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Jason Braier

@JasonBraier

Sep 29

1/ Phipps v Priory Education: EAT reviews the law on reconsideration where the losing party's legal rep was at fault, & finds no brightline between how to treat the party whose rep was incompetent as against one whose rep committed misconduct.
assets.publishing.service.gov.uk/media/632de506…
#ukemplaw

2/ Mrs P brought unfair dismissal, age & disability discrim claims revolving around a dismissal for failure to complete a qualification which was said to be mandatory for her to continue to work in a vulnerable children's home.

3/ Mrs P's legal rep applied for an adjournment shortly before trial on the basis that he'd suffered a medical emergency resulting from a brain infection. The adjournment was granted but the EJ ordered the rep to provide medical evidence re his condition & unfitness to attend.

Read 14 tweets

Jason Braier

@JasonBraier

Sep 28

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).
#ukemplaw

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.

Read 12 tweets

Jason Braier

@JasonBraier

Aug 31

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

Jason Braier

@JasonBraier

Aug 1

The Women and Equalities Committee report on 'Menopause and the Workplace' is out: committees.parliament.uk/publications/2…
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?
#ukemplaw

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

Jason Braier

@JasonBraier

Jul 29

@thebigbogg

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

Jason Braier

@JasonBraier

Jul 28

1/ Trentside Manor Care v Raphael: EAT finds it's not appropriate for ET to order a party to provide to the other side's lawyers documents over which privilege is claimed so that they can argue whether they are privileged!
Also useful on legal advice privilege & non-lawyers.

2/ R was a registered care nurse at TMC. She made a flexible working request as a result of ill-health (which she considered a reasonable adjustment for disability). It was granted on a trial basis. A couple of weeks later, R was suspended & then dismissed for gross misconduct.

3/ It was R's position that conduct wasn't the real reason for dismissal, but her flexible working request/reasonable adjustment was. She brought claims including unfair dismissal, direct disability discrim & discrim arising from disability.

Read 19 tweets

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