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


Levy & McRae Newsbrief: November 2014

Unilateral variation: change to notice period can have an immediate impact

Mere delay might, of itself, be neutral in determining whether an employee can be said to have accepted a change in contractual term made unilaterally by the employer.


Maternity and Adoption Leave (Curtailment of Statutory Rights to Leave) Regulations 2014

SI 2014/3052: An expectant mother or a mother on maternity leave, or an adopter or a prospective adopter, will be able to give notice to end her maternity leave or his or her adoption leave on a specific future date.


Directors: confidential information and delivery up (High Court)

In Eurasian Natural Resources Corporation Ltd v Judge, the High Court held that there were no grounds for finding that a director was subject to an implied term requiring delivery up of confidential documents after termination of his appointment.


Workers in holiday pay overtime ruling will not appeal (EAT)

The Unite union, which represents the claimants in the Hertel (UK) Ltd v Woods and others UKEAT/0160/14 and AMEC Group Ltd v Law and others UKEAT/0161/14 cases, has announced that they will not be appealing the EAT’s decision. This means that, in most cases (and subject to any appeal by the employers), workers claiming underpaid holiday pay will not be able to bring claims stretching back many years.


Psychiatric Injury

What are the rules relating to remoteness in damages claims for psychiatric injury? The Court of Appeal explains this in Yapp v FCO.


Redundancy during maternity leave: Reg 10 breach not always discrimination (News, 20 November 2014)

If a woman’s job is made redundant during the period of her maternity leave then her employer must, pursuant to regulation 10 of the Maternity and Parental Leave Regulations 1999, offer her any suitable alternative vacancy that exists.


Culpability for misconduct not clear-cut where employee mentally ill

The EAT has overturned a tribunal’s decision that an employee suffering from a paranoid schizophrenic illness was fairly dismissed for gross misconduct when he sexually assaulted female colleagues after discontinuing his medication without medical advice.


Providing a workplace free from aerosols and perfume was not a reasonable adjustment that could have been made

The EAT has agreed with an employment tribunal that no adjustments could reasonably be made to the workplace for an employee who answered 999 calls in a busy control room, and who sometimes had a potentially life-threatening reaction to aerosols and perfume.


ET shouldn’t research evidence/arguments on Wikipedia

Should an employment tribunal conduct its own enquiries into evidence (for example, on Wikipedia during an adjournment)?


Executive entitled to ‘golden parachute’ as well as merger bonus

The High Court, in the case Elliston v Glencore Services, ruled recently that a former executive was entitled to over £400,000 in severance pay even though he had received a ‘transaction bonus’ of nearly half a million pounds just a few months earlier.


Time spent carrying out trade union activities was not working time

An employment tribunal has held that time spent by trade union representatives attending union meetings was not “working time” within the meaning of the Working Time Regulations 1998.



Levy & McRae Newsbrief: December / January 2014

Obesity may be a disability

The ECJ has agreed with Advocate General Jääskinen that there is no general principle of EU law prohibiting discrimination on grounds of obesity. However, obesity may fall within the definition of disability under the Equal Treatment Framework Directive (2000/78/EC).


UNISON loses second challenge to employment tribunal fees

In R (on the application of UNISON) v Lord Chancellor (No.2), the High Court has rejected a second judicial review challenge to the system of employment tribunal and EAT fees, which was introduced on 29 July 2013. This second application for judicial review followed statistics demonstrating a substantial fall in the number of tribunal claims after the introduction of fees.


Are injury to feelings payments taxable?

If the payment arises out of the termination of employment, probably yes, held the First Tier Tribunal (Tax Chamber) in Moorthy v Revenue & Customs Commissioners.


Tribunal quarterly statistics July to September 2014 published

The Ministry of Justice has published tribunal statistics for July to September 2014. The statistics show a continuing trend in the decline in the number of employment tribunal claims presented.


Is it a reasonable adjustment under the Equality Act 2010 to require a bus company to have a policy requiring non-wheelchair using passengers to move if occupying a space required by a wheelchair user?

No, held the Court of Appeal in FirstGroup PLC v Paulley, in a widely reported judgment. Mr Paulley, a wheelchair user, was unable to take a bus due to a passenger keeping a child’s buggy in the wheelchair space.


Label attached to misconduct dismissal was immaterial

The Court of Appeal has upheld a tribunal’s finding that a doctor was dismissed for misconduct, namely working in private practice whilst on paid sick leave from her employer.


Government action to limit ‘Bear Scotland’: more speed, less haste?

The government has issued a press release and Regulations highlighting action it is taking in an attempt to ‘reduce potential costs to employers and give certainty to workers’ on the issue of holiday pay following the Bear Scotland Ltd v Fulton decision.


Judge fails to understand public nature of Twitter

In Game Retail Ltd v Laws UKEAT/0188/14 Mr Laws worked as risk and loss prevention investigator for Game Retail, a games retailer with over 300 stores across the UK. An ET judge held that Mr Laws had been unfairly dismissed.


Shared parental leave regulations: now in force

The shared parental leave and pay regulations came into force on 1 December 2014. Shared parental leave will be available to both parents for the first year after the birth or adoption of their child.


Damages awarded for stress caused by withdrawal of post

In Yapp v Foreign and Commonwealth Office [2014] IRLR 616 the High Commissioner of Belize was immediately suspended and withdrawn from his post following allegations of bullying and sexual misconduct.


Was a plumber engaged by a plumbing and maintenance company an ‘employee’?

No, although he was a worker, held the EAT in Pimlico Plumbers v Smith.

 Although the Claimant wore Pimlico Plumber’s uniform and drove a van with Pimlico’s logo, the written agreements gave the impression he was in business on his own account.


Res judicata: claim barred on procedural grounds in tribunal could be brought in High Court

The Court of Appeal has overturned a High Court decision, finding that a claimant whose discrimination claim was brought out of time in the employment tribunal is not estopped from bringing a personal injury claim on the same facts in the High Court.