Included in this edition of Up to Date we discuss cases covering: discrimination and the loss privilege; disability and job references; changes to terms and conditions after a TUPE transfer; and unfair dismissal.

Discrimination and privilege: advice on how to commit discrimination found to be an iniquity defeating legal advice privilege

Legal advice privilege protects advice given by lawyers to their clients. However, where there is a prima facie case that such advice was given to perpetrate or further iniquity, privilege will fall away.  In this case, the EAT confirmed that advising a client how to disguise unlawful discrimination could be iniquitous, however, merely warning of the potential for a discrimination claim to be brought would not be enough (X v Y Ltd (EAT)).

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Disability discrimination: withdrawal of a job offer after receiving two unsatisfactory references was discriminatory

The EAT upheld a decision that a prospective employer's decision to withdraw a job offer made to a disabled candidate was discriminatory.  The prospective employer's decision had been tainted by the contents of one negative and discriminatory reference received from a former employer.  This was the case despite the fact that a second negative and non-discriminatory reference had been received from another former employer (South Warwickshire NHS Foundation Trust v Lee & ors (EAT)).

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TUPE: post-transfer removal of a travel allowance was not void

The EAT has held that the withdrawal of a contractual travel allowance following a TUPE transfer was not void under regulation 4(4) of TUPE. The variation of the terms of employment was due to the Respondent's conclusion that the allowance was outdated and unjustified.  Therefore, the Employment Tribunal had been entitled to conclude that this was a reason unrelated to the transfer (Tabberer v Mears Ltd).

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Unfair dismissal: a letter providing "one month's notice" was not an unambiguous resignation

The EAT has held that an employee had not resigned in circumstances where she had received a conditional offer for a different position with the same employer and had written to her line manager providing "one month's notice".  The EAT held that the Employment Tribunal had correctly applied an objective test when interpreting how the letter would have been construed by a reasonable recipient, in light of the particular circumstances known at the time (East Kent Hospitals University NHS Foundation v Levy).

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Unfair dismissal: an unreasonable refusal to postpone a disciplinary hearing may render a dismissal unfair 

In Talon Engineering Limited v Smith the EAT held that an employee been unfairly dismissed when her employer refused to postpone a disciplinary hearing for a short period of time to enable her trade union official to accompany her.  Although the employer had complied with the rules governing the right to be accompanied to a hearing, this did not automatically mean that the dismissal was procedurally fair.

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Immigration: the Migration Advisory Committee publish report on the impact of EEA migration in the UK

On 18 September 2018, the Migration Advisory Committee (MAC) published its report on the impact of EEA migration in the UK and its recommendations for the UK's post-Brexit work immigration system.

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