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.
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. (…).
25 April 2018
A matter of interpretation
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
Courts will only imply a contract on the ground of necessity in certain circumstances. In Smith v Carillion the Court of Appeal held that, even in the case of a blacklisted worker, the question for courts was whether it was necessary to imply a contract between the worker in question and the end user by looking at how the parties conducted themselves.
06 May 2015
ICO "disappointed" about blacklisting
Following complaints by the GMB and human rights group Liberty about the failure to act against firms found to have been blacklisting trade unionists, the deputy Information Commissioner has said that there is nothing more his office can do.
06 September 2012
Breach of contact
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.
03 May 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
Dismissal on grounds of capability
In the current climate of austerity and mass redundancies in both the public and private sectors, employers will often look for reasons other than redundancy to dismiss employees to avoid paying a redundancy payment.
05 September 2012
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.
24 January 2018
Conciliation and settlement
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.
08 November 2017
Contract of employment
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.
04 October 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
Deductions from wages
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 (…).
04 April 2018
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
Definition of a worker
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.
17 January 2018
Disciplinary and dismissal
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 (…).
07 March 2018
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 (…)
07 February 2018
Substantial conduct reason
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
Employment tribunals and tribunal fees
Although the rules relating to tribunal costs stipulate that they have to relate to those incurred "while legally represented", the Employment Appeal Tribunal (EAT) has held in Sunuva Ltd v Martin that there was nothing in the wording to say that they had to be limited because they were incurred at a particular stage of the proceedings or indeed to costs incurred after they had begun (…).
09 May 2018
Out of time
When deciding whether to grant an amendment to extend time to introduce a new claim to existing proceedings, the Employment Appeal Tribunal (EAT) has held in Galilee v Commissioner of Police of the Metropolis that tribunals do not always have to determine limitation points at that time (…)
14 February 2018
Arrears of pay
The Employment Appeal Tribunal (EAT) has held in Graysons Restaurants Ltd v Jones that potential compensation awards arising from equal pay claims can constitute “arrears of pay” under the law, meaning they form debts to be paid from the National Insurance Fund in the event of an insolvency. This is the case even if the claims still have to be determined (…)
14 February 2018
Gender pay gap sanctions
The Equality and Human Rights Commission (EHRC) has warned businesses that they could face a number of sanctions if they fail to comply with gender pay gap reporting regulations, such as unlimited fines and convictions.
10 January 2018
Equality, discrimination and harassment
The Equality Act states that an employer is not under a duty to make reasonable adjustments if they do not know (or could not reasonably be expected to know) that the worker has a disability. In Toy v Chief Constable of Leicestershire Police, the Employment Appeal Tribunal (EAT) held that an employer cannot be expected to know that a worker has a disability if the worker only has a “strong belief” that he has dyslexia (…).
23 May 2018
In situ disability
Paragraphs 6 and 7 of Schedule 1 of the Equality Act 2010 state that certain medical conditions, such as cancer, HIV and multiple sclerosis constitute “deemed disabilities”. The Employment Appeal Tribunal (EAT) held in Lofty v Hamis t/a First Café that, as the Equality Act does not distinguish between invasive and non-invasive cancerous conditions, it includes pre-cancerous conditions even if they do not develop into cancer. Thompsons was instructed by Unite the Union to represent its member. (…).
16 May 2018
Managing disability at work
In its latest annual survey on health and well-being at work the Chartered Institute of Personnel and Development (CIPD) found that only a minority of employers offer training in how to manage someone with a disability (…).
09 May 2018
The Supreme Court has held in P v Commissioner of Police of the Metropolis that police officers must have the right to bring claims of treatment contrary to EU law to a tribunal in order to comply with the principles of effectiveness and equivalence. Likewise, national rules in relation to judicial immunity have to be consistent with EU law.
