The Practical Lawyer


Contract – changing

It is a basic contractual principle that a contract cannot be changed unilaterally. Therefore, a contract of employment cannot be changed by the employer unless the employee agrees. In practice, this will often be decided by ‘conduct’.
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Job applicant – discrimination

There have long been stories about individuals who apply for jobs in the expectation and hope that they will be rejected, and so can then claim discrimination. For instance, an older person might apply for a job that would normally be filled by a younger person, and then claim age discrimination. The ECJ has now confirmed that discrimination protection only applies to job applicants who are ‘genuine’ (in that they are properly ‘seeking employment’). This ECJ approach is similar to that already taken by the English courts.

Reasonable adjustments – protected pay?

If a disabled employee is moved into a less well paid job, should they still be entitled to their previous pay rate?
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Injury to feelings – increase

The EAT has held that tribunals can increase the guideline figures for injury to feelings awards to reflect inflation. At the same time, they should also apply the 10% uplift (which is applied to general damages in the civil courts since 2013, following the abolition of success fees and ATE premiums).
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Director – unfair dismissal

A company director can only expect PAYE earnings (not dividends) to be taken into account when assessing unfair dismissal compensation. This is because it would only be payments contractually due under the contract of employment that can be taken into account. Sheridan v GTECH [2015] noted in [2015] NLJ 30 January 5.


Dress code – discrimination?

An employer has the right to implement a dress code in the workplace (eg to communicate a corporate image; ensure that customers can identify staff; satisfy health and safety requirements).

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Working time – no injury to feelings

The power to award compensation for breach of the Working Time Regs 1998 is silent as to whether it includes a power to award compensation for injury to feelings. The EAT has confirmed that it does not. Santos Gomes v Higher Level [2016] UKEAT 0017/16/1805.

Illegal working – offence

A reminder that there is now a new offence of employing an illegal worker. This applies if the employer ‘knows or has reasonable cause to believe’ that the employee has no right to do the work – a wider test than the previous ‘actual knowledge’ requirement. In effect, we now have a stricter test.

CV – false?

What happens if an employer discovers that an employee’s CV contains false claims? In theory, if the misrepresentation is sufficiently serious, this could amount to a breach of the implied duty of trust and confidence, thus entitling the employer to dismiss without notice.
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ACAS Code – 25% uplift?

Failure to comply with the ACAS Code of Practice can result in an uplift of as much as 25% to unfair dismissal compensation. However, it has now been made clear that this does not apply to ill health or SOSR (‘some other substantial reason’) dismissals:
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Page 10 of 54

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