Employment Bulletin - August 2018

This month’s bulletin includes the following articles​:

• Discrimination arising from Disability: Dismissal v Part-Time Working
• Qualifying Service and Unfair Dismissal
• Right to work: Dismissal without an Appeal hearing
• Prospective employer liable for withdrawing job offer where one of two unsatisfactory references was discriminatory
• Discrimination: Philosophical Belief
• Employer obliged to pay zero hours contract employee average earnings while suspended
• Report on Sexual Harassment in the Workplace

Discrimination arising from Disability: Dismissal v Part-Time Working

The EAT recently overturned a decision of the Employment Tribunal in Ali v Torrosian and others and held that the Claimant had suffered discrimination arising from his disability when the Claimant’s employer (the “Respondent”) failed to consider part-time working as alternative to dismissal.

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Qualifying Service and Unfair Dismissal

The Employment Appeal Tribunal (EAT) overturned an Employment Tribunal decision in Lancaster and Duke Ltd v Ms V Wileman and held that the effective date of summary termination of an employee’s employment contract was not extended by the employee’s right to the statutory minimum notice, taking them over the two year service and so entitling them to bring an unfair dismissal claim, where their employer dismissed them for a gross misconduct offence.

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Right to work: Dismissal without an Appeal hearing

The EAT ruled in Afzal v East London Pizza Ltd that it was unfair to refuse to give an employee a right of appeal against the decision to dismiss him where his employer mistakenly concluded that the employee had no right to work in the UK.

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Prospective employer liable for withdrawing job offer where one of two unsatisfactory references was discriminatory

The EAT upheld a decision in South Warwickshire NHS Foundation Trust v Lee that a prospective employer’s decision to withdraw a conditional offer was discriminatory as the decision to withdraw was based on an unsatisfactory reference which was found to be “unduly negative and inaccurate because of disability related absences”.

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Discrimination: Philosophical Belief

The Employment Appeal Tribunal upheld an Employment Tribunal’s decision in Gray v Mulberry which found that an employee had not been discriminated against on the grounds of philosophical belief. The employee was the only person to hold such a belief, and it was found that the Respondent’s interests in this case were greater than the belief held by the employee.

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Employer obliged to pay zero hours contract employee average earnings while suspended

In Rice Shack Ltd v Obi the Employment Appeal Tribunal rejected an appeal from an employer (“the Respondent”) concerning an Employment Tribunal decision, which held that the Respondent was obliged to pay its zero hours contract employee her average earnings while the employee was suspended.

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Report on Sexual Harassment in the Workplace

In the wake of the #MeToo movement, the Women and Equalities Committee (the “Committee”) has published a report on sexual harassment in the workplace. The Report calls on the Government to tackle this widespread issue and to place the same stringent responsibilities on employers as it has for data protection and money laundering.

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