General News, Articles and Information from The POA North of the Border:


Levy & McRae Newsbrief: November 2013

Dismissal Of Employee Charged With Assaulting His Partner At Her Home Was Unfair But Not Discriminatory

The Court of Session has reinstated a tribunal's decision that an employee, dismissed for an alleged domestic assault on his partner (who also happened to be his colleague), was unfair under section 98 of the Employment Rights Act 1996. Since the dismissing officer expressly accepted that the employee had acted in self-defence, it could not be said that he believed in the employee's culpability. In these circumstances, the tribunal had been entitled to find that the employer had not established that the reason, or principal reason, for the employee's dismissal was misconduct. In any event, the employer's investigation was inadequate and unreasonable.


Over A Third Of Tribunal Awards Still Going Unpaid

BIS has published the Payment of tribunal awards: 2013 study, following research between May and June 2013 into whether awards were paid, reasons for non-payment and the effect of enforcement action. The majority of successful claims were for unpaid wages and breach of contract brought against small private sector employers (under 50 staff). The average award was £2,600.


Judicial Review Of Unfair Dismissal Compensation Cap

Compromise Agreements Ltd, an employment law firm which acts for claimants, is seeking to apply for judicial review of the Government’s decision to impose a cap of one year’s salary on unfair dismissal compensation in addition to the existing £74,200 limit.


Employer Under Obligation To Make Car Parking Space Available For Disabled Employee

In Environment Agency v Donnelly an employer's argument that because a disabled employee chose to work flexi time, and therefore the car park was full by the time she arrived at work, he had no obligation to ensure she had a parking space, failed.


Small Firms Urged To Follow New Acas Guidance On Redundancies

ACAS has published new guidance to help employers handle small-scale redundancies.

The new free Handling small-scale redundancies - A step-by-step guide will particularly help small and medium sized businesses stay on the right side of the law if they want to make fewer than 20 people redundant.


Commission Tackles Pregnancy Discrimination

The Equality and Human Rights Commission will be undertaking a new comprehensive research project into the scale of pregnancy and maternity discrimination in the workplace.


Something Fishy About This Contract

In Troutbeck SA v White & Anor the Court of Appeal looked at a situation where an employer had little day to day control over their employee’s work and found that the lack of control was no obstacle to there being an employment relationship. Troutbeck employed a couple to look after a small farm in Surrey which it had bought as an investment, and as a holiday retreat for its Nigerian owners.


You Are Old, Father William

Lockwood v Department of Work and Pensions & Anor is an illustration of how a directly discriminatory redundancy scheme can be justified. Under the Civil Service Compensation Scheme, introduced in 1987, redundancy payments are weighted in favour of older workers.


It Shouldn’t Happen To A Vet

Mrs Butcher started work for the veterinary practice Croft Vets in 1996. Over time the practice expanded and she was promoted to finance and reception manager. In the period from 2007 to 2010 the practice opened a new hospital and acquired new phone and IT systems, both of which suffered the inevitable teething troubles, all of which Mrs Butcher had to manage on top of her existing responsibilities. Unsurprisingly, she was observed sitting in her office staring out of the window in tears shortly after returning to the office, following a week off, during which she had moved house. A few days later in May 2010 she went off sick with depression, never to return.


Can An Act Of Discrimination Be Cured With An Internal Appeal?

It is well established that an internal appeal can cure an unfair dismissal in some circumstances, but that in cases of fundamental breaches of contract the breach cannot be unilaterally cured by the employer. This case looked at curing employer errors in the context of discrimination.


Employee Who Prevented A Definitive Diagnosis Of His Alleged Condition Was Not Disabled

The EAT has upheld a tribunal's decision that, despite an employee advising that he was suffering from bipolar disorder, the absence of a definitive diagnosis meant that the employer did not know, and could not have reasonably been expected to know, that the employee was disabled.


Maternity Rights In Surrogacy Situations – An Unresolved Conundrum

Two different Advocates General have given conflicting opinions in the ECJ on whether women who become mothers via surrogacy have any right to paid maternity leave. In one case, Z v A Government Department and the Board of Management of a Community School, Advocate General Wahl said that an Irish teacher had not suffered sex discrimination, and was not entitled to leave under the Pregnant Workers Directive when her genetic child was borne by a surrogate. His reasoning was that EU law requires member states to provide paid maternity leave for women who give birth to children, but allows them to make different rules for people who become parents in a different way – for example by adoption.