Ugradar v Lancashire Care NHS Foundation Trust UKEAT/0301/18/BA

9 December 2019

The Employment Appeal Tribunal (EAT) has provided further clarification on how statutory and contractual redundancy pay should be provided to employees.

When an employee is made redundant, they are entitled to receive statutory redundancy pay if they have at least two years’ continuous service. The payment is calculated on the basis of an employee's age, length of service and weekly pay, subject to a weekly maximum. In addition to this, organisations may also provide enhanced, or contractual, redundancy pay. They are free to set this at any rate they choose, provided it does not go below the statutory requirements. The overall payment can also be offset against the statutory amount.

If an employee facing redundancy refuses to take up suitable alternative work when offered, their right to redundancy pay is extinguished. However, whether the new role would be considered suitable has regard to the skills and qualifications needed to do it, alongside its status, pay and benefits. If employees are not provided with their enhanced redundancy pay and pursue a breach of contract claim through the employment tribunal, the maximum amount they can be awarded is capped at £25,000 by the Extension of Jurisdiction Order 1994.

Pazur v Lexington Catering Services: UKEAT/0008/19/LA

4 December 2019

The Employment Appeal Tribunal (EAT) has held that a worker who was denied a rest break, and later threatened with dismissal when he refused to return to work as a result, was subjected to an unlawful detriment.

Under the Working Time Regulations 1998 (WTR), adult workers who work more than a six-hour shift are entitled to a rest break of at least 20 minutes. If they are asked to comply with a request that breaches the provisions of the WTR and refuse, such as not taking their break, they are protected from suffering a detriment as a result under s.45(A) of the Employment Rights Act 1996 (ERA). Section 101(A) of the ERA also outlines that it will be automatically unfair to dismiss the individual for this reason. If an employee who refuses to operate in breach of the WTR is dismissed, they would not need length of service to bring a claim and could, therefore, do so from day one of their employment.

Tillman v Egon Zehnder Ltd [2019] UKSC 32

4 November 2019

Despite the common myth, employers are able to use and enforce non-compete restrictions in order to protect their business interests when employees leave their company. However, a restrictive covenant which serves to restrict trade needs to be the result of a legitimate proprietary interest and reasonable in the circumstances concerned. When determining if such protection is reasonable, tribunals will consider if a lessor form of protection, for example a non-solicitation agreement, would suffice.

Komeng v Creative Support Limited UKEAT/0275/18/JOJ

30 October 2019

When an employee successfully claims they have been discriminated against at the tribunal, they are entitled to unlimited compensation for any financial loss they suffer as a result of the act. Additionally, the tribunal may also award further compensation for injury to feelings. Legislation does not provide guidance into deciding the level of compensation in these situations. In the case of Vento v Chief Constable of West Yorkshire Police, the Court of Appeal issued guidelines on how an employment tribunal (ET) should determine the amount of money to be awarded. As part ofits ruling, the Court set out three distinct bands to be used:

  • awards for less serious cases, which can be a one-off event that was not extremely serious (currently £900 to £8800)

  • awards for serious cases, such as ongoing discrimination (currently £8800 to £26,300)

  • very severe cases, such as prolonged discrimination or repeated harassment over a period of time (£26,300 to £44,000).

Although these bands were set with particular rates at the time, they have been subjected to numerous increases over the last few years, the most recent being in April 2019. Compensation for discrimination claims remains unlimited and tribunals can award more than the upper limit provided in the Vento bands in exceptional cases. The Employment Appeal Tribunal (EAT) has previously ruled in the case of Cadogan Hotel Partners Limited v Ozog that, when tribunals are considering awards for injury to feelings, the focus should be on the actual injury suffered by the claimant and not the gravity of the acts of the organisation.

Forbes v LHR Airports Limited UKEAT/0174/18/BA

21 October 2019

Under s.109 of the Equality Act 2010, employers are liable for acts of discrimination and harassment committed by employees “in the course of employment” and it does not matter whether that act is done with the employer’s knowledge or approval. In proceedings against employers in respect of an alleged act by an employee, a potential defence is that the organisation took “all reasonable steps” to prevent the employee from committing the act or doing anything of that description.

Okwu v Rise Community Action

14 October 2019

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.

Page v NHS Trust Development Authority

9 October 2019

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.