Some key developments in employment law from 2019
Wednesday 15th January 2020
Here we review some of the key developments of 2019.
Restrictive Covenants
In Tillman v Egon Zehnder Ltd, the SC allowed unreasonably broad wording to be severed from a restrictive covenant, allowing EZ, in the circumstances, to enforce the remainder (click here).
Unfair Dismissal
The SC held in Royal Mail Group Ltd v Jhuti, that dismissal was automatically unfair even though the decision maker had been unaware of a prior protected disclosure. This overturned the CA decision that only the decision maker’s motivations are relevant in establishing the reason for dismissal (click here).
The EAT held, in Cadent Gas v Singh, that an investigating manager’s anti-trade union motivation could be attributed to the employer, even though he did not take the decision to dismiss (click here).
In addition, Spaceman v ISS Mediclean Ltd t/a Facility Services Healthcare saw the EAT confirm that protection against unfair dismissal following the assertion of a statutory right, requires an allegation that there has been an actual breach. The allegation must be “you have infringed my right” and not merely “you will infringe my right” in the future (click here).
Disability Discrimination
The EAT, in iForce Limited v Wood, held that a warning given to an employee following her refusal to obey an instruction, due to a mistaken belief that changes to her working conditions would exacerbate her disability, did not amount to unfavourable treatment because of something arising from a disability (click here).
In a significant decision relating to dismissal procedures, the EAT held in Baldeh v Churches Housing Association of Dudley & District Ltd, that the ET should have considered whether CHADD had actual or constructive knowledge of a disability when it rejected Ms Baldeh’s appeal, not just whether it had knowledge at the time of dismissal (click here).
The CA confirmed in the Chief Constable of Norfolk v Coffey that in direct discrimination cases, the phrase “because of a protected characteristic” covers situations where an individual is perceived to have such a characteristic, whether or not they actually do (click here).
Injury to Feelings: Vento Bands
The Vento bands for injury to feelings awards in discrimination cases were updated and for claims brought on or after 6 April 2019, the bands are:
- £900 to £8,800 for less serious cases involving, for example, an isolated incident;
- A middle band of £8,800 to £26,300; and
- £26,300 to £44,000 for the most serious cases, for example where there has been a prolonged campaign of harassment.
Only in the most exceptional cases should more than £44,000 be awarded.
In Base Childrenswear Limited v Otshudi, the EAT held that an injury to feelings award for a single act of discrimination is not necessarily limited to the lower Vento band. The question to be answered “must always be what was the particular effect on this individual complainant?” (click here).
Shared Parental Pay
In a widely anticipated decision, Ali v Capita Customer Management Ltd saw the CA hold that CCM’s decision not to provide Mr Ali with enhanced shared parental pay which mirrored the enhanced maternity pay it offered, was not discriminatory. Identifying the correct comparator was key to this (click here).
Carrying Over Holiday Pay
The ECJ confirmed in TSN ry v Hyvinvointialan liitto ry and anor case, that employers do not have to allow annual leave in excess of the 4 week minimum EU entitlement to be carried over into their next annual leave year. Employers can permit or refuse additional carry over, provided they comply with their national law (click here).
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.