REUTERS | Russell Cheyne
November 30, 2017

Employment highlights: November 2017

Holiday pay and working time. In a decision with potentially huge ramifications for misclassified workers, the ECJ has held that workers who are wrongly told they have no right to paid holiday may carry their holiday rights over indefinitely, and be paid in lieu, on termination, for any untaken holiday over their entire period of employment.  In another working time case, the ECJ has followed the Advocate General’s opinion that that a weekly rest period may be given on any day during the seven-day reference period, and does not always have to be granted on the seventh day following six consecutive working days.

Discrimination by statutory bodies. The Supreme Court has held that an employment tribunal has  jurisdiction to hear a doctor’s discrimination claims against the General Medical Council (GMC). As the claim related to the merits of the decision (as opposed to its legality or the way in which the decision was reached), a tribunal provided the natural and obvious remedy. The Supreme Court also held that a Police Misconduct Panel does not have judicial immunity against a discrimination claim by a police officer. The decision has implications for other statutory bodies charged with hearing cases of professional misconduct.

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REUTERS | Ali Hashisho
November 21, 2017

The Problem of Iago: Bringing or defending a tainted information whistleblowing claim

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
November 15, 2017

The Problem of Iago: Whistleblowing and Tainted Information

‘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
October 31, 2017

Employment highlights: October 2017

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
October 17, 2017

Employer’s pension contributions and a week’s pay

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
October 12, 2017

Lightening the load? Discrimination and the burden of proof in Efobi v Royal Mail Group Ltd

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
September 28, 2017

Employment highlights: September 2017

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
September 21, 2017

Can I refuse to employ a non-British EU national?

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 →