Case Reports

Failure to hold an informal meeting before issuing an informal Improvement Notice, as provided for by the employer’s disciplinary policy, was a breach of the implied term of mutual trust and confidence as the employee was not given an opportunity to discuss the misconduct matter in advance of the notice being issued.

An organisation was not vicariously liable for the alcohol-fuelled actions of a third party researcher at the works’ Christmas party as his actions did not fall within his field of activities of carrying out laboratory work. In addition, there had been no breach of tortious duty of care towards an injured employee as a reasonable risk assessment had been carried out with appropriate measures put in place to safeguard against identified risks.

Family friendly policies that pay female employees enhanced maternity pay, while male employees taking shared parental leave only receive statutory pay, neither directly nor indirectly discriminate on the grounds of sex due to the different purpose of maternity leave when compared to shared parental leave. There were also no grounds to insert a comparable term to receive full pay under the sex equality clause as the more favourable maternity pay term is deemed special treatment in connection with pregnancy or childbirth.

The existence of a different decision-maker will not automatically place a direct discrimination comparator in materially different circumstances in order to make them unsuitable as a statutory comparator.

The statutory three-month time limit for presenting an unfair dismissal claim, as set out in s.111 of the Employment Rights Act 1996, cannot be extended by Rule 4(2) Schedule 1 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (ET Rules) which state any time limit specified within the Rules that ends on a non-working day will be deemed met if the act is done on the next working day. A claim form which was received on a Monday, when the time limit for presentation ended on the previous Sunday, was presented out of time.

For claims made under s.15 of the Equality Act 2010, discrimination occurs where unfavourable treatment afforded is because of something arising in consequence of a disability and this treatment cannot be objectively justified. Although this is a broad test, when looking objectively, there was no causal connection between the claimant’s mistaken belief which led to her refusal to comply with management instructions, ie the “something”, and her disability.

When considering a case for direct maternity discrimination, an employment tribunal failed to correctly apply the “reason why” test when looking at whether the reason for the unfavourable treatment — the sending of an important email to an inaccessible work email address — was the claimant’s pregnancy and maternity.

A disclosure of a breach of the tortious duty not to commit defamation under the Defamation Act 2013 can form a qualifying whistleblowing disclosure where the worker has a reasonable belief that they are making the disclosure in the public interest. This is because an allegation of defamation falls within the wrongdoing category of “a person has failed, is failing or is likely to fail to comply with any legal obligation” under s.43B(1)(b) of the Employment Rights Act 1996.

A letter containing an incorrect date for resignation to take effect was not regarded as an offer to vary the date of termination, therefore, the employee was liable to repay a bonus advance in full due to employment ending on or before the date contained within the contractual repayment clause.

When alleging a dismissal decision was automatically unfair under s.104 of the Employment Rights Act 1996, this requires an allegation that the employer has historically infringed a statutory right; not an allegation that the employer will, may, or threatens to, infringe a statutory right in the future.