European Union: Employment Legal Update December 2018

Last Updated: 14 January 2019
Article by Hewitsons LLP

What's New

Unfair and Wrongful Dismissal

In Ball v First Essex Buses Limited, a bus driver who was dismissed after testing positive for cocaine has won compensation of almost £40,000 at an employment tribunal.

Mr Ball had worked with First Buses for over 20 years with a glowing record. However, he failed a random drug test after one of his shifts in 2017 and was suspended. He denied taking illegal drugs, arguing that traces of cocaine had got into his saliva from handling bank notes (many of which are contaminated). As a diabetic, Mr Ball had to test his blood sugar every two hours, resulting in sore fingertips which he licked frequently. Mr Ball claimed that the constant handling of bank notes and hand-to-mouth interaction caused the positive result. It was also a busy shift; he had picked up a lot of students and handled a lot of cash.

To prove his innocence, Mr Ball privately arranged and paid for a hair follicle test, which was clear. This test is widely accepted to be more accurate than a saliva test. However, First Buses did not accept this because it was not part of its procedure. Mr Ball was subsequently dismissed for gross misconduct without notice. On internal appeal, Mr Ball obtained another clear hair follicle test and offered to be re-tested. Despite this First Buses rejected the appeal and upheld the decision to dismiss.

Mr Ball issued proceedings in the Employment Tribunal for unfair dismissal and wrongful dismissal, which were successful. The Employment Tribunal held that First Buses had acted unreasonably in reaching the decision to dismiss. First Buses should have considered Mr Ball's good character, clean disciplinary record, his health, the possibility of cross contamination as Mr Ball had contended, the negative hair follicle tests and Mr Ball's offer to be re-tested. The Employment Tribunal also noted that First Buses had failed to follow its policy which said that it would to take all evidence into account. Although failing a drug test may well be gross misconduct, the process followed in dismissing an employee and considering appeals must also be fair and First Buses had not followed a fair process in these circumstances.

Long-term Disability

In the recent case of Awan v ICTS UK Ltd, the Employment Appeal Tribunal ('EAT') held that an employment tribunal was wrong to find that there was no breach of contract where the employer dismissed a disabled employee during a time when he was entitled to long-term disability benefits.

Mr Awan was employed as a security agent for American Airlines. He was entitled to an enhanced sick pay entitlement and, upon expiry of this, long term disability benefit that paid two thirds of his base salary (less any state benefits) until he either returned to work, retired or until his death.

In October 2012 Mr Awan was certified as unfit to work due to ill health. In December 2012 Mr Awan's employment transferred to ICTS as a result of TUPE when American Airways outsourced its security function.

Following the TUPE transfer there were problems in arranging for an insurance provider to continue providing Mr Awan with the long term disability benefit to which he was entitled under his contract with American Airways. However, Legal and General, the provider of this benefit prior to the TUPE transfer, agreed to cover Mr Awan until September 2014 as a good will gesture.

Mr Awan was still certified as unfit to work in September 2014. On 6 October 2014 ICTS advised Mr Awan that they were pursuing the matter with Legal and General further to seek extended cover and that, on a without prejudice basis, it would make equivalent monthly payments to Mr Awan until the situation was clarified.

On 26 November 2014, Mr Awan was still unable to return to work. A capability meeting was held with Mr Awan following which Mr Awan was informed that his employment was being terminated by reason of capability. Mr Awan's employment was terminated on 28 November 2018 and he was paid 12 weeks' salary in lieu of his notice.

Mr Awan brought Employment Tribunal proceedings claiming that dismissal while he was entitled to long-term disability benefit was in breach of contract, unfair and also amounted to discrimination arising from disability.

In the first instance the Employment Tribunal held that whilst it agreed that Mr Awan was contractually entitled to long term disability benefits whilst employed, there was no implied term that would prevent ICTS dismissing despite him still being entitled to receive such benefits. The Tribunal held that ICTS acted reasonably in dismissing Mr Awan for incapacity and his dismissal was fair.

Mr Awan appealed and the EAT upheld the appeal. The EAT held that ICTS had acted in breach of an implied term of the contract. The EAT held that Mr Awan was expressly contractually entitled to disability benefits after 26 weeks sick leave until he returned to work, retired or died. That express contractual entitlement did not provide for dismissal on the grounds of incapacity. The EAT concluded that on a proper construction of the contract, it was contrary to the purpose of the long-term disability plan to permit ICTS to dismiss and deny Mr Awan the benefits the disability benefits clause envisaged would be paid. ICTS had therefore acted in breach of an implied term of Mr Awan's contract by dismissing in these circumstances. The issue of whether the dismissal was fair and/or discriminatory was remitted back to the Tribunal for consideration.


The Good Work Plan

Earlier this month the Government published its "Good Work Plan" which sets out a number of proposed changes in respect of improving protection for agency workers, zero-hours workers and other atypical workers.

The proposed changes are the Government's latest response to the recommendations made by the Taylor Review, published in July 2017, and include the following:

  1. The repeal of the 'Swedish derogation' exception in the Agency Workers Regulations 2010, which excludes agency workers from the right to the same pay as directly-recruited workers if they have a contract of employment with the agency.
  2. Increasing the period required to break continuity of employment for the purpose of accruing employment rights from one week to four weeks.
  3. Giving all workers the right to a 'day one' written statement of rights, covering eligibility for sick leave and pay and giving details of other types of paid leave.
  4. Improving the enforcement of worker rights, including increasing the fine from £5,000 to £20,000 where employers have shown 'malice, spite or gross oversight' in breaching employment rights, introducing a single enforcement body to ensure vulnerable workers are better protected and creating new powers to impose penalties on employers who breach employment agency legislation
  5. The introduction of legislation to prevent employers making deductions from staff tips
  6. Clarification of the test for employment status by introducing legislation to streamline the tests used for employment and tax purposes and to prevent employers misclassifying employees and workers as self-employed.

The Government has not, however, committed to a timetable for most of these reforms.

Government publishes policy paper on EU Citizens' rights in the UK in the event of a nodeal Brexit

The paper has confirmed that in a no-deal scenario the UK would continue to run the EU Settlement Scheme however only those EU nationals and their family members resident in the UK by 29 March 2019, not 31 December 2020, would be eligible as there would be no agreed implementation period.

In a no deal scenario EU citizens would have until 31 December 2020 to apply for status under the scheme and until then, EU citizens could rely on their passport or national ID card to evidence their right to reside in the UK. For further details the policy paper can be found here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions