said to have been carried out in the course of the employee’s employment (...).
12 December 2018
No hard feelings
The law states that the first £30,000 of any payment made on termination of employment is exempt from tax, but what about payments made for injury to feelings? In Moorthy v HM Revenue and Customs (HMRC), the Court of Appeal held that payments for injury to feelings in the context of an age discrimination claim were exempt from tax but that any awards should be modest (…).
25 July 2018
The Employment Appeal Tribunal (EAT) has held in Kostal UK Ltd v Dunkley and ors that employers cannot go over the heads of unions recognised for collective bargaining purposes and make offers directly to the workforce, if the purpose and effect is so that the workers’ terms will not be determined by collective agreement negotiated by the union.Thompsons was instructed by Unite the Union’s Strategic Case Unit to act on behalf of its members. (…).
28 February 2018
When considering an application for union recognition in Independent Workers’ Union of Great Britain v RooFoods Limited T/A Deliveroo, the Central Arbitration Committee (CAC) held that, as the drivers had a genuine right to substitute which operated in practice, they could not be workers under section 296 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).
31 January 2018
Redundancy and Protective Awards
The Equality Act 2010 states that it is discrimination to treat a woman unfavourably because she is on maternity leave. In SW Yorkshire Partnership NHS Foundation Trust v Jackson and ors, the Employment Appeal Tribunal held that sending an urgent email to a woman on maternity leave to a work email address that she could not access constituted unfavourable treatment (...).
01 May 2019
The Employment Appeal Tribunal has held in George v London Borough of Brent that, given that the Council had conceded that the failure to offer a trial period was unlawful, it was hard to understand how the tribunal could then conclude that the claimant’s dismissal was “fair and reasonable” (...).
27 March 2019
The law says that when an employer proposes to dismiss as redundant 20 or more employees at one “establishment”, they have to consult with the appropriate representatives. In Seahorse Maritime Ltd v Nautilus International, the Court of Appeal held that for a unit to constitute an establishment, a workforce just has to be assigned to it, irrespective of whether the owner of the unit is also the employer (...).
13 February 2019
Social media and the employment relationship
Social media refers to online networks that enable individuals to share and exchange an extremely broad range of information and ideas, the most well-known being Facebook, Twitter and LinkedIn.
17 March 2016
Although employees have a right to use social media, the Employment Appeal Tribunal (EAT) held in Game Retail Ltd v Laws that it has to be balanced with their employers’ need to minimise any risk to their reputation from communications that could be read by customers and other employees.
18 February 2015
Trade union information
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 (...).
14 August 2019
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
Transfers of Undertakings
Although a dismissal under the Transfer of Undertakings (Protection of Employment) Regulations 2006 can be fair for economic, technical or organisational reasons, the Court of Appeal held in Hare Wines Ltd v Kaur and anor that there is no category in law whereby it is fair to dismiss an employee for personal reasons relating to a transfer. More …
24 April 2019
Public health transfer
The Employment Appeal Tribunal has held in Nicholls and ors v London Borough of Croydon that if a public health commission team was an “economic entity” under the Transfer of Undertakings (Protection of Employment) Regulations 2006, the tribunal needed to explain why it did not constitute a relevant transfer under the regulations (...).
05 December 2018
Under the Transfer of Undertakings (Protection of Employment) Regulations 2006, employers cannot vary a contract if the reason for the variation is the transfer. In Tabberer and ors v Mears Ltd and ors, the Employment Appeal Tribunal held that employers can, however, vary a contract if the relevant contractual term is outdated and unfair (...)
07 November 2018
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. (...)
28 August 2019
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 (...).
17 July 2019
Although it is usually unfair for an employer to dismiss an employee for gross misconduct without first carrying out an investigation, the Employment Appeal Tribunal held in Radia v Jefferies International Ltd that because the company dismissed Mr Radia on the basis of the findings set out in a tribunal judgement, it was within the range of reasonable responses for it to have done so (...).
05 June 2019
Vulnerable and migrant workers
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 (...).
04 September 2019
Fact of suspension
Even though a worker has made a protected disclosure (blown the whistle), the Employment Appeal Tribunal held In Uwalaka v Southern Health Foundation NHS Trust they will not necessarily be deemed to have suffered a detriment just because they were subsequently suspended, if the facts show that the suspension was the result of an unrelated allegation (...).
22 May 2019
Working time and holiday pay
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” (...).
07 August 2019
Working time records
According to the decision of the Court of Justice of the European Union in Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE, employers are required by European law to keep a record of hours worked by their staff to ensure they are abiding by the requirements in the Working Time Directive and the Charter of Fundamental Rights of the European Union (...).
17 July 2019
Work and rest
The Working Time Regulations 1998 state that if a worker cannot take the 20-minute rest break to which they are entitled after working six hours, they should be allowed an “equivalent period of compensatory rest”. In Crawford v Network Rail Infrastructure Ltd, the Court of Appeal held that a compensatory rest break has to have the same “value” as the 20-minute break, but does not have to be continuous.
19 June 2019