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HR E-Bulletin

As part of its core service to local authorities and partner organisations, West Midlands Employers produces a monthly HR Bulletin, which is designed to provide an 'easy to read' analysis of the latest developments in employment law, together with information, advice and guidance on a wide range of other employment related matters.

E-Update 89 - October 2018

Ethnicity pay reporting
Now that the duty to report on the gender pay gap has been established, the Government is turning its attention to the reporting of the pay gap between employees of different ethnicities.  Consultation is now underway, but don't hold your breath.  This will be a much more complicated project than gender pay gap reporting and even with a fair wind, drafting and implementing a new law will take quite some time.


E-Update 88 - September 2018

Disability Discrimination
One of the relatively few innovations introduced by the Equality Act 2010 was a new form of disability discrimination set out in section 15.  The Act calls it 'discrimination arising from a disability' but in some ways that title is misleading.  It gives the impression that unfair treatment can be discriminatory just because disability forms part of the backdrop.  In Dunn v Secretary of State for Justice, however the Court of Appeal reminds us that there is rather more to it than that.


E-Update 87 - August 2018

Postponing Disciplinaries
When a union representative is unavailable to represent an employee at a scheduled disciplinary hearing, what should the employer do?  Under the statutory right to be accompanied the employee can postpone the hearing for up to five working days - but the EAT has now held that complying with that rule does not mean that it will be fair to go ahead with the hearing.


E-Update 86 - July 2018

Sleepover Shifts
In a dramatic reversal of previous case law, the Court of Appeal in Royal Mencap Society v Tomlinson Blake has ruled that workers on a sleepover shift are not working when they are asleep with the result that those hours do not have to count towards their minimum wage entitlement.  But is this the final word on the subject or is there more uncertainty ahead?


E-Update 85 - June 2018

Employment Status
Just because an employment law decision makes the headlines, that doesn't mean that it is legally significant. In Pimlico Plumbers v Smith, the Supreme Court has reaffirmed what we already knew about employment status.


E-Update 84 - May 2018

Constructive Dismissal
A constructive dismissal may be prompted by a single breach of contract by an employer or by a series of incidents that, taken together, amount to a fundamental breach. When that happens the ‘last straw’ incident that prompts the employee’s resignation need not be a breach of contract in its own right – it is the employer’s overall conduct that matters.


E-Update 83 - April 2018

Shared Parental Leave
Shared parental leave is an attempt to break the assumption that when a baby is born, or a child is adopted, it is for the mother to take an extensive period of leave while her partner goes quickly back to work.
 


E-Update 82 - March 2018

Term Time Holiday Pay
The Employment Appeal Tribunal has ruled that it was not sufficient to set the holiday pay of a term-time only worker at the same 12.07% of earnings applied to those who worked throughout the year. This makes perfect sense if you just follow the logic of the Working Time Regulations. 


E-Update 81 - February 2018

Gender Pay Gap
The deadline is approaching for local authorities with 250 or more employees to publish their gender pay gap figures. There will be a lot of attention paid to the councils with the biggest gaps between the average pay of men and women, but what do the figures actually tell us?


E-Update 80 - January 2018

Unlawful Inducements
Tucked away in the Trade Union and Labour Relations (Consolidation) Act 1992 is a little known provision that can be a major hazard for any employer seeking to change its relationship with a trade union or move away from formal collective bargaining.


E-Update 79 - December 2017

King v Sash Windows
A new ruling from the European Court of Justice has once again cast doubt on the paid annual leave provisions of the Working Time Regulations


E-Update 78 - November 2017

Illegal Working
A recent case has highlighted a common misconception among employers about the obligation to carry out ‘right to work’ checks on employees.


E-Update 77 - October 2017

Warnings and Investigations
Possibly the most important – and most often quoted – case in the history of employment law is BHS v Burchell from 1978.


E-Update 76 - September 2017

Employee Monitoring
Can an employee expect to be granted privacy in the workplace? Time spent at work is, after all, something that the employer is paying for


E-Update 75 - August 2017

Employment Tribunal Fees
The most important word in the Supreme Court’s ruling on Employment Tribunal fees was ‘quashed’. The Court has not asked the Government to think again about the impact that Tribunal fees are having, nor suggested ways in which the scheme can be improved. Rather, the Court has ruled that the Order introducing fees was unlawful from the outset and has struck it down. That means not only that employment tribunal fees are abolished with immediate effect, but that the system operating in the four years prior to the decision was unlawful from the outset. Employment lawyers across the country are still trying to get their head around exactly what that means.


E-Update 74 - July 2017

Everyone seems to be talking about the grand sweeping reform of employment law proposed by the Taylor Review. The Review is certainly interesting and makes some radical proposals, but we shouldn’t hold our breath while we wait for them to be implemented. Brexit legislation will take up at least the next two years’ worth of parliamentary time – and who knows what the Government will be able to concentrate on after that.

In the meantime it is more productive to keep an eye on the cases being decided every week if we want to keep up with the latest developments in employment law. This month I want to look at two cases. One is a useful illustration of a well-established principle. The other is a potentially radical new take on how employers need to approach maternity and shared parental leave.
 


E-Update 73 - June 2017

Protected Disclosures – Whistleblower protection?
We all know that whistleblowers are important. By bringing attention to wrongdoing that would otherwise stay hidden they perform an important public service. In extreme cases what they do can save lives and few would begrudge those with the courage to stand up and say that something is not right the employment protections that they enjoy.


