Discover and read the best of Twitter Threads about #ukemplaw

Most recents (24)

1/ Concentric v Obi: EAT finds an ET can extend time under s.123 EqA w/o there being any reason for the lateness, & where extension would bring in historic matters the ET should apply the Adedeji forensic prejudice approach (but see Tweet 12 for a novel suggestion).
2/ O worked at the R's outsourced call centre. She brought an ET claim in which she raised a number of claims of sexual harassment. At trial, the ET found 3 of these occurred & that they were part of a continuing act, whilst a racial harassment incident was a one-off.
3/ O's claim was brought 1 day out of time as regards the final sexual harassment act.

The ET found it just & equitable to extend time. This was in spite of finding O knew the time limits well, & the lack of any evidence about why she didn't bring the claim earlier. ImageImage
Read 12 tweets
In 2019, I did my tour. In it, I predicted the changes over the next 3-7 years which would happen to workers' rights as a result of leaving the EU. I have gone back today and rewatched those videos...

These were my six predictions on what was likely to change in #ukemplaw between 2022 and 2027.

First, TUPE. I thought TUPE will remain largely unchanged. It’s part of accepted employment protection now, and in some ways the TUPE regs already go further than EU law requires.

Read 17 tweets
1/ Kumari v Greater Manchester Mental Health NHS: EAT holds in considering whether to allow an amendment & whether it's just & equitable to extend time, the ET could consider against K the merits of the claim even if not meeting the no reasonable prospect threshold. #ukemplaw
2/ In this case, K brought complaints of direct race discrim/harassment, presenting the ET1 a few days out of time. She also sought to amend to add in additional allegations of discrimination. At a PH, the ET declined to exercise discretion to extend time or to allow amendment.
3/ In doing so, one factor considered by the ET was the weakness of K's discrim claims. Presuming she established all the facts alleged, the ET found her case weak on showing any link between those facts and K's race.
Read 11 tweets
The Women and Equalities Committee report on 'Menopause and the Workplace' is out:…
It's a well-written & researched report with useful information & brings an important issue to the fore, but does it come up with the right proposals?
The committee raises concerns that menopause-related discrimination has to be shoehorned into sex, age or disability discrimination protection, & there are difficulties with each. /2
For age & sex discrim, the committee identifies the comparator issue. Unlike pregnancy discrim, where the test is 'unfavourable' rather than 'less favourable' treatment, for menopause-related sex/age discrim you need a comparable (real or hypothetical) man/younger person. /3
Read 9 tweets
1/ Avid readers of the ILJ are in for a treat when the next issue is released, as the high priests of #ukemplaw @thebigbogg & @MichaelFordQC have written a superb article covering the Art 11 ECHR cases of Foster Carers & Deliveroo, employment status & substitution clauses.
2/ To whet your appetites, some vague clues to highlights. They argue there was a much simpler route to victory for the Foster Carers than looking to Art 11 ECHR, in that in fact foster carer relationships were governed by contract & the earlier case law to the contrary was wrong
3/ They argue the earlier case law (W v Essex) relied too heavily on the fact foster care agreements were governed by statutory obligations - that should only negate the existence of a contract where it leaves no space for the contract to occupy.
Read 22 tweets
1/ Arian v The Spitalfields Practice: The EAT wasn't bound by its decision in Pruzhanskaya to find no new time limit for adding a s.103A to a s.98 ERA claim, but rather time limits may be of limited weight in line with Abercrombie et al.…
2/ A was a healthcare assistant at a GP practice. He raised various concerns about their health protocols. As a LiP, he brought 2 claims including an ordinary unfair dismissal claim & a protected disclosure detriment claim, but not a s.103A automatic unfair dismissal claim.
3/ He provided a list of issues a few months later which included as an issue whether his dismissal was connected to the grievance in which he'd raised his protected disclosures, though when the R professionally redrafted the list, it didn't include a s.103A claim.
Read 12 tweets
1/ Scottish Federation of Housing Associations v Jones: The exception to the 2 years qualified service requirement under s.108(4) ERA concerns dismissal for political opinions/affiliations & not mere breach of a political neutrality clause.…
2/ J was head of membership & policy for the SFHA. Her employment contract contained a 'Political Activity' clause preventing her from having a formal role of a political nature.
3/ J told her employer she wished to stand for Scottish Labour at the next general election. The SFHA advised that it didn't consent to this. J then withdrew her candidature. At a meeting, the CEO expressed concern J had sought permission to stand. J was subsequently dismissed.
Read 12 tweets
1/ Harpur Trust v Brazel: Sup Ct dismisses the appeal, holding part-year workers on year-round contracts are entitled to 5.6 weeks' annual leave per year, with a week's pay determined by s.224 ERA, rather than 12.07% of earnings in the year.…
2/ This case is concerned with those who work for varying hours, only working during certain weeks, but under a contract continuing throughout the year.

