The Claimant in this case brought a claim of unfair dismissal and PGA European Tour (PGA) conceded that the dismissal was procedurally unfair. The Employment Tribunal was only left to consider remedy.
The Claimant was employed by the PGA European Tour (PGA) since 1989 as Marketing Director. By 2015, the Claimant was Group Marketing Director. That same year, following a strategic review, PGA appointed a new Chief Executive Officer (CEO) of the Group. The CEO had concerns over the Claimant's performance, as a result of which he was terminated within 2 months of the CEO’s appointment. The Claimant brought a claim of unfair dismissal and PGA conceded that the dismissal was procedurally unfair. The Employment Tribunal (ET) was only left to consider remedy.
The Claimant requested to be reinstated to his role or, alternatively, re-engaged in a comparable role.
PGA argued that this was impracticable and that no such order should be made due to the loss of trust and confidence in the Claimant stemming from the CEO’s concerns about his performance and also his integrity (he recorded meetings covertly).
The ET ordered that the Claimant be re-engaged in the role of Commercial Director, China, which was one that he had identified to be of interest. This was on the basis that the Claimant had a proficiency in foreign languages and was keen to learn Mandarin.
Unhappy with the order, PGA appealed to the Employment Appeal Tribunal (EAT). The question for the tribunal was whether it was practicable to order PGA to re-engage Mr Kelly.
The EAT found that the ET had wrongly imposed its own view as to whether the concerns regarding the Claimant's capability and conduct were rational and genuinely held so as to undermine trust and confidence. It had also incorrectly substituted its own view as to whether the ability to speak Mandarin was key for the Claimant's re-engagement. This decision was held to fall on the wrong side of the line between what is practicable and what is possible. The EAT substituted the ET’s order accordingly.
The EAT’s judgement here in respect of this remedy hearing provides a reminder to employers and employees of the importance of trust and confidence in an employment relationship, which is an implied term of all employment contracts. This case follows earlier decisions. It is a useful reminder that where an employer genuinely and rationally believes that it has lost trust and confidence in an employee, or that it has good reason for considering that an employee is not qualified for a particular alternative role, they will not be required by an employment tribunal to re-engage that employee.
Official statistics show that 15,336 claims which included a complaint of age discrimination were received at the Employment Tribunals between March 2020 and March 2021.
The outcome of the Employment Tribunal claim brought by Gulnaz Raja against Starling Bank Limited (1) (Starling), and Matthew Newman (2) was reported last month.
In the Autumn Statement delivered on 17 November, rises to the National Living Wage and National Minimum Wage rates were announced, to take effect from 1 April 2023:
The World Cup kicks off in Qatar on Sunday 20 November 2022, with the final taking place on Sunday 18 December 2022. Undoubtedly, this is a huge sporting event, and many employees will be keen to show their support for their favourite teams. However, due to the time difference, start times for the matches are between 10 a.m. and 7 p.m. UK time, which could have an impact on employers if employees who wish to watch the matches are scheduled to work.
Settlement agreements are commonplace in an employment context and are ordinarily used to provide the parties to the agreement with certainty following the conclusion of an employment relationship. There are already restrictions on the extent to which personal injury claims can be settled by a settlement agreement. There have also been numerous consultations about the use of non-disclosure agreements and confidentiality clauses, particularly where allegations of sexual harassment and discrimination have been raised. In any event, it is clear that settlement agreements should not be used to prevent an employee from raising a protected disclosure.
Where an employee appeals against their dismissal under a contractual appeal procedure and their appeal is successful, reinstatement to their previous role is automatic and does not require approval or agreement from the employee.
Settlement agreements in an employment context are ordinarily used to provide both parties with certainty following the conclusion of an employment relationship – but what happens when there is alleged discrimination after entering into a settlement agreement?
A few weeks ago we brought you news that following the Government’s mini-budget it was confirmed that the off-payroll working rules (known as “IR35”) put in place for public and private sector businesses from 2017 and 2021 would be scrapped from April 2023.
In Mogane v Bradford Teaching Hospitals NHS Foundation Trust the Employment Appeal Tribunal (EAT) considered whether it was fair to dismiss a nurse as redundant on the basis that that her fixed-term contract was due to expire before that of her colleague.
The majority of people do not feel the need to embellish their CV to get that coveted position and move on up the career ladder. Their worthiness and benefit to the hiring organisation are easily demonstrated through the recruitment process – application, psychometric testing, selection day or interview.
In July 2022, the Supreme Court handed down its long-awaited Judgement in the case of Harpur Trust v Brazel relating to the correct calculation of statutory holiday pay for part year workers. This decision has implications for all part year workers on contracts which subsist all year round, whether their hours are normal or irregular.
The Government has announced a change to the categorisation of “small” businesses to reduce the amount of regulatory compliance (or “red tape”) required. Currently, SMEs (those with fewer than 250 employees) are exempt from certain regulations – such as the obligation to comply with gender pay reporting. With effect from 3 October, these exemptions will be widened to apply to businesses with fewer than 500 employees.
In University of Dundee v Chakraborty, the Employment Appeal Tribunal (EAT) considered whether a first draft of a grievance report could retrospectively be deemed to be privileged.
The Chancellor’s recent mini-budget provided a significant announcement for business as it was confirmed that the off-payroll working rules (known as “IR35”) put in place for public and private sector businesses from 2017 and 2021 will be scrapped from April 2023.
