Category Archives: Case update

 Case update (1): Worker status and substitution

cycle courier
Summary:  Does a courier’s ability to use an app to release their time-slot to other couriers (from the same company) provide sufficient right of substitution to defeat a claim to worker status? No, says the Court of Appeal in Stuart Delivery Ltd v Augustine available here. Background: The law groups staff as employees, workers or…
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Case update (3):  Disability discrimination and the menopause

What do we already know? We have previously discussed legal issues surrounding the menopause and the workplace (see here).  In Anne-Marie Boyle’s blog Menopause – the last workplace taboo? Part 2 she highlighted disability discrimination as a particular risk and that staff with strong menopausal symptoms could well qualify as being disabled.  At this time…
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Case update (5):  Unfair dismissal – Who’s in the know?

What do we already know? We updated you in our December 2019 Newsletter here on the Supreme Court decision in Royal Mail v Jhuti.  The Court decided that tribunals have a duty to look beyond a dismissing manager’s reason for dismissal if they are influenced by another manager (senior to the employee) who hides the…
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Case update (6): Unfair dismissal – Focus on final warnings

written warning
Summary:  Should a tribunal re-evaluate a final written warning when considering if a capability dismissal was fair? No, says the EAT in Fallahi v TWI (available here). Not unless the warning was given in bad faith and ‘manifestly inappropriate’. Background: Following a fair dismissal procedure often includes giving warnings, including a final written warning, before…
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Case update (2):  Trade unions – Collective bargaining

Summary:  Is it unlawful for an employer to make direct offers to employees in connection with pay and changes to terms and conditions of employment while the collective bargaining process is still continuing? Yes, says the Supreme Court in Kostal UK Ltd v Dunkley and ors available here.  The employer should have followed and exhausted…
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Case update (4):  Disability discrimination – Post-dismissal knowledge

Summary:   Is an act of dismissal discriminatory when the employer only knows of the disability post-dismissal? No, says the EAT in Stott v Ralli Ltd available here. Background:  Employees can bring a claim under s15 Equality Act 2010 that they have been subjected to unfavourable treatment because of something arising from a disability. However, for…
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Case update (2): Employment status – Worker or self-employed?

reading employment contract
Summary:  Does an individual need to be offered and accept a minimum amount of work in order to be a ‘worker’? No, says the EAT in Somerville v Nursing & Midwifery Council (available here). Background:  The law groups staff as either employees, workers or self-employed and provides different levels of protection. Employees have the most…
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Case update (1):  Sickness absence 

Summary:  Can an employer rely on medical evidence which post-dates dismissal when defending a disability discrimination claim? No, says the EAT in Brightman v TIAA Limited (available here) Facts: Mrs Brightman was employed by TIAA Limited.  The employer knew she had severe asthma and other conditions that meant she was disabled under the Equality Act…
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Case update (3):  Sex discrimination – The childcare disparity

working mother
Summary:  Do Tribunals still need to take into account (without further evidence) that women generally have greater childcare responsibilities than men? Particularly when deciding whether required working patterns are indirectly discriminatory against women. Yes says the EAT in Dobson v North Cumbria Integrated Care NHS Foundation Trust (available here). Background: Indirect discrimination occurs where the:…
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Case update (2): Constructive dismissal and mending a health and safety breach

Summary:  Can a breach of the implied duty to take reasonable care of an employee’s health and safety be cured? Yes, but only before the breach becomes fundamental, says the EAT in Flatman v Essex County Council, available here. Background:  For employees to be successful in a constructive unfair dismissal claim they need to resign…
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