The ECJ has held in two recent cases that mothers who had children via a surrogate and were subsequently denied maternity or adoption leave and pay had not been discriminated against. The court found that there was no sex discrimination because a man who had organised a surrogacy would be treated in the same way. It held that the EU Pregnant Workers Directive protected those who were in a vulnerable position because they had recently given birth and therefore, "commissioning mothers" would not be protected under it. The ECJ also held that there was no disability discrimination under the Equal Treatment Framework Directive where a woman, who has a disability preventing her from giving birth and whose genetic child has been born via a surrogacy arrangement, is refused paid leave equivalent to maternity or adoption leave.
The EAT recently held that it is not discriminatory to dismiss a woman for absence due to post-natal depression where that absence continues after the end of her maternity leave. Where an employee is absent after her maternity leave due to a pregnancy related illness, the employer is entitled to take into account the absence after maternity leave and compare that period with any period of sickness of a man.
The EAT upheld a Tribunal’s decision that covert recordings made by an employee of her disciplinary and grievance hearings were admissible as evidence.
The EAT ruled that an employee had not been unfairly dismissed after her employer disregarded the independent appeal panel’s decision, which overturned the employer’s original decision to dismiss. Given that the employer was a small nursery, there was no other appropriate person to hear the appeal, there were no clear terms of engagement with the independent panel and a subsequent investigation was completed as part of the appeal, the employer was not bound by the appeal panel’s decision.
The Employment Appeal Tribunal found that employers cannot rely on contractual summary termination clauses to dismiss an employee without notice where in reality there is no gross misconduct or negligence.
In Hazel v Manchester College, the Court of Appeal found that two employees who were dismissed for failing to agree to take a pay cut following a TUPE transfer were unfairly dismissed and entitled to reinstatement to their old terms.
The Employment Appeal Tribunal has found that an employee who was not paid on termination of his employment for extra hours worked under a flexi-hours scheme did not suffer an unlawful deduction from wages.
In Tirkey v Chandok, it was found that a claim for caste discrimination could be brought in a Tribunal under the Equality Act 2010.
For an employee to bring a whistleblowing claim, they first need to show that they have made a qualifying disclosure. In simple terms this means that an employee has made an allegation to their employer which shows that malpractice has taken or will take place or an employee’s health and safety is at risk.
Correspondence including a draft settlement agreement marked “without prejudice” are inadmissible as evidence
Where an employee or employer makes a statement (either in writing or orally) which attempts to settle a dispute this will be deemed to be “without prejudice” or as lawyers refer to it - “WP”. When a WP statement is made, this ordinarily means that it is off the record and is inadmissible as evidence before a court or tribunal.