Employment Bulletin - March 2021

Direct Discrimination can occur between distinguishable groups of disabled employees

The European Court of Justice (‘ECJ’) in VL v Szpital Kliniczny has held that it is possible for direct discrimination to take place between differently disabled employee groups, where the groups are comparable and one group is treated less favourable than others. This is an approach that could be adopted in future English law cases.

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Legal Update: Public Sector Exit Payment Cap Removed

On 4 November 2020, the Restriction of Public Sector Exit Payments Regulations 2020 came into force which introduced a £95,000 cap on exit payments within the public sector, as outlined in more detail here. The cap, which was met with a lot of criticism, applied to a wide range of public bodies and a broad range of exit payments.

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Harassment: ‘Stale’ diversity training cannot satisfy the ‘all reasonable steps’ defence

The recent Employment Appeals Tribunal (‘EAT’) case of Allay (UK) Ltd v Gehlen has explored the use of training as part of the s109(4) Equality Act 2010 defence to the Employer being vicariously liable for something an individual employee has done in the course of their employment. In order to benefit from using the defence, the Respondent employer must show that they took ‘all reasonable steps’ to prevent the relevant discrimination or other similar discrimination so they are not held vicariously liable for the employee’s actions. The employer in this case had trained their staff two years prior to the discriminatory incident which lead the training to be rendered ‘stale’ and ineffective. The claim of harassment on the grounds of race was therefore upheld.

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Non-compete clauses in employment contracts reform

The UK government previously in 2016 called for evidence on how non-compete clauses worked in practice. This did not progress in 2016, however, Covid-19 and its effects on the UK economy has prompted the further review of non-compete clauses in practice. The government seeks to enable workers to be able to utilise their skills and expertise to easily find or move employment in order to boost the economy. They recognise the need for innovation so that, in particular, businesses that have suffered can grow quicker and again enhance the UK economy.

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Engaging in a grievance process does not affirm the employment contract for constructive dismissal cases

In the Employment Tribunal (‘ET’) case of Gordon v J & D Pierce (Contracts) Ltd it was held that an employee engaging in a grievance process did not mean that they had affirmed their employment contract for the purposes of a constructive dismissal claim. Instead, it is an option that promotes resolution where there is a break down in the employment relationship.

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Immigration Law: Common mistakes made by teachers that can impact their right to work in the UK

We support many educational organisations and individuals with their immigration matters. We regularly assist with navigating the law and finding solutions to mistakes that could have easily been avoided. With the difficulties in recruiting teachers for particular subjects and an increasing number of schools sponsoring overseas teachers to fill shortage roles, the impact of falling foul of immigration law can have severe consequences for not only the individual teacher, but also the organisation. Our Head of Immigration, Julie Moktadir, has explored some of these mistakes below and offered practical actions that schools and teachers can be taking now to help avoid potential immigration issues.

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The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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