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Jamie Lawrence

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Four recent employment law precedents HR should know

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The effects of symptoms should define disability rather than the etiology
From: Walker v Sita Information Networking Computing Ltd
An employment tribunal concluded that a man weighing over 21st was not – legally – disabled because there was no identifiable physical or mental cause for his obesity. The judge in the appeal rejected the tribunal’s findings, arguing that the question of whether someone has or doesn’t have a disability can’t be decided from etiology alone. The question of disability should arise, in the first instance, on whether or not someone has a physical or mental impairment. Ultimately he concluded that while obesity is not a disability in itself, it may make it more likely that the person is disabled by giving rise to, or prolonging, mental or physical impairments.

Covert recordings are not inadmissible purely because they are considered ‘distasteful’
From: Vaughan v London Borough of Lewisham and Others
Employment tribunals can’t refuse to hear covert recordings made by employees during disputes. The Judge in the appeal said that although the manner in which the recordings were made was ‘very distasteful’ and that the act of recording conversations covertly may discredit the claimant, this did mean the tapes were automatically inadmissible. The EAT did comment after the appeal that the tapes would be more likely to be admissible if specific sections were highlighted by the claimant along with reasons why they were important, rather than a carte blanche introduction of the full recording.

Equality Act 2010 does not apply in cases of post-termination victimisation
From: Rowstock Ltd v Jessemey
In the original employment tribunal a man forced to retire at 65 claimed unfair dismissal and age discrimination and was subsequently provided with a very poor reference by the employer. The claimant then brought a victimisation claim against the employer, but a Tribunal agreed with the employer’s view that the Equality Act 2010 did not apply because the employer-employee relationship had ended. Following an appeal, this viewpoint was upheld, although it was found to be incompatible with the EU’s Equal Treatment Directive. Ultimately, however, unless the Equality Act is reformed, it does not currently make provisions for victimisation after the employment contract has been severed.

Tribunals have limited jurisdiction over unfair dismissal claims for employees working and living abroad
From: Dhuna v Creditsights
Tribunals only have jurisdiction, firstly, when the employer-employee relationship has stronger ties to Great Britain and British law than the country in which the employee works and, secondly, where the ties are strong enough that Parliament would have intended the employee to bring an unfair dismissal claim. The case in question focused on an employee of a British subsidiary of an American firm, based in London, who had been dismissed after moving permanently to Dubai to open a new office. The tribunal felt it lacked the jurisdiction to hear the unfair dismissal case.

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Jamie Lawrence

Insights Director

Read more from Jamie Lawrence
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