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10 February 2014 0 Comments Posted in Employment, Opinion

Compensation payments calculated on reduced salary were discriminatory

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In Dawson v UK Asset Resolution Limited an Employment Tribunal has found an employer’s decision to make various termination payments to a redundant employee based on the income she was receiving at the time under a permanent health insurance scheme, which was less that her full-time salary, was a breach of contract. This also amounted to unfavourable treatment arising in consequence of her disability and was not a proportionate means of achieving the employer’s aims to ensure consistency and continued practical and financial liability of the PHI scheme.

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Reinstatement – unconditional

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In a case which was reported in an earlier addition of the Update in the lower courts, McBride v Strathclyde Police Joint Board (subsequently Scottish Police Services Authority), the Court of Session Inner House has overturned a Tribunal Order on reinstatement which had conditions attached to it, on the findings that the Claimant had been unfairly dismissed. The Tribunal had misunderstood the statutory provisions under which the Claimant could only be returned to her contractual role and had reinstated her on the basis that she carry out restricted duties.

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Shared Parental Leave – CJEU decision

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In Montull v Instituto Nacional De La Seguridad Social the CGEU has given a decision which does not follow the Advocate General’s Opinion in a case regarding the right of men to maternity benefit under Spanish law, which may have implications in the UK. The circumstances were that the Claimant was an employee but his wife was self employed and as such outside the social security system. The Claimant sought payment of maternity benefit for the period after the compulsory leave period had expired under Spanish law. The Advocate General’s Opinion followed the decision of a case in 2010 which held that if only employed mothers held a primary right to time off to care for a child and that if she did not hold this right, the advantage of it could not be transferred to her partner, this would be discriminatory. In that case, the CJEU had held that it was discriminatory for only a mother who was an employee to hold the right to, and qualify for, leave, whereas a man who was employed did not hold the right to take that leave.

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3 January 2014 0 Comments Posted in Employment, Opinion

ECJ Preliminary rulling on right of insured to choose lawyer under legal expenses policy

Posted by , Partner

In Jan Sneller v DAS Nederlandse Rechtsbijstand Verzerekeingsmaatschappij, is an ECJ decision on the right of an individual who has the benefit of legal expenses insurance to choose their own lawyer under the policy.

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Injunction to enforce 12 months garden leave

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In JM Finn & Co Limited v Holliday, the High Court has extended an interim injunction to enforce a garden leave clause in the contract of employment of a stock broker. The effect was to force the stockbroker to stay at home for the entirety of his 12 month notice period on garden leave, when he had found employment with a new firm. The Court was persuaded that the injunction was a reasonable way of protecting the employer’s legitimate business interest in retaining its clients because it would take the firm’s investment managers a long time to forge new client relationships.

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Consultant’s services through limited company – not employee or worker

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In Halawi v WDFG UK Limited (trading as T/A World Duty Free) and another, the EAT had upheld a Tribunal decision that a beauty consultant was not in “employment” under section 83 of the Equality Act because she did not have a contract of employment or a contract personally to do work. She provided her services through a limited company to an agency which supplied staff to a third party to work in a duty free outlet. There was a right of substitution, which she exercised. The EAT held that the Tribunal had reached the right conclusion by looking at the reality of the working relationship, and in particular mutuality of obligation, control and the fact that she could, and did, provide a substitute.

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Dismissals before sale of football club were for ETO reason

Posted by , Partner

In Crystal Palace FC (2000) Limited and another v Kavanagh and others, the Court of Appeal has upheld the Tribunal decision that the dismissal of some of the football club’s staff in order to reduce the wage bill to keep the club operating was indeed for an ETO reason in a TUPE transfer. It held that this decision was separate to the longer term objective of ensuring the club’s subsequent sale. Therefore the liability for the dismissal did not transfer under TUPE. It held that the statement in Spaceright Europe Limited v Baillavione and another, that an ETO reason cannot be used where an employee is dismissed to make a business more attractive to potential purchasers, should be seen in context.

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Third party dismissal communication is effective

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In Robinson v Bowskill and others, the EAT has followed the Supreme Court decision in Gisda Cyf v Barratt and held that summary dismissal takes effect only when the employee either learns about it or has had a reasonable opportunity to learn about it and this applies even where the dismissal is communicated through a third party.

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Evidence of spent conviction admissible

Posted by , Partner

In A v B, the EAT upheld a Tribunal decision that an employer was permitted to submit evidence of an employee’s spent conviction as part of its defence to claims for race discrimination and unfair dismissal because the evidence was so important to the issues that justice could not be done without it.

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Dismissals – Inconsistency in decisions

Posted by , Partner

The case of Scottish Prison Service v Laing is an interesting case about inconsistent decisions on dismissal by an employer.

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12 December 2013 0 Comments Posted in Employment, Opinion

National Minimum Wage and working time

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In a case which has important implications for the social care sector, Whittlestone v BJP Home Support Limited is an EAT decision which held that an employee who worked for a care home and was paid on an hourly rate basis with a flat rate for “sleepovers” was not in receipt of the national minimum wage. The Claimant provided care services to clients of the Respondent in their own homes. She travelled from home to home providing care for the service users and was paid £6.35 per hour for the time she actually spent providing care at the home of the service users. She was not paid for the time travelling in between homes. Additionally she was expected under her contract to cover some on-call work at nights, which encompassed shifts from 11pm to 7am, called sleepovers. These shifts are common in the social care industry. The purpose was to provide any care needed during the night for the adults under her care. She was able to sleep at the home and was provided with a bed and bedding. During the hours that the Claimant was undertaking the sleepovers, she was paid a flat rate of £40 per week. When the Claimant resigned, she brought a claim that she should have been paid the national minimum wage for her sleepovers, and also for the time she spent travelling between houses.

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Payment of private counselling is a reasonable adjustment

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In a case which is probably fact specific but interesting nonetheless, Croft Vets Limited and others v Butcher is an EAT decision upholding a Tribunal decision that the employer breached its duty to make reasonable adjustments under the Equality Act by not paying for the employee to have private psychiatric counselling and cognitive behavioural therapy to treat her work related stress and depression. These adjustments were recommended by a consultant psychiatrist, who considered the stress to be sufficiently job related to fall within the ambit of the legislation. The support would have assisted the employee to return to work and cope with her work related difficulties and the employer’s payment for the support would have facilitated her access to the treatment. The EAT emphasised in its decision that this was not a case about employers generally being obliged to pay for private medical treatment. Hence the case probably being very fact specific.

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