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.
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
To avoid a finding of unfair dismissal on the ground of capability, employers have to show they have a reasonable belief that the person is unable to return to work. In DB Schenker Rail (UK) Ltd v Doolan, the Employment Appeal Tribunal (EAT), said that the decision to dismiss was ultimately a managerial, not a medical one, and that employers have to make their own assessment (informed by experts) of the risks involved in a return to work.
04 August 2011
Abuse of rights
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
Although tribunals can engage in speculation when trying to work out compensation for a claimant, the Employment Appeal Tribunal (EAT) held in Kerry Ingredients (UK) Ltd v Little that they must spell out their findings and make clear the evidential basis on which they were made.
22 April 2015
The Court of Appeal said in 2013 that awards should be uplifted by 10 per cent in certain, defined circumstances. In Chawla v Hewlett Packard Ltd, the Employment Appeal Tribunal (EAT) held that these circumstances did not include awards for injury to feelings in discrimination cases brought in tribunals.
15 April 2015
Conciliation and settlement
Second EC certificate
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
The law requires prospective tribunal claimants to go through a process of early conciliation (EC) with Acas before they can lodge a claim. In Compass Group UK & Ireland Ltd v Morgan, the Employment Appeal Tribunal (EAT) held that the EC certificate issued by Acas can cover matters that occur after that date, as long as there is a connection between the matters in dispute at the time of the EC process.
20 October 2016
Contract of employment
Section 11 obligation
Section 1 ERA requires employers to give their employees details of their conditions of employment on starting work. In Born London Ltd v Spire Production Services Ltd, the Employment Appeal Tribunal (EAT) held that as employers did not have to state whether the information set out in section 1 was contractual or not, they did not have to state whether employee liability information under section 11 of TUPE was contractual or not.
24 May 2017
Tainted with illegality
It is well established in law that courts and tribunals will not allow claimants to rely on a contract that is illegal to support a claim. In Hughes v The Coupers Partnership Ltd, the Employment Appeal Tribunal (EAT) confirmed that the claimant could not rely on an agreement that amounted to a fraud on Her Majesty’s Revenue and Customs (HMRC).
26 October 2016
The Equality Act 2010 provides protection from discrimination for both employees and those engaged personally to do work. In Windle and Arada v Secretary of State for Justice, the Court of Appeal held that tribunals can take into account a lack of “mutuality of obligation” when considering whether someone is engaged under a contract to do work personally.
22 June 2016
Deductions from wages
Definition of a worker
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
Disciplinary and dismissal
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
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
Treatment, not procedure
It is unlawful discrimination to treat someone less favourably because of something “arising in consequence of their disability” and which cannot be justified. In Buchanan v Commissioner of Police of the Metropolis, the Employment Appeal Tribunal (EAT) held that the employer had to be able to justify the actual treatment of Mr Buchanan, not just the underlying procedure they used for implementing the treatment.
09 November 2016
Employment tribunals and tribunal fees
When considering an order for re-engagement, the Employment Appeal Tribunal (EAT) held in United Lincolnshire Hospitals NHS Foundation Trust v Farren, that tribunals have to ask whether it was practicable to order this particular employer to re-engage this particular claimant, as opposed to applying their own test.
22 February 2017
Gender pay gap affects all ages
According to a TUC analysis of government statistics on hours and earnings, women earn less than men annually at every stage in their careers. The analysis also found, however, that women over 50 suffer the widest gap, earning just over £85,000 less over the course of this decade than a full-time man.
20 October 2016
Equality, discrimination and harassment
The Equality Act allows employers to discriminate against their employees as long as they can objectively justify it. In Chief Constable of West Midlands Police and ors v Harrod and ors, the Court of Appeal held that the job of tribunals was not to challenge an employer's legitimate decision about how they allocate resources and whether they represent a genuine "need"; but rather to balance it against the impact complained of.
17 May 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
No breach of Article 8
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
Fixed-term, flexible and part-time workers
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
The law says that part-time workers cannot be treated less favourably than comparable full-timers who are employed by the same employer on the same type of contract. In The Advocate General for Scotland v Barton, the Court of Session held that a part time worker cannot compare themselves to another part-time worker even if that person has been assessed as a full timer for other purposes.