The question is whether leave for them should be counted proportionately or by ignoring that there are weeks they don't work.
3/ B teaches the saxophone & clarinet as a visiting music teacher at a school run by HT & is accepted to be a worker in that capacity. Her hours vary dependent on the number of pupils needing her music lessons, with B normally working 10-15 hours a week during term time.
Read 25 tweets
1/ FDA v Bhardwaj: EAT dismisses appeal against refusal of costs orders (& cross-appeal against making of 1), & derides issue-by-issue costs claims & discourages pernickety costs appeals.…
2/ This is lengthy litigation by B against her former union & 5 of its members. She started the litigation in 2008, lost it & then lost at the EAT & CA before the Supreme Court refused permission to appeal. The FDA applied for costs & partially succeeded. Both sides appealed.
3/ The EAT (Griffiths J) started by bemoaning how great the resources taken up by the case, & how litigation taking up the most resources seem to create their own chain reaction of further & more strenuous fighting. (It was a case in which FDA raised 50 points on costs alone!)
Read 11 tweets
1/ USDAW v Tesco: CA reverses High Ct declaration & injunction to prevent fire & rehire of Tesco workers with a 'permanent' contractual right to retained pay.…
2/ The facts start in 2007, when Tesco were looking to move distribution centres & to encourage experienced staff to stick around in spite of the considerable inconvenience of the move.
3/ To incentivise them, they offered them "retained pay" a significant additional monthly sum to agree to move to the new centres. There were contractual restrictions on its alteration, & in collective bargaining it was described as 'permanent' save in certain circumstances. ImageImage
Read 19 tweets
1/ Sejpal v Rodericks Dental Ltd: a must-read case in which the EAT finds the worker status test is very simple, & then throws hand grenades under the reliance on an unfettered right of substitution as a way of denying worker status.
2/ The appeal concerns the question of whether a dismissed dentist was a worker under the ERA (s.230) and in employment under the EqA (s.83(2)). In simple terms, we're looking at questions of limb (b) worker status.
3/ The contractual position was one in which S had worked under an "Associateship Contract" throughout the relevant periods. It had a substitution clause (of which more later) & a clause saying it was a contract for services and not an employment contract.
Read 23 tweets
1/ DWP v Boyers: When considering a s.15 EqA claim re dismissal of a long absent employee, it's appropriate for the ET to look outside the strict contractual terms when reviewing proportionality & the potential solutions to avoid dismissal.…
2/ In this case, B had been an admin assistant for 12 years. She was disabled as a result of chronic migraines & anxiety. She considered this to be exacerbated by a colleague & fell out with management due to how they failed to deal with the issue.
3/ After some time, B went off sick. She remained off work for the last 11 months of employment save a 6-week period of a work trial elsewhere. She'd refused to allow DWP to see OH reports & said she wasn't well enough to attend the capability meetings.
Read 14 tweets
1/ Rentplus UK v Coulson: Another HHJ Tayler judgment to keep in your "Essential case law" folder. Almost everything you need to know about the s.207A TULR(C)A uplift in 1 neat, concise judgment.…
2/ The case concerned a redundancy dismissal for a senior director. The ET found the redundancy process a sham, merely used as a vehicle for a dismissal decided on beforehand.

