REUTERS | Ali Hashisho

In my last blog post, I considered the cases of Royal Mail Ltd v Jhuti [2017] EWCA Civ 1632 and International Petroleum Ltd v Osipov [2017] UKEAT/0058/17 and the difficulties faced by both claimants and respondents in ‘tainted information’, or ‘Iago’, cases, where employers are manipulated into dismissing employees by their co-workers .

In this blog post I look at possible approaches for parties to take when bringing or defending such a claim. The right approach will vary depending on the particular employer and factual scenario.  However, the following are matters that should at least be considered by advisors in such cases, even if the sensible advice in some cases will be to reject them. For employers, some steps will have to be considered before any claim arises.

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REUTERS | Tobias Schwarz

‘Tainted information’, or ‘Iago’, cases, in which employers are manipulated into dismissing employees by their co-workers, have thrown up difficult questions for Tribunals in both whistleblowing and discrimination claims. The latest guidance has been given in two recent cases: Royal Mail Ltd v Jhuti [2017] EWCA Civ 1632 and International Petroleum Ltd v Osipov [2017] UKEAT/0058/17.

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REUTERS | Denis Balibouse

Discrimination. The ECJ has held that an employer’s failure to assess the workplace risks posed to a breastfeeding worker amounted to direct sex discrimination. The decision challenges the position of UK law which prevents a woman from bringing a direct sex discrimination claim if she has suffered a detriment related to breastfeeding. The ECJ has also held that a minimum height requirement for the Greek police was indirect sex discrimination which could not be objectively justified.  Particular physical aptitude was not necessary for all police functions and in any case height was not necessarily connected to physical aptitude.

The Court of Appeal has held that a faith school’s segregation of girls and boys amounts to direct sex discrimination against both sexes. Irrespective of whether boys and girls are equally disadvantaged, direct discrimination should be viewed from an individual perspective as opposed to comparing the treatment of one group to another. While not an employment case, this decision has implications for the definition of direct discrimination in employment cases.

The EAT has clarified the Court of Appeal’s ruling in CLFIS (UK) Ltd v Reynolds, holding that a decision, if made jointly, will give rise to liability under the Equality Act 2010 when there is a discriminatory motivation on the part of any of the decision-makers. Continue reading

REUTERS | Kai Pfaffenbach

In June 2017, the Employment Appeal Tribunal’s (EAT) decision in the University of Sunderland v Drossou EAT/0341/16 changed the established practice regarding how Employment Tribunals (ETs) approach the calculation of a week’s pay for compensation purposes.

Prior to Drossou, the convention was that a week’s pay under the Employment Rights Act 1996 (ERA 1996) did not include employer contributions to the employee’s pension – in the case of Payne v Port of London Authority ET/155560/89 it was found at the ET (and was not considered further when the case went to the EAT and the Court of Appeal) that the payment had to actually be received by the employee to be included in a week’s pay. Continue reading

REUTERS | Pillar Lee

In Efobi v Royal Mail Group Ltd UKEAT/023/16, the EAT considered the proper interpretation of the burden of proof provision in section 136 of the Equality Act 2010 (EqA 2010).

The burden of proof provision

The difficulties of proving discrimination are well known, and tribunals must often decide cases on the basis of inference from primary facts. Continue reading

REUTERS | Denis Balibouse

Discrimination. Advocate General Sharpston has given her view that the Pregnant Workers Directive (92/85/EC) should protect workers against dismissal from the moment they become pregnant, even before they have notified their employer of the pregnancy. This appears to be at odds with Article 2(a) of the Pregnant Workers Directive, and as the AG acknowledges, can be unfair to employers. In the UK, the general view is that a woman has no special protection until her employer is aware that she is pregnant. The ECJ’s decision on this issue is therefore awaited with interest.

The Presidents of the Employment Tribunals have issued joint guidance on  injury of feelings compensation in discrimination cases, setting out new Vento bands. There is now a lower band of £800 to £8,400, a middle band of £8,400 to £25,200 and an upper band of £25,200 to £42,000.

Employee data and monitoring. The Grand Chamber of the European Court of Human Rights has reversed an earlier ruling, and held that the Romanian courts had failed to protect an employee’s Article 8 privacy rights in relation to the employer’s monitoring of  his instant messaging The court sets out factors to be considered when assessing the monitoring of workplace communications.

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REUTERS | Tobias Schwarz

Until recently, most of us would have dismissed such a question as ridiculous, but until recently the employment and immigration status of EU nationals in the UK has been clear: they have the right to live, work and study in the UK under the principles of free movement, as do their dependants.

Hundreds of thousands of EU migrants have come to the UK over the last decade. They have contributed significantly to the UK economy, particularly in sectors where there are labour shortages in the resident labour market, such as hospitality, agriculture and healthcare. According to a GMB study of figures produced by the Office for National Statistics, in at least 18 specialist industries EU workers constitute more than 20% of the labour force. Continue reading

REUTERS | Dani Cardona

Under section 221-224 of the Employment Rights Act 1996 (ERA 1996) the amount an employee receives in contractual holiday pay will depend on whether they have “normal working hours” or not under their contract. Under the Working Time Regulations 1998 (SI 1998/1833) (WTR) the rate of holiday pay is expressed as requiring the same as the calculation of a week’s pay under the ERA 1996. In Bamsey v Albon Engineering and Manufacturing plc [2004] EWCA Civ 369, the Court of Appeal had held that the exclusion of voluntary overtime from a calculation of a week’s pay for the purposes of calculating both contractual and WTR holiday pay was lawful. Under this analysis, a zero hours employee could legitimately be paid nothing, if all of their hours were, essentially “voluntary”.

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REUTERS | Ali Hashisho

The cost of auto-enrolment and trying to avoid it

All employers are required to enrol their staff in a pension. This obviously comes at a price, sometimes a significant one. This is particularly true for small employers, that are operating in an increasingly tough economic environment, and it may be tempting for less scrupulous employers to try and avoid this obligation. Some may just refuse to do so. Others will be more clever, perhaps trying to create company structures to avoid the obligation. It may be that they will make unauthorised deductions to wages to make up that shortfall; so, for example, they may unlawfully reduce someone’s salary or unlawfully remove benefits such as a bonus. This issue is clearly on the Pensions Regulator’s radar, as it was covered in a blog in late 2016. Continue reading