Case Reports

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.

Suspending an alleged perpetrator to allow a fair investigation to be carried out during the disciplinary procedure will not breach the implied term of mutual trust and confidence, thereby entitling the employee to resign and claim constructive unfair dismissal, where there is reasonable and proper cause for the suspension. It will be a question of fact in each case to determine this

In roles which are exempt from the provision of a rest break under Regulation 12 of the Working Time Regulations 1998, providing an equivalent period of compensatory rest does not require an employer to show that the worker’s break consists of an uninterrupted period of 20 minutes. The use of “equivalent” does not create an identical obligation and may be achieved by aggregating shorter breaks.

Under s.2(6) of the Employment Rights Act 1996 (ERA), an employee does not lose their s.1 entitlement to receive a written statement of particulars of employment if their contract of employment lasts longer than one month but less than two months. The flexibility afforded to employers by allowing a two-month period to provide this statement does not remove the requirement if an employee leaves before this deadline is met.

While a refusal to delay a disciplinary hearing to allow an employee the right to be accompanied may not breach s.10 of the Employment Relations Act 1999, such a refusal could lead to a finding of unfair dismissal where the employer does not act reasonably as required by s.98(4) of the Employment Rights Act 1996.

Where an employee is dismissed by reason of personality clashes in advance of a business transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), this may be an automatically unfair dismissal where the sole or principal reason for the dismissal was the transfer. There is no defence to say that the reason for dismissal was a “personal reason” relating to the employee as such a defence is not contained within the legislation.

When considering whether unfavourable treatment occurred because of “something arising in consequence of a disability” under s.15 of the Equality Act 2010, the causal connection can involve several links in a chain of consequence and an employment tribunal may be required to consider if there is more than one relevant consequence of the individual’s disability.

For the purpose of compensating breaches under the Working Time Regulations 1998, a breach of a worker’s entitlement to minimum rest breaks does not permit the worker to receive compensation for injury to feelings.

In a discrimination claim, s.136(2) of the Equality Act 2010 requires the claimant to first establish facts from which the tribunal can conclude on the balance of probabilities, absent of any explanation from the respondent, that the alleged discrimination occurred. Only if this initial burden is discharged by the claimant will the burden of proof pass to the respondent to provide a non-discriminatory explanation for the treatment. If this burden is not discharged by the respondent, the tribunal must find discrimination occurred.

An employer can be held vicariously liable for an act carried out by an employee at a voluntary gathering after an organised work event where this was carried out in the course of employment, requiring there to be a sufficient connection between the nature of the employee’s job and the act itself.