Case law

Employment Appeal Tribunal – November 2018 Employment tribunal failed to consider employer’s breach of contractual obligation to provide a trial period when determining fairness of redundancy dismissal. Facts In a case which had already been remitted to the employment tribunal twice previously, since 2003 the employee worked as one of six Library Managers responsible for two libraries. In 2011, facing funding cuts, the council decided to close half of their libraries and reduce the…

Although this case was remitted back to the tribunal to determine the fairness of the dismissal, the EAT’s guidance on this matter appears that they are of the view that a failure to provide a contractual trial period means the redundancy dismissal is unlikely to be fair. When discussing the matter, the EAT highlighted the benefits of providing employees with a trial period, in cases where there is no contractual obligation to do so, which include seeing whether the person is able to work in…

Court of Appeal – November 2018 Appeal against finding that part-time worker was treated less favourably is dismissed and case is remitted to the tribunal to determine whether the treatment was objectively justified. Facts Pinaud was employed as a crew member by British Airways from 1985 on a full time basis but began working a part-time shift pattern in 2005. Full-time workers worked a “6/3 pattern” which provided for six days on and three days off. In total, over the course of a…

The Court confirmed that the case will be remitted back to the employment tribunal to determine whether the employer could rely on the justification defence. If not, then the tribunal will have to consider remedy which, the Court confirmed, is compensation that the tribunal considers is just and equitable in all the circumstances having regard to the loss attributable to the infringement. Whilst the organisation was concerned with the tribunal's comment that the employee should receive a pay…

Employment Appeal Tribunal – June 2018 The EAT have examined whether an investigation which did not include statements from witnesses who had not seen the alleged incident was a reasonable investigation. Facts Pupil A made a report against a long-standing teacher that he had been grabbed, pushed against a wall and then had two fingers pushed against his throat. A second pupil, B, corroborated A’s story and named other potential witnesses as pupils OB, EB and GK. Pupil OB was interviewed…

When deciding an unfair dismissal claim, an employment tribunal will examine whether the investigation was fair and reasonable in all the circumstances, with a higher threshold of reasonableness applied in cases where the outcome of a disciplinary procedure could be career-ending for a professional employee, as in Roldan and Crawford. The investigating officer is required to collect all relevant information on the disciplinary matter, including any information which goes against, or supports,…

Employment Appeal Tribunal – June 2018 The EAT have examined whether an investigation which did not include statements from witnesses who had not seen the alleged incident was a reasonable investigation. Facts Pupil A made a report against a long-standing teacher that he had been grabbed, pushed against a wall and then had two fingers pushed against his throat. A second pupil, B, corroborated A’s story and named other potential witnesses as pupils OB, EB and GK. Pupil OB was interviewed…

When deciding an unfair dismissal claim, an employment tribunal will examine whether the investigation was fair and reasonable in all the circumstances, with a higher threshold of reasonableness applied in cases where the outcome of a disciplinary procedure could be career-ending for a professional employee, as in Roldan and Crawford. The investigating officer is required to collect all relevant information on the disciplinary matter, including any information which goes against, or supports,…

Employment Appeal Tribunal – July 2018 The Employment Appeal Tribunal (EAT) has ruled that establishing a causal connection for discrimination arising in consequence of a disability can involve several links  Facts In this case, the employee, who originally worked as a Professor in Edinburgh University’s School of Engineering, was absent from work due to work-related stress and depression. Discussions were held regarding her return to work, where the employee asked to move to a…

This case highlights that there may be several links in a chain of consequences when determining if unfair treatment arises because of 'something arising in consequence' of a disability. Employers should always explore what adjustments might be reasonable in circumstances where an employee is taking a prolonged period of time away from work. All decisions must be justifiable and made in order to achieve a legitimate aim.  

Employment Appeal Tribunal – October 2017 The Employment Appeal Tribunal (EAT) has highlighted that a Tupe transfer cannot be used as a way of getting rid of ‘problem’ employees. Facts The employee was a cashier at a company which was facing significant financial difficulties. The transferee (the new employer) agreed to purchase the company and would take over the existing employees under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘Tupe’). However,…

This case reminds employers that the Tupe Regulations provide an automatic right for employees to transfer over provided they meet certain criteria. Employers are not able to simply ‘pick and choose’ which employees they wish to take, and management concerns or workplace difficulties will have to be managed by the new employer once the transfer takes place. Employees do, however, maintain a right to object to the transfer. If they exercise this right, they are treated as having resigned from…

Court of Appeal – October 2018 The Court of Appeal have overturned the High Court’s decision that an employer was not vicariously liable for an assault carried out by the organisation’s Managing Director at an impromptu drinking session after the company Christmas party. Employers are liable for acts of discrimination and harassment committed by employees ‘in the course of employment’ under the Equality Act 2010 where there is a sufficiently close connection between the act and the…

Although, in this case, the Court of Appeal found that the employer was vicariously liable for the acts that occurred at a separate non-work organised event, the Court did express that this was based on the unusual facts of this case. They gave the example that a social round of golf between junior and managerial colleagues, where work is spoken about, will not lead to vicarious liability where all participants are voluntary and attending as equals. Alternatively, if one manager engaged their…

Employment Appeal Tribunal – June 2018 The Employment Appeal Tribunal (EAT) has ruled that the intentions behind a letter of resignation should be clarified to correctly confirm if the employee does intend to leave the company.  Facts In this case, the employee had worked in the records department for her employer for around 10 years. She had recently experienced issues with an employee and had applied for a position in the employer’s radiology department, for which she had received a…

