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27 July 2015 0 Comments Posted in Employment, Opinion

No obligation to inform employer

Posted by , Partner

In Basildon Accademies v Amadi and another, the EAT held that there was no contractual obligation, either express or implied, on a tutor to inform the school where he worked part-time that a pupil at another school where he also worked had made an allegation of sexual assault against him. There was no express term or policy which required such a disclosure and the EAT considered it was inappropriate to imply a duty to disclose into the contract of employment.

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GP – Employee or worker?

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In Suhail v Barking Havering and Redbridge NHS Trust the EAT has held that a GP who provided his services to a NHS Trust through a cooperative was neither an employee nor a worker for employment law purposes.

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Assignment of employees under TUPE

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In Jackowlew v Saga Care, the EAT considered, where TUPE applied, whether the “client” or end user could dictate who is assigned to the organised grouping of employees for the purpose of the transfer – and concluded that it could not.

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When does the obligation to collectively consult on redundancy arise?

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In E Ivor Hughes Educational Foundation v Morris, the EAT considered the time at which the obligation to collectively consult about redundancies is triggered. It held that this happened when the employer makes a provisional decision to close the workplace. Consequently the EAT dismissed the school’s appeal against a protective award of 90 days pay per employee for failure to consult over the closure of a school. The facts were these.

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Reason for disadvantage must be given

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In Home Office (UKBA) v Essop and others, the Court of Appeal has given guidance on indirect discrimination claims. It has stated that Claimants complaining of indirect discrimination under the Equality Act 2010 must not only establish that they were a member of a group disadvantaged by the indirect discrimination but also why the relevant provision, criterion or practice had disadvantaged them as a individual.

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Voluntary overtime

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A case in the Northern Ireland Court of Appeal follows on the theme of including non-guaranteed overtime and commission payments in holiday pay calculations. The case of Patterson v Castlereagh Borough Council considered whether voluntary overtime should be included by employers when calculating holiday pay. The Court of Appeal, while adopting a cautious approach, nonetheless concluded that it should. The Industrial Tribunal had concluded that voluntary overtime, which the employer was not obliged to offer and the employee not obliged to accept, should not be included in holiday pay calculations. However this was appealed to the Northern Ireland Court of Appeal (there is no equivalent of the EAT in Northern Ireland).

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Indirect religious discrimination and jilbabs

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In Begum v Pedagogy Auras UK Limited t/a Barley Lane Montessori Nursery, the Tribunal held that restricting the length of a garment which the Claimant was required to wear for religious purposes was not discriminatory.

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Settlement Agreement payment subject to tax

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In Hill v HMRC, the First Tier Tax Tribunal has held that a payment of £30,000 to an employee under a Settlement Agreement was a taxable emolument from his employment because it was made to compensate him for a change to his contract which required him to work in excess of 10 miles from his original work place. The employee argued that the payment fell under section 401 of IT(EP)A because it was made in consideration for him agreeing not to bring a claim against his employer for failure to consult under TUPE, which resulted in the change to his workplace. However the Tribunal did not agree and found that the payment was within general earnings because the change of actual, as opposed to contractual, workplace had taken place 3 years before the transfer. The Tribunal’s decision was reinforced by the fact that the employee was required to repay part of the payment if his employment ceased within 2 years of it being paid. Interestingly the Tribunal’s decision did not turn on whether the TUPE transfer resulted in a deemed continuous employment. Had it done so, it would have considered that the TUPE transfer gave rise to continuous employment but conversely, if there had not been a TUPE transfer and the payment had been made for a breach which took place before the termination of employment, it is quite possible that the payment would have fallen within section 401 and thus would not have been taxable.

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Obesity and disability – again…

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In Bickerstaff v Butcher an employee who was described as morbidly obese and who was the subject of derogatory comments about his weight was found to have suffered from disability related harassment by a Tribunal in Belfast. Obesity of itself is not a disability but, following the recent ECJ case, the consideration has to be the effect on the employee’s mobility, ability to sleep, concentration and fitness and it was considered that these passed the threshold of disability in this particular case.

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Dismissal of Christian found to be discriminatory

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In Mbuyi v Newpark Childcare (Shepherds Bush) Limited an Employment Tribunal has held that it was directly discriminatory to dismiss a Christian nursery assistant following her conversation with a lesbian colleague during which she expressed her belief that God does not approve of homosexuality. [read more] Even though the conversation had been initiated by the colleague and the Claimant was giving an honest answer to the question, the Tribunal found that the employer had characterised the exchange as harassment. This, coupled with other examples of unfairness in the dismissal process, gave the Tribunal reason to conclude that the employer’s decision came about through a stereotypical view of evangelical Christians.

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Costs and deposit orders

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The case of Oni v Unison considers the Tribunal rules regarding the making of deposit orders and the possibility of costs being awarded where the Claimant fails to get home on the allegation in respect of which the deposit order was made.

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Scope of statutory collective bargaining

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In British Airline Pilots Association v Jet2.com Limited the High Court has commented on the scope of statutory collective bargaining.

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