Employment and Trade Union Law
Sometime one reads an employment tribunal judgment and you can do little else than think whether the employment judge was imbibing something untoward when they made their decision since it is, to put it diplomatically, batshit crazy. That comment is, of course, made in jest but reading of the employment judge's decision in Gordon v … Continue reading Waiving a breach?
In a discrimination case (specifically a direct discrimination complaint) one of the defence tactics an employer can deploy is the so called bastard defence; this can be paraphrased as an admission that the employer is shit and unfair to all its staff but the defence rests on the assertion that it is equally bad to … Continue reading ‘Bastard Defence’ fails at Alpha Omega Security
In IWGB v DWP and BEIS (2020) the IWGB union challenged the UK government over the question of whether it had adequately implemented EU law, as found in section 44 of the Employment Rights Act 1996 (ERA), to protect the healthy and safety of UK workers. The issue was that the ERA specifically provided protection … Continue reading Health and Safety Rights for Workers
In the Employment Appeal Tribunal case of Evans v London Borough of Brent, the EAT rejected an employer's application that a claimant's case of unfair dismissal be struck out and dismissed without a hearing to consider the facts. The case does not really break any new ground but is nonetheless a useful one for employees … Continue reading The value of a ‘valueless’ claim
Up until the early 1970's a worker who was unfairly dismissed by an employer had three choices, do nothing, sue the employer for wrongful dismissal (which is a claim in contract only), or challenge the dismissal outside of the courts (for example, by an employer wide strike initiated by a trade union). In 1968 Lord … Continue reading Why an 1888 court judgment is (unfortunately) still relevant for employees
I have been doing some work recently on the right of accompaniment in disciplinary hearings and have come across a 2012 judgement that emphasises some of the protections a co-worker has if they accompany a colleague to a disciplinary or grievance meeting. The decision, Evans v Opensight (2011) is a first tier tribunal decision but … Continue reading Sacked for helping colleague
When deciding what compensation a successful claimant can receive in an employment tribunal section 207A of the Trade Union and Labour Relations Consolidated Act 1992 allows for compensation to be increased (or decreased) by up to 25% if a party has failed to follow a Code of Practice issued by ACAS which applies in the … Continue reading ACAS uplifts in automatically unfair dismissals
A former prison officer has lost her case alleging unfair dismissal after being dismissed for what the employer alleged was gross misconduct. I am not sure, based on the judgement, that that is the right decision given the centrality of the first disciplinary allegation to the dismissal, the uncertainty on my reading of the real … Continue reading Playing Doctor
In February 2020 (back when coronavirus was barely a thing - it seems so long ago!) the Permanent Secretary of the Home Office announced in a press briefing that he had resigned from his role because continuing was no longer tenable, given a reported hostile working relationship caused by alleged activities of the Home Secretary … Continue reading What’s new in Rutnam’s constructive dismissal complaint?
The Supreme Court's long awaited decision in Jhuti has now been delivered which is one all employee reps would do well to be aware of. The legal issue which the judgement addresses was surveyed a few weeks ago in which I expressed hope that the Court of Appeal's decision in Orr would be overruled. To recap, under … Continue reading The mind of the decider (2): The effect of Jhuti
If the Fixed Term Worker Directive, the EU law that provides for employment protection for fixed term workers, is to be believed "contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers." I have to say I have some scepticism of that statement and … Continue reading Fixed term employee dismissals
Section 94 of the Employment Rights Act 1996, if read in isolation, gives a very valuable right to all employees - the right not to be unfairly dismissed. However, by a series of qualifications what sounds a universal right is in fact only of benefit to a smaller percentage of employees. The Labour Party Manifesto … Continue reading On Labour Manifesto Commitments and Hash Brown Related Dismissals
In 2005 Mr Orr, a Black Jamaican youth worker, was dismissed by Milton Keynes Council for misconduct. He was dismissed by a Mr Cove who heard the case against Mr Orr, and at which Mr Orr was not present. Mr Cove conducted the disciplinary hearing in good faith and, as noted, this resulted in Mr … Continue reading The Mind of the Decider (1): The case of Orr
Does the failure to give a dismissed employee a right to appeal against that dismissal make it unfair?
In the 2017 case of O'Brien v Bolton St Catherine's Academy the Court of Appeal considered the question of whether the test of whether a discriminatory dismissal under section 15 of the Equality Act 2010 was necessarily an unfair dismissal. The key issue was whether the test as to whether a dismissal was "a proportionate … Continue reading Discriminatory Dismissals and the Band of Reasonable Responses
I have spent Saturday morning, as every sane person does, skim reading historic EAT judgements, and in the process stumbled upon the decision in USDAW v Burns. USDAW v Burns is a 2014 unfair dismissal case, the background to which will be familiar fare to many trade union reps, notwithstanding that the Respondent in this … Continue reading Broken Promises and (allegedly) Bullying Managers
I have written before about the problem of whether one should appeal when an employee has been procedurally unfairly dismissed because of the risk of the appeal upholding the dismissal and remedying the breaches. The problem is that sometimes an unfair dismissal is turned into a fair one thereby depriving the employee both of the … Continue reading Defective Appeal
It is certainly not a new tactic: when a politic party makes a proposal with which the other parties are not too enamored they adopt a guilt by association posture. And so it was last week, fresh from the Labour Party launching its Business manifesto cracking down on zero hour contracts, the Tory cheerleaders at … Continue reading Unite Union, Labour, and Zero Hour Contracts
The Lancashire Telegraph is running a story on the unfair dismissal ruling of a former employee of Moorlands School in Clitheroe, Lancashire. Along with two other members of school staff of Moorlands School, a private boarding school in Lancashire, the claimant was supervising a school trip at which a number of pupils got drunk. Depending … Continue reading Unfair Dismissal and the Myth of Red Tape
This week the fate of Top Gear's Jeremy Clarkson should be decided. The background facts do not appear to be contested (although no-one external can know for sure): Clarkson got into some type of fracas in a canteen with a more junior colleague and hit him. I have not seen the BBC's disciplinary policy but … Continue reading The Obligatory Top Gear Employment Law Post
At the beginning of the month I posted What Will the Papers Say?, a piece on the High Court' s decision in Williams v Leeds United Football Club [2015] EWHC 376 (QB). Briefly, the claimant, then a Director for Leeds Utd FC, had sent pornographic images using the football club's IT to three people: Dennis Wise, … Continue reading Affirming Gross Misconduct
In recent mainstream media reports there has been a focus on the appalling racist chants of a group of a group of Chelsea fans; this story has an employment focus as at least one Chelsea fan, finance worker Josh Parsons, has now been suspended from his work in the aftermath of the incident. Time will … Continue reading What Will the Papers Say? Employment Law, Disrepute and the ‘Beautiful Game’
Back in 2013 the EAT issued the the important decision in Brito-babapulle v Ealing Hospital NHS Trust [2013] UKEAT 0358_12_1406 which that found that the Employment Tribunal's finding that "[o]nce gross misconduct is found, dismissal must always fall within the range of reasonable responses" was an error of law. Specifically, "the Tribunal misdirected itself as … Continue reading Brito-Babapulle, Mark II
The central case dealing with the fairness of conduct dismissals is undoubtedly British Home Stores Ltd v Burchell [1978] UKEAT 108_78_2007. It was this case that is the source of the "Burchell Test", here it is in the judgement itself: What the tribunal has to decide every time is, broadly expressed, whether the employer who … Continue reading Dismissal and Culpability