The ET awarded a 25% uplift for failures to comply with the ACAS Code.

The EAT upheld the uplift.
3/ HHJ Tayler provided lots of useful comments on the law on the uplift. First, a simple statement of the 4 stages of the s.207A test (though see Slade v Biggs for a 4-stage breakdown of the last question):
Read 8 tweets
1/ Singh v Metroline West Ltd: It was a fundamental breach of contract to deliberately not pay wages due - it was immaterial that the employer took this action to encourage the employee to engage in a disciplinary process.…
2/ In this case, S's contract provided for entitlement to contractual sick pay. S went off sick, it being possible that he did so in order to avoid disciplinary proceedings. S's contract allowed for cessation of sick pay if a thorough investigation found the employee not sick.
3/ There was no such investigation in this case. The employer merely ceased S's contractual sick pay for 7 weeks in order to encourage his participation in the disciplinary process which the employee suspected he'd gone off sick to avoid taking part in.
Read 7 tweets
1/ Dafiaghor-Olomu v Community Integrated Care: In a case where the statutory cap applies & compensation is paid pursuant to an ET order, no credit is given for that payment as against the statutory cap is compensation is then revised upwards.
2/ The above may sound confusing. The facts will make things simpler. D won her ordinary unfair dismissal claim & CIC was ordered to pay c.£46k in compensation. D then successfully appealed the remedy judgment & on remission the ET decided she was entitled to c.129k compensation.
3/ The relevant statutory cap at the time was £74,200. Should the £46k count against the cap (so that c.£28k remained owing on the remitted judgment) or should the £46k be taken off the £129k so that CIC now had to pay the statutory cap amount of £74,200?
Read 10 tweets
1/ Sami v Nanoavionics & Others: Appeal about deposit orders against s.110-112 EqA claims. @MichaelFordQC provides some very useful guidance on limits of s.111 & a useful point on deposit orders.…
2/ In short (as relevant), S was dismissed from employment by N (R1). R2 was a company owning all shares in R1. R4 is the chair of R2 (& chief exec of another respondent, R3). S brought a standard EqA claim against R1, s.110-112 claims against R2 & a s.112 claim against R4.
3/ R2 had a power of attorney to allow its director to execute documents terminating R1's employment. S had notes of a meeting suggesting his dismissal was discussed with R4 & that culture played a part. S's claim was that being non-Lithuanian was central to his dismissal.
Read 9 tweets
1/ The EAT's judgment in Rodgers v Leeds Laser Cutting has been handed down, but hasn't yet reached the National Archives or EAT website, & I'm not technically proficient enough to upload a copy. Which means you'll have to take my word about what it says!
2/ The case involves a laser operator who, at the very start of 1st lockdown stopped going in to work. He had a young child with sickle cell anaemia & a young baby at risk as well. R was concerned about their risk of catching Covid.
3/ R's workplace was massive - the size of 1/2 a football pitch, usually with only 5 people working there. Social distancing wasn't a problem. LLC had also taken expert safety advice & put in place plenty of Covid precautions.
Read 17 tweets
1/ Allen v Primark: EAT emphasises the need to match the pool for an indirect discrimination claim to the precise PCP relied upon. Here the ET erred by constructing a pool including those to whom the PCP didn't apply.…
2/ A was a manager of a Primark Store. She was a single mother of a young child. P applied a PCP under which department managers at her store were required to guarantee availability to work late shifts on Thursdays. A brought a claim of indirect discrimination in respect of this.
3/ In constructing a pool for comparison for the s.19 claim, the ET pooled together department managers & trainee managers, as they potentially had to work late Thursday shifts. It was noted that 2 of the male dept managers had childcare issues on a Thursday night.
Read 7 tweets
1/ White v HC-One Oval: Was an ET right to strike out W's unfair dismissal claim in circumstances in which she'd taken voluntary redundancy? No, said the ET.…
