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Employment Law Newsletter - July 2018
- Unfair Dismissal: Can the qualifying period be extended by statutory notice?
- Immigration: Failure to provide right of appeal not fair
- Dismissal: Successful appeal can result in revived contract and reinstated employee
- Discrimination: When does a philosophical belief become a protected characteristic?
- Minimum Wage: Carers sleeping in ‘on call’ not entitled to minimum wage
- Pensions: Employer made commitment to employees which it must fulfil
- Brexit Update: Future of UK-EU relationship & settlement scheme for EU citizens
- Employment status: HMRC’s Check Employment Status for Tax Tool falls short
- Minimum Wage: 239 employers have failed to pay NMW and must now pay millions in arrears and penalties
- Employers toolkit: New advice for employers on handling domestic abuse
- Equality: Government considers paternity rights further
- Equality: GEO opens consultation on reform of the Gender Recognition Act 2004
Unfair Dismissal: Can the qualifying period be extended by statutory notice?
In the case of Lancaster and Duke Ltd v Wileman UKEAT 0256/17/LA a claimant had been dismissed for gross misconduct two days prior to the second year anniversary of her start date. The qualifying period for an unfair dismissal claim is two years. The claimant applied s.86(1) and s.97(2) of the Employment Rights Act …
Immigration: Failure to provide right of appeal not fair
In Afzal v East London Pizza Ltd t/a Dominos Pizza  UKEAT 0265_17_1304 Mr Afzal had been asked to provide evidence of his right to work in the UK before his limited leave to remain expired in August 2016. On the day this leave would have expired, Mr Azfal sent an email to his employer with a copy of his application to the Home …
Dismissal: Successful appeal can result in revived contract and reinstated employee
In Patel v Folkestone Nursing Home Ltd UKEAT/0348/15/DM the tribunal considered the case of a claimant who was dismissed following two charges of gross misconduct, but following an appeal, the employer revoked that decision. In the employer’s letter to the claimant, it told him his appeal had been …
Discrimination: When does a philosophical belief become a protected characteristic?
In Gray v Mulberry Company (Design) Ltd UKEAT/0040/17/DA the claimant asserted that a belief in “the statutory human or moral right to own the copyright and moral rights of her own creative works and output” amounted to a philosophical belief (e.g. s.10(2) Equality Act 2010). She had refused to …
Minimum Wage: Carers sleeping in 'on call' not entitled to minimum wage
In Royal MenCap Society v Tomlinson-Blake  EWCA Civ 1641, the Court of Appeal considered the issue of whether carers who sleep at a client’s home are entitled to the minimum wage while they are asleep, as this is technically viewed as being on call. of the importance of the case to employers in the care …
Pensions: Employer made commitment to employees which it must fulfil
In a recent case before the Deputy Pensions Ombudsman (Determination in complaints by Mr D and Mr L, 5 June 2018 (PO-14197 and PO-14185)), complaints from two members were upheld because an employer did not maintain its commitment to keep their pensions in a post-TUPE pension scheme "broadly in line" with those of the …
Brexit Update: Future of UK-EU relationship & settlement scheme for EU citizens
On 12 July 2018, the government published a white paper entitled: 'The future relationship between the United Kingdom and European Union’. It reiterates that the government's policy is for the UK to leave the single market and the customs union, and gain flexibility to conclude new international …
Employment status: HMRC’s Check Employment Status for Tax Tool falls short
HMRC have an online tool called the Check Employment Status Tool (CEST) which they offer to help people work out if they should be classed as employed or self-employed for tax purposes. Recently, this tool has come under fire from industry experts (and in particular contractors who are constantly …
Minimum Wage: 239 employers have failed to pay NMW and must now pay millions in arrears and penalties
HMRC has published a list of 239 employers who have been found to have underpaid 22,400 UK workers by £1.44 million. In addition, those employers have received fines of £1.97 million – a new record. According to the government, the top 5 reasons for National Minimum and …
Employers toolkit: New advice for employers on handling domestic abuse
Public Health England and Business in the Community have been consulting with employers and have now produced ‘Domestic Abuse: A Toolkit for Employers’. The aim is to increase awareness and reduce stigma surrounding domestic abuse, and help employers create supportive working environments in which …
Equality: Government considers paternity rights further
On 20 March 2018, the government’s Women and Equalities Committee published a report entitled, ‘Fathers and the workplace’. It looked at the current situation with regard to fathers’ rights at work and ultimately called on the government to make a number of improvements. These include removing the qualifying …
Equality: GEO opens consultation on reform of the Gender Recognition Act 2004
The Government Equalities Office (GEO) is seeking views on its proposals to reform the Gender Recognition Act 2004. The intention is to make it easier for a trans person to obtain a gender recognition certificate (GRC) and be legally recognised as their chosen gender.
