Changes to Employment Law in August 2012

David McRae
2nd Aug 2012

News and updates to employment law including unfiar dismissal, sick leave and discrimination claims…

Employment law tribunal cases

Upholding an employee’s grievance may prevent a finding of constructive unfair dismissal


A recent Employment Appeal Tribunal (EAT) decision has confirmed that upholding an employee’s grievance can serve to prevent that employee from relying on a breach of the implied term of trust and confidence to claim constructive unfair dismissal. In this case, whilst the EAT found that the employee’s manager had treated him unfairly, it also had regard to the fact that the employer had taken adequate steps to resolve the grievance raised by the employee. Significantly, these steps were taken before the situation had escalated into a breach of the implied term of trust and confidence. This is because, as the EAT confirmed, action taken by an employer can prevent a breach of contract taking place but an apology by an employer cannot cure a fundamental breach of contract that had already occurred. The point at which a situation will escalate into a fundamental breach will be fact-sensitive but this case highlights the importance of dealing with employees’ grievances promptly. The full case can be found here (Case name: Assamoi v Spirit Pub Company UKEAT/0050/11/LA).


Automatic transfer of accrued annual leave for workers on long-term sick leave


The Court of Appeal has upheld a decision that an employer cannot deny a worker who is on long-term sick leave their accrued holiday entitlement on the basis that they did not request to take this holiday during their sick leave. This is because to require a worker who has not yet recovered or returned from sick leave to put in a request for holiday during that period would be fundamentally inconsistent with a worker’s right to take their holiday at a time when they are not sick. Instead, in such circumstances, the accrued holiday is deemed to automatically carry over to the following holiday year. The full case can be found here (Case name: NHS Leeds and Mrs Janet Larner [2012] EWCA Civ 1034).


An inference of discrimination can shift the burden of proof to the employer in discrimination claims


The Supreme Court has confirmed that Employment Tribunals may draw inferences of discrimination by considering how an employee was treated in comparison to others, even if the situations compared are not exactly the same. Importantly, such inferences may then be relied upon to shift the burden of proof so that it will then be for the employer to prove that it has not discriminated. In this case, the claimant’s circumstances were not exactly the same as either of the two comparators used but it was decided that the plain difference in treatment between them was sufficient to shift the burden of proof to the employer. This case demonstrates the importance of employers treating all employees consistently. The full case can be found here (Case name: Hewage v Grampian Health Board [2012] UKSC 37).


Inaccurate information by employer allows employee to submit claim six weeks late


The EAT has recently ruled that a six week delay in an ex-employee bringing a breach of contract claim against her employer over her backdated pension entitlement was permissible because the delay was a result of the employee relying on inaccurate information provided to her by the employer. Importantly, this information had come from someone in charge of pension and payroll matters. The EAT therefore determined that it could not conclude anything other than it was not reasonably practicable for the employee to lodge her claim in time. This case may become relevant in unfair dismissal claims, to which the same test for late submission applies. The full case can be found at here (Case name: Andrews v Kings College Hospital NHS Foundation Trust EAT UKEAT/0614/11).


Death in service benefits: Who can claim?


In another recent decision, the EAT has confirmed that where an employee has been unlawfully dismissed, and then dies shortly afterwards, the employee’s loss of a death in service benefit is recoverable by the employee’s estate. As such, the estate is entitled to bring a claim for loss of a death in service benefit to the employment tribunal on the employee’s behalf by making an application to the employment tribunal to be appointed as an appropriate representative. Only when the application has been granted can such a claim be validly submitted. The full case can be found here (Case name: Fox and British Airways UKEAT/0033/12/RN).

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