Employment Law Newsletter - July 2019
- Discrimination: Can a tribunal use stereotypical assumptions on which to base its conclusions, even if the parties never raised them?
- Contract drafting: Century old authority on restrictive covenants reversed by Supreme Court
- Harassment: Is posting an offensive image on Facebook carried out ‘in the course of employment’?
- Disability Discrimination: Employers should make enquiries about an employee’s difficulties to avoid constructive knowledge
- Agency Workers: Agency workers not entitled to same number of contractual hours as directly-recruited comparators
- TUPE: Obligation on transferee to keep and produce wage records for transferring employees
- Right to Privacy: WhatsApp messages used in Police disciplinary proceedings
- ACAS: 2018-19 Annual Report published
- Equality: Gender Equality Roadmap published
- Health at Work: Joint government consultation to reduce job losses
- Employment Rights: ‘Good Work’ continues – new consultation on enforcement body for employment rights
Discrimination: Can a tribunal use stereotypical assumptions on which to base its conclusions, even if the parties never raised them?
In Commerzbank AG v Rajput UKEAT/0164/18/RN the Claimant brought claims of direct sex discrimination, harassment (s.26 Equality Act 2010) and maternity leave discrimination. The ET upheld the claims. In its conclusion it held that the decision-makers had …
Contract drafting: Century old authority on restrictive covenants reversed by Supreme Court
In Tillman v Egon Zehnder Limited  UKSC 32 the Supreme Court was asked to consider an interesting contract drafting point. Ms Tillman worked for Egon Zehnder Limited, an executive search firm. When she left them, she sought to get out of her contractual six-month non-compete clause by …
Harassment: Is posting an offensive image on Facebook carried out ‘in the course of employment’?
In Forbes v LHR Airport Limited  UKEAT 0174_18_2802 an employee (DS) posted a picture of a golliwog on her Facebook page with the caption “Let’s see how far we can make him travel before Facebook takes him off”. Her friends list included some of her …
Disability Discrimination: Employers should make enquiries of an employee’s difficulties to avoid constructive knowledge
In A Ltd v Z  UKEAT/0273/18/BA the Claimant suffered from mental and psychological problems - stress, depression, low mood and schizophrenia, but she had not disclosed these to her employer as reasons for her absences from work, instead citing other health related …
Agency Workers: Agency workers not entitled to same number of contractual hours as directly-recruited comparators
In Kocur v Angard Staffing Solutions Ltd and another  EWCA Civ 1185 the Claimant was an agency worker at Royal Mail’s Leeds Mail Centre where there was a core of permanent staff supplemented by agency staff. He alleged he did not receive the same rest …
TUPE: Obligation on transferee to keep and produce wage records for transferring employees
S.9 of the National Minimum Wage Act 1998 (NMWA) imposes an obligation on employers to keep pay records, including where an employee’s employment has ceased. In Mears Homecare Limited v Bradburn and others  UKEAT 0170_18_0205 the Claimants served 10 production notices under s.10 …
Right to Privacy: WhatsApp messages used in Police disciplinary proceedings
In BC and others v Chief Constable Police Service of Scotland and others  CSOH 2019, 28 June 2019 the Outer House of the Court of Session (Scotland) considered whether or not WhatsApp messages were capable of being used as evidence in misconduct proceedings. An officer, during a criminal investigation …
ACAS: 2018-19 Annual Report published
ACAS has recently published its latest Annual Report and Accounts for 2018-19. It discusses ACAS’s three strategic aims (below), how it has managed these over the last year and its plans to develop them more in the future.
To advise on good practice in everyday working life
To resolve disputes and manage conflict
To influence employment policy and …
Equality: Gender Equality Roadmap published
On 3 July, Penny Mordaunt (Minister for Women and Equalities) launched the Government Equalities Office’s Roadmap for change: 'Gender equality at every stage: a roadmap for change'. The plan is to financially empower women from school to retirement, by including measure such as a review of enforcement of equal pay legislation, and improved …
Health at Work: Joint government consultation to reduce job losses
This month, the Department for Work and Pensions and the Department of Health and Social Care launched a joint consultation: 'Health is everyone's business: proposals for reducing ill health-related job loss'. It sets out proposals which aim to reduce ill health-related job loss. Whilst the government sees that there is much …
Employment Rights: ‘Good Work’ continues – new consultation on enforcement body for employment rights
On 16 July 2019, BEIS published a consultation (‘Good Work Plan: establishing a new Single Enforcement Body for employment rights’) on its proposal to change the way employment rights are enforced and therefore protected by creating a single enforcement body. At …
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Employment Law Newsletter – June 2019
- Disability Discrimination: A perceived risk of future disability is discrimination
- Discrimination: Does contributory negligence affect amount of injury to feelings award?
