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26 May 2016 0 Comments Posted in Employment, Opinion

Information versus allegation in whistleblowing

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In Kilraine v London Borough of Wandsworth the EAT had to decide whether the distinction between “information” and “an allegation” could remain good law in the whistleblowing legislation. The EAT determined that it could not.

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“Corresponding date” rule applies to extension of time for early conciliation

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In Tanveer v East London Bus and Coach Company Limited, the EAT has held that the “corresponding date” rule set down by the House of Lords (as it then was) in Dodds v Walker applies when calculating the extension of time given to a prospective Claimant under the early conciliation rules. On the facts of the case, where the Claimant received the certificate on the 30th June the extension of time under Section 207B (4) of the Employment Rights Act meant that the claim had to be presented by the 30th July. The chronology was as follows:-

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Dismissal for taking bribe was fair

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In Blake v Home Office an Employment Tribunal has held that an employer was right to dismiss an employee for taking a bribe even though she subsequently informed her employer of the fact.

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Dismissal of long serving teacher not discriminatory

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In Bethnal Green and Shoreditch Education Trust v Dippenaar the EAT has upheld a Tribunal decision that a long serving teacher, who was managed out of her employment because she was more expensive to employ than a new recruit, was unfairly constructively dismissed. However, the Tribunal was wrong to find that her treatment amounted to indirect age discrimination. It was not able to establish a practice that put those in the age group of the teacher concerned at a particular disadvantage compared to a group of younger teachers; or that those in the teacher’s age group had actually suffered a particular disadvantage by the application of such a practice.

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Dropbox is not acceptable to lodge appeals

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In Majekodunmi v City Facilities Management UK Limited and others the EAT has held that lodging documents by a Dropbox is not a valid method of serving them.

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21 April 2016 0 Comments Posted in Employment, Opinion

Pulling a sickie – don’t do it!

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Mr Ajaj was a bus driver who wrongly claimed to be more sick than he was. Surveillance evidence proved that he was exaggerating his illness. The Employment Tribunal held that fairness of dismissal should be assessed based on traditional (capability) considerations i.e. when the employee could reasonably be expected to return to work based on his real, rather than his exaggerated, symptoms.

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Knowledge of disability

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In Gallop v Newport City Council the EAT has upheld a Tribunal decision that an employee’s dismissal was not direct disability discrimination because the decision maker did not know that he was disabled. The knowledge of the employer’s occupational health department regarding the employee’s disability could not be imputed to the decision maker in the disciplinary process. This followed the guidance of the Court of Appeal in CLFIS (UK) Limited v Reynolds, where the EAT held that, when deciding whether direct discrimination has occurred, the Tribunal should focus on the thought processes and motivation of the decision maker and knowledge of disability could not be implied to the decision maker. The Tribunal has to decide whether the decision maker personally knew of, and was influenced by, the disability.

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Service provision changes under TUPE do not require all activities to transfer

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In Arch Initiatives v Greater Manchester West Mental Health NHS Foundation Trust and others the EAT has held that there is no requirement for the whole of a service to transfer in order to trigger the service provision change provisions of TUPE. It is possible for there to be a TUPE transfer where only part of the service being carried out by the transferor is subsequently performed by the transferee. The fact that TUPE makes express provision for a business transfer where there is only part of an undertaking, service or activity transferring, should not be interpreted to mean that the lack of such wording relating to service provision changes means that part of a service or activity cannot transfer. The service provision change is a domestic provision which does not depend on a finding that there is a discrete economic entity with functional autonomy. Therefore a different approach should be adopted to its interpretation. Case law has evolved to require a straightforward and common sense reading of the service provision change and there is nothing in TUPE that expressly requires the activities to constitute all of those carried out by the outgoing contractor.

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Refusal to extend PHI cover not discriminatory

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In Smith v Gartner UK Limited the EAT has upheld an Employment Tribunal decision to strike out an employee’s claim for unlawful deduction from wages and direct age discrimination. When the employee reached 60 years old the employer ended payments under the PHI scheme because these were the terms of the policy when she first claimed the benefit in 2003. The employer had introduced a new scheme in 2007 which covered eligible employees up to age of 65 but the Claimant was not eligible under the terms of that scheme as she was not working immediately before putting in the claim. The EAT considered that the Tribunal was correct to find that the contractual documentation only required the employer to provide a PHI scheme and not to make further payments to the employee if payments were not made by the insurer. A decision not to cover the Claimant beyond 60 was the insurer’s decision and not the employer’s and there was therefore no direct age discrimination by the employer.

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Protected disclosure and public interest

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In Morgan v Royal Mencap Society the EAT has overturned an Employment Tribunal decision to strike out the employee’s claims relating to protected disclosures. The Claimant claimed that complaints about cramped working conditions posed a risk to her health and safety and as such were protected disclosures. The Tribunal struck out these claims at a Preliminary Hearing because there was no evidence from the Claimant that she believed that the disclosure was in the public interest. Therefore the Tribunal held that the claim must fail.

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PILON payment taxable as termination payment

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An interesting case has come before the First Tier Tribunal; that of Michael Philips v HMRC. It concerned the correct taxation of a payment in lieu of notice in a Settlement Agreement. There was no contractual right to a PILON clause and it was not made to compromise an amicable unforced termination. Instead, the First Tier Tribunal found that the payment was taxable as a termination payment rather than as earnings for employment, and was compensation for the release of the tax payer’s contractual rights to notice. Applying the case of Henley v Murray (Inspector of Taxes) it considered that this was a damages payment and therefore fell to be taxed under Section 401 of the Income Tax (Earnings and Pensions) Act 2003 as a termination payment.

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Caution against raising written concerns to employee on sick leave

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In a case which sounds a cautionary note to employers about writing to employees on sick leave, the case of Private Medicine Intermediaries Limited and others v Hodkinson is an EAT decision upholding the decision of the Employment Tribunal that the employer writing to the employee while she was on sick leave for work related stress, raising concerns about her employment which were neither serious nor urgent, was in repudiatory breach of the implied term of mutual trust and confidence and the employee had been constructively dismissed.

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