2/ W was one of a team of receptionists, & also did admin work. She was p/t. Her employer took on an additional receptionist on a couple of months before starting a redundancy process. W took voluntary redundancy & the new receptionist was the only 1 kept on (f/t & with admin too
3/ W brought a claim for unfair dismissal. At an open PH, an ET struck her claim out on the grounds it had no reasonable prospects of success. The EAT disagreed, holding the ET had failed to take W's case at its highest.
Read 5 tweets
1/ Mendy v Motorola: Strike out of a claim (here an inadvertent strike out!) is not allowed at a closed PH (r.56 ET Rules), but if made at one it can't be revoked under r.29 but can only be remedied by reconsideration or appeal.…
2/ C brought a lengthy claim, which included within it an indirect discrim claim. However, in an order following a closed PH, an EJ found there was no pleaded indirect claim at present & ordered C would need to apply to amend to pursue any such claim.
3/ On C appealing & getting through the sift at a r3(10) hearing, the EJ sought to revoke his earlier order and also to suggest he hadn't struck out any indirect claim, but if it was found that he had done so, he invited the parties to apply for reconsideration.
Read 9 tweets
1/ Craig v Abellio: ET erred in failing to consider the last straw doctrine in a last straw case. Also some useful comments on whether there's a fundamental breach in not making a payment due to genuinely but wrongly disputing it's due.…
2/ In this case there was significant dispute about what pay was due to C during a lengthy sickness absence. After an unsuccessful grievance but successful appeal it was found he was due £6,000 backpay, which A then failed to pay on the day they said they would. C resigned.
3/ In finding that there wasn't a repudiatory breach entitling C to take constructive dismissal, the ET found the faillure due to a mistake soon resolved, but gave no consideration at all to the last straw doctrine & whether C succeeded under it.
Read 7 tweets
1/ SoS for BEIS v Mercer: CA finds EAT went beyond the limits of statutory construction in finding a worker sanctioned for arranging to take part in industrial action protected by s.146 TULR(C)A. EAT reversed & dec of incompatibility declined.…
2/ M, a support worker for AFGL, a health & social care charity, was a UNISON workplace rep & was involved in planning a series of strikes. She was suspended after speaking to the press re the plans & issued a written warning (albeit this was overturned on appeal).
3/ M brought a whistleblowing detriment claim & a s.146 TULR(C)A claim that in suspending her she was subject to a detriment for the purpose of preventing/deterring her from taking part in the strike action. A PH was listed to determine whether s.146 extended to this situation. Image
Read 12 tweets
1/ Guardian v Rozanov & EFG Private Bank: EAT holds ET should've acceded to post-trial request from Guardian to be provided with various trial docs in line with open justice principles. Important case on the ET & appellate tests to be applied.…
2/ By this appeal, the Guardian News appealed against an ET's refusal to order EFG to provide it with copies of the ET1, ET3, skeletons, witness statements & bundle documents after the final hearing of the claim.
3/ The underlying case was a whistleblowing detriment & dismissal claim brought by Mr Rozanov, a private banker. Although the ET accepted protected disclosures were made, the detriment & dismissal claims failed.
Read 23 tweets
1/Clark v Middleton & Black Dog Hydrotherapy Ltd: EAT holds it's possible to settle a transferee's TUPE Reg 15(8)(b) consultation liability, & a failure to inform on the t'ee's identity isn't a technicality for which £0 compensation is justified.… #ukemplaw
2/ C worked for Black Dog Hydrotherapy ('BDH'), which M ran as a sole trader. There were 5 employees. In Sept 2019, BDH were transferred to a ltd co, Black Dog Hydrotherapy Ltd ('BDHL'), incorporated by one of BDH's employees, JSA. C's employment transferred but she soon resigned
3/ C brought claims against M as TUPE transferor in re failure to consult & against BDHL in re wages, holiday pay & unfair dismissal claims. M asserted she complied with reg 13 duties & that any failure resulted from BDHL's failure to provide requisite information to her.
Read 17 tweets

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