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Need to Know: September 2023


In the latest edition of our ‘Need To Know’ employment and HR newsletter, we look at the right to request a predicable working pattern in the new Workers (Predictable Terms and Conditions) Bill,  the expectations on employers regarding reasonable enquiries necessary for reasonable adjustments, and new advisory assistance from ACAS on employee sickness absence.

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

HR Bullets

  • The employee and employer had entered into a settlement agreement a number of years previously where the employee agreed to not bring claims similar to the claim which were settled (disability discrimination). The Tribunal struck out his subsequent claim for disability discrimination; Clifford v IBM United Kingdom Ltd [2023] 3 WLUK 827.
  • If there is no explanation or reason for a claimant submitting their claim late or out of time, an application for extending time on a just and equitable basis should be refused; Owen v Network Rail Infrastructure Ltd [2023] EAT 106.
  • The Trust refused to pay redundancy payments to the employees on the basis that they had unreasonably refused offers of suitable alternative employment. The EAT agreed with the employer deciding that the roles were suitable and the employees had acted unreasonably in refusing them; Mid and South Essex NHS Foundation Trust (Previously Mid Essex Hospital Services NHS Trust) v Stevenson and Others [2023] EAT 115.
  • The Tribunal granted an extension of time allowing the Claimant to re-present her claim when she had inserted the incorrect name for the Respondent. The EAT upheld the Tribunal’s decision; Sports PR Company Ltd v Londono Cardona [2023] EAT 110.
  • A Tribunal rejected the employer’s suggestion that a swearword used by an employee to insult a transgender colleague was gender neutral and in fact it was a gendered swearword which could establish a prima facie case of discrimination on the basis of gender reassignment; Fischer v London United Busways Ltd ET/2300846/2021.
  • An employee’s dismissal was unfair when he used a racially offensive term in the context of asking whether that term would be considered offensive if used by a person within that ethnic minority; Borg-Neal v Lloyds Banking Group PLC ET/2202667/22.
  • The employee’s performance had been detrimentally impacted by her menopausal symptoms, which amounted to a disability. The Tribunal found the employer had failed to make reasonable adjustments and had discriminated against her because of something arising from her disability; Lynskey v Direct Line Insurance Services Ltd ET1802204/2022 and 1802386/2022.
  • The termination of the Claimant’s employment had been consensual. As such, there was no dismissal, and the Tribunal rejected the Claimant’s complaint of unfair dismissal; Matthew Riley v Direct Line Insurance Group Plc [2023] EAT 118.
  • It is not necessary for an employer to know the specifics of the disabled person’s substantial disadvantage before being required to make reasonable adjustments; Aecom Ltd v Mallon [2023] EAT 104.
  • The EAT allowed the employee’s appeal regarding the Tribunal’s failure to provide her with a fair hearing on the basis that the Tribunal did not consider the Presidential Guidance on vulnerable witnesses and the Equal Treatment Bench Book; Habib v Dave Whelan Sports Ltd t/a DW Fitness First [2023] EAT 113.

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