Louisa joined the employment team at Canter Levin and Berg in April 2018 as an employment paralegal, having previously gained experience working within the conveyancing department at Stephensons Solicitors in Wigan.Originally from Tasmania, Louisa attended the University of Melbourne where she gained her undergraduate degree in Politics and Criminology before making the move to the UK to complete the Graduate Diploma in Law at BPP Manchester in 2015.Outside of work Louisa enjoys climbing mountains with her dog, live music, travelling to new places and attempting to cook delicious meals for family and friends.

UK announces 2-year post-study work visa for international students

In the years 2017 – 2018 the
number of international students studying here in the UK was 458,490 and the UK is at present the second most popular study destination worldwide. A report
completed for the Government by the Migration Advisory Committee in September last year however, indicated that the UK runs the risk of being overtaken for second spot by Southern Hemisphere rival Australia.

With course costs for international students being significantly higher than those for ‘home’ students educational institutions from all over the UK benefit from the revenue that international students bring.

Can an employee who does not have the right to work in the United Kingdom bring a successful employment law claim?

The ‘illegality principle’ prevents a court from aiding a claimant who has based their claim on an immoral or illegal act, meaning that a tribunal or court will generally not enforce an illegal contract.

An employer of an individual working under an illegal contract can raise a defence against any employment claims the individual may bring against them. This is what is known as the ‘illegality
defence’, the basis of which is that the contract is illegal and therefore void, so the claim should not succeed.

A common example of an individual working under an ‘illegal contract’ would be an employee who is working in the UK despite not having the right to – i.e. working illegally, in breach of immigration laws.

In recent years, tribunals and civil courts have been reluctant to allow an employer to use the illegality defence to block vulnerable migrant workers’ employment tribunal claims.

An interesting Court of Appeal decision has further illustrated this. The case of Okedina v Chikale, has shown that an employer cannot always automatically rely on a breach of immigration rules to argue that an employment contract is unenforceable. The matter concerned contractual claims (including unfair dismissal) brought by a Malawian national whose leave to remain (and right to work) in the UK had expired two years before the time she was summarily dismissed.

Japan’s Labour Minister backs Mandatory Heels

Japan’s Health and Labour Minister Takumi Nemoto has caused a stir this week after publicly defending workplace policies that require women to wear high heels to work. The Minister’s comments argued that such requirements were socially accepted as being both ‘necessary and appropriate’ and were made after a petition was filed against the practice.

The petition, submitted to the labour ministry on Tuesday, raises health and safety concerns regarding the requirement, labelling it sexist and outdated. The minister unfortunately did not sympathise with the plight – equating high heels with a level of femininity which is considered to be a social norm within Japanese culture.

Dubbed the ‘#kutoo’ movement, (stemming from a combination of the Japanese word for shoes ‘kutsu’, ‘kutsuu’ meaning pain, and also a nod to the popularised global ‘#metoo’ movement against sexual abuse), the petition continues to gain traction on the online platform Change.org which at the time of writing had received nearly 30,0000 signatures.

Nurse dismissed for ‘preaching’ to patients loses second appeal

A nurse in Kent has lost a second appeal against
an Employment Tribunal decision that found she was fairly dismissed for ‘preaching’ to patients.

The Court of Appeal case, Kuteh v Dartford and Gravesham NHS Trust, considered the balance between the importance of the right to freedom of religion and the individual’s right to be protected from inappropriate or improper promotion of beliefs. In this case the complainants were hospital patients attended to by Ms Kuteh in the Intensive Treatment Unit of Darent Valley Hospital in Dartford. Ms Kuteh had 15 years’ nursing experience and prior to her dismissal she was employed in a pre-operative assessment role. Understandably, the nature of her role meant that the patients she attended were at a particularly vulnerable moment in their lives.

88 Year old’s Employment Tribunal Success

You are never old to have fun, to learn a new skill or to see new places, and Mrs Eileen Jolly has shown that one of those new places could be the inside of an Employment Tribunal after she demonstrated this month that you are never too old to bring a successful age discrimination claim against your employer.

Mrs Jolly, born in 1930 was employed in 1991 by the East Berkshire college of Nursing and Midwifery, which later become Royal Berkshire NHS Foundation Trust. Now, aged 88 she has successfully brought a claim against her employer for unfair dismissal as well as discrimination on the grounds of age and disability; and breach of contract.

Mrs Jolly was held to be disabled within the meaning of s.6 Equality Act 2010 by reason of her heart condition and arthritis. Despite this, Mrs Jolly had not taken a day off work in the past ten years, and even returned after suffering a cardiac arrest at work in 2004, where she was resuscitated by a surgeon.

Mrs Jolly’s complaints stem from her dismissal in January 2017, which the Trust maintains had nothing to do with her age, and rather was based solely on the grounds of culpability for her failure to adequately maintain a database of patients awaiting reconstructive surgery.

Can the right to use a substitute be consistent with employee status?

There are around seven million carers in
the United Kingdom in 2019 – and that figure is estimated to increase by 3.4
million by 2030. That is a 60% estimated increase in just over ten years’ time.
A recent case involving a live-in carer with over three years’ service explores
the issue of determining employee status for non-traditional work relationships,
and confirms that the right to use a substitute does not always preclude an
individual from having employment status.

Historically, the law has been clear in confirming that an unfettered right to appoint a substitute is not consistent with employee status. However, Catfeild-Roberts v Phillips & Universal Aunts Limited, an Employment Appeal Tribunal judgment of this month, serves as an example of where this is not always the case.

Worker Status Confirmed for Uber Drivers

Uber’s appeal against a landmark tribunal ruling in 2016 has been unsuccessful following a judgment handed down in the Court of Appeal yesterday.

Uber drivers shall continue to be classified as workers, directly employed by the company, and will be in receipt of all the employment law protections that this affords.

The appeal was lodged by Uber to
overturn a 2016 Tribunal ruling that the hire-on-demand driver service should
treat its drivers as workers not as self-employed as argued by the firm. The
original decision was upheld after the judges reached a 2 -1 majority decision –
finding in favour of the workers.

Uber’s contention was that its
drivers should be treated as self-employed, in a similar way to that in which taxi
drivers and other private-hire vehicles are. In Britain, the self-employed are
not able to access basic employment-law protections such as for example the
right to a minimum wage, paid holidays, sick pay and rest breaks.

The above benefits carry
significant costs, which Uber’s business model has attempted to circumvent by
misclassifying drivers as self-employed when in reality, on the facts and as
re-confirmed by yesterday’s judgment they are workers. Uber has however
introduced a number of benefits to its drivers this year (for example pairing
up with insurance giant AXA to provide partner protection insurance for its
European drivers in the event of injury, sickness and family leave) and its position
is that the drivers enjoy the flexibility that the role offers, and that on
average its drivers earn much more than the minimum wage.

So why have the drivers been classified as workers?

Mental Health First Aid in the workplace

October the 10th marked World Mental Health Day, a time to stop and consider how we can best support those around us who may be struggling. Given the amount of time we collectively spend in the workplace each week, particular thought should be given to the importance of mental health support at work.

There is already
legislation in place providing the requirement for employers to ensure employees receive immediate attention if they are injured or taken ill at work,
but what about helping those suffering with mental illness? If an employee for example has a panic attack or is expressing suicidal thoughts?

The concept of
‘Mental Health First Aid’ originated in Australia where Professor Anthony Jorm, a researcher from the University of Melbourne was discussing with his wife, Betty Kitchener, a registered nurse, a recent mental health conference that he had attended. Within the conversation it was remarked that ‘What we really need is first aid for depression’. The idea has spread rapidly from there – developing
into an internationally recognised programme comprised of simple steps that can be called upon to help a person in distress.

Discrimination in Recruitment: How to Avoid Discriminatory Advertisements

It is important that employers are mindful of their obligation to carry out a recruitment and selection process that is non-discriminatory in nature. Employers should therefore allocate sufficient time and care when publishing job advertisements so as not to be caught out – there is no cap on damages awarded at the Employment Tribunal for a successful discrimination claim so any mistake could prove very costly.

As a
starting point, a job advertisement must not discriminate on the basis of any
of the nine protected characteristics as defined under the Equality Act 2010,
which as a refresher are:

Can a negative reaction to a refusal to shake hands constitute discrimination on grounds of religion?

The internet is riddled with articles detailing the importance of a good handshake, but just how vital is it for the proper performance of your duties at work? A Swedish, Muslim, woman has been awarded compensation after her job interview for a role as an interpreter was terminated when, due to religious grounds she would not shake hands with her potential employer.

When the male interviewer extended his hand in greeting as is traditional in Europe, Farah Alhajeh, 24, instead placed her hand over her heart. The response was her way of greeting the interviewer in a way that also aligned with her religious beliefs.

Some Muslims avoid physical contact with members of the opposite sex (except for in cases of emergency, or when there is a ‘special relationship’ present – i.e. the individual in question is their partner or a blood relative). This is why Ms Alhajeh offered an alternate greeting – there was no such special relationship between Ms Alhajeh and her interviewer, so she placed her hand on her heart, as is commonly done by those who share the same belief.

In handing down the judgement, the Swedish Labour Court (similar to the Employment Tribunal in the United Kingdom), had to balance the employer’s interest with the individual’s right to bodily integrity and the importance for the state to maintain protection for religious freedom.

The company’s main argument hinged on the fact that it was an established workplace policy that men and women were to be treated equally, and as such they could not allow a staff member to refuse a handshake based on gender.