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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 596
  • Enforcing the Equality Act
  • Relevant Requirement
  • Decisive influence
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Weekly Issue 595
  • Night shift working
  • Outdated payment
  • Providing Evidence
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Weekly Issue 594
  • Whistleblowing detriment
  • Defective claim
  • Giving notice
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Agency workers

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 (…).

Weekly Issue 587

Agency complaints

According to the latest annual report from the Employment Agency Standards Inspectorate, the number of complaints against recruitment agencies has increased by over 50 per cent (…).

Weekly Issue 567

Agency rate of pay

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. (…).

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 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 (…).

Weekly Issue 579

Fundamental breach

A claim for constructive dismissal can arise where an employee resigns in response to a series of acts which when taken together amount to a fundamental breach of contract - so called “last straw” cases. In Kaur v Leeds Teaching Hospitals NHS Trust, the Court of Appeal clarified that where an employee has affirmed earlier breaches, their right to claim constructive dismissal is “revived” if they resign in response to a further breach (…).

Weekly Issue 518

Construing the contract

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.

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 554

Long, hard road

In terms of assessing compensation for injury to feelings, courts have long followed the guidance provided by the “Vento bands”, which was updated in 2017. In Durrant v Chief Constable of Avon & Somerset Constabulary, the Court of Appeal held that the revised amounts can be used in cases prior to the update in circumstances where it is justified to do so.

Weekly issue 536

Pay ratios

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.

Weekly issue 532

160 years to earn one year of top CEO pay

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.

Conciliation and settlement

Weekly Issue 577

In sequence

Before lodging a tribunal claim, complainants usually have to engage in early conciliation through Acas. In Luton Borough Council v Haque the Employment Appeal Tribunal (EAT) held that sections 207B(3) and 207B(4) of the Employment Rights Act (ERA) which extend the time for bringing proceedings have to be read in sequence rather than as alternatives (…).

Weekly issue 563

Increase in ACAS notifications

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

Weekly issue 545

Forms and certificates

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.

Contract of employment

Weekly Issue 578

Deemed acceptance

Although it is not always easy for courts to know when to infer acceptance by an employee of a change to their terms and conditions, the Court of Appeal held in Abrahall and ors v Nottingham City Council and anor that if there is a reasonable alternative explanation for why the employees continued to work, then they cannot be deemed to have accepted the new terms (…).

Weekly Issue 578

Receipt of notice

Although an employment contract has to state the length of notice of termination, it does not have to state how notice should be given. In Newcastle upon Tyne NHS Foundation Trust v Haywood, the Supreme Court held that, as employers and employees need to know whether and when employment had come to an end, receipt of notice does not take effect until the employee has read it or had a reasonable opportunity of doing so (…).

Weekly issue 540

Far from neutral

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.

Deductions from wages

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 (…).

Weekly Issue 564

Construing contracts

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 (…).

Weekly issue 531

Broken Chain

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.

Definition of a worker

Weekly Issue 581

Exercise control

In order to bring certain tribunal claims, claimants have to show they are workers as opposed to self-employed contractors. In Pimlico Plumbers Ltd and anor v Smith, the Supreme Court held that a plumber who was ostensibly self-employed was a worker because of the degree of control that the company exercised over him (…).

Weekly issue 553

In reality

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.

Weekly Issue 522

Civil servant

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

Disciplinary and dismissal

Weekly Issue 584

Serious misconduct

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” (…).

Weekly issue 560

Inclusion/exclusion

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 (…).

Weekly issue 556

Cake and eating it

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 (…)

Employment rights

Weekly Issue 591

Boost to workers’ rights

Earlier this month the government announced a series of measures to enhance workers’ rights around tipping, flexibility in the workplace and transparency on parental pay (…).

Weekly Issue 590

No Duty to Care

Although an employer owes a duty of care to their employees, the Supreme Court has held in James-Bowen and ors v Commissioner of Police of the Metropolis that a police commissioner does not owe a duty of care to protect the reputation of her officers when involved in litigation with a third party who has alleged that those officers assaulted him (…).

Weekly Issue 570

Enforcement of pay and rights

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

Employment tribunals and tribunal fees

Weekly Issue 593

Claim Time

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 (...).

Weekly Issue 591

Practice extensions

Although the law says that claimants have to present their complaints to a tribunal within three months, the process of early conciliation extends the time limit by at least a month. In Miah v Axis Security Services Ltd, the Employment Appeal Tribunal held that the time limit for presenting a statutory claim, such as unfair dismissal, could not be extended by rules governing tribunal practice (…).

Weekly Issue 589

Tribunal claims go through the roof

According to statistics published this month by the Ministry of Justice, the number of single tribunal claims have increased by 165 per cent (…).

Equal pay

Weekly Issue 586

Extend Pay Gap Reporting

The UK’s equalities watchdog has published a report calling for mandatory pay gap reporting on staff recruitment, retention and promotion by ethnicity and disability (…).

