UK: Christmas Past - A Summary Of The Years Key Employment Cases

Last Updated: 29 December 2015
Article by Fiona Rushforth

Separate offices and locations once again "separate establishments" for collective redundancy purposes -  USDAW v Ethel Austin Ltd

The ECJ overturned the earlier EAT decision that had to be considered together for the purposes of collective consultation. The ECJ held that each establishment should be considered separately. Therefore if there were fewer than 20 employees made redundant per establishment, the obligation to collectively consult would not be triggered.

The law has therefore reverted to its pre-Woolworths position.

European Court of Justice declares the U.S. "Safe Harbour" data-sharing scheme invalid  - Maximillian Schrems v Data Protection Commissioner

The CJEU declared the US Safe Harbour Scheme to be invalid, meaning that organisations can no longer rely on the scheme to transfer personal data to the USA. International companies have now been advised to rely on other means of safely transferring data, such as EC model clauses and binding corporate rules.

The role of HR in unfair dismissal claims -  Ramphal v Department for Transport

In this case, HR's influence over the disciplinary manager's decision led to the Tribunal's "fair dismissal" decision being overturned by the EAT.  The HR department's involvement led to extensive changes from the disciplinary manager's first-draft decision including excluding favourable conclusions. The EAT held that the extreme nature of the changes to the report suggested that Mr Goodchild's decision had been improperly influenced by HR, and that this rendered the decision unfair. 

Travel time is "working time" for mobile workers – FdSPdSCO v Tyco

The ECJ ruled that time spent travelling to and from home for workers with no fixed or habitual place of work should constitute "working time" for the purposes of the Working Time Directive ("WTD"). The decision is relevant for the purpose of weekly wokding time, rest periods and potentially holiday, but does not necessarily affect entitlement to pay.  

Fair dismissal for social media comments - Smith v British Waterways Board

The EAT held that the employee had been fairly dismissed for bringing the employer into disrepute with a series of negative comments on social media about his work and colleagues, including one comment about being drunk on duty.

Voluntary Overtime and Holiday Pay - Patterson v Castlereagh Borough Council

In one of a long line of cases on holiday pay, the Northern Irish courts confirmed that voluntary overtime could be included in holiday pay calculations, as well as compulsory and non-guaranteed overtime. The key question was whether it was sufficiently regular to be considered  "normal remuneration".

Sick leave and holiday pay - Plumb v Duncan Print Group Ltd 

The EAT confirmed that employees on sick leave cannot be compelled to take holiday leave during the sick leave period, nor do they have to demonstrate that they are incapable of taking it. Employers must assume that the employee is incapable of taking holiday during a valid sick leave period unless agreed otherwise.

The EAT also ruled that any carry over of holiday leave must be taken within eighteen months of the end of the holiday year in which it accrued.

Inadequate grievance investigation leads to an uplift in claimant's injury to feelings award - Southern v Britannia Hotels Ltd

An employer held a cursory and inadequate investigation into a grievance regarding sexual harassment before deciding not to uphold the grievance. The Claimant went on to win her harassment claim. The Tribunal stated that the harassment itself would have merited an award in the middle Vento band, but uplifted the award to the top band due to the deficiencies in the way the grievance had been dealt with. 

Whistleblowing - Chesterton Global Ltd v Nurmohamed

The EAT considered the "public interest" requirement of a whistleblowing claim. The Claimant's disclosures included suspected manipulation of the company's accounts. The company tried to argue that there was no public interest; however, the EAT held that, as the disclosure would have been of interest to 100 senior managers, the public interest test was satisfied. 

Discrimination arising from disability - Swansea University Pension & Assurance Scheme v Williams

The Claimant's hours were reduced during the latter part of his employment due to his disability. On taking ill-health retirement, his final salary pension was based on his part-time salary. He alleged this amounted to a detriment arising from his disability.

The EAT found that as the ill health retirement scheme conferred a benefit on disabled people only, it could not be unfavourable and as such the claim had to fail. The fact that the scheme could have been more advantageous did not make the treatment unfavourable.

Indirect discrimination - UKBA v Essop

The Court of Appeal has given guidance on the approach a tribunal should adopt when considering indirect discrimination.

In this case the Claimants claimed that they were disadvantaged by a skills assessment test. Statistical evidence supported the claim that black and minority ethnic employees aged over 35 were less likely to pass the test, and that it amounted to a PCP. Overturning the EAT decision, the court held that it is necessary for the claimant to show why the PCP has disadvantaged both the group, and the individual claimant. However, it would theoretically be possible to show this by reference to the statistics. 

Discrimination against a company - EAD Solicitors v Abrams

A limited company can claim protection from discrimination under the Equality Act 2010.  In this case, a contractor providing his services through a limited company was terminated when he reached the age of 65.  The EAT held that a 'person' includes a body corporate, and as such the limited company qualified for the protection of the Equality Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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