E-Update 72 - May 2017

Sleep-over Shifts
There are some jobs that you really can do in your sleep. And this fact lies at the heart of a very tricky issue when it comes to calculating working hours for the purposes of the National Minimum Wage. Think of a care worker who works a ‘sleep-over’ shift.


E-Update 71 - April 2017

Essop and Naeem
On 5th April the Supreme Court issued a judgment explaining how indirect discrimination works. Considering the concept was first introduced into UK law with the Sex Discrimination Act of 1975, it may seem surprising that it needed to do that. But in two cases the Court of Appeal had seriously muddied the waters with the result that nobody was quite sure where the law stood. The Supreme Court has, hopefully, restored some common sense to a subject that had become overly complex.


E-Update 70 - March 2017

Online ET Decisions
It used to be that if you wanted to read up on recent Employment Tribunal decisions you had to undergo something of an ordeal. First you had to go to Bury St Edmunds, which is a lovely place but by a strange topographical quirk is largely inaccessible from anywhere else in the country.


E-Update 69 - February 2017

Reasonable Adjustments
One of the hardest questions to answer in employment law is how far an employer needs to go in making reasonable adjustments for a disabled employee. The main difficulty lies in the word ‘reasonable’ – just what does that mean? In other employment law contexts the concept of reasonableness works to the employer’s advantage. In unfair dismissal for example, the question is whether the employer has behaved reasonably in dismissing the employee. This gives the employer a great deal of latitude because there is a ‘range of reasonable responses’ open to employers and as long as dismissal is somewhere within that range, then the employer is entitled to dismiss.


 E-Update 68 - January 2017

Keeping Whistleblowers Anonymous
The latest fallout from Peter Clarke’s investigation and report into the so called ‘Trojan Horse letter’ concerns the disciplinary proceedings being conducted by the National College for Teaching and Leadership (NCTL) in relation to five of the teachers accused of professional misconduct.


E-Update 67 - December 2016

Rest Breaks
The right to unpaid rest breaks under the Working Time Regulations 1998 is not exactly onerous. Workers are entitled to one rest break of 20 consecutive minutes in each working day of 6 hours or more. Contrary to the commonly held view, this is not a right to a 20-minute rest break every six hours.  If a working day lasts in excess of 12 hours, the worker is still only entitled to one 20 minute break.

 

E-Update 66 - November 2016

‘Outsourcing, TUPE and the far flung parts of the UK'
The purpose of the Transfer of Undertakings Regulations (TUPE) is to protect workers when their employer changes. But the protection that TUPE offers falls well short of guaranteeing those workers that they will still have a job when the dust of a transfer has settled. Dismissing an employee simply because of transfer is automatically unfair. But an employer can justify a dismissal if the reason for it is ‘an economic technical or organisational reason entailing changes in the workforce’.


E-Update 65 - October 2016

Shared Parental Leave
If an employer pays an enhanced rate of Statutory Maternity Pay (SMP), must it also pay an enhanced rate in respect of Shared Parental Leave (SPL)? There was quite a stir caused by a Scottish Employment Tribunal recently in which a male employee successfully claimed indirect sex discrimination and was awarded almost £30,000 in compensation because his employer only paid the statutory minimum rate in respect of his SPL. 


E-Update 64 - September 2016

Reasonable Adjustments
When it comes to reasonable adjustments, my experience is that local authorities tend to bend over backwards to do the right thing. If a disability means that an employee is unfit to do the job that he or she was employed to do then the employer will generally work hard to find another role that may be suitable – although there are inevitably fewer roles available in this age of austerity. 


E-Update 63 - July 2016

Brexit
Everyone is writing about the implications of Brexit for their particular subject area – and I’m no exception. The fact that none of us really know what Brexit will mean in practice doesn’t deter us from expressing a view. Nor does the fact that it will be literally years before our predictions are proved to be either right or wrong.


E-Update 62 - June 2016

Trust and Confidence
The duty not to undermine mutual trust and confidence is now a well-established part of all employment relationships. Although the duty applies to both sides, we tend to see it crop up most when it is the employer that has acted in breach of it and the employee has responded by resigning and claiming constructive dismissal.


E-Update 61 - May 2016

Department for Transport v Sparks
The most common answer I give to an employment law question is 'well it depends. What does the contract say?' That's not a total cop-out; it reflects the fact that employment relationships are built on a contract between employer and employee and that the contract is the first place to look when deciding what the obligations of the parties are.
 


E-Update 60 - April 2016 

Gallop and Disability
Determining whether an employee is disabled is not always straightforward and it was way back in 1995 that the Disability Discrimination Act came into its own… since that time many cases around disability have been heard and ruled on. In this bulletin we look at the case of Gallop v Newport City Council which hinges on the legal interpretation of what a disability is (or isn’t) as opposed to taking independent medical advice.


 E-Update 59 - March 2016

Trade Union Bill
The Trade Union Bill the biggest changes in the law relating to trade unions and industrial action for almost 30 years. The Government has claimed that the aim of these changes is to establish a fair balance between employers and employees. The trade unions see them in a very different light and have said that the restrictions now proposed are unfair and will make industrial action almost impossible.


E-Update 58 - February 2016

Age Discrimination
The Equality act 2010 makes it unlawful to discriminate against employees, jobs seekers and trainees because of age. For example, this may