In Uddin v London Borough of Ealing UKEAT/0165/19, the EAT decided that an employee had been unfairly dismissed when the investigating officer failed to inform the dismissing manager that the alleged victim of a sexual assault by the employee had withdrawn her complaint to the police. Background The dismissal of an employee for a reason which “relates to the conduct of the employee” is potentially fair (section 98(2)(b), Employment Rights Act 1996 (ERA 1996)). The starting point for determining whether a dismissal is fair is the test set out in section 98(4) of ERA 1996 which provides that: ”The determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer): depends on whether in the circumstances (including the size and administrative – Read More…

ACAS has published new guidance on the use of non-disclosure agreements (NDAs). This is intended to help employers and workers understand exactly what an NDA is and when it may be appropriate or inappropriate to use one. It is relevant to any type of case, and not limited to those involving discrimination or harassment. The guidance, published on 12th February 2020, confirms that an NDA cannot prevent whistleblowing, nor the reporting of a crime to police. Further examples given of situations in which NDAs should not be used include to cover up misconduct, to avoid addressing workplace issues or to mislead individuals. ACAS urges employers to consider NDAs on a case-by-case basis to determine if they are definitely needed and whether they would cause any serious moral or ethical issues – Read More…

What is continuous employment? Continuous employment is a statutory concept. It is a term used to describe the length of unbroken time that an employee has worked. It can consist of the time that an employee worked for a single employer or (in some cases) can include work done for a previous employer. The period of continuous employment generally commences when an employee’s contract starts (even if the employee is not at work that day) and ends when it terminates. Why is continuous employment important? Employees may need a specified period of continuous employment in order to exercise key statutory rights in relation to unfair dismissal or the entitlement to a redundancy payment. Events that break continuity The following three situations result in a break in the continuity of employment: – Read More…

Parents who suffer the devastating loss of a child will be entitled to 2 weeks’ statutory leave, Business Secretary Andrea Leadsom announced on 23rd January 2020. The Parental Bereavement Leave and Pay Regulations, which will be known as Jack’s Law in memory of Jack Herd whose mother Lucy campaigned tirelessly on the issue will come into force in April 2020. The right to Parental Bereavement Leave (PBL) will apply to all employed parents who lose a child under the age of 18, or suffer a stillbirth (from 24 weeks of pregnancy), irrespective of how long they have been with their employer (the leave is a ‘day-one’ employment right). Parents with at least 26 weeks’ continuous service with their employer and weekly average earnings over the lower earning limit (£118 per – Read More…

If an employee is going to be employed for more than one month they are entitled to a written statement of certain terms of their employment.  This is commonly known as a Section 1 Statement as the requirements are contained in Section 1 of The Employment Rights Act 1996 and the requirements can be incorporated into a Contract of Employment. The Statement or Contract must be given to employees no later than two months after their employment begins.  From 6 April 2020, the majority of particulars will need to be given in a single statement before the job begins. Even if the employment terminates before the end of the two-month period, the employer must still give the written statement. Current Requirements The following information is required to be given: The – Read More…

An employment tribunal judge has ruled that ethical veganism is capable of amounting to a philosophical belief under the Equality Act 2010. Jordi Casamitjana claims that he was dismissed by the League Against Cruel Sports, an animal welfare charity, after disclosing that the charity’s pension fund invested in companies involved in animal testing. Mr Casamitjana says when he drew his bosses’ attention to the pension fund investments, they did nothing, so he informed colleagues and was sacked as a result. League Against Cruel Sports alleges that Mr Casamitjana was dismissed for gross misconduct for reasons unconnected with his veganism; this issue is yet to be determined at a hearing next month. The judge ruled that ethical vegans should be entitled to similar legal protections in British workplaces as those who – Read More…

The Supreme Court has decided that an employee had been automatically unfairly dismissed as a result of protected disclosures even though the person who made the decision to dismiss her was unaware of the protected disclosures. Usually it is accepted that the reasons given by the appointed decision-maker will be the reasons for the dismissal. However, where the real reason for the dismissal is hidden from the decision-maker behind an invented reason, it is the court’s duty to look behind the invention. Provided that the invented reason belongs to a person placed by the employer in the hierarchy of responsibility above the employee, there is no conceptual difficulty about attributing to the employer that person’s state of mind rather than that of the deceived decision-maker. Legal Overview A worker must – Read More…

In Dewhurst v Revisecatch Ltd t/a Ecourier and City Sprint (UK) Limited ET2201909/18, the London Central Employment Tribunal has held for the first time that workers qualify for protection under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). The Tribunal found that that workers falling within the definition in section 230(3)(b) of the Employment Rights Act 1996 (known as “limb (b) workers”) are protected under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006). Regulation 2(1) of TUPE 2006 defines “employee” as any individual working under a contract of service or apprenticeship “or otherwise”, but excludes the genuinely self-employed. The Acquired Rights Directive (2001/23/EC) (ARD), defines an employee as “any person who, in the Member State concerned, is protected as an employee under national law”. Article – Read More…

The Employment Tribunal (ET) awarded a gay headteacher, Matthew Aplin, over £696,000 in compensation after he successfully brought a claim for unfair dismissal and sexual-orientation discrimination. The headteacher was dismissed by his employer Tywyn Primary School following an investigation that found Mr Aplin had sex with two 17-year old boys at his home. Mr Aplin met the two 17-year old boys on an app called Grindr and the three of them had sex. Following a Local Authority investigation, it was concluded that no criminal offence had took place. There were also no child protecting issues involved. The school conducted its own disciplinary investigation into whether Mr Aplin’s conduct had brought the school into disrepute, whether his conduct outside work had undermined his ability to fulfil his role, and whether it – Read More…

A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either: •          Violating B’s dignity, or •          Creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (Section 26(1), Equality Act 2010 (EqA 2010).) The EAT decided that an employer was not liable when a patient racial harassed one of its employees on the basis that any failure to take adequate steps to prevent racial harassment in its workplace were not because of race. Following the Court of Appeal’s decision in Unite the Union v Nailard [2018] EWCA Civ 1203, an employer will only be liable for the third-party harassment of an employee where the employer’s action or inaction is because of the relevant – Read More…