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Need to Know: December 2023


In the latest edition of our ‘Need To Know’ employment and HR newsletter, we look at whether gig workers like Deliveroo riders have the right to trade union recognition under the ECHR, if raising a grievance can prevent a constructive dismissal claim and look ahead to new employment laws coming into effect in 2024.

We also have included our usual HR Bullets – which cover other significant employment law updates from the past month.

HR Bullets

  • The EAT dismissed an employee’s appeal relating to the appellant’s claims for an unfair dismissal and breach of contract, after there was a dispute over the respondent’s mask wearing policy; Shanks v Lothian Health Board [2023] EAT 18
  • The EAT held that a tribunal had erred in finding that the Claimant’s ‘heat of the moment’ resignation should still stand, rejecting their unfair dismissal claim; Omar v Epping Forest District Citizens Advice [2023] EAT 132
  • The EAT held that a failure to consult with the workforce regarding redundancy proposals at a formative stage rendered a later dismissal unfair; Joseph de Bank Haycocks v ADP RPO UK Limited [2023] EAT 129
  • A claimant who had inserted an incorrect ACAS early conciliation number on their ET1 and was unaware until after the expiry of the limitation period.t was found to have made a genuine and unintentional mistake and it was not reasonably practicable for her to present the claim in time given that she was under the misapprehension that the claim form had been validly submitted; Cohen v Mahmood [2023] EAT 144
  • The EAT considered the correct construction of comparators in cases of direct disability discrimination and held that if the tribunal constructs hypothetical comparators of its own volition, parties must be given an opportunity to address those comparators in evidence and submissions; The No 8 Partnership v Simmons [2023] EAT 140
  • Rule 52 of the Employment Tribunal Rules 2013 did not prevent a second whistleblowing claim, following the withdrawal of the first claim due to settlement, however the second claim could be an abuse of process if relitigating the settled issues; Ajaz v Homerton University Hospital NHS Foundation Trust [2023] EAT 142
  • The EAT held that a grievance must be in writing for the Acas Code on Disciplinary and Grievance Procedures to apply but in this case, it was sufficient that the oral protected disclosures were made in a meeting about a grievance that had been put in writing. The EAT also found that the Acas uplift could be applied in awards against co-workers and agents, and that contractual terms limiting loss will not be upheld if it they disapplying or limiting a statutory provision; (1) SPI Spirits (2) Shefler v Zabelin EAT 147

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