20 December 2017
The Court of Justice of the European Union (CJEU) has decided in Nogueira and ors v Crewlink Ireland Ltd and Osacar v Ryanair Designated Activity Company (formerly Ryanair Ltd) that, in order to decide where a cabin crew member habitually carries out their work, a number of different factors have to be considered, not just the place that has been designated as their “home base”.
15 November 2017
Fixed-term, flexible and part-time workers
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 (…).
21 March 2018
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.
01 November 2017
Freedom of information and data protection
The law says that if a contract is terminated by notice, then the effective date of termination (EDT) is the date on which the notice expires but if no notice is given, then it is the date on which the termination takes effect. In Cosmeceuticals Ltd v Parkin, the Employment Appeal Tribunal (EAT) held that in a summary dismissal that is communicated to the claimant straight away, the effective date of termination is immediate (…).
21 March 2018
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 (…).
14 March 2018
Health and Safety
The Court of Justice of the European Union (CJEU) has held in the case of Eida Otero Ramos v Servicio Galego de Saude and anor that employers must carry out a specific risk assessment for workers who are breastfeeding. If they fail to do so, they will be guilty of direct sex discrimination.
20 December 2017
Protect workers’ Human Rights
The European Convention on Human Rights and the UN Guiding Principles on Business and Human Rights place duties on the State to protect against human rights abuses by businesses and provide access to remedy for victims.
12 April 2017
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.
03 February 2016
Information and consultation
The law says that when an employer proposes to dismiss as redundant 20 or more employees at one “establishment”, they have to consult with the appropriate representatives. In Seahorse Maritime Ltd v Nautilus International, the Employment Appeal Tribunal (EAT) held that the territorial scope of the obligation to collectively consult was dependent on the individual employee’s connection to the UK.
22 November 2017
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
The mystery of Shared Parental Leave
A report just published by the Government Equalities Office has found that parents do not understand Shared Parental Leave, (SPL) nor are they necessarily aware that it is a legal entitlement for eligible parents, despite the fact that the regulations were introduced over three years ago (…).
23 May 2018
Parental Bereavement Leave
New legislation published earlier this month will entitle employed parents who have suffered the death of a child under the age of 18 to two weeks’ paid leave. The Parental Bereavement (Leave and Pay) Bill gives employed parents the right from the first day of employment to parental bereavement leave to allow them time to grieve. The leave has to be taken within 56 days of the date of the child’s death. In the event of the death of more than one child, the parent is entitled to leave in respect of each of them.
25 October 2017
National minimum wage and National living wage
Minimum wage increases
As a result of above-inflation increases in the National Minimum Wage (NMW) and the National Living Wage (NLW) earlier this month, the Low Pay Commission says in its 2018 analysis that all minimum wage workers are entitled to receive real terms increases (…).
18 April 2018
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
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.
11 October 2017
The Employment Appeal Tribunal (EAT) has held in Kostal UK Ltd v Dunkley and ors that employers cannot go over the heads of unions recognised for collective bargaining purposes and make offers directly to the workforce, if the purpose and effect is so that the workers’ terms will not be determined by collective agreement negotiated by the union.Thompsons was instructed by Unite the Union’s Strategic Case Unit to act on behalf of its members. (…).
28 February 2018
When considering an application for union recognition in Independent Workers’ Union of Great Britain v RooFoods Limited T/A Deliveroo, the Central Arbitration Committee (CAC) held that, as the drivers had a genuine right to substitute which operated in practice, they could not be workers under section 296 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).
31 January 2018
Redundancy and Protective Awards
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 (…).
18 April 2018
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
Social media and the employment relationship
Social media refers to online networks that enable individuals to share and exchange an extremely broad range of information and ideas, the most well-known being Facebook, Twitter and LinkedIn.
17 March 2016
Although employees have a right to use social media, the Employment Appeal Tribunal (EAT) held in Game Retail Ltd v Laws that it has to be balanced with their employers’ need to minimise any risk to their reputation from communications that could be read by customers and other employees.
