February's employment law newsletter out now

Welcome to February's newsletter

In our latest edition we bring you employment law news on harassment, Covid-19 and its impact on discrimination matters and hearings.

Our team has analysed key employment law cases in written as well as podcast and video formats.

Finally, we invite you to register for our first live employment law webinar of 2021, due to take place on 18 February.

Starbucks customer awarded €12,000 following racist drawing on cup

A Starbucks coffee shop in Dublin has been ordered to pay a customer €12,000 after one of its baristas (not to be confused with barrister!) drew a face with ‘slanty’ eyes on the cup of a customer, rather than her Thai name. The Workplace Relations Commission found that the image was clearly associated with race, even though it found that the barista did not intend to humiliate the customer. The barista claimed she had drawn the picture because she thought Ms Foley was glamorous. The case is a useful reminder that in England and Wales too, harassment does not need
to be intended, so long as it has the effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

COVID-19 self-employed grants said to be discriminatory

Pregnant Then Screwed, a charity dedicated to ending pregnancy and maternity discrimination, has brought a claim against the Chancellor of the Exchequer in relation to the COVID-19 Self-Employment Income Support Scheme. The claim, brought in the High Court, focusses on the fact that the eligibility criteria for the scheme do not exclude periods of maternity leave (where women are likely to earn less money). This in turn means that women who have been on maternity leave during the assessment period will be entitled to less than they would have been had they not been on maternity leave. The claim has just been issued –
watch this space!

Remote hearings to be the default​

On 6th January, Barry Clarke, the President of the Employment Tribunals in England and Wales, responded to the latest lockdown with guidance that physical attendance at the ET is ‘to be the exception and only where it is necessary in the interests of justice’. This means (and anecdotal evidence has confirmed) that the vast majority of cases will be converted to CVP, often without consultation with the parties. It is of course open to parties to object to such conversion, if there are exceptional circumstances. This may include a lack of access to adequate internet or computer equipment.

Stricter rules on masks in the Employment Tribunal

On 15th January, the Presidents of the Employment Tribunals have issued stricter advice on wearing masks in hearing rooms, stating that judges and members should ‘strongly encourage the wearing of masks/face coverings by everyone in the hearing room, except for the judge/panel or a person who is directly addressing the Tribunal'. Until this point, mask wearing had not been directed in hearing rooms (although it was mandatory in any public areas of the Tribunals).

February 2021 employment case law update

Mark Green and Sarah Bowen provide our February 2021 case law update reviewing:
- University College London v Mr T Brown UKEAT/0084/19/VP
- Sarnoff v YZ [2021] EWCA Civ 26
- Santander UK plc and ors v Bharaj EAT 0075/20
- Crew Employment Services Camelot v Mr W Gould [2021] UKEAT/0330/19/VP
- Weber v Universal Ogden Services 2002
- Nogueira and ors v Crewlink Ltd and other cases [2018] ICR 344
- Ravisy v Simmons and Simmons LLP UKEAT/0085/18/00.

Or listen in podcast format.

Claimants working outside the UK – EAT confirms the correct test​

Mark Green analyses Crew Employment Services Camelot v Mr W Gould [2021] UKEAT/0330/19/VP, a case in which the EAT confirmed the approach to take where a question arises about the ET’s jurisdiction due to the Claimant's work location, in circumstances where work is undertaken in more than one country.

View Mark's profile here

ETs have the power to order disclosure by a third party outside of Great Britain

Sarah Bowen reviews Sarnoff v YZ [2021] EWCA Civ 26, a sexual harassment claim brought in the Tribunal against Harvey Weinstein and other respondents including Mr. Sarnoff.

View Sarah's profile here

The justice and equitability of time extensions   

Karen Moss examines Adedeji v University Hospitals Birmingham NHS Trust [2021] EWCA Civ 23, a case which confirms it can be tricky to challenge an employment tribunal’s determination as to whether it is just and equitable to extend time or not, under s.123(1) Equality Act 2010.

View Karen's profile here

The scope of protection provided by s146 TULR(C)A 1992 

Andrew MacPhail analyses University College London v Mr T Brown UKEAT/0084/19/VP, a case which reminds us that where the activities of trade union officers are concerned, employers should take particular care before interceding.

View Andrew's profile here

January's employment case law update

Karen Moss and Grace Nicholls take you through their analyses of two of the most significant cases decided in December
2020. Karen talks about Quilter Private Client Advisers v Falconer and Continuum (Financial Services) LLP; whilst Grace takes us through Steer v Stormsure Ltd in the Employment Appeal Tribunal.

18 February employment law webinar

Grace Boorer and Naomi Webber will host our next live webinar on 18 February at 11am and examine "Preparation hurdles and procedural
pitfall".

Please register to book your place.

Meet the team

3PB’s employment law group offers expert advisory and advocacy services to private and public sector employers across all areas of employment law including unfair dismissal, discrimination, equal pay, industrial disputes, executive contracts, wrongful dismissals, restrictive covenants, whistleblowing, TUPE, injunctions, pensions disputes and disciplinary proceedings.