The Government has published the Retained EU Revocation and Reform Bill which, if passed, provides for the revocation of all “EU-derived subordinate legislation” (i.e. UK statutory instruments which were introduced to implement EU law) and retained direct EU legislation on 31 December 2023, unless legislation is specifically introduced to save them.
On 20 July 2022, the Supreme Court issued its long-awaited judgment in the case of Harpur Trust v Brazel, upholding the decision of the Court of Appeal. For those of you familiar with this case, you will know that it concerns the statutory leave requirements for part-time and part-year workers. For schools and academies whose workforce consists of a variety of types of part-time and part-year workers, this case is one that must be understood before any changes are applied. Come and join Emma Hughes, Head of HR Services as she puts questions to Ian Deakin, Employment Partner, and Sarah Linden, Senior Associate.
Browne Jacobson has welcomed 10 future lawyers to its trainee scheme for 2022 – 2024 as it continues to grow its business. The new recruits have joined 36 trainees currently at the firm, bringing the total number of trainee solicitors at Browne Jacobson to 46 – a record number for the firm.
The Employment Appeal Tribunal’s recent decision in the case of Mr Michael Cowie & Others v Scottish Fire and Rescue Service provides a useful insight into favourable - or unfavourable - treatment in the context of discrimination claims.
This month, HM Treasury issued a consultation on Administrative Control Process for Public Sector Exits with draft guidance. They’re proposing to introduce an expanded approvals process for employee exits and special severance payments, and additional reporting requirements. If approved, the proposals will impact public sector bodies and those that do not have a specific right to make exit payments.
In Wierowska v HC-One Oval Limited, the Employment Tribunal had to determine whether the Claimant’s beliefs in relation to Covid-19 vaccines amounted to religious beliefs for the purposes of the Equality Act 2010.
Janice Walsh applied for a job with Domino’s Pizza, hoping to secure a role as a Delivery Driver. However things quickly took a turn for the worse during her initial interview, with the very first question that she was asked relating to her age. Ms Walsh was ultimately informed that she had not been successful in her application.
As of 21 July, two separate pieces of legislation came into force which seeks to mitigate against strike action. It should come as no surprise that this is a direct response to the rail strikes, which have dominated the news in the last couple of months.
The Government has referred to the greater “clarity” provided by the Supreme Court’s decision in Uber BV and others v Aslam and others, considering it appropriate to allow the impact of this decision to take effect, before considering further intervention.
The Supreme Court has now issued its long-awaited judgment in the case of Harpur Trust v Brazel, upholding the decision of the Court of Appeal.
The new sponsored Global Mobility route aims to meet the needs of overseas businesses with no previous trading presence in the UK to expand into the UK by providing a specific immigration route for senior employees to come here to set up a UK subsidiary or branch.
In the recent case of Dwyer (UK Franchising) Limited v Fredbar Limited and ano’r  EWCA Civ 889, the Court of Appeal considered the reasonableness of restrictive covenants in a franchise agreement.
The Court of Appeal overturned the “fire and re-hire” injunction, finding that there was nothing in the express contractual provisions preventing Tesco from giving the notice to terminate employment in the usual way.
We have seen a flurry of recent EAT and ET decisions demonstrating the difficulty that employers face in trying to balance different protected characteristics in the workplace. In this article, Lucinda Chaplin and Will Carter, associates in our employment team, explore the principles from these recent cases, and the workplace implications of them.
Superdry PLC was recently ordered to pay Rachel Sunderland, a former employee, £96,208 after being found guilty of unfair dismissal and age discrimination. The hearing lasted six days. Nine witnesses gave evidence.
With menopause cases reaching Employment Tribunals at a record rate, there had been speculation about whether the Equality Act 2010 (EqA 2010) could be amended to include specific protection for menopause.
On 7 May 2022, the Equality and Human Rights Commission (EHRC) tweeted “Discussions continue on whether ‘long Covid’ symptoms constitute a disability. Without case law or scientific consensus, EHRC does not recommend that ‘long’ be treated as a disability.”
The recent Employment Tribunal decision in Mr T Burke v Turning Point Scotland, Case no.4112457/2021 found that long-Covid amounts to a disability.
Menopause has become an increasingly discussed topic, with high-profile women talking about their own experiences across a variety of media channels. As awareness is rising in the public arena, it has highlighted the question on how the menopause should be treated at work and what employers should be doing to support their employees affected by menopause.
Baroness Kramer has now introduced the Protection of Whistleblowing Bill as a Private Members’ Bill, starting in the House of Lords.
Independent think-tank, the Social Market Foundation (“SMF”), has launched a cross-party parliamentary commission on childcare and its implications for mothers.
Where employees are absent from work due to sickness for more than 7 days, they need to provide reasonable medical evidence in respect of that absence for statutory sick pay purposes – this is most frequently satisfied through the provision of a Statement of Fitness for Work, otherwise known as a Fit Note.
In this webinar, the second in our ‘Managing the impact of difficult behaviour’ series employment expert, James Tait and regulatory-specialist Ros Foster come together to discuss the use of social media and vexatious behaviour, and the tools that the law provides to help manage such situations.
As has been widely reported this week, some 3,000 UK workers are taking part in a six month trial to assess the viability of a four-day working week without any reduction in their normal pay.