This month’s 'In Brief' is a common law catch up. It can be hard to keep up to date with case law developments – it’s all too easy to miss an important decision that could have major implications for employers and employees, which is why we have pulled together some of the most interesting employment cases that have been decided over the last few months.

If you want to know more about any of the cases, each has a link to a more detailed case review on the Northern Ireland Employment Law Hub, where you will also find a further link to the full judgment online.

The decisions highlighted in this article cover a wide range of employment issues, including sleep-in shifts; holiday pay; disciplinary procedures and disparity of treatment; unfair dismissal and fair procedures; unilateral variation of contractual terms and constructive dismissal; and the importance of reasonable investigations.

Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad [2018] EWCA Civ 1641

Lord Justice Underhill began the judgment in this case by noting that, “It is very common in the care sector for workers to agree to “sleep in” overnight [in case] assistance is required in the night”. This case has broad ramifications for many in the care industry and is likely to be appealed to the Supreme Court. The Court of Appeal had to decide whether carers should be paid the national minimum wage for time spent on the premises when sleeping.

Flowers and others v East of England Ambulance Trust [2018] UKEAT/0235/17/JOJ  

Another decision concerning holiday pay. The UKEAT, considering ‘normal remuneration’ and the case of Dudley Metropolitan Borough Council v Willetts [2018] ICR 31, had to determine whether voluntary overtime and non-guaranteed overtime should be taken into account when calculating holiday pay.

Mr M S Doy v Clays Ltd [2018] UKEAT/0034/18/DA

The claimant was dismissed for gross misconduct relating to ‘aggressive and threatening behaviour,’ namely, making comments about management and their children. The UKEAT had to consider disparity of treatment and whether all employees engaged in the behaviour had been treated equally.

Talon Engineering Ltd v Smith [2018] UKEAT/0236/17/BA

In this case the claimant was dismissed for calling one of her colleagues a ‘knob head’ over workplace email. The claimant’s union representative was unable to accompany her to disciplinary and indicated that his earliest availability would be two weeks later. The respondent refused to postpone the hearing. The UKEAT held although there had been a potentially fair reason for dismissal, the dismissal was “unfair procedurally and fatally flawed”.

Geraldine Ann O’Hanlon v Leann Nicholson, t/a Sheer Glamour [2018] NIIT 7382/17

The claimant’s new contract included a ‘shortage of work’ clause which would enable the respondent to send her home without pay. She brought a claim for constructive dismissal in that the reduction in hours, change of location and reduced wages represented a fundamental breach of her contract.

Mr M Genus and Mr M Kelly v Fortem Solutions Limited [2018] 1304270/2017

This case highlights the importance of reasonable investigations. The claimants worked as property repairmen. They were dismissed for gross misconduct as they were found to be using the company van to attend to personal matters. Applying the Burchell test, the tribunal had to determine whether the respondent had carried out as much investigation as was reasonable in the circumstances.

Mr N Francis – McGann v West Atlantic UK Limited [2018] Case Number: 1303361/2017

This case emphasises the importance of verifying references and cross-checking details after a pilot was found by a tribunal to have given a false reference using a pseudonym for a Star Wars villain on his application form.

IR v JQ [2018] Case C-68/17

In this case the Federal Labour Court in Germany asked the European Court of Justice (ECJ) for a preliminary ruling on whether a Catholic doctor’s dismissal from a managerial position in a Catholic hospital, for remarrying after divorce, constituted unlawful discrimination on grounds of religion.

East Kent Hospitals University NHS Foundation Trust v Mrs P Levy [2018] UKEAT/0232/17/LA

This case serves as a reminder to ensure clarity whenever an employee resigns or offers to give notice to resign. The claimant was offered a new job within a different department of the respondent Trust, subject to pre-employment checks. The offer was subsequently withdrawn owing to her absence record. She sought to retract her notice of resignation in her current role yet this was refused. She therefore brought a claim for constructive unfair dismissal.

Brown & Anor v Neon Management Services Ltd & Anor [2018] EWHC 2137 (QB)

The claimants claimed that the respondents breached their contracts of employment by, amongst other things, failing to pay salary increases and discretionary bonuses. They argued that these breaches amounted to a repudiatory breach of contract which entitled them to resign.

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In this month's 'HR in 90 seconds…’ we look at probation periods; comparative employment law between Ireland and the UK; and the dangers of jokes about people’s accents. Click on the link to read the full article.