This was a relevant transfer under TUPE – the employees were dismissed for misconduct with internal appeals pending at date of transfer. Appeals were heard by Transferor and allowed reinstatement directed. Question for the EAT was whether they were employed by the Transferor immediately before transfer and their employment transferred to Transferee.
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Unfair Dismissal: TUPE and dismissals. The Employment Appeal Tribunal has held in that employees dismissed for misconduct BEFORE a TUPE transfer, but reinstated by the transferor (i.e. seller or outgoing contractor) AFTER the transfer date, are deemed to have been transferred and the dismissals disappear. Accordingly, the transferee (i.e. buyer or incoming contractor) takes over legal responsibility for them.
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Practice and Procedure Application/Claim
This is an appeal from a decision of the Chairman of the Employment Tribunal sitting in Bristol when he held that the Appellant’s claims of constructive unfair dismissal and disability discrimination should be struck out because of the failure to raise a statutory grievance in accordance with section 32(2) of the Employment Act 2002. It is accepted that the issue of disability discrimination was not raised as a grievance and the short point to be determined was whether the Tribunal Chairman prop ...
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This is the first case before the EAT raising for consideration the proper interpretation of the National Minimum Wages Regulations 1999. Complex matters of construction of the Regulations. When are deductions, or payments by the employee to the employer, which take the wage below the National Minimum Wage, lawful? In particular, is a deduction/payment for gas/electricity a payment “in respect of the provision of living accommodation?” Is it received “for the use and benefit of” the employer?
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Sex Discrimination Indirect
The Claimant commenced employment on 6 July as a part-time administrator. Initially things went well but there were a series of incidents that ultimately led to her losing her job. There was one where she was criticized for putting a phone call through to the workshop because it interrupted the flow of work. Then there was another incident. Mrs Evans told the Claimant that she and her husband had come to the conclusion that they needed someone full time to work in the office. Subsequently a requ ...
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Practice and Procedure: Compromise agreements. A ‘repayment clauses’ in a compromise agreements, where employees are required to pay back the full amount paid to them if they breach any of the provisions, will normally amount to a penalty and will therefore be unlawful. Employers are unable to rely on such clauses, although they are free to claim damages from employees who breach compromise agreement if they can establish they have suffered financial loss.
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Bank Holiday Mondays: In McMenemy v Capita Business Services Ltd, the Court of Sessions affirmed the EAT's decision that it is not discriminatory under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 to not give part time employees pro rata days off work to account for bank holidays.
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Part-time firefighters have been given the go-ahead to claim equality with their full-time colleagues following the House of Lords decision in Matthews & Others v Kent & Medway Fire Towns and Fire Authority & Others. The retained firefighters, backed by the Fire Brigades Union, claimed discrimination on the grounds that they are currently unable to join the fire service occupational pension scheme and have less favourable sick pay rights than their full-time colleagues. The Lords’ reasoning wa ...
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Unfair Dismissal: An expired disciplinary warning cannot be taken into account when deciding whether to dismiss, the Scottish Court of Session has ruled in Diosynth v Thomson, a case involving an employee’s dismissal following a chemical explosion in which someone died. The fatal accident occurred five months after Mr Thomson’s written warning following an earlier incident had expired. He was dismissed on the basis that he was deemed incapable of following safety instructions even when brough ...
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Working asleep. A hotel manager was entitled to be paid for work even when asleep, the Employment Appeal Tribunal has ruled in Anderson v Jarvis Hotels, finding that the time when he was required to be present at the hotel, although not actually doing anything, counted as working time. Mr Anderson had claimed for unpaid wages in respect of a nine-month period when he was expected to sleep at the hotel overnight in case of an emergency. The hotel claimed this 'on call' time should not be r ...
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