- Disability Discrimination: Is reliance on Occupational Health reports sufficient to prevent constructive knowledge of a disability?
- Right to Privacy: Employer can rely on material produced under police investigation
- Trade Unions: One-off direct offer is not unlawful inducement
- Tribunal proceedings: Extensions of time where belief reasonable
- Holiday Pay: Under the Working Time Directive holiday pay must include regular voluntary overtime
- Sexual Harassment and Discrimination: WEC publishes report on use of NDAs in discrimination cases
- Health & Safety: Employers should support victims of domestic abuse
- Health & Safety: IES publishes report regarding support for epileptic workers
- Data Protection: One year on since implementation of GDPR and Data Protection Act 2018
- Parental Leave: UK ranks near bottom for family friendliness
Disability Discrimination: A perceived risk of future disability is discrimination
In Chief Constable of Norfolk v Coffey  EWCA Civ 1061 Lisa Coffey was a police officer in the Wiltshire Constabulary who suffered from a degree of hearing loss which had never caused her any problems in doing her job (‘day to day activities’) and which, everyone agreed, does not constitute a …
Discrimination: Does contributory negligence affect amount of injury to feelings award?
The Law Reform (Contributory Negligence) Act 1945 (‘LRCNA’) basically allows an award for damages to be reduced proportionately where the claimant suffered the damage partly as a result of his/her own actions or those of someone else. It is possible for it to apply to some discrimination claims, …
Disability Discrimination: Is reliance on Occupational Health reports sufficient to prevent constructive knowledge of a disability?
In Kelly v Royal Mail Group Ltd UKEAT/0262/18/RN, Mr Kelly was a postman who had a poor attendance record generally, which had triggered the Royal Mail’s Attendance Policy on several occasions. Following two further periods of absence relating to surgery …
Right to Privacy: Employer can rely on material produced under police investigation
In Garamukanwa v United Kingdom (70573/17)  6 WLUK 109, Mr Garamukanwa and Ms Maclean worked for the same NHS hospital trust, and had had a relationship that had ended. Mr Garamukanwa had then suspected Ms Maclean had had a relationship with another member of staff, Ms Smith. According …
Trade Unions: One-off direct offer is not unlawful inducement
In Kostal UK Ltd v Dunkley & others  EWCA Civ 1009 the company had been negotiating with the employees’ union, UNITE, in respect of certain employment contract terms and conditions through collective bargaining. Section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A) prohibits …
Tribunal proceedings: Extensions of time where belief reasonable
When bringing an employment tribunal claim, a claimant must complete a form ET1 and start the claim within certain prescribed time limits. In Lowri Beck Services Ltd v Brophy  UKEAT 0277_18_2503, the original Claimant, Mr P Brophy, brought claims of unfair and wrongful dismissal and of disability discrimination …
Holiday Pay: Under the Working Time Directive holiday pay must include regular voluntary overtime
The decision of the EAT in Dudley Metropolitan Borough Council v Willetts and others (which we previously reported in September 2017 has recently been approved by the Court of Appeal in East of England Ambulance Service NHS Trust v Flowers & Others  EWCA Civ 947. A …
Sexual Harassment and Discrimination: WEC publishes report on use of NDAs in discrimination cases
In November 2018, we reported that The Women and Equalities Committee (WEC) had launched a new inquiry looking at the use of non-disclosure agreements (NDAs) where any form of harassment or discrimination has been alleged. The committee was seeking written submissions on whether there are …
Health & Safety: Employers should support victims of domestic abuse
The figures on domestic abuse are shocking:
“Two women a week are killed by a partner or former partner. One in four women and one in six men will experience domestic abuse in their lifetime, which can range from coercive behaviour to murder. That means we are all likely to know or work with someone …
Health & Safety: IES publishes report regarding support for epileptic workers
One in 100 people in the UK suffer with Epilepsy but they are more than twice as likely as non-sufferers to be unemployed. The Institute for Employment Studies (IES) was commissioned by Epilepsy Action to conduct research to explore the factors that contribute to people with epilepsy being disadvantaged at work, …
Data Protection: One year on since implementation of GDPR and Data Protection Act 2018
Can you believe it’s been a year since we all scrambled to get our policies, permissions and records straight? It has been a big change to the regulatory landscape and privacy is now arguably much better understood and appreciated.
The Information Commissioner, Elizabeth Denman, explains: