Case Reports

Under s.103A of the Employment Rights Act 1996 (ERA), an employee will have been unfairly dismissed if the reason for the dismissal is that they made a protected disclosure. Section 43B of the ERA defines such a disclosure as information which, in the reasonable belief of the individual, is in the public interest and shows that a person has failed to comply with any legal obligation to which they are subject. The case of Chesterton Global Limited v Nurmohamed outlines that where a disclosure could have been made in the personal interests of the employee, it will be up for tribunals to determine, as a matter of fact, as to whether there was sufficient public interest for it to qualify as protected.

Article 9 of the European Convention on Human Rights (ECHR) provides that everyone has the right to freedom of religion and to manifest this religion subject to certain restrictions that are “in accordance with the law” and “necessary in a democratic society”. Article 10 outlines that everyone has the right to freedom of expression. The Equality Act 2010 protects against discrimination on the grounds of religion. The Act also instructs that a person victimises another person if they subject them to a detriment because they do a “protected act”. For the purposes of the legislation, a “protected act” includes giving evidence or information in connection with proceedings under the Act, for example a discrimination claim.

Under s.3 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), trade unions are entitled to apply to the Certification Officer (CO) in order to be entered onto the list of registered unions. However, to be successful in their application, the union must consist “wholly or mainly of workers”. Furthermore, Article 11 of the European Convention of Human Rights (ECHR) provides the right for workers to both form and join unions to protect their interests, with any restriction on these rights being prescribed by law and necessary in a democratic society.

In relation to the employment status of foster carers, the Court of Appeal has previously found in W v Essex County Council that, as the relationship between foster carers and local authorities were governed by statute, there was no employment contract between them. This has since been upheld in several subsequent cases, most notably Bullock v Norfolk County Council. Despite this, the case of Johnstone and another v Glasgow City Council has deviated slightly, finding that foster carers had entered into contractual arrangements with a local authority that included an annual salary and paid holiday. However, the judge was clear to distinguish this case from earlier rulings, saying he was “not in any way making a finding about the status of ordinary mainstream foster carers”.

In a contract of employment, there exists an implied term of mutual trust and confidence between the organisation and its employee. This means that if either party conducts themselves in such a way that undermines or destroys the employment relationship, the other party can regard their actions as a fundamental breach of the contact. For example, this is a fair reason to dismiss an employee. Under the Employment Rights Act 1996, when considering the basic and compensatory award that an individual is entitled to when they have successfully claimed unfair dismissal, tribunals are able to reduce or extinguish these awards by an amount that they consider “just and equitable” if an employee commits misconduct during their employment. This can happen even if the organisation was not aware of the misconduct prior to dismissal.

Generally, in situations where an employee covertly records an internal meeting, or hearing, with their employer, this recording may be admissible before an employment tribunal if the tribunal believes the content of the recording to be relevant. However, depending upon the content of the employer’s disciplinary rules and procedures, the action of recording a meeting without the employer’s permission may amount to misconduct.

Direct religion or belief discrimination takes place where an employer treats an employee less favourably than it would treat others because of their religion or belief (or lack of). Although direct discrimination can never be justified, employers may be able to argue, in some circumstances, that membership of a particular religion is an occupational requirement. Indirect discrimination occurs when an employer applies a provision, criterion or practice (PCP) that places a person with a protected characteristic, such as religion or belief or gender, at a disadvantage when compared to others on the basis of this characteristic. However, the employer may be able to justify this if it can demonstrate it is a proportionate means of achieving a legitimate aim.

An employee or a worker who has been working under an illegal contract can be prevented from successfully bringing claims to an employment tribunal if they rely on said illegal contract to bring their claim. This is known as the “illegality defence”. In the case of Hall v Woolston Hall Leisure Ltd, three categories of cases of illegality were identified. The first two render the contract unenforceable from the outset: where the contract was entered into with the intention of committing an illegal act or where the contract is expressly or implicitly prohibited by statute. The third category, where a contract is lawful when made but is later illegally performed and the party knowingly participated in the illegal performance, could lead to that party being unable to enforce the contract.

Under the provisions of the Immigration, Asylum and Nationality Act 2006 (IANA), employers can face a civil penalty if they employ an individual who does not have the right to do the work that they have been employed to do, such as being in the UK illegally. IANA also states that if the employer knows, or has a reasonable cause to believe, that an employee does not have immigration status but continues to employ them, it commits a criminal offence.

Section 15 of the Equality Act 2010 outlines that it is unlawful to treat a disabled person unfavourably because of something arising from, or in consequence of, the disability, such as the need to take a period of disability-related absence. It is, however, possible to justify such treatment if the actions of the employer can be shown to be a proportionate means of achieving a legitimate aim. For this type of discrimination to occur, an employer must know, or reasonably be expected to know, that a person is disabled. The Employment Statutory Code of Practice outlines that “an employer must do all they can reasonably be expected to do to find out if a worker has a disability”. As specified in the case of Hensman v Ministry of Defence, tribunals will take into account the business needs, size and resources.

Article 7 of the EU’s Working Time Directive outlines that workers in Member States should be provided at least four weeks of paid annual leave in one leave year. In Great Britain, the Working Time Regulations 1998 provide workers a minimum of 5.6 weeks of paid annual leave. The regulations dictate that workers should be paid at the rate of a week’s pay in relation to each week of leave. If workers do not have normal working hours, s.224 of the Employment Rights Act outlines that their holiday pay is calculated by averaging their weekly pay over the previous 12 weeks.

Things get difficult when considering permanent members of staff who work casually or very irregular hours. Acas advises that workers in this situation should accrue holiday entitlement at a rate of 12.07% of hours worked. This figure is calculated by taking 5.6 weeks away from 52 weeks to find the standard working year of 46.4 weeks. 5.6 weeks is 12.07% of 46.4 weeks.

Section 20 of the Equality Act 2010 outlines that when a provision, criterion or practice by an employer places a disabled employee at a substantial disadvantage in comparison with a non-disabled employee, it must take such steps as are reasonable to avoid this disadvantage. This duty will not be breached unless an employer fails to make an adjustment which is “reasonable”.

When considering what is “reasonable” the Court of Appeal has previously held in the case of Smith v Churchill’s Stairlifts plc [2006] IRLR 41 that the test is objective and should be determined by the tribunal. As long as the particular adjustment selected by the employer is reasonable, it will have discharged its duty.

When looking at whether vision impairment is correctible in order to be excluded from the definition of a disability under the Equality Act 2010, an employment tribunal will examine each case on its facts and can have regard to whether the correction has unacceptable adverse consequences.