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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 612
  • Know your rights
  • Commonality of terms
  • Operational needs
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Weekly Issue 611
  • Confidential clauses
  • Employee Substitute
  • False rumours
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Weekly Issue 610
  • Holiday pay in a fix
  • Factual setting
  • Unbroken relationship
Read Issue

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 611

Confidential clauses

The government has published a consultation on proposals to tighten up the rules around non-disclosure agreements (NDAs) and confidentiality clauses in the employment context (...).

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 (…).

Contract of employment

Weekly Issue 609

Monthly statement

The law currently states that employees are entitled to a written statement of the particulars of their employment no later than two months after starting their job. The Employment Appeal Tribunal has held in Stefanko and ors v Maritime Hotel Ltd and anor that an employee who has worked for more than one month but less than two is also entitled to a statement (...).

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 (…).

Deductions from wages

Weekly Issue 597

Constructing deductions

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.

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 (…).

Definition of a worker

Weekly Issue 611

Employee Substitute

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 (...).

Weekly Issue 608

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 (...).

Weekly Issue 605

No relationship

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 (...).

Disciplinary and dismissal

Weekly Issue 598

Meeting Failure

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 (...).

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 (…).

Employment rights

Weekly Issue 602

Good work plan

Following the publication of the Taylor review of workplace practices in 2017, the government has announced a package of employment law reforms (...).

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 (…).

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 612

Commonality of terms

When bringing equal value claims, women can compare themselves with men working for the same employer but at a “different establishment” if common terms apply. In Asda Stores Ltd v Brierley and ors, the Court of Appeal held that, as Asda applied common terms tor retail workers and separate common terms to the distribution workers, the women in retail could compare themselves with the men in distribution (...).

Weekly Issue 610

Factual setting

When lodging a tribunal claim involving multiple claimants, the Court of Appeal has held in the conjoined appeals of Brierley and ors v Asda Stores Ltd; Ahmed and ors v Sainsbury’s Supermarkets Ltd; Fenton and ors v Asda Stores Ltd that it is an “irregularity" for two or more claimants to submit a single claim form if their claims are based on a different set of facts although tribunals can override the irregularity, allowing the claim to continue (...).

Weekly Issue 610

Unbroken relationship

The Equality Act 2010 stipulates that claimants must bring their equal pay claims within six months of the end of their employment in order to preserve a “stable, working relationship”. In Barnard v Hampshire Fire and Rescue, the Employment Appeal Tribunal held that a series of promotions within a small department would not necessarily break that relationship (...).

Equality, discrimination and harassment

Weekly Issue 612

Operational needs

In disability discrimination claims, employers have to make “reasonable adjustments” if the disabled person has been put at a substantial disadvantage by a “provision, criterion or practice”. In Ishola v Transport for London, the Employment Appeal Tribunal (EAT) held that making erratic payments of sick pay could potentially constitute a failure to make reasonable adjustments (...).

Weekly Issue 607

Equally unfavourable

In Williams v Trustees of Swansea University Pension & Assurance Scheme and anor, the Supreme Court held that courts should not make narrow distinctions between the word “unfavourably” in section 15 of the Equality Act relating to discrimination arising from disability and analogous concepts such as “disadvantage” or “detriment” elsewhere in the Act (...).

Weekly Issue 606

Motherly protection

The government has issued a consultation paper asking for views on improving protection for women against unfair dismissal after having a baby (...).

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 604

Work more flexibly

A new campaign has been launched to increase the uptake of flexible working in a partnership including government departments, business groups, trade unions and charities (...).

Weekly Issue 602

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 (...).

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 (…).

Freedom of information and data protection

Weekly Issue 601

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 (...)

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 (…).

Health and Safety

Weekly Issue 606

Reasonably foreseeable

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 (...).

Weekly Issue 598

Working on mental health

According to research by consultancy firm Accenture, two-thirds of workers in the UK have personally experienced mental health challenges (...).

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 (…).

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 607

Family friendly working

A report just published into the ways in which working parents balance work and family life has found that many are penalised for working part time (...).

Weekly Issue 597

Parental status

The Court of Justice of the European Union held in Tribunalul Botoşani and anor v Dicu that member states are not prevented from legislating that holiday does not accrued during parental leave despite a worker retaining their worker status.

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 (…).

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 608

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 (...).

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.

Personal Injury

Weekly Issue 600

Critical Assault

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 (...).

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.

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 607

Collective 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 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 (...).

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 (…).

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 599

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 (...).

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 (…).

UK Law

Weekly Issue 603

Pay of top bosses

New pay ratio regulations introduced by the government which came into force at the beginning of January mean that companies are now required to justify the pay of top bosses (...).

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.

Unfair dismissal

Weekly Issue 609

Associated companies

In SD (Aberdeen) Ltd v Wright and ors, the Employment Appeal Tribunal held that a tribunal was entitled to conclude that two companies were associated employers as both were controlled and represented by the same “principal actor” who could have shed light on their legal structure at the hearings but who failed to turn up to do so (...).

Weekly Issue 606

Individual or inter-related

The High Court has held in Ardron v Sussex Partnership NHS Foundation Trust that, in a case of alleged gross misconduct, the employer does not have to consider each alleged failing individually. Instead, if they are inter-related, they should be considered cumulatively. The temporary injunction stopping the employer from going ahead with disciplinary proceedings should therefore be discontinued (...).

Weekly Issue 602

Witness statements

In cases of misconduct, employers have to have reasonable grounds for believing that their employee was guilty of misconduct and have to carry out a reasonable investigation. In Hargreaves v Governing Body of Manchester Grammar School, the Employment Appeal Tribunal held that it was not unfair for the school to withhold witness statements from the claimant and the disciplinary panel which dismissed him (...).

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 611

False rumours

The law says that when bringing a complaint about making a protected disclosure, claimants have to show that there is a disclosure of information which tends to show a breach of a legal obligation. In Ibrahim v HCA International Ltd, the Employment Appeal Tribunal held that although a complaint about defamation could constitute a protected disclosure, Mr Ibrahim had not made it “in the public interest” (...).

Weekly Issue 600

Detrimental compensation

In the decision of Timis and anor v Osipov and anor, the Court of Appeal has held that two individual directors, who were responsible for dismissing a senior employee for blowing the whistle, were liable to pay him compensation, in addition to the company itself, under section 47B of the Employment Rights Act which deals with “detriment” against co-workers (...).

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 (...)

Working time and holiday pay

Weekly Issue 612

Know your rights

The government has launched an advertising campaign to help workers learn more about their right to receive holiday pay (...).

Weekly Issue 610

Holiday pay in a fix

In an acknowledgement that the law is unclear, the government has recently issued a practical guide for employers to help them calculate statutory holiday pay for workers who do not have fixed hours or pay (...).

Weekly Issue 603

Taking leave

The Court of Justice of the European Union has held in Max-Planck-Gesellschaft.v Shimizu that in relation to EU holiday, unless the employer can show that they gave the worker every opportunity to take the annual leave and the worker deliberately chose not to take it in the year it accrued, they retain their entitlement even if they fail to apply for the leave before the employment relationship comes to an end (...).

Zero hours contracts

Weekly Issue 608

Zero-hours, zero sum game

According to research by the TUC, workers on zero-hour contracts are more likely to do night shifts and to be paid less than other workers (...).

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.