Employment Matters: September 2024 (Public health)

By Ceri Fuller, Hilary Larter & Joanne Bell

Published 11 September 2024

Overview

This month we consider the implications of the Supreme Court decision in the long running case of Tesco Stores v USDAW, where the Supreme Court re-instated an injunction preventing Tesco from dismissing and re-engaging employees in order to remove a ‘permanent’ contractual entitlement to enhanced pay.

We also cover a constructive dismissal case relating to the failure to exhaust a grievance process together with two discrimination cases – one on associative indirect discrimination and one on positive action/positive discrimination.

Although we are still waiting for the new Employment Rights Bill (which we are expecting "soon"), there has been a number of government announcements/reports and commentary in the last few weeks about what is likely to be brought into force and what is not. This month we look at what we know so far and what we might expect.

Dismissal and re-engagement: Supreme Court restores injunction in Tesco Stores v USDAW

In this case the Supreme Court re-instated an injunction preventing Tesco from dismissing and re-engaging employees in order to remove a ‘permanent’ contractual entitlement to enhanced pay.

Constructive dismissal: Employee's failure to exhaust grievance process is not relevant to the legal test for constructive dismissal

In this case the Employment Appeal Tribunal (EAT) held that the tribunal had considered an irrelevant consideration of whether the employee had exhausted all stages of the grievance process when determining whether a repudiatory breach of contract had occurred.

Associative indirect discrimination: EAT extends pre 2024 indirect discrimination claims to claimants without particular protected characteristics

In this case the EAT held that a claimant can pursue an indirect discrimination claim even if they do not share the same protected characteristic as the disadvantaged group, provided they experience the same disadvantage.

Discrimination: White British police officers directly discriminated against when Police Force bypassed competitive process to promote ethnic minority sergeant

In this case a tribunal decided the positive action provisions in the Equality Act 2010 had been breached, and the employer's actions were unlawful positive discrimination.

The Government's employment reforms

Despite the House of Commons being in summer recess until the beginning of September, there has been a number of announcements/reports and commentary in the last few weeks about what is likely to be brought into force and what is not. We look at what we know so far.