17 February 2016
Freedom of information and data protection
Employers can read private emails
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
Under the Data Protection Act (DPA) 1998, data subjects can ask the data controller for details of information held about them. In Dawson-Damer and ors v Taylor Wessing LLP and ors, the High Court held that it was not reasonable or proportionate to expect a solicitors’ firm to carry out a search over many years to ascertain which documents were exempt from disclosure because they were covered by legal professional privilege.
04 November 2015
Employees need to take care when posting comments about work on social media. The Employment Appeal Tribunal held in British Waterways Board v Smith that it was fair to dismiss an employee who made derogatory statements about his employer on Facebook, even though the comments had been posted two years earlier and he could show that his security settings had been switched from private to public.
16 September 2015
Health and Safety
Deaths at work
Provisional figures from the Health and Safety Executive (HSE) have revealed that there were two more deaths at work in 2015/2016 compared to 2014/2015. The construction sector had the highest level of fatalities, with 43 workers killed.
10 August 2016
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
Setback for trade union rights
The European Court ruled last week that although secondary industrial action in the UK was protected by Article 11 of the European Convention on Human Rights (the right to freedom of peaceful assembly and association with others), the government could ban it to protect the rights and freedoms of others.
16 April 2014
Information and consultation
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
US obliged to consult
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
Shared parental leave regs
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
Reasonable time off
Under section 57A of the Employment Rights Act 1996 (ERA), employees can take a reasonable amount of time off work if (for instance) their partner gives birth, as long as they tell their employer “as soon as reasonably practicable”.
12 November 2014
National minimum wage and National living wage
NLW and age discrimination
The House of Commons has produced a useful briefing pack on the introduction of the National Living Wage (NLW) in April this year (set at £7.20 per hour) for workers over 25 and its potential impact on age discrimination.
15 June 2016
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
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 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
Unions cannot request recognition under the Trade Union and Labour Relations (Consolidation) Act (TULRCA) 1992 if there is another collective agreement in force allowing a union to collectively bargain on behalf of workers in the relevant bargaining unit.
02 May 2013
Redundancy and Protective Awards
Reasonable lay off
Section 148 of the Employment Rights Act says that after a four-week layoff employees can issue a notice claiming a redundancy payment from their employer. In Craig v Bob Lindfield & Son Ltd, the Employment Appeal Tribunal (EAT) held that it could not imply a contract term stipulating the length of time which might be reasonable in relation to lay off periods and short-term working.
23 March 2016
Following other recent decisions about the meaning of the phrase “at least 20” in the EU Collective Redundancies Directive, the Court of Justice of the European Union (CJEU) confirmed in Lyttle and ors v Bluebird UK Bidco 2 Ltd that it refers to the number of dismissals per establishment and not to the aggregate number across all the establishments of an undertaking.
08 July 2015
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
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
Different or the same?
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
Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), there is a service provision change (SPC) when activities cease to be carried out by one contractor and are carried out instead by another contractor “on the client’s behalf”. In CT Plus (Yorkshire) CIC v Stagecoach and ors, the Employment Appeal Tribunal (EAT) held that if there is a change in the identity of the client post transfer, there cannot be an SPC.
20 October 2016
Although unlawful direct discrimination can occur when a person makes stereotypical assumptions about someone else, the Employment Appeal Tribunal (EAT) held in Chief Constable of Kent Constabulary v Bowler that a finding of unreasonable conduct is not enough for a tribunal to draw an inference of less favourable treatment on grounds of race.
03 May 2017
Vulnerable and migrant workers
Jobs for the girls
The UK Commission for Employment and Skills (UKCES) is inviting proposals from employers and partners about how to enhance opportunities for women in low paid sectors such as cleaning, commercial catering and adult social care.
27 May 2015
In the public interest
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
Information or allegation
Under the law on whistleblowing, claimants have to show that they have a “reasonable belief” that the disclosure falls within one of the definitions of a qualifying disclosure. In Kilraine v LB of Wandsworth, the Employment Appeal Tribunal (EAT) held that the issue for tribunals to consider is not whether a given phrase or paragraph constitutes information or an allegation, but whether it is a disclosure of information.
04 May 2016
Working time and holiday pay
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