7th July 2016: Subconscious Direct Discrimination

July 26th, 2016

Is failing to address, or make a finding, in relation to subconscious or unconscious discrimination an error of law?

Sometimes, held the EAT in Geller v Yeshurun Hebrew Congregation.

A husband and wife worked for a joint salary and were made redundant. Mrs Geller brought claims including direct sex discrimination. The factual matrix was far from gender neutral, however an employment tribunal found that Mrs Geller had not been treated less favourably because of her sex.

The EAT overturned the decision because:

(1) Despite facts from which discrimination could be inferred, the tribunal failed to consider subconscious or unconscious discrimination. Only if discrimination is inherent in the act complained of is the tribunal released from the obligation to enquire into the mental processes of the alleged discriminator; and;

(2) Whilst there is no requirement to apply the two-stage test in the burden of proof provisions (section 136 Equality Act 2010) in a mechanistic or formulaic way or even at all, the tribunal\’s treatment of the reverse burden provisions in the case was rudimentary at best.

The decision could not stand and was remitted.

22 June 2016: Does the Acas Code of Practice on Disciplinary and Grievance Procedures apply to ill health dismissals?

July 26th, 2016

No it does not, held the EAT in Holmes v QinetiQ.

The Claimant was dismissed on the grounds of ill health. It was conceded that the dismissal was unfair because of the failure to obtain an up to date occupational health report. At the remedy hearing, the Claimant contended that the Acas Code applied and that due to the unreasonable failure to follow the code he was entitled to an uplift under s.207A TULR(C)A 1992.

In force today, The Exclusivity Terms in Zero Hour Contracts (Redress) Regulations 2015

January 11th, 2016

The regulations provide that:-

  • any dismissal of a zero hour contract employee is automatically unfair, if the principal reason is that s/he breached a contractual clause prohibiting him/her from working for another employer
  • no qualifying period is required to bring such an unfair dismissal claim; and,
  • it is also unlawful to submit a zero hour worker (note: worker not employee) to detriments if they work for another employer in breach of a clause prohibiting them from doing so.


Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 to come into force on 11 January 2016

December 18th, 2015

The Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 (SI 2015/2021) (the Regulations) were made on 14 December 2015 and will come into force on 11 January 2016.

The Regulations provide a remedy for zero hours workers against employers who include exclusivity clauses in their contracts of employment. Exclusivity clauses in zero hours contracts were rendered unenforceable under section 27A(3) of the Employment Rights Act 1996 which was inserted by section 153 of the Small Business, Enterprise and Employment Act 2015. The Regulations give zero hours employees the right not to be unfairly dismissed and zero hours employees and workers the right to not be subjected to a detriment for failing to comply with an exclusivity clause

Negative verbal reference resulting in withdrawal of job offer was discrimination arising from disability

December 14th, 2015

When a disabled person’s job offer was withdrawn, following a negative verbal reference from their former employer, the EAT held that the tribunal should have considered whether sickness absences, which arose out of disability, played a part in that negative assessment. In this case, it was clear that they could have done, so a prima facie case was made out. Further, this was one of the rare cases where it was possible to conclude that unlawful discrimination had taken place. Accordingly, the appeal was allowed and substituted findings of fact made.  Pnaiser v NHS England and Coventry City Council

Whistleblowing – a recent case where it applies in a dispute relating to contractual terms

November 5th, 2015

In a recent case, the EAT has decided that a dispute between an employer and a group of four employees relating to their terms and conditions of employment was capable of being a protected disclosure, entitling them to seek protection against unfair dismissal under whistleblowing legislation.

The decision seems to be inconsistent with the purpose behind the June 2013 changes made to section 43B(1) of the Employment Rights Act 1996 by the Enterprise and Regulatory Reform Act 2013. The amendments were intended to prevent employees seeking whistleblowing protection in relation to matters regarding their own terms and conditions of employment. (Underwood v Wincanton plc UKEAT/0163/15).

HR Involvement in the Disciplinary Process

October 31st, 2015

Businesses will welcome helpful guidelines provided by the Employment Appeal Tribunal (EAT) on how much involvement and influence HR should have in disciplinary investigations. What is crucial is that HR limits advice to questions of law, procedure and process, and avoids straying into areas of culpability. In particular, HR should not advise on what an appropriate sanction should be, outside of addressing issues of consistency. Significant influence by HR in the outcome of an investigation could potentially compromise the fairness of the investigation process and result in an unfair dismissal.

In this case, the EAT allowed an appeal against the decision of an employment judge that an employee had been fairly dismissed in circumstances where the investigating officer’s recommendations had been heavily influenced by input from HR. The investigating officer’s report originally recommended a finding of misconduct and a sanction of a written warning, but after numerous comments and amendments by HR, the final report found the employee to have committed gross misconduct, and recommended immediate dismissal.

Introduction of a simplified employment tribunal fee remission process

October 30th, 2015

HMCTS has developed a simpler and faster fee remission process in the employment tribunals.

The new process, which is called “Help with Fees”, came into force on 28 October 2015. Under the new scheme, applicants self-assess their eligibility for fee remission and are no longer required to submit paperwork in support of their application. Instead, HMCTS check directly with the Department for Work and Pensions whether an applicant is eligible for fee remission. The new form and guidance are still referred to under their previous names of EX160 and EX160a and are available online as well as in courts.

Social media: employee dismissed fairly after making derogatory comments about employer on Facebook

October 5th, 2015

An Employment Appeal Tribunal (EAT) case provides a useful reminder to businesses of the importance of maintaining an effective social media policy and to employees of the importance of exercising caution when posting online.

The EAT held that it was fair to dismiss an employee that made derogatory comments about his employer on Facebook. It did not matter that the misconduct had taken place two years before dismissal or that the employer had been aware of the misconduct throughout that period. This case shows that an employer that has failed to respond to an employee’s earlier act of misconduct will not necessarily lose the opportunity to take action at a later date. The misconduct in this case predated the dismissal by two years and the employer had known about it for a considerable part of that time.

This case highlights the risks that a business and its employees should be aware of when using the internet and email at work, sending work-related emails or discussing the workplace on the internet.

National Minimum Wage (Amendment) Regulations 2015

October 5th, 2015

The following hourly rates of national minimum wage apply from 1 October 2015:

The standard adult rate (workers aged 21 and over) is £6.70.
The development rate (workers aged between 18 and 20) is £5.30.
The young workers rate (workers aged under 18 but above the compulsory school age who are not apprentices) is £3.87.
The rate for apprentices is £3.30.
From 1 October 2015, the accommodation offset is £5.35 each day.