This decision reminds employers that they should always clarify with the employee what their intentions are when they resign, especially if there is any uncertainty or ambiguity. It is a good idea to arrange a follow-up meeting and speak to them to ascertain this. If the employer would prefer that the employee leave the company, they should not just jump on the chance to get them out because it may result in a claim for unfair dismissal. Employers do not have to allow an employee to retract a…

Employment tribunal – April 2013 Was the inclusion of an individual who had previously participated in trade union activities on a ‘blacklist’ prohibited? The Employment Relations Act 1990 (Blacklist) Regulations 2010 prohibit the use of a blacklist, and the refusal of employment related to a blacklist, where the motive for the list is to discriminate against an individual based on their trade union membership or activities. Facts The employee, a full-time officer of a union, was…

This case is a useful example of how employment tribunals will examine the motive of organisations when determining the reason behind compiling a list of individuals in order to make employment decisions. In many cases, it may be difficult for organisations to prove their motive, therefore, they may wish to create an internal policy or guide on how to use the list in practice.

Employment tribunal – July 2018 This case highlights the importance of requesting references from previous employers to confirm the information contained in a job application or CV. Facts The claimant was a trained pilot who had worked in First Officer positions. The organisation advertised a job vacancy for a Captain and the claimant applied for this role. In his application, he lied and stated that he had previously carried out work as a Captain. As a method of supporting this lie,…

This case highlights the need for employers to carry out full pre-employment checks before offering employment to ensure the individual is suitable for the job role. If the organisation had carried out these checks, they would have discovered the individual had provided a false reference and this would have led to further questions regarding his experience, and honesty. Where organisations require employment references as part of their recruitment process, it is advisable to make offers of…

Employment Appeal Tribunal – June 2018 The Employment Appeal Tribunal (EAT) has ruled that the Employment Tribunal (ET) did not assess all evidence available when evaluating if employers carried out a reasonable investigation into allegations of theft. Facts In this case, an employee had worked at the Anne Arms bar since 2003. During that time, she had received no complaints regarding her conduct nor any indications of wrongful behaviour. In 2015, Mr and Mrs Falzon took over management…

When conducting a disciplinary process all evidence available should be considered in reaching a final decision to dismiss. If there is evidence that may cast doubt upon the events, as was the case here, employers may find themselves facing unfair dismissal claims if they cannot prove that they acted reasonably by deciding to terminate employment.  

Employment Appeal Tribunal – June 2018 The Employment Appeal Tribunal (EAT) has ruled that the Employment Tribunal (ET) did not assess all evidence available when evaluating if employers carried out a reasonable investigation into allegations of theft. Facts In this case, an employee had worked at the Anne Arms bar since 2003. During that time, she had received no complaints regarding her conduct nor any indications of wrongful behaviour. In 2015, Mr and Mrs Falzon took over management…

When conducting a disciplinary process all evidence available should be considered in reaching a final decision to dismiss. If there is evidence that may cast doubt upon the events, as was the case here, employers may find themselves facing unfair dismissal claims if they cannot prove that they acted reasonably by deciding to terminate employment.  

Employment Tribunal – August 2018 The employment tribunal (ET) has ruled that a primary school teacher accused of “grooming” a pupil was unfairly dismissed and discriminated against due to their sexual orientation.   Facts In this case, a primary school teacher had received a written warning in 2002 for inappropriate and unprofessional contact with a pupil. At the time it was found that nothing sinister had taken place and that the reason for the employee’s actions was that he was naïve…

If a formal process is going to be carried out that could potentially end a career, employers have to be careful to ensure procedural correctness. Failing to properly review a suspension can lead to a claim for unfair dismissal on a procedural flaw, as the employee may be able to argue that full consideration was not given in their absence. Employers should take steps to create evidence that a review has been carried out, such as sending a clear letter to the employee following the decision.

Employment Tribunal – August 2018 The employment tribunal (ET) has ruled that a primary school teacher accused of “grooming” a pupil was unfairly dismissed and discriminated against due to their sexual orientation.   Facts In this case, a primary school teacher had received a written warning in 2002 for inappropriate and unprofessional contact with a pupil. At the time it was found that nothing sinister had taken place and that the reason for the employee’s actions was that he was naïve…

If a formal process is going to be carried out that could potentially end a career, employers have to be careful to ensure procedural correctness. Failing to properly review a suspension can lead to a claim for unfair dismissal on a procedural flaw, as the employee may be able to argue that full consideration was not given in their absence. Employers should take steps to create evidence that a review has been carried out, such as sending a clear letter to the employee following the decision.

If an employee being disciplined asks for a postponement of a disciplinary hearing because their representative is unable to attend, employers should not just restrict this to just five days. Instead, they should act reasonably in those circumstances as a failure to do so could render any dismissal unfair on procedural grounds. Employers should remember the guidelines on the right to a companion in disciplinary meetings. They have very little opportunity to refuse a particular companion, even…

Employment Appeal Tribunal – August 2018 This case examined whether an individual can be unfairly dismissed, having been denied the opportunity to postpone their disciplinary hearing, despite the fact that their conduct could potentially justify a dismissal. Facts Ms Smith who had worked for the employer from 1994 to 2016, was found to have sent a series of emails to a customer using insulting and offensive language to describe a colleague. Smith was suspended and invited to a disciplinary…