18 February 2015
Trade union information
Although communication between a lawyer and their client is covered by legal professional privilege (and therefore does not have to be disclosed to a court), the same principle does not apply between a member and their union. However, in Dhanda v TSB Bank, the Employment Appeal Tribunal (EAT) held that although this communication is not privileged, it is still confidential and should only be disclosed when necessary to fairly dispose of the proceedings (…).
28 March 2018
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.
28 April 2016
Transfers of Undertakings
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” (…).
25 April 2018
Transfer of equipment
The Court of Justice of the European Union (CJEU) has held in Securitas v ICTS Portugal and anor that there can be a transfer of an undertaking in circumstances where the activity carried out by a new contractor is done by utilising the same equipment as the previous contractor..
10 January 2018
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.
20 December 2017
Duty to disclose
In order to decide whether a dismissal is unfair, tribunals have to ascertain whether the employer acted reasonably when deciding whether the reason warranted dismissal, among other things. In Reilly v Sandwell Metropolitan Borough Council, the Supreme Court held that the tribunal had been entitled to find that non-disclosure by a headteacher of her relationship with a convicted sex offender not only amounted to a breach of duty, but also merited her dismissal. (…).
23 May 2018
Breach of rights
In order to succeed in a claim of constructive unfair dismissal, a tribunal has to find that the claimant resigned in response to a fundamental breach of their contract. In Mruke v Khan, the Court of Appeal held that claimants do not need to be aware of their rights under their contract to bring a claim of breach of those rights (…).
09 May 2018
Live and work
The Employment Appeal Tribunal (EAT) has held in Baker v Abellio London Ltd that it is unfair to dismiss an employee for contravening an immigration statute if they already had the right to live and work in the UK but were unable to provide the correct documentation to prove those rights.
24 January 2018
Vulnerable and migrant workers
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 (…).
28 March 2018
Although foreign diplomats in the UK enjoy diplomatic immunity from a range of potential claims, the Supreme Court has held in Reyes v Al-Malki and anor that a Saudi diplomat and his wife could not claim immunity from employment law claims brought by a former domestic servant as they did not relate to his “official functions”.
06 December 2017
In order to succeed in a claim of unfair dismissal for making a protected disclosure (blowing the whistle), claimants have to show a reasonable belief that it was in the public interest. In Parsons v Airplus International Ltd, the Employment Appeal Tribunal (EAT) upheld the tribunal decision that if a disclosure is made solely in self-interest it cannot qualify as a protected disclosure (…)
21 February 2018
Under section 103A of the Employment Rights Act 1996 (ERA), it is automatically unfair to dismiss a worker because they made a protected disclosure (blew the whistle). In Royal Mail Group Ltd v Jhuti, the Court of Appeal held that it was not a whistleblowing dismissal if the dismissing officer believed it was for another reason, in this case poor performance.
13 December 2017
Working time and holiday pay
Working time compensation
Under the Working Time Regulations 1998 (WTR), workers are entitled to rest breaks of 20 minutes if they have worked more than six hours. In Santos Gomes v Higher Level Care Ltd, the Court of Appeal held that if an employer fails to provide the proper rest breaks, the worker is only entitled to compensation for the time they have lost calculated on their rate of pay and not to compensation for injury to feelings (…).
16 May 2018
Holiday pay cap
Although part-time workers cannot be treated less favourably than full timers, the Employment Appeal Tribunal (EAT) has held in Brazel v The Harpur Trust that there is no principle to the opposite effect. As such, the Trust could not justify capping holiday pay for a part-time teacher just because it would mean that her holiday pay would be more favourable than that of a full timer (…).
02 May 2018
Eight minute gap
The Court of Justice of the European Union (CJEU) has held in Ville de Nivelles v Rudy Matzak that the determining factor when deciding whether stand-by time is working time within the meaning of the Working Time Directive is the extent to which the worker is constrained from carrying out other activities during that time (…).
18 April 2018