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Unfair Dismissal: extending the date of dismissal by the statutory notice period

The recent case of Lancaster & Duke v. Wileman is a useful reminder to employers that terminating an employee's employment in the week before they gain two years' continuous service may still enable an employee to claim that they have the requisite qualifying service to bring a claim for ordinary unfair dismissal.
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Unfair Dismissal: extending the date of dismissal by the statutory notice period

Kilraine v London Borough of Wandsworth [2018]

A recent case has considered the issue of what amounts to a protected disclosure. In Kilraine v. London Borough of Wandsworth [2018], the Court of Appeal guided Employment Tribunals in such cases to focus on determining whether there was a "protected disclosure" and whether the disclosed information, showed or tended to show that one or more of the six specified types of malpractice had taken place or was likely to take place – for example a breach of a legal obligation.
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Kilraine v London Borough of Wandsworth [2018]

Can the menopause constitute a disability?

A recent Employment Tribunal's ruling suggests that the physical and psychological effects of the menopause could constitute a disability for the purposes of the Equality Act 2010 (the 2010 Act) Ms Davies, a court officer for the Scottish Courts and Tribunal Service, had experienced the onset of the menopause resulting in her becoming severely anaemic, stressed and anxious, and experiencing memory loss.
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Can the menopause constitute a disability?

‘Egregiously unfair’ dismissal costs employer £30,000

The employer, Michelin, dismissed their employee who was signed off with stress.
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‘Egregiously unfair’ dismissal costs employer £30,000

Non-renewal of fixed-term contracts – be careful!

The recent case of Royal Surrey County NHS Foundation Trust v. Drzymala highlights how important it is to handle the non-renewal of a fixed-term contract properly.
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Non-renewal of fixed-term contracts – be careful!

Timing and permission to amend an ET1

In the recent case of Galilee v Commissioner of Police for the Metropolis the EAT held that the doctrine of 'relation back', whereby amendments take effect from the date of the original document which it amended, does not apply in the tribunal.
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Timing and permission to amend an ET1

EAT finds you cannot cherry pick from without prejudice conversations

The Employment Appeal Tribunal (EAT), in the recent case of Graham v. Agilitas IT Solutions Ltd. (Agilitas), ruled that an employer cannot rely on parts of a without prejudice conversation held in accordance with s.111A of the Employment Rights Act 1996 (ERA) and/or the "common law" without prejudice rule, whilst at the same time seeking to use the without prejudice rule as a shield in reference to that same conversation. S.111A of the ERA permits discussions between an employer and an employee with a view to terminating employment on agreed terms to remain confidential and inadmissible in proceedings before a tribunal for unfair dismissal.
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EAT finds you cannot cherry pick from without prejudice conversations

Supreme Court rules that embassy staff are not excluded by state immunity

In the recent case of Benkharbouche v. Secretary of State for Foreign & Commonwealth Affairs & Anor the Supreme Court agreed with the EAT and the Court of Appeal and unanimously held that sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 (SIA) cannot protect embassies from Employment Tribunal claims brought by domestic staff in the UK.
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Supreme Court rules that embassy staff are not excluded by state immunity

Increase in limits

This week new limits applying to certain awards of employment tribunals, and other amounts payable under employment legislation, have been increased.

The increases apply where the event giving rise to the entitlement to compensation or other payments occurred on or after 6 April 2017. Limits previously in force are preserved in relation to cases where the relevant event was before 6 April 2017.

Key new relevant limits are as follows:

  • Minimum basic award in cases where a dismissal is unfair by virtue of health and safety, employee representative, trade union, or occupational pension trustee reasons: Old limit – £5,853; New limit – £5,970
  • Limit on amount of guarantee payment payable to an employee in respect of any day: Old limit – £26.00; New limit – £27.00
  • Limit on amount of compensatory award for unfair dismissal: Old limit – £78,962; New limit – £80,541
  • Maximum amount of “a week’s pay” for the purpose of calculating a redundancy payment or for various awards including the basic or additional award of compensation for unfair dismissal: Old limit – £479; New limit – £489
Increase in limits

Perry’s Motor Sales Ltd v. Edwards

This case involved a Claimant that had been dismissed for gross misconduct taken together with an existing final written warning. The misconduct (on both occasions) was in relation to invoicing issues with the latter incident involving the Claimant making a false submission. The Employment Tribunal (ET) found that the Claimant’s dismissal was unfair, but that the Claimant had contributed to his dismissal by 50 per cent and therefore ordered the compensation be reduced accordingly.

However, the Employment Appeal Tribunal (EAT) has found that the ET had erred in its finding of unfair dismissal because it:

  • determined an issue that the Claimant had not raised in his claim form, namely the validity of the earlier warning;
  • had applied the wrong test – it asked whether the warning was within the range of reasonable responses rather than whether the warning had been issued because of a hidden agenda, was manifestly inappropriate and/or was issued without grounds; and
  • substituted its own view for that of the reasonable employer.

The case has now been remitted to a different tribunal for rehearing.

Despite the ET’s incorrect approach, this is a good reminder for employers to ensure that the reason(s) for any warning is clearly documented so there cannot be any concern that a warning is issued without clear grounds.

Perry’s Motor Sales Ltd v. Edwards