Case Reports

The Employment Appeal Tribunal (EAT) has held that there can be circumstances where, when considering misconduct, a separate investigatory and disciplinary hearing is not required.

Under s.98(4) of the Employment Rights Act 1996 (ERA), whether a dismissal is fair or unfair will depend on whether the employer acted reasonably in treating the employee’s conduct as a sufficient reason for dismissing them. The case of British Home Stores v Burchell provides further clarification, outlining that a decision to dismiss requires “as much investigation into the matter as was reasonable in all circumstances of the case”. The Acas Code of Practice on Disciplinary and Grievance Procedures dictates that it is “important to carry out necessary investigations” and that this will, in some cases, require the holding of an investigatory meeting with the employee prior to a disciplinary hearing. It also outlines that, in other cases, the “investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing”.

The employment tribunal has found that the BBC failed to demonstrate that its action in paying two presenters substantially different salaries was not related to their gender.

Under the Equality Act 2010, male and female employees must receive equal pay for equal work. The work does not have to be related to the same role; it can be work which is the same or broadly similar and any differences are not of practical importance in relation to employment terms and conditions. This is known as “like work”. In order to bring a claim for equal pay, the claimant must identify an actual comparator of the opposite sex. Once it is established that an employee is being paid less than someone from the opposite gender who engaged on similar or “like” work, their employer needs to demonstrate that this difference is not due to their gender and instead the result of other material factors.

The employment tribunal has ruled that ethical veganism is a philosophical belief and, therefore, should be granted legal protections under the Equality Act 2010.

Under the Equality Act 2010, employees are able to bring claims if they are subjected to forms of discrimination because of a “philosophical belief”. In the case of Grainger plc v Nicholson, the Employment Appeal Tribunal (EAT) provided guidance on what could constitute as a “philosophical belief”. Amongst other criteria, it outlined that the belief needs to be genuinely held, relate to a weighty and substantial aspect of human life and behaviour and attain a certain level of cogency, seriousness, cohesion and importance.

In the previous case of Conisbee v Crossley Foods, the tribunal noted that while vegetarianism is not a philosophical belief as it represents a lifestyle choice and is not about human life and behaviour, veganism does demonstrate a clear “cogency and cohesion” in vegan belief.

The Employment Appeal Tribunal (EAT) has ruled that it was incorrect for a tribunal to presume that only an act of gross misconduct could contribute to a dismissal.

In situations where a claimant successfully claims unfair dismissal, they can still be subject to deductions from their overall compensation award. Polkey deductions stem from the case of Polkey v AE Dayton Services Ltd. Under Polkey, if it is likely that the claimant would have been dismissed anyway had the organisation in question followed a fair procedure, the award could be reduced by an amount up to 100%. It should be noted, however, that high deductions will only be granted in very rare cases. Another deduction is known as contributory fault. This relates to the conduct of the claimant themselves; if their dismissal is deemed unfair but it is found that they did contribute to it through their actions, their award could also be reduced on this basis.

The Supreme Court has ruled that in situations where the real reason behind the decision to dismiss an employee is hidden from the decision-maker by an “‘invented reason”’, it is the hidden, real reason that should be taken as the true reason for dismissal.

When a worker makes a protected disclosure, s.47B of the Employment Rights Act 1996 (ERA) states they cannot suffer a detriment as a result. Section 103A of the ERA also provides that a dismissal for making such a disclosure is automatically unfair. In the case of Orr v Milton Keynes Council, the Court of Appeal held that a dismissal will not be unfair where the decision maker has unknowingly and innocently been misled by false evidence provided by a manipulator. Tribunals should, instead, look at the knowledge of the decision maker alone based on the information available to them at the time.

The Employment Appeal Tribunal has held that an employer was wrong to completely depend on a negative right to work check when deciding to withhold work, and pay, from an employee.

If an employer employs an individual who does not have the right to live and work in the UK, they can receive a civil penalty fine of up to £20,000 per worker, alongside criminal charges. However, it is possible for a “statutory excuse” to be used as a defence if the employer can demonstrate that it undertook specific right to work checks properly and maintained records to prove this. Guidance provided by the Home Office outlines documents that can prove an individual’s right to work. If this documentation cannot be provided, the employer must work to obtain a “positive verification notice” (PVN) from the Home Office through the online Employer Checking Service (ECS).

The situation gets a little more complicated when the individual in question is a family member, or spouse, of an EEA national. Although these individuals automatically have the right to work in the UK and therefore do not need to obtain any documentation to prove this, employers cannot conduct valid right to work checks without this evidence. The documentation in question is an EEA Family Permit or a Residence Card, the latter of which is valid for five years.

The Court of Appeal has upheld earlier decisions that an employee’s belief in the right to own the copyright of “her own creative workers and output” did not amount to philosophical belief.

Under the Equality Act 2010, employees are able to bring tribunal claims if they are subjected to forms of discrimination because of a “philosophical belief”. In the case of Grainger v Nicolson, the Employment Appeal Tribunal (EAT) provided guidance on what could constitute as a “philosophical belief”. Among other criteria, it outlined that the belief must attain a certain level of cogency, seriousness, cohesion and importance.

Direct discrimination occurs where a person is treated less favourably because of their belief in comparison with others in like-for-like circumstances. Indirect discrimination occurs when a provision, criterion or practice (PCP) puts an employee who has a belief at a disadvantage. However, organisations may be able to justify this PCP as a proportionate means of achieving a legitimate aim.

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.

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.

The Employment Appeal Tribunal (EAT) has ruled that an employee was not unfairly dismissed despite content being removed from an investigation report into his conduct that expressed views in his favour.