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…

Article 8(1) of the European Convention on Human Rights (ECHR) states “everyone has a right to respect for his private and family life, his home and his correspondence”. Article 8(2) says there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The case López Ribalda and others v Spain concerned installation of covert surveillance in a Spanish supermarket where there was a high level of theft. The surveillance was – Read More…

The Information Commissioner’s Office (ICO) has updated its guidance on timescales for responding to data subject individual rights requests. The guidance makes clear that, when calculating the one-month period for response, the day of receipt is day one rather than the day after receipt. How long do you have to comply with a request? You must comply with a request without undue delay and at the latest within one month of receipt of the request or (if later) within one month of receipt of: any requested information to clarify the request; any information requested to confirm the requester’s identity; or a fee (only in certain circumstances). You should calculate the time limit from the day you receive the request (whether it is a working day or not) until the corresponding – Read More…

The Employment Appeal Tribunal has upheld the decision of the Employment Tribunal to find that a GP registered with CBCH, a company providing out-of-hours services to the NHS, was a worker under section 230(3)(b) of the Employment Rights Act 1996. The Employment Tribunal had found that the doctor was a worker despite the fact that from October 2015 she was paid through a limited company. The judge noted the main features of the GP’s role, including that she had worked regular shifts for around 12 years, but that there was no mutuality of obligation; she did not need permission to perform work outside CBCH’s activities; she provided her own medical equipment and indemnity insurance; and she was required to work personally for the provider and could not send a substitute – Read More…

On 6th August the Court of Appeal upheld the decision of the Employment Appeal Tribunal from 6th March 2018 in the case of Brazel v The Harper Trust. The Court of Appeal considered whether the holiday entitlement of part-year workers on permanent contracts should be prorated to that of full year workers to reflect the fact that they do not work throughout the year. The Claimant, Ms Brazel, was a part-time music teacher working mostly during term time. She was engaged on a ‘zero hours’ contract and had a contractual right to 5.6 weeks holiday pay, mirroring her statutory right. Rather than calculating the basis for holiday pay by the methodology set out in section 224 Employment Rights Act 1996, the Respondent calculated it on the basis of 12.07% of – Read More…

Mr Forbes worked as a security officer for LHR Airport Ltd (LHRA). One of his colleagues was Ms Deborah Stevens who worked in a similar capacity. On an unspecified date prior to 6 November 2016, Ms Stevens shared an image of a golliwog on her Facebook page, accompanied by the message “Let’s see how far he can travel before Facebook takes him off.” The image was shared with people who were on Ms Stevens’ list of Facebook friends. One of those friends was a work colleague, referred to here as BW. Mr Forbes was not on that list. On 6 November 2016, BW showed the image on Ms Stevens’ Facebook page to Mr Forbes. He was shocked and appalled by the fact that Ms Stevens had posted this image and – Read More…

In accordance with the Working Time Directive workers are entitled to at least four weeks’ annual holiday. This is extended by 1.6 weeks as a result of the Working Time Regulations 1998 to give a worker a total of 5.6 weeks’ annual leave. This raises the question of whether employers should allow carry over of 5.6 weeks or 4 weeks when a worker has been off sick for the entire holiday year. In TSN v Hyvinvointialan liitto ry (C‑609/17) and another case the Advocate General gave an opinion that the EU Charter of Fundamental Rights, read together with the Working Time Directive, allowed member states to limit carry over of holiday in the event of sickness to the four weeks’ leave under the Directive. The employees argued that the EU – Read More…

The court of appeal has confirmed that suspension of an employee is to be treated like any other alleged breach of the implied term of mutual trust and confidence. Does the employers conduct, without reasonable and proper cause, destroy or seriously damage the relationship of trust and confidence? This was confirmed in The Mayor & Burgesses of the London Borough of Lambeth v Simone Agoreyo [2019] EWCA Civ 322. The following facts should be taken into account when deciding if suspension is the correct thing to do: What is the reason for suspending and are there any alternatives to suspension? The most common reason for suspension is either to protect a vulnerable person (e.g. a pupil or a member of staff) or to ensure the investigation can be carried out – Read More…