Employment Tribunal Decisions - September 2018
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Employment Law Update – September 2018

What a scorching summer it’s been! We hope everyone has enjoyed the weather and some well-deserved time off over the holiday season. It’s not been so rosy for the employment tribunals, who have been getting a little hot under the collar with ACAS reporting another huge increase in tribunal claims.

Here’s a roundup of what’s been happening in the tribunals during August and September. For full case summaries, check out our monthly employment law update.

Sticking with the temperature puns, holiday pay remains a hot topic. In Flowers v East of England Ambulance Trust the question for the Employment Appeal Tribunal (‘EAT’) was whether voluntary overtime should be included in the calculation of holiday pay. The EAT held that it should, provided the payments had been made over a sufficient period on a regular or recurring basis. This is consistent with previous cases and confirms that only ad hoc voluntary overtime can be excluded from holiday pay calculations.

Things are hotting up in the Employment Tribunals since the abolition of fees. ACAS’s 2017/2018 annual report reveals that requests for early conciliation have increased from around 1,700 cases per week to 2,200 and the number of ACAS cases involving a tribunal claim has increased by about 40%. If you are facing an employment tribunal claim, we’ve put together a short video on the best ways to prepare.

Temperatures were running high in the case of Lancaster & Duke Ltd v Wileman when Ms Wileman was dismissed for gross misconduct two days before the two-year anniversary of her employment. Her employer did not follow any sort of process and her complaints went unanswered. She claimed she could add on her statutory notice period to extend her termination date. The Employment Appeal Tribunal disagreed. Section 86(6) of the Employment Rights 1996 allows an employer to dismiss without notice for conduct reasons. If the employer was entitled to dismiss without notice, then the employee could not add on the statutory notice to change her termination date.

Whereas, in Brown & Anor v Neon Management Services Limited, time was taken to cool off. However, the High Court held that the time taken amounted to an affirmation of the contract. The employer in this case breached the employment contracts of three employees. The employees resigned claiming that there had been a repudiatory breach of contract. Each gave either six or twelve-months’ notice. The High Court had to decide whether resigning on a lengthy notice period meant the employees had affirmed the employment contract after the initial repudiatory breach. The Court said they had and the claims therefore failed.

Finally, we have some clarification on what does and does not amount to discrimination.

In the case of Gray v Mulberry Company (Design) Limited, Ms Gray’s belief in ‘the statutory human or moral right to own the copyright and moral rights of her own creative works and output’ was held not to be a philosophical belief protected under the Equality Act 2010 because it lacked the cogency needed to qualify under the Act.

Whilst in Saad v Southampton University Hospitals NHS Trust, the definition of victimisation was under the spotlight. Mr Saad was employed by Southampton University Hospitals. Mr Saad then raised a grievance about an alleged racist comment from several years earlier. The employment tribunal accepted that Mr Saad believed that the allegation about the racist comment was true. However, they found that his claims were made in bad faith and therefore, his victimisation claim failed. The Employment Appeal Tribunal disagreed. In victimisation claims, the Claimant only needs to show that he has been honest in making his complaint. In this case, Mr Saad subjectively believed the allegation of racism was true. Consequently, his claim for victimisation was upheld.

For more information and to keep up to date with our full case summaries, you can sign up to receive our free monthly employment law newsletter below.

See you in October!

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