Case Digests

In a decision at odds with a similar case on the vexed issue of holidays and sickness, the EAT has held that an employee on long-term sick leave must actually have requested annual leave (in accordance with the Working Time Regulations) during the leave year in question to be entitled to be paid for it.

Consistency – the stated aim of all disciplinary procedures. But what if two similar offences result in different outcomes – is this by definition unfair? Not necessarily says the EAT if the employer has offered (and the tribunal has accepted) a reasonable justification for the differing treatment.

A persistent and deliberate refusal to comply with a reasonable management instruction, after warnings were given, was gross misconduct justifying summary dismissal – no matter how sincerely the principle behind that refusal may have been held.

An employer cannot be held vicariously liable under the whistleblowing legislation where its employees victimise their whistleblowing colleagues. The reason for this is that, unlike in discrimination law where employees can be held personally liable for their acts of victimisation against an employee pursuing a discrimination claim, no such liability exists for employees in relation to whistleblowing claims – and vicarious liability can only arise where an employee has done an unlawful act.

Darren Isaacs, Head of UK Employment Group at Bryan Cave LLP, looks at a recent EAT decision which strongly criticised redundancy procedures common in the financial services industry.

While a TUPE transfer may form the background to variations in contractual terms, that doesn’t necessarily make it the reason for them. Whether a post-TUPE variation in terms and conditions is unlawful depends on the reason for the variation – and that’s a question of fact for a tribunal. The EAT has considered this often problematic issue in the context of an agreed change to pay rates two years after a TUPE transfer.