The consultation seeks views on streamlining the …
Employment Law Newsletter - April 2018
- Constructive Dismissal: A person’s ignorance does not prevent a claim caused by an ‘egregious breach’
- Tribunals: Unparticularised claims – incomplete claim forms
- Tribunals: Good news for Claimants – a ‘good’ reason for delay not necessary to extend time
- Tribunals: Discussing case outside tribunal can result in successful strike out
- Agency workers: Comparison with conditions of permanent employees should be based on a term-by-term approach
- Redundancy: Pregnant workers not protected from collective redundancy
- TUPE: Fragmentation of services can prevent a transfer
- Sexual Harassment: EHRC issues new report with recommendations
- Gender Pay Gap: 2018 snapshot information and going forward
- Data Protection Update: New draft regulations and guide published
- Compensation: Vento Bands Guidance Update
Constructive Dismissal: A person’s ignorance does not prevent a claim caused by an ‘egregious breach’
In Mruke v Khan  EWCA Civ 280, the Court of Appeal found that the behaviour of the employer was such an 'egregious breach' of law that despite the employee’s illiteracy and ignorance of her rights, it was clear that she had resigned in response to that …
Tribunals: Unparticularised claims – incomplete claim forms
The ET1 is the standard form which must be completed in order for an employee to bring a claim against their (former) employer. In it, the claimant must set out what is commonly referred to as the ‘particulars of claim’ – essentially the background and details of the claim and the specific facts relied upon. In …
Tribunals: Good news for Claimants – a ‘good’ reason for delay not necessary to extend time
In Abertawe Bro Morgannwg University Local Health Board v Morgan  EWCA Civ 640 the EAT had to consider whether, when considering granting an extension of time, a tribunal should be satisfied that there was a good reason for the delay in order to make granting the extension …
Tribunals: Discussing case outside tribunal can result in successful strike out
In Chidzoy v British Broadcasting Corporation  UKEAT 0097_17_0504 the Claimant took part in a conversation with a journalist during a break in the course of her giving evidence (and therefore whilst under oath) to the tribunal. Despite 6 previous warnings from the tribunal not to discuss the case …
Agency workers: Comparison with conditions of permanent employees should be based on a term-by-term approach
The meaning of regulation 5(1) of the Agency Workers Regulations 2010 (SI 2010/93) (AWR) has had its first consideration before the EAT. Reg 5(1) says that agency workers must be afforded "the same basic working and employment conditions" as permanent employees after 12 weeks.
Redundancy: Pregnant workers not protected from collective redundancy
The Pregnant Workers Directive (92/85/EEC) prohibits the dismissal of workers during the period from the beginning of their pregnancy to the end of their maternity leave (save for exceptional cases not connected with their condition which are permitted under national legislation and/or practice). In a recent Spanish case …
TUPE: Fragmentation of services can prevent a transfer
In London Care Ltd & Carewatch Care Services Ltd v Henry & Others (2018) UKEAT_0219_17_DA (a conjoined case), the EAT had to consider whether the relevant services had been fragmented to such a degree after the change in service provider as to prevent any TUPE transfer taking place.
The claimants worked for Sevacare, a …
Sexual Harassment: EHRC issues new report with recommendations
Following a number of recent public scandals regarding sexual harassment, such as in Hollywood and Westminster, the Equalities and Human Rights Commission has taken action and issued a new report: ‘Turning the tables: ending sexual harassment at work’. It shares evidence about sexual harassment in the workplace …
Gender Pay Gap: 2018 snapshot information and going forward
The first snapshot dates were 31 March for public sector employers and 5 April for private and voluntary organisations, meaning that all employers with 250 employees or more had to provide their information by 30 March and 4 April respectively. It has made for very interesting reading and will hopefully lead to a change …
Data Protection Update: New draft regulations and guide published
On 20 February 2018, the government published the draft Data Protection (Charges and Information) Regulations 2018. The plan is for these to be finalised and come into force on 25 May 2018 in line with the GDPR.
The draft regulations, which replace the Data Protection (Notification and Notification Fees) Regulations 2000 (SI 2000/ …