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The First Commandment of discrimination law is that each person has a right to be judged on the basis of his or her individual attributes. Stereotyping is anathema. Young women, on average, may have higher labour turnover than young men, but that does not mean that it is right to assume that every young woman will be more prone to leave their job than every young man. And in Great Britain, ever since the Sex Discrimination Act 1975, any employer who makes a recruitment decision on the basis of such a generalisation would be acting unlawfully. The same prohibition applies to stereotypes relating to the other protected characteristics. Continue reading

REUTERS | Yuya Shino

Everyone knows that it is always impermissible to take a lapsed warning into account when deciding whether to dismiss an employee. According to both the Court of Appeal and the Employment Appeal Tribunal, “everyone” is wrong.

As set out in Stratford v Auto Trail VR Ltd UKEAT/0116/16, the position is actually far more nuanced than might be imagined. Continue reading

REUTERS | Ina Fassbender

In an era when emotional intelligence is recognised as valuable, and where employers are anxious to create effective processes for identifying the best recruits, it is ironic that so many rely on automation to exclude vast swathes of potential applicants. Cost is a key factor, as major employers try to limit the number of human interactions to manageable levels. But the effect of mass recruitment campaigns is that they may exclude the very candidates employers need because their testing platform either fails to identify the key skills required, or is too much of a blunt instrument. Continue reading

REUTERS | Chris Helgren

General Election 2017. We published a new practice note examining the manifestos from the Labour, Conservative and Liberal Democrat parties and their implications for employment law. The General Election will be held on 8 June 2017. Practical Law’s General Election 2017 landing page contains materials summarising the implications of the manifestos, policy statements and pledges made by the main political parties of interest to lawyers and their clients in a number of key areas.

Discrimination. The EAT has upheld the decision of an employment tribunal that a job  applicant with Asperger’s required to undertake a multiple choice test suffered indirect discrimination when the employer  refused to make an adjustment to the format of the test.

Employment Appeal Tribunal. The EAT refused to exercise its discretion to extend the time limit where an appeal was submitted an hour late. Continue reading

REUTERS | Mike Blake

Employment status is one of those fractally complex areas of law. Initially, it seems as if it should be relatively simple. But, as you look more closely, it starts to look more complicated. And if you continue to examine it, it becomes more difficult still. It’s not clear (to me at least) that the nearly five decades of caselaw since Ready Mixed Concrete v Minister of Pensions and National Insurance have made anything much clearer.

Continue reading

REUTERS | Stoyan Nenov

The Court of Appeal has recently clarified the scope of whistleblowing protection provided by Part IVA of the Employment Rights Act (ERA) 1996 in Day v Health Education England & others [2017] EWCA Civ 329.

Whistleblowing protection is afforded to employees and workers, and an extended definition of worker set out under section 43K ERA 1996 covers persons who perform work but do not fall within the general concept of worker found in section 230(3) ERA 1996. This includes individuals supplied by an intermediary, provided the terms of their engagement are substantially determined by the end-user and/or intermediary. Accordingly, protection is provided to workers in multi-party relationships, including agency workers and individuals who contract with employment businesses to perform work via personal service companies. Continue reading

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If there is something that employment lawyers can be sure of in the uncertain world of employment law, it is that attempts to prescribe dispute resolution procedures only generate further dispute.

That was the fate that befell the statutory disciplinary and grievance procedures that were unceremoniously axed in 2009. The Acas early conciliation (EC) procedures are proving no less contentious, particularly in relation to the calculation (or, to be more precise, the recalculation) of time limits. Continue reading

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The pace of change is swift in financial services regulation. No longer is the regulator the arbiter of fitness and propriety; the senior managers and certification regime (SM & CR) leaves responsibility firmly at the feet of the financial institution. Difficult calls are being made by firms who are required to assess the fitness and propriety of a significant proportion of the people they employ at all stages of the employee life-cycle. Take the offer of employment for example. Continue reading

REUTERS | Yves Herman

General election. Parliament will be dissolved on 3 May prior to a snap general election to be held on 8 June. Although it was previously thought that the Finance Bill would be pushed through unamended, the government has in fact dropped the changes to the taxation of termination payments (as well as other controversial measures of less interest to employment lawyers) as part of the “wash-up”, to ensure that essential parts of the Bill are passed before dissolution. If there is no change in government we expect to see this in another Finance Bill later this year. The Public Sector blog contains more information on the wash-up process.

Discrimination. In the conjoined cases of Essop and Naeem, the Supreme Court restored orthodoxy following the Court of Appeal’s controversial ruling, and held that in cases of indirect discrimination, there is no need to establish the reason for the “particular disadvantage” suffered by the protected group. Continue reading