Weekly Issue 585

Time for Equal Pay

The law states that, once the principle of equal pay for equal work has been established, an equality clause has to be read into the woman’s contract. In Reading Borough Council v James, the Employment Appeal Tribunal held that, once that statutory modification has occurred, the right to equal pay continues even if the comparator is promoted to a different job (…).

Weekly Issue 584

Ban the box

According to analysis carried out by Nacro, employers will struggle to comply with the new General Data Protection Regulations when requesting criminal record information from job applicants (…).

Equality, discrimination and harassment

Weekly Issue 596

Enforcing the Equality Act

Following criticisms about the enforcement powers of the Equality and Human Rights Commission, the Women and Equalities Select Committee now wants to know what more needs to be done to achieve compliance with the Equality Act.

Weekly Issue 596

Relevant Requirement

Under European law, religious organisations and those with an ethos based on religion or belief can require their employees to be loyal to the organisation’s ethos. In IR v JQ, the Court of Justice of the European Union held that the requirement to uphold the relevant ethos or belief had to constitute a “genuine, legitimate and justified occupational requirement”.

Weekly Issue 595

Providing Evidence

In order to prove disability discrimination under the Equality Act, workers have to show that the impairment has an “adverse effect on their ability to carry out normal day-to-day activities”. In Mutombo-Mpania v Angard Staffing Solutions Ltd, the Employment Appeal Tribunal held that this involves providing evidence listing the specific activities that the worker could not undertake because of the alleged disability (...)

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 583

Categories of comparison

The law states that a part-time worker cannot be treated less favourably than someone who works full time if they are employed under the “same type of contract”. In Roddis v Sheffield Hallam University, the Employment Appeal Tribunal (EAT) held that contracts should be defined broadly so that a part-time worker on a zero hours contract can be compared to a full-time worker on a permanent contract. Thompsons was instructed by UCU to act on behalf of their member in the EAT appeal (…).

Weekly issue 562

Unfair fixed-term

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 (…).

Weekly issue 544

Half and Half

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.

Freedom of information and data protection

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 (…).

Weekly issue 561

Covert breach

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 (…).

Health and Safety

Weekly Issue 577

Hot weather advice

Acas, the conciliation agency, and the TUC have both issued advice to employers to ensure that workers stay safe in the sun (…).

Weekly Issue 567

Work and mental health

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. (…).

Weekly issue 562

New health and safety standard

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” (…).

Human rights

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.

Weekly Issue 455

UK ratifies forced slavery agreement

The UK has ratified a landmark ILO agreement to combat forced labour, people trafficking and other forms of modern slavery. Along with Niger and Norway, it is one of the first nations to sign the international convention.

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 576

New dads miss out

Research just published by the TUC has found that one in four new dads did not qualify for paternity pay for two main reasons (…).

Weekly Issue 576

Men, pay and Shared Parental Leave

The appeal tribunal has recently heard two cases concerning men who brought sex discrimination claims because they received statutory pay when on Shared Parental Leave (SPL) compared to women who received enhanced pay when on maternity leave (…).

Weekly Issue 576

Shared Parental Leave and pay for men

The appeal tribunal has recently heard two cases concerning men who brought sex discrimination claims because they received statutory pay when on Shared Parental Leave (SPL) compared to women who received enhanced pay when on maternity leave (…).

National minimum wage and National living wage

Weekly Issue 590

Underpayments of the National Minimum Wage

According to figures released last month by the government, a record number of workers were underpaid the National Minimum Wage this year by their employers (…).

Weekly Issue 589

Sleepy exception

The National Minimum Wage (NMW) regulations state that workers are entitled to be paid the NMW for the actual hours they work. In the conjoined cases of The Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersand, the Court of Appeal clarified that workers who are required to sleep at or near the place of work, and are provided with suitable facilities for sleeping, are not entitled to the NMW while they are asleep (…).

Weekly Issue 579

Minimum pay rates

Two days after an MP tried (and failed) to lower the age limit for the National Living Wage, the government named 233 employers for failing the National Minimum Wage to their workers (…).

Pensions

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.

Weekly Issue 494

Gendered pension

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.

Personal Injury

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 (…).

Weekly issue 541

Injury liability

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.

Weekly Issue 507

Long-term stress

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.

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 596

Decisive influence

In Bichat and ors v Aviation Passage Service Berlin, the Court of Justice of the European Union (CJEU) held that the collective redundancies directive applies to all undertakings that exercise a “decisive influence” in an employer’s decision-making bodies. As a result, the undertaking can compel that employer to contemplate or plan for collective redundancies.

Weekly Issue 572

Bumping out

The Employment Appeal Tribunal (EAT) has held in Mirab v Mentor Graphics (UK) Ltd that, in a redundancy situation, the onus is not necessarily on the employee to raise the possibility of “bumping” someone else out of their job to save them from redundancy. Instead it is for the tribunal to determine whether, on the particular facts of the case, what the employer did fell within the range of reasonable responses (…).

Weekly Issue 566

In good time

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 (…).

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 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 (…).

Weekly Issue 500

Reason for detriment

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).

Weekly Issue 467

Workers' Memorial Day

The theme of this year’s Workers’ Memorial Day, which takes place on 28 April, is “Strong Laws, Strong Enforcement and Strong Unions”. The purpose behind the annual event is to raise awareness of the number of workers who lose their lives every year as a result of their work by “remembering the dead and fighting for the living”. In other words, to remember all those killed through work, while at the same time ensuring that such tragedies are not repeated.

Transfers of Undertakings

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 (...)

Weekly Issue 591

Temporary suspension

Under the European directive, there is a transfer of an undertaking when there is a transfer of an “economic entity which retains its identity”. In Sigüenza v Ayuntamineto de Valladolid and ors, the Court of Justice of the European Union held that a temporary suspension of the activities of an undertaking between an employee being dismissed and the appointment of another contractor did not mean there had not been a transfer (…).

Weekly Issue 567

Fragmented activities

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” (…).

UK Law

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.

Weekly issue 551

Unpaid overtime

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.

Weekly Issue 498

Government flip flops on workers' rights

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.

Unfair dismissal

Weekly Issue 594

Giving notice

Although handing in a letter offering a month’s notice can usually be interpreted as an act of resignation, the Employment Appeal Tribunal held in East Kent Hospitals University NHS Foundation Trust v Levy that if the wording is ambiguous, tribunals have to adopt an objective test to decide how the letter would have been interpreted by the “reasonable recipient” (...).

Weekly Issue 589

Extinguishing dismissal

Employees have the right to appeal against a decision taken by their employer following a disciplinary hearing to dismiss them. In Folkestone Nursing Home Ltd v Patel, the Court of Appeal held that where, following a successful appeal, the decision to dismiss is revoked, it follows that the contract of employment is revived, thereby extinguishing the original dismissal (…).

Weekly Issue 588

Weekly notice

The law says that anyone employed for more than a month but less than two years is entitled to a week’s notice, thus extending their date of termination. In Lancaster & Duke Ltd v Wileman, the Employment Appeal Tribunal held that an employee dismissed for gross misconduct was not entitled to claim a week’s notice with the result that she was not able to claim unfair dismissal (…).

Vulnerable and migrant workers

Weekly Issue 587

Right to work

Under UK immigration law employers may be liable to pay a penalty if they employ someone who they know is not allowed to work in the UK. In Afzal v East London Pizza Ltd t/a Dominos Pizza, the Employment Appeal Tribunal (EAT) held that even if an employer genuinely believes a worker does not have the right to work, they cannot deprive them of a right of appeal unless it would have been futile (…).

Weekly Issue 574

Generational pay gap grows

According to a new report by the TUC, the pay gap between young and older workers has increased by more than half in the last 20 years (…).

Weekly issue 563

Immigration rules

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 (…).

Whistle-blowing

Weekly Issue 594

Whistleblowing detriment

In the landmark decision of Timis and anor v Osipov and anor, the Court of Appeal has held that two individual directors were liable for dismissing a senior employee for blowing the whistle, in addition to the company (...)

Weekly Issue 587

Alleged information

When blowing the whistle, workers have to ensure that they make a disclosure of “information”. In Kilraine v London Borough of Wandsworth, the Court of Appeal held that “information” could include “allegations” but they, in turn, had to be sufficiently factual to support one or more of the factors listed in section 43B(1) of the Employment Rights Act (ERA) 1996 (…).

Weekly Issue 585

Leaked information

The law says that it is automatically unfair to dismiss someone for taking part in trade union activities. In Morris v Metrolink RATP DEV Ltd, the Court of Appeal held that this could include storing and sharing private and confidential information belonging to the employer, particularly in the context of a collective grievance (…).

Working time and holiday pay

Weekly Issue 595

Night shift working

Analysis recently published by the TUC shows that the number of people who work night shifts now accounts for one in nine employees (...).

Weekly Issue 588

Normal remuneration

It is well established in law that workers are entitled to be paid “normal remuneration” when their holiday pay is being calculated. In Flowers and ors v East of England Ambulance Trust, the Employment Appeal Tribunal (EAT) held that holiday pay should also include voluntary overtime that was sufficiently regular and settled to be taken into account when calculating “normal remuneration” (…).

Weekly Issue 586

Exceedingly long shifts

The Working Time Regulations (WTR) state that workers are entitled to certain rest periods. In R (on the application of the Fire Brigades Union) v South Yorkshire Fire and Rescue Authority, the High Court held that a shift pattern designed in deliberate breach of the WTR was unlawful, even though only volunteers worked under it (…).

Zero hours contracts

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.

Weekly Issue 487

Yet more people on zero hours

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.