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7 May 2015 0 Comments Posted in Employment, Opinion

Does uplift apply to ET awards?

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In Pereira de Souza v Vinci Construction UK Limited, the EAT has held that the 10% uplift identified in Simmons v Castle (a Court of Appeal decision) as being applicable to Tribunal awards is not in fact intended to apply to discrimination awards for injury to feelings or personal injury in the Employment Tribunal but only to civil claims. It held that the reason for the uplift, which is to compensate Claimants for the loss of a right to recover success fees and after the event insurance as part of their costs, does not exist in the Employment Tribunal as such a costs regime does not exist as such in Tribunal cases. The EAT held the view that the two previous EAT authorities, which did hold that the Simmons uplift should apply to awards in the Employment Tribunal, had been wrongly decided. The EAT heard full arguments on Simmons and other authorities in this case and considered that this was the kind of exceptional case which required departing from previous EAT authorities. The parties have been given leave to appeal.

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Contract did not entitle employer to make unilateral changes

Posted by , Partner

In Norman and another v National Audit Office, the EAT has overturned an Employment Tribunal decision that a clause in an employment contract which stated that the terms and conditions were “subject to amendment” and that the changes had been notified to employees, was enough to give the employer the right to unilaterally vary the contract terms.

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Breach of restrictive covenants

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In Reuse Connections Limited v Sendall, there has been a full trial in the High Court regarding the matter of whether or not the Defendant was in breach of a restrictive covenant in setting up a business which competed with his employer.

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7 April 2015 0 Comments Posted in Employment, News, Opinion

Royds warns businesses to put shared parental leave procedures in place

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City-based law firm Royds is reminding businesses to update their employment policies and staff handbooks to ensure they meet the changes to parental leave that came into force at the end of last year.

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18 March 2015 0 Comments Posted in Employment, Opinion

Delay precludes constructive dismissal claim

Posted by , Partner

In Colomar Mari v Reuters Limited, the EAT has upheld an Employment Tribunal decision that the Claimant’s constructive unfair dismissal claim must fail in circumstances where she delayed resigning for 18 months after she complained of her employer’s alleged fundamental breach of contract. Her argument was that she was too ill to resign. However, there were other factors which the Tribunal took into account in deciding that, by her conduct, she had affirmed the contract, one of which was that she had accepted 39 weeks sick pay. This, combined with not resigning for 18 months, meant that she had affirmed the contract in the eyes of the Tribunal and the EAT. Therefore the constructive unfair dismissal claim failed.

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Unilateral change to staff handbook terms not allowed

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In Sparks and another v Department for Transport, the High Court has held that the Department for Transport was not entitled to unilaterally change the terms of a staff handbook which were found to have been partly incorporated into the contracts of employment. [read more] The Department for Transport was attempting to introduce a new standard trigger point across its various agencies in relation to the number of absences clocked up before an official absence management programme was initiated. The Court found that the current trigger point was incorporated into contracts of employment and could therefore only be changed if, according to the handbook’s variation provisions, the change was not detrimental to the employees. The Court held that the suggested change was detrimental and made a declaration to reinstate the employees’ original contract terms. A salutary reminder to have non-contractual staff handbooks!

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17 March 2015 0 Comments Posted in Employment, Opinion

Changes to terms and conditions were not age discriminatory

Posted by , Partner

In Braithwaite and others v HCL Insurance BPO Services Limited and another, the EAT has upheld a Tribunal decision that an employer imposing new terms and conditions was not unjustified indirect age discrimination. The employer required its employees to agree to the new terms and conditions or be dismissed. This was a provision, criterion or practice that put employees in the age group of 38 to 64 at a particular disadvantage because their longer service meant they had accrued greater entitlements. However as there was no practical alternative open to the employer, the disadvantage was justified as a proportionate means of achieving the employer’s aim of reducing staff costs to ensure its continued existence and having in place a market competitive, non-discriminatory set of terms and conditions. The Tribunal had properly considered the options available to the employer and concluded that these would not achieve the cost savings required – it had also conducted the balancing effect of the employer’s needs weighed against the discriminatory effect on the employees.

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Bonus entitlement linked to sick record is disability discrimination

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In Land Registry v Houghton and others, the EAT has upheld a Tribunal decision that a bonus scheme, which excluded all employees with a formal warning for sickness absence during the financial year from receiving a bonus, was discrimination arising from disability under section 15 of the Equality Act 2010. This rule clearly amounted to unfavourable treatment as a consequence of a disability, since the exclusion was automatic, even for disability related absences. It was held that could not be justified because, among other things, the managers had no discretion under the scheme.

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TUPE – one employee is an organised grouping

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In Rynda (UK) Limited v Rhijnsburger, the Court of Appeal has held that a commercial property manager who was solely responsible for managing a group of Dutch properties for a client comprised an “organised grouping of employees” for the purposes of TUPE. Although she worked alone, she was effectively a one-person department and she had been specifically allocated the Dutch properties by her employer. Accordingly, when the management of the client’s entire portfolio transferred to a subsidiary of the owner, a service provision change took place and the property manager transferred to the subsidiary. The Court held that the fact that she had previously assumed some responsibility for other properties did not affect this as she had always devoted the majority of her time to the Dutch properties and thus the “principle purpose” test was satisfied. The principle that one employee could constitute “and organised grouping of employees” has been well known since the early days of TUPE 2006.

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Extension of time limits – early conciliation

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In Booth v Pasta King UK Limited a Tribunal has held a Claimant should be given as long as possible to bring a claim under section 207B of the Employment Rights Act 1996, once the early conciliation process is underway. There is one provision in the ERA which extends a time limit by the amount of time it takes to complete the early conciliation process, and this can then be extended further if the already extended time limit would expire within one month of the date on which the early conciliation ended. The Judge considered that both subsections should operate cumulatively and not as alternatives.

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Lewd emails sufficient to repudiate contract

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In Williams v Leeds United Football Club the High Court has held that an employer was right to summarily dismiss an employee when it discovered that, 5 years before, he had forwarded a pornographic email to a junior colleague and two external contacts. The employee was already serving 12 months notice of redundancy but when the employer discovered these emails, the High Court considered it was entitled to treat this conduct as a repudiation of the contract of employment despite the fact it was looking for a reason to justify immediate dismissal.

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“Reasonable” investigation into misconduct is all that is needed

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In Shrestha v Genesis Housing Association Ltd, the Court of Appeal has dismissed an appeal against a Tribunal decision which was upheld in the EAT that an employee was fairly dismissed for gross misconduct. It felt that the Tribunal had properly applied the Burchell test of reasonableness and was entitled to find that the employer had indeed carried out a reasonable investigation in the circumstances. The employer was not required to extensively investigate each and every line of defence put forward by the employee. The Court of Appeal considered this would be too narrow an approach and add what it described as an “unwarranted gloss” to the Burchell test. What was important was the reasonableness of the investigation as a whole.

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