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Employment Matters – May 2024

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By Ceri Fuller, Hilary Larter, & Joanne Bell

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Published 16 May 2024

Overview

This month we cover five cases. Readers should also be aware of another Government backed Private Members Bill which is making its way through Parliament: the Paternity Leave (Bereavement) Bill. This Bill makes provision for paternity leave in the sad circumstances where a mother dies or, in the case of an adoption, where a person with whom a child is placed or expected to be placed for adoption dies.

1. Discrimination: Tribunal right to reject race discrimination claim despite wrong approach to burden of proof. In this case the EAT upheld an employment tribunal's decision to reject a race discrimination claim despite finding that the tribunal had made an error in deciding that the burden of proof did not shift to the employer.

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2. Dismissal: Fair dismissal arising from a breakdown in working relationships, despite absence of a written warning and offer of appeal. In this case the EAT upheld a tribunal's decision that an employer did not act unfairly when it dismissed a senior employee for some other substantial reason, without a formal procedure or an appeal.

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3. Holiday pay: EAT provides further details on what to include in statutory holiday pay and how to approach a "series of deductions". In this case the EAT considered how to determine whether allowances should be included in holiday pay, when deductions from holiday pay form part of a "series of deductions" and whether an employer can designate periods of holiday as statutory or contractual.

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4. Paternity Leave (Bereavement) Bill: If enacted this law would make paternity leave a day 1 right for all fathers and partners facing the bereavement of their spouse or partner.

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5. TUPE: ETO reasons for dismissal must be pleaded and evidenced where changes are made to an employee's material detriment after a TUPE transfer. In this case the EAT allowed a second appeal by a former employee as the ETO reason found by the tribunal was not pleaded or evidenced.

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6. Whistleblowing detriment: employer's actions were not materially influenced by the protected disclosure. In this case the EAT upheld an employment tribunal's decision to dismiss an employee's whistleblowing detriment claim because the employer's actions were not materially influenced by the protected disclosure.

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