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Human rights and employment law have much in common. Both could be described as growth areas for litigation over the past ten years or so. Both make easy targets for politicians and pundits looking for a scapegoat. And both are reportedly on the Government’s agenda for reform, a fact not unrelated to the previous point. Some recent human rights at work cases illustrate the overlap between the two subjects in the workplace. More
Every profession has a stock response to any question it can’t answer. A phrase that sounds thoughtful, and is vague enough to be true, but doesn’t commit the sayer to anything. For a doctor, it might be ‘it’s probably a viral infection’; or for an evasive priest, ‘that would be an ecumenical matter’. For the employment lawyer, the phrase ‘it all depends on the contract’ passes muster in most situations. But that might have to change, as two Supreme Court decisions in the last year suggest that the employment contract is becoming less and less important. More
It’s become a bit of a cliché in legal commentary to say, of a particular issue, that the law is in a state of confusion, and that clarification from a higher court is much needed. Well, this blog considers the avoidance of cliché a cliché, and unabashedly resorts to truism, platitude or chestnut as it sees fit. The EAT’s recent decision on the holiday pay rights of employees on long-term sick leave leaves the law in a state of confusion. Clarification from a higher court is much needed. More
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When is a door not a door? When it’s ajar. When is a horse not a horse? When it turns into a field. And when is a dismissal not a dismissal? When it’s vitiated by special circumstances. Not a classic perhaps, but worth knowing, especially when such circumstances can save an employer from a finding of unfair dismissal. However, as the Court of Appeal has recently shown, the circumstances need to be very special indeed. More
With average pay increases falling well behind inflation, and (dare I say it) Christmas heaving into view, it wouldn’t be surprising if the number of workers taking second jobs were to rise. Many employers permit moonlighting so long as it doesn’t conflict with employees’ duties and loyalties. But these situations can prove an extra job of work for the employer as much as for the employee. More
In an old episode of The Simpsons, Homer tries to set up in business selling sugar, neglecting his job at the nuclear power plant in the process. When his boss phones to find out where he is, he tells Homer that if he doesn’t report for work on Friday, he needn’t bother turning up on Monday. ‘Woo hoo!’, shouts Homer. ‘Four-day weekend!’ Homer Simpson is not, of course, noted for his grasp of the subtleties of language. But the legal implications of an ambiguous dismissal have taxed brighter minds than his. More
In this supposedly classless age, one’s position in society should have no effect on one’s rights and responsibilities in the eyes of the law. However, this is not quite true in the employment realm, which remains Mrs Bennet-like in its fixation on status. Two recent decisions considering whether claimants had the status of ‘employee’, ‘worker’ or neither have significant implications. More
Mention the word ‘equity’ in the presence of a lawyer and you may catch their eyes glazing over, as they fear the conversation is about to turn to the law of trusts. But equity has a role to play in that much more cutting-edge branch of law, employment. A recent case in the EAT put this role under the spotlight, and it may have some relevance to the fallout from the demise of the News of the World. More
The law has been called many things – ‘the embodiment of the moral sentiment of the people’, ‘mind without reason’ and, perhaps most memorably, ‘an ass’. A recent case in the Supreme Court has now asked whether the TUPE Regulations can be described as ‘dynamic’. The Regulations protect employees’ contractual rights when the company or service they work in is transferred to a new owner. The extent of that protection depends on how ‘dynamic’ the Regulations are. More
A curious judgment from the Employment Appeal Tribunal (EAT) this week. In Bailey v R&R Plant, the EAT interpreted the statutory retirement procedure creatively to find that an employee had been unfairly dismissed. But in doing so it set down an unfortunate precedent with potentially serious implications for employers who currently have employees under notice of retirement. More
