Employers are obliged to make reasonable adjustments to remove or reduce any substantial disadvantage that disabled employees experience because of workplace arrangements. In Hilaire v Luton Borough Council, the EAT has confirmed the limits of that requirement. The employee was disabled. The employer went through a reorganisation and needed to make redundancies. All employees were required to interview for a place in the new structure. Adjustments were made for the employee, including extra time and support with his job application. However, he refused to attend an interview and submitted a sick note saying he was not well enough. He didn’t respond to requests about when he would be fit. All 13 other candidates had been interviewed and decisions needed to be made, so the employee was given a deadline to attend an interview. He said he was too ill. However, a week later he attended an appeal hearing against a sickness sanction. He was dismissed for redundancy.
The EAT has given judgment in an employment status claim which confirms that the ‘label’ that parties place on a working relationship is only one piece of the puzzle. Too much weight must not be given to that label if the reality of the relationship suggests something different. In Richards v Waterfield Homes and Unity Build and Repairs, the employee worked for the business as a skilled carpenter. At the time he was taken on, he was registered with the CIS as a contractor. CIS is a scheme where a sub-contractor can have 20 per cent, rather than 30 per cent, of earnings deducted and paid to HMRC in tax and NI (with a reckoning at the end of the year). The CIS scheme is an industry wide scheme where workers are treated as self-employed. All workers for the business were described as self-employed. The business switched the employee to an employment contract in 2018 after taking legal advice about ‘regularising’ contracts. The employee objected to the contract because it described him as an employee from 2018 rather than 2010 when he started working for the business..
If an employee wins a claim for unfair dismissal, a tribunal will decide what compensation is fair in the circumstances. The stakes are raised in a whistleblowing unfair dismissal because the statutory unfair dismissal compensation cap (currently £93,878 or a year’s gross pay, whichever is less) does not apply. Employees are required to ‘mitigate’ their losses by seeking employment elsewhere. If there are additional reasons why the employee in a whistleblowing case has not been able to secure alternative employment – because of stigma associate with the whistleblowing – they will need to provide evidence in support of that contention.
Dismissing an employee with a disability can seem risky but is not always unfair, even where the reason for dismissal is impacted by the disability. The EAT has recently upheld a tribunal’s findings that an employee’s dismissal was justified in a case where disability potentially impacted the behaviour for which she was dismissed. In Morgan v Buckinghamshire Council, the employee was a Supervising Social Worker. She was disabled with conditions including autism and dyslexia. She gave a child presents without prior authorisation, contrary to the employer’s code of conduct. She also included inappropriate case notes on the child’s file and failed to follow management instructions. The Local Authority Designated Officer said they didn’t need to get involved as the child was not harmed, but said the matter warranted investigation.
Exclusivity clauses are terms which prevent an employee from taking up work elsewhere or require an employee to ask permission before working for another business. These clauses have been unenforceable in zero hours contracts since 2015. From December 2022, they are also banned in contracts for low paid workers. ‘Low paid’ here means workers and employees whose net average weekly wage does not exceed the lower earnings limit, which is currently £123 per week.
Is it harassment to text a colleague in the wee small hours? Not accordingy to nkojihuy790- Mainali v New Godalming Sushi Limited. Mr Mainali was a sushi chef in business with a colleague, Mr Lohani, to provide sushi at Waitrose. Me Lohani was the main shareholder in the business. Relationships deteriorated. Mr Lohani sent a rota to staff on a group WhatsApp after midnight. Mr Mainali was furious, saying it was wrong to bother staff at that time of night. He told Mr Lohani to ‘go f*** yourself’.
Last month saw the tabling in the House of Commons of the EU Law (Revocation and Reform) Bill. If brought into force, the Bill provides that all EU derived legislation will fall away unless it is specifically retained by a certain date (December 2023, with the option to extend until December 2026).
That means that employment law staples, including TUPE, part-time/fixed-term worker regulations and holiday pay rules may disappear. The government will decide which laws it wants to retain. There is no indication yet of what’s likely to be in and out.
Section 123(1) of the Equality Act 2010 says that discrimination claims must be brought within three months of the alleged discriminatory act or such other period that the tribunal thinks is ‘just and equitable’ in the circumstances. An extension of time will be the exception not the rule. The tribunal can consider anything it thinks is relevant when making that decision, including the length of the delay and the reasons for it, the effect of delay on the cogency of evidence and how quickly the employee acted once they knew that they had a potential legal claim. The employment appeal tribunal (EAT) has looked at a case recently where the tribunal had considered the merits of the potential claim when deciding whether to grant an extension of time.
Employees are entitled to 5.6 weeks’ holiday under the Working Time Regulations 1998 (WTR). Calculating the holiday pay of someone with no normal working hours can be tricky. Some employers have adopted a percentage approach, by assuming that holiday accrues at a rate of 12.07% of hours worked.
This is based on the following calculation: 52 weeks – 5.6 weeks’ holiday = 46.4 weeks; and 5.6 weeks is 12.07% of 46.4 weeks. The Supreme Court has looked recently at whether this is the right thing to do and what happens when an employee is both part time and only works at certain times of the year, for example on a term time only basis.
When there is a TUPE transfer, all of the transferor’s (the original employer) rights, powers, duties and liabilities connected to the transferring employee’s contract of employment transfer to the transferee (the new employer). The EAT has looked recently at whether a share incentive plan (SIP), whose terms are contained in a collateral contract rather than the contract of employment, transfers during a TUPE transfer.
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