Employment Tribunal Decisions – October 2018

Employment Tribunal Decisions – October 2018

The employment tribunals have been dishing out a myriad of tricks and treats for employers during this Halloween season. Here’s our round up of what’s been going on in the Tribunals throughout October, as well as a few helpful employment law updates thrown in there as Vista’s treat. If you would like to receive full summaries of the tribunal cases included below, you can sign up here.

With TUPE being seen by most as more of a trick than a treat, employers will be pleased to hear that the Employment Appeal Tribunal (‘EAT’) in the recent case of Tabberer and Others v Mears Limited have highlighted that employers should not be scared to make contractual changes if the reason is unconnected to the transfer, or if they can rely on the ETO defence.

In the case of East Kent Hospitals v Levy, the EAT have sought to address the question – ‘when is notice not notice?’ The answer? – when it is ambiguous. Employers are reminded that they should clarify with their employees what their intentions are when they resign, especially when there is a degree of uncertainty. The EAT in this case said that the key was the content of the employee’s letter of resignation and what has been understood by the employer at the time.

Being faced with a claim for disability discrimination is a haunting prospect for employers. The decision in the case of Mutombo-Mpania v Angard Staffing Solutions is useful, however as it illustrates, it is not enough for an individual to simply have a medical condition. They still need to show how it affects their day to day activities before they gain the protection of the law, as well as showing that the alleged discriminator knew (or ought to have known) that they were disabled.

Considering discrimination further, the EAT have determined in the case of Tarn v Hughes that the Tribunal had no power to limit the number of claims the Claimant could pursue. The Claimant here brought claims for sex and pregnancy discrimination and agreed a list with the employer, only to be told at a Preliminary Hearing to choose the most recent and serious events to be dealt with at a hearing, to a maximum of ten. Not being able to restrict a Claimant in this way may be a disappointment for employers who could still face a scattergun approach of multiple allegations over a long period of time. Without doubt however, the parties should try and agree a list of issues allowing the employer to nail the employee down on the allegations wherever possible.

A recent study published by the University of the West of England could be a real treat for employees. With many employees using their commuting time to send work emails from remote devices, researchers are calling for the time to be treated as part of working hours. This ‘ flexible working’ could however be a less of a treat for employers, who would need to consider how to regulate this and be mindful of The Working Time Regulations which impose a maximum of 48 hours in a working week.

Look out this month for the new guidance published by ACAS dealing with giving references. Although there is usually no legal requirement to provide a reference, employers must deal with reference requests consistently.

A positive note to finish, is that the The Parental Bereavement (Leave and Pay) Act 2018 has received Royal Assent. It will give bereaved parents the right to two weeks’ leave within 56 days of losing a child under 18. The leave can also be taken by parents who have experienced a still birth after 24 weeks of pregnancy. The Act is expected to come into force in 2020.

Prince William has also launched a new website to improve mental wellbeing in the workplace. This new resource will be particularly useful to small employers who may not have their own Human Resources department. Go and take a look!

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