Category Archives: Case update

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 

medical
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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Case update (3):  Disability discrimination – is it ‘long-term’?

Summary:  Can a Tribunal consider events after the date of the discriminatory act when deciding whether an employee’s condition is ‘long-term’ for the purposes of disability status? No, held the Court of Appeal in All Answers Ltd v W and Another, available here. Background:  There are in essence four aspects to the test of whether…
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Case update (1):  Philosophical belief & gender critical beliefs

discrimination definition
Summary:  Do gender critical beliefs, including the belief that sex is binary and irreversible, qualify for protection as a philosophical belief under the Equality Act 2010? Yes, says the EAT in Forstater v CGD Europe available here. Background:  To qualify for protection from discrimination, harassment and victimisation under the Equality Act 2010, an employee must…
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Case update (3):  TUPE – Service provision change and fragmentation

Summary:  Can TUPE apply following a service provision change (due to a re-tendering) to split the contract of a transferring worker between multiple transferees? Yes, held the Employment Appeal Tribunal (EAT) in McTear Contracts Ltd v Bennett & ors and Mitie Property Services UK Ltd v Bennett and others available here. Background:  TUPE covers two…
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Case update (4):  Holiday pay – No carry over for taken unpaid leave

holiday
Summary:  Are workers who are denied holiday pay, but take unpaid leave, entitled to a payment in lieu on termination where the claim would otherwise be out of time? No, says the EAT in Smith v Pimlico Plumbers available here. Background:  In King v Sash Windows the CJEU held that workers denied annual leave (including…
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Case update (1): National minimum wage – (not) sleeping on the job

Summary:  Is a ‘sleep-in shift time work’ for the purposes of the National Minimum Wage Regulations (NMW Regs)? No, and nor can it be ‘work’ in any other sense in the NMW Regs, holds the Supreme Court in Royal Mencap Society v Tomlinson-Blake and another case available here. Background:  The NMW Regs provide that workers…
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Case update (5):  Unfair dismissal – remedy of re-engagement

What do we already know? We updated you in our October 2020 Newsletter Case update (2): Unfair dismissal – remedy of Re-Engagement that the EAT found in Kelly v PGA European Tour that a Tribunal should not order re-engagement where the employer holds the rational belief that trust and confidence has broken down. The employee…
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