Worthingtons? Review of Employment Case Law Updates 2014
The Tribunal Decision in Garbhan Downey v Culture Company 2013 Limited (Industrial Tribunal Case Ref:749/13) highlights that employees who go straight to the press will not always benefit from the protection of the public interest disclosure legislation and indeed may render themselves liable to summary dismissal as a result. Notwithstanding the Tribunal’s view that the Claimant was ‘essentially the author of his own misfortune’; it recently rejected a costs application from the Respondent in this regard.
The EAT’s consideration of the burden of proof in sex discrimination claims in The Solicitors Regulation Authority v Mitchell  UKEAT/0497/12/MC contains an excellent analysis of the relevant case law on this area. From our experience, the majority of employers never set out with the intention of giving a ‘false’ explanation for the treatment of an employee and whilst ‘the reason why’ is ultimately a matter for the Tribunal to determine and it is open to the Tribunal to find on the evidence that a particular explanation was not the real reason for the treatment complained of; it is essential to a successful defence that employers put forward cogent and tangible evidence to support their explanations.
Whilst practitioners continue to await clarification from Europe in the ‘Woolworths’ case (Usdaw & Anor v Ethel Austin Ltd & Ors  EWCA Civ 142) in relation to the meaning of ‘establishment’, currently the best advice given the wording of the Directive remains that the collective consultation process should be engaged by employers where it is envisaged that 20 employees could be at risk of redundancy within the business regardless of location or site.
Case law surrounding annual leave and holiday pay continues to develop with the European Court ruling that workers are entitled to receive not just accrued commission when on annual leave but to receive a payment reflective of their average commission earnings to ensure no loss of income that would discourage the workers from availing of their leave entitlement. Lock v British Gas Trading Limited  CJEU C‑539/12.The dynamic nature of the law in this area will keep everyone on their toes for many years to come.
In terms of what’s not here, we are almost two third’s way through 2014 and it would appear costs orders in the Tribunal remain the exception rather than the rule and low in value with very few, if any, exceeding £5,000. Indeed injury to feelings awards also remain by and large under £12,500.00 with awards rarely within the Vento Upper Band.
For a full review of case law from January 2014 to August 2014 click on the document below. We hope that you will find this review of assistance and should you have any queries or require specific advice, please do not hesitate to contact us.