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 has major implications for employers and employees. For this very reason we decided to compile a list of some of the most interesting employment cases that have been decided in 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 judgement online.

The decisions highlighted in this article cover a wide range of employment issues, including Working Time Regulations, Discrimination, Whistleblowing and Unfair Dismissal.

Working Time Regulations

In the case of Hallett v Derby Hospitals NHS Foundation Trust [2019] the Court of Appeal reminded employers that they should be mindful that employees are receiving the appropriate breaks and also that it is monitored properly.

When calculating holiday entitlement, the Court of Appeal confirmed in The Harpur Trust v Brazel [2019] that Permanent ‘part-year’ workers, e.g. term-time workers are entitled to receive 5.6 weeks leave per year, regardless of the number of weeks they work in the year.

Discrimination

Uniform policies must be subject to an equality impact assessment to avoid a finding of direct and/or indirect discrimination as was the case in the matter of Gordon Downey – v – Garrath McCreery & Chief Constable of PSNI [2018].

In Baldeh v Churches Housing Association of Dudley & District Ltd [2019] the EAT made it clear that if an employee refers to a disability in an appeal to a dismissal then it should be fully taken into account in determining whether there has been disability discrimination.

The EAT reminds tribunals that calculation of injury to feelings should be related to the actual injury suffered rather than the gravity of the acts of the respondent in Komeng v Creative Support Ltd [2019].

In Conisbee v Crossley Farms Ltd & Ors [2019] an Employment Tribunal ruled that Vegetarianism did not constitute a belief for the Equality Act 2010.

Rather interestingly in Raj v Capita Business Services & Anor [2019] a back massage was not found to amount to sexual harassment.

Whether an illness or condition amounts to a disability is scrutinised in the case of Ford v Royal Mail Group Ltd [2019].

Whistleblowing

In Okwu v Rise Community Action [2019] the EAT reminds tribunals that it is for a Claimant to reasonably determine whether a disclosure made by them was in the public interest rather than whether the Tribunal finds that the disclosure is in the public interest.

In Small v The Shrewsbury & Telford Hospitals NHS Trust [2019] the evidence that can be considered when calculating stigma damages for a Claimant who has been found to have been unfairly dismissed for making a disclosure is scrutinised.

A District Judge was found to qualify as a ‘worker’ for the purposes of whistleblowing legislation in Gilham v Ministry of Justice [2019].

Unfair Dismissal
In Thornhill v London Borough of Camden [2019] and Taylor Davies v Creative Hospitality Payroll Ltd [2019] an employment tribunal once again highlights the important role that a proper investigation takes in a disciplinary process.

The case of Herry v Dudley Metropolitan Borough Council [2019] is useful in reminding us of the differences between GB and NI in dismissal procedures.  A failure to provide an appeal hearing did not render the dismissal unfair – however the case may have had a very different outcome in NI due to the requirement to offer an appeal hearing as part of the Statutory Dismissal Procedure.

Time limits for lodging proceedings for unfair dismissal are strictly adhered to in Inchcape Retail Ltd v Shelton [2019] and it is for a Claimant to demonstrate that it was not reasonably practicable for them to lodge within the three month time limit – any delay by a respondent is not relevant.  As an aside the Judge was critical of the current legal position. He outlined that the narrow three-month test could lead to injustice and it may be better for a broader test but that it would be for Parliament to make that decision.