Scotland

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

07.11.2014

Levy & McRae Newsbrief: October 2014

Important Case: Holiday Pay

The Employment Appeal Tribunal has handed down judgment in Bear Scotland v Fulton (and conjoined cases).

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Holiday Pay: Government announces taskforce

Following the important ruling on holiday pay, Business Secretary Vince Cable has announced he is setting up a new taskforce to assess the impact of the ruling.

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Work placements - discrimination

Does an employment tribunal have jurisdiction to hear a discrimination claim about a work placement which is part of a university course?

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No breach of contract in holding disciplinary hearing for employee in relation to false references

The Court of Appeal’s decision in Coventry University v Mian illustrates both the need for employees to exercise the greatest caution when providing references for colleagues and for employers to undergo meticulous disciplinary procedures.

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Some useful pointers on Polkey deductions for unfair dismissal

Some useful pointers on Polkey deductions for unfair dismissal compensation has been given by the EAT in Contract Bottling Ltd v Cave. In that case, Contract Bottling had financial problems, went into insolvency and then was bought out of administration.

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Employer not required to disregard a final warning as a ‘reasonable adjustment’

In General Dynamics Information Technology v Carranza the EAT has held that an employer was not required to disregard a final warning as a ‘reasonable adjustment’.

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Beauty consultant providing services through limited company not protected under Equality Act 2010

The Court of Appeal has upheld the finding that a beauty consultant was not in “employment” under section 83 of the Equality Act 2010 as she did not have a contract of employment or a “contract personally to do work”. She provided her services through a limited company to a business which supplied staff to a third party (a cosmetics company) to work in an airport duty-free outlet.

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BIS publishes additional findings from the 2013 Survey of Employment Tribunal Applications

BIS has published an “ad-hoc statistical analysis” containing further data extracted from the 2013 Survey of Employment Tribunal Applications (SETA 2013), originally published in June 2014.

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Early Conciliation is Obligatory

The ACAS early conciliation (EC) process was introduced in May 2014 and it was billed that if a claimant failed to comply with EC process and then submitted a claim, that claim would be rejected. The first case to consider this rule is the case of Thomas v Nationwide Building Society which was heard by a Tribunal in October.

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Striking out

Can a claim for unfair dismissal due to whistleblowing be struck out without hearing the evidence as to the reason for dismissal?

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Doctor training rules objectively justified

In Kapenova v Department of Health the EAT has held that registration rules for trainee doctors, which operate to the disadvantage of medical students from certain European countries, are objectively justified.

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Set-off is available as a defence in employment tribunal contract claims

The EAT has upheld an employment tribunal’s decision that the defence of set-off is available to an employer in a contract claim brought by a former employee in the tribunal. This is the first reported case confirming that set-off is available in the tribunals.

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Employee liability information: reasonable belief employees would bring claims

An employment tribunal has ordered a transferee to pay compensation of £65,500, representing £500 for each of 131 employees, to a transferor for failure to provide employee liability information in breach of regulation 11 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246).

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Actors as workers

Were actors working under a profit share agreement ‘workers’ for the purposes of employment legislation?

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Prior breach of contract claim may not prevent an employee from bringing a constructive dismissal claim

If the employer commits a fundamental breach of contract, the employee is entitled to treat themself as discharged (i.e. they can immediately terminate the employment without notice).

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Court of Appeal comments on tribunal guidelines for calculating pensions loss on termination of employment

The Court of Appeal has considered the application of the guidelines for calculating pensions loss used by employment tribunals. The context was an appeal brought by a former employee of Plymouth Hospital NHS Trust, who left her job following illness and complained that the Trust had failed to make adequate efforts to enable her to return to work in a way that would have accommodated her condition. She succeeded in tribunal claims for constructive unfair dismissal and disability discrimination, but considered the financial loss element in her award was too low.

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Deposit orders for each of seven allegations upheld

The EAT has upheld an employment judge’s order that a claimant pay seven deposits to continue with each of seven allegations of discrimination and whistleblowing. The claimant was ordered to pay £300 in respect of each allegation, a total of £2,100. The EAT noted the broad discretion given to tribunals both in deciding to order and in setting the amount of a deposit.

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