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Employment Law Round Up: Recent decisions at the ET and EAT

Equality Act 2010 does not cover post-employment victimisation

The EAT has held that the Equality Act 2010 does not provide protection against post-employment victimisation. Such protection is expressly excluded by section 108 of the Act. The EAT acknowledged that it would be tempting to read words into the legislation so as to grant the relevant protection and to ensure compliance with EU law. However, this would amount to deciding that the Act "means the exact reverse of what it says". It followed that a claimant could not succeed with a victimisation claim based on an unfavourable reference provided by his former employer. (Rowstock Ltd and another v Jessemey UKEAT/0112/12.)

Using assessment centre competency tests as part of redundancy selection process was unreasonable

The EAT has found that an employer acted unreasonably when it used a series of competency tests normally used in its recruitment process to select staff for redundancy. In an attempt to avoid subjectivity and bias, the employer had developed an elaborate selection procedure, including the competency tests, which was operated by its HR department without input from the affected employees' managers and without regard to past appraisals. 

Even though this led to some surprising results, the employer went ahead and dismissed the employees selected through this process, which it regarded as robust, fair and transparent. In upholding the employment tribunal's finding of unfair dismissal, the EAT found that the employer's "blind faith in process" had led to it losing touch with common sense and fairness. (Mental Health Care (UK) Ltd v Biluan and another UKEAT/0248/12.)

EAT holds dismissal procedurally fair where employer had not fully complied with the Acas Code

The EAT has upheld a tribunal's decision that an employer's decision to dismiss was fair following a number of acts of misconduct and a final written warning. This was so despite the employer's failure to formally notify the employee of the potential consequences of the disciplinary hearing, or the written warning, in accordance with the Acas Code. 

Although normal principles of fairness require an employee who is at risk of dismissal to be told of this in advance of the disciplinary hearing, the EAT found that, looking at the procedure overall, the consequences of the written warning had been communicated, and the employee was aware that he might be dismissed. (Buzolli v Food Partners Ltd UKEAT/0317/12.)

PAYE not deducted by employer treated as deducted for employee's tax self-assessment

The First-tier Tribunal has confirmed that HMRC could not recover under-deducted tax from an employee when the failure to deduct arose from an employer's failure to apply a PAYE code issued by HMRC and HMRC had not issued a direction transferring liability from the employer to the employee. The tribunal therefore reduced the amount of tax due from the employee by the amount the employer should have deducted, and cancelled a late payment penalty.

The case is an important reminder that it is the employer's primary responsibility to account to HMRC for the right amount of tax under PAYE. It also illustrates that HMRC may wrongly seek to recover under-deducted tax from an employee through the self-assessment mechanism when the correct approach is to seek recovery from the employer or issue a direction to recover from the employee. (Gayen v HMRC [2013] UKFTT 127.)

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