Articles by ‘Gemma Ospedale’

In CRO Ports London Limited v Wiltshire, the EAT held that a Tribunal was wrong when it considered the impact made by the employee admitting misconduct on the reasonableness of the employer’s investigation. The employer had relied on the admissions made by the employee during the investigation and at the disciplinary hearing. The question for the Tribunal was whether, in doing so and limiting the scope of its investigation as a result, the employer acted within the range of reasonable responses open to it. The EAT considered that the Tribunal has drawn conclusions about what would have been discovered had it undertaken further investigations and had not appreciated the significance of the admissions which were made at the time.

In Timothy James Consulting Limited v Wilton, the EAT considered the authorities both in respect of tax and employment on the taxation of injury to feelings awards. It gave its considered view that these awards are not taxable, albeit this decision is not binding on HMRC and is in conflict with the latest tax case to consider the issue. The case concerned a constructive unfair dismissal claim – the EAT held that while the constructive dismissal may be the result of acts of harassment towards the individual, the constructive dismissal of itself could not be an act of harassment.

In Metroline Travel Limited v Stoute, the EAT has overturned an Employment Tribunal decision that an employee’s type 2 diabetes qualified as a disability under the Equality Act 2010. It held that the condition, which was controlled by not consuming sugary drinks and similar products, did not have a substantial adverse effect on his ability to carry out day to day activities.

Following on from the Bear Scotland decision of the EAT in October 2014, the case of Lock and others v British Gas Trading Limited and another, which was referred to the ECJ for an opinion on whether commission should be included in the calculation of holiday pay, has now returned to the Employment Tribunal and a decision has been given. Unsurprisingly the Employment Tribunal has held that there is no issue with interpreting the Working Time Regulations to include commission payments in the calculation of holiday pay in respect of the 4 weeks statutory annual leave provided for under regulation 13. Holiday pay calculated without taking into account commission would be considered an unlawful deduction from wages.

In Donelien v Liberata UK Limited, the EAT has stated what is required for an employer to be considered to have constructive knowledge of disability.

In another case on the same point of the Simmons uplift, Chawla v Hewlett Packard Limited IDS 1017 page 14, has also decided that the uplift does not apply to Tribunal awards for injury to feelings. There are now conflicting lines of EAT authority on this point and clarification is needed from the Court of Appeal, as to which it is hoped that the parties in the Pereira de Souza case will appeal. This is particularly the case since the Presidential Guidance issued in 2014 expressly refers to the Vento guidelines on injury to feelings as being updated by the Simmons decision i.e. that the 10% uplift should apply, and the Da’Bell v NSPCC case which approved the increase in the Vento guidelines in line with inflation. There are also EAT cases which have followed Simmons in providing for a 10% uplift: Cadogan Hotel Parters Ltd v Ozog, and Sash Windows Workshop v King – both 2014 cases.

In Pereira de Souza v Vinci Construction UK Limited, the EAT has held that the 10% uplift identified in Simmons v Castle (a Court of Appeal decision) as being applicable to Tribunal awards is not in fact intended to apply to discrimination awards for injury to feelings or personal injury in the Employment Tribunal but only to civil claims. It held that the reason for the uplift, which is to compensate Claimants for the loss of a right to recover success fees and after the event insurance as part of their costs, does not exist in the Employment Tribunal as such a costs regime does not exist as such in Tribunal cases. The EAT held the view that the two previous EAT authorities, which did hold that the Simmons uplift should apply to awards in the Employment Tribunal, had been wrongly decided. The EAT heard full arguments on Simmons and other authorities in this case and considered that this was the kind of exceptional case which required departing from previous EAT authorities. The parties have been given leave to appeal.

In Norman and another v National Audit Office, the EAT has overturned an Employment Tribunal decision that a clause in an employment contract which stated that the terms and conditions were “subject to amendment” and that the changes had been notified to employees, was enough to give the employer the right to unilaterally vary the contract terms.

In Reuse Connections Limited v Sendall, there has been a full trial in the High Court regarding the matter of whether or not the Defendant was in breach of a restrictive covenant in setting up a business which competed with his employer.

City-based law firm Royds is reminding businesses to update their employment policies and staff handbooks to ensure they meet the changes to parental leave that came into force at the end of last year.

In Colomar Mari v Reuters Limited, the EAT has upheld an Employment Tribunal decision that the Claimant’s constructive unfair dismissal claim must fail in circumstances where she delayed resigning for 18 months after she complained of her employer’s alleged fundamental breach of contract. Her argument was that she was too ill to resign. However, there were other factors which the Tribunal took into account in deciding that, by her conduct, she had affirmed the contract, one of which was that she had accepted 39 weeks sick pay. This, combined with not resigning for 18 months, meant that she had affirmed the contract in the eyes of the Tribunal and the EAT. Therefore the constructive unfair dismissal claim failed.

In Sparks and another v Department for Transport, the High Court has held that the Department for Transport was not entitled to unilaterally change the terms of a staff handbook which were found to have been partly incorporated into the contracts of employment. [read more] The Department for Transport was attempting to introduce a new standard trigger point across its various agencies in relation to the number of absences clocked up before an official absence management programme was initiated. The Court found that the current trigger point was incorporated into contracts of employment and could therefore only be changed if, according to the handbook’s variation provisions, the change was not detrimental to the employees. The Court held that the suggested change was detrimental and made a declaration to reinstate the employees’ original contract terms. A salutary reminder to have non-contractual staff handbooks!