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

In the current climate of austerity and mass redundancies in both the public and private sectors, employers will often look for reasons other than redundancy to dismiss employees to avoid paying a redundancy payment.

05 September 2012

It is important for employers to be consistent in a redundancy situation when deciding whether they can offer alternative employment instead of dismissing the employee.

27 August 2012

According to a report published this month by The Work Foundation, employers are underusing workers’ skills, resulting in lost productivity both for businesses and the economy as a whole.

26 January 2012

Following a consultation on corporate governance, the government has said that it will introduce legislation to require listed companies to reveal the pay ratio between bosses and their workers.

06 September 2017

Despite a drop of almost a fifth in the pay of FTSE 100 CEOs in 2016, research has found that it would still take the average worker 160 years to earn what they are paid in just one year.

09 August 2017

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

The law requires prospective claimants to ensure that the employer’s name on the Early Conciliation (EC) Certificate is the same as on the ET1 claim form, but what happens when the employer has multiple names?

16 August 2017

In its annual report for 2016/17 published last week, Acas has found that early conciliation notifications in order to resolve individual claims have stayed about the same level as the year before

26 July 2017

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

As part of an application for an injunction in Capita plc v Darch and ors, the question arose as to whether an employer had a claim to property in corporate emails.

23 August 2017

The High Court has held in MPT Group Ltd v Peel and Birtwhistle and anor that although the duty of good faith includes the duty to answer questions truthfully, that does not mean that employees who have resigned from their job have to explain confidential and/or nascent plans to set up in lawful competition with their former employer

26 July 2017

When deciding whether an employee has a strong enough connection to the UK for the purposes of bringing a tribunal claim, competing factors can be taken into account

19 July 2017

The Employment Appeal Tribunal (EAT) has reaffirmed its earlier decision in the case of Fulton and Baxter v Bear Scotland Ltd that a gap of three months or more between two successive alleged under payments or non-payments of wages breaks the chain in a “series” of deductions as set out in the Employment Rights Act 1996.

02 August 2017

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

21 June 2017

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

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

The Grand Chamber of the European Court of Human Rights has decided in Bărbulescu v Romania, that it was unlawful for an employer to monitor their employee’s professional email account...

13 September 2017

Thompsons has called the government’s review on modern employment practices, published last week, a “huge missed opportunity”

19 July 2017

John Lewis plc v Coyne [2001] IRLR 139 EAT The recent flurry of judicial activity on the scope of an Employment Tribunal's power to interfere with management decisions that are "within a band of reasonable responses" emphasises the difficulties for employees in unfair dismissal cases. But this heartening case illustrates the scope of protection from unfair dismissal in so-called misconduct cases.

19 July 2017

Tribunals are required to help claimants who bring their own case (known as litigants in person) and ensure they understand their rights. However, the Employment Appeal Tribunal held in Shui v University of Manchester and ors that a failure on the part of a tribunal to remind a litigant in person that they have a right to ask for a hearing to be postponed does not render the process unfair…

20 September 2017

The rules of procedure for tribunals state that if they make a decision without a hearing, they have to communicate that decision to all parties…

13 September 2017

The Supreme Court has held in R (on the application of UNISON) v Lord Chancellor that the order introducing employment tribunal fees prevented access to justice and discriminated against women. As such it was unlawful and had to be quashed.

30 August 2017

The Equality and Human Rights Commission (EHRC) has said in a new strategy document that all jobs should be offered as flexible to tackle gender, ethnicity and disability pay gaps.

23 August 2017

Employees are entitled to equal pay with a comparator of the opposite sex if they are doing like work, work rated as equivalent or work of equal value

19 July 2017

Following the introduction of the gender pay gap regulations earlier this year, the Department for Education (the first government department to publish its gender pay gap figures) has reported a median gap of 5.9 per cent

05 July 2017

For a claim of disability discrimination to succeed, the claimant has to show that they have an impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. In Olukanni v John Lewis plc, the Employment Appeal Tribunal held that the tribunal was entitled to ask for practical examples of the adverse effect that Ms Olukanni claimed her disability had on her…

20 September 2017

Although the law says that employees cannot be discriminated against because of their religious beliefs, the courts have made clear that this is not an absolute right.

06 September 2017

Research by Acas published last week has found that employers are not generally aware of the law that applies to trans employees.

30 August 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

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

20 September 2017

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

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

The Health and Safety Executive has revealed in its report on annual workplace fatalities that 137 workers were killed at work between April 2016 and March 2017

12 July 2017

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

The European Convention on Human Rights and the UN Guiding Principles on Business and Human Rights place duties on the State to protect against human rights abuses by businesses and provide access to remedy for victims.

12 April 2017

Britain’s leading equality organisation, the Equality and Human Rights Commission, has warned the government that its Brexit plans reflect a lack of ambition for equality and human rights standards.

29 March 2017

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

03 February 2016

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

05 July 2017

The Trade Union Act 2016, which received royal assent on 5 May, represents the most significant changes to the law on industrial action and picketing in a generation.

05 September 2016

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

27 June 2014

The law 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

It is directly discriminatory under the Equality Act to treat a woman unfavourably “because of” her maternity leave

28 June 2017

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

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

28 June 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

The Court of Appeal has decided in Vining v London Borough of Wandsworth that the right to be consulted is one of the essential elements protected by article 11 (freedom of association) of the European Convention on Human Rights…

13 September 2017

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

31 May 2017

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

Social media refers to online networks that enable individuals to share and exchange an extremely broad range of information and ideas, the most well-known being Facebook, Twitter and LinkedIn.

17 March 2016

Although employees have a right to use social media, the Employment Appeal Tribunal (EAT) held in Game Retail Ltd v Laws that it has to be balanced with their employers’ need to minimise any risk to their reputation from communications that could be read by customers and other employees.

18 February 2015

The growing use of social media has inevitably raised questions about whether employees who post their political or religious views on their Facebook page can be found to have brought their employer into disrepute.

07 March 2013

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

Because so many employees now have access to social media, whether through the internet on workplace computers or on their own smart phone, many employers have written policies setting out what employees can and cannot do during work time in terms of accessing the internet and networking sites such as Twitter and Facebook.

17 March 2016

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

09 August 2017

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

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 changes to the Certification Officer’s role are the second instalment of a Conservative programme of using the role to maximise the opportunities for employers to challenge industrial action, while imposing the maximum possible administrative burden on trade unions and attempting to marginalise their influence in society.

05 September 2016

Trade Unions can only make payments for defined “political objects” from their political funds.

05 September 2016

When an appeal against dismissal involves no new arguments or evidence, the Employment Appeal Tribunal (EAT) has held in Elmore v The Governors of Darland High School and anor, that the dismissal will be fair even if the appeal panel failed to provide its own reasons for dismissing the appeal.

23 August 2017

Under the Employment Rights Act (ERA) 1996, a dismissal is potentially fair if the employer can show that it related to the “conduct” of their employee.

16 August 2017

In misconduct cases, a dismissal is fair if the employer believed the employee to be guilty of the misconduct; had reasonable grounds for that belief; and carried out a reasonable investigation.

02 August 2017

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

16 August 2017

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

It is automatically unfair to dismiss a whistle-blower for making a protected disclosure if they reasonably believe it was “in the public interest”

12 July 2017

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

According to case law, workers are entitled to be paid their “normal remuneration” whilst on annual leave.

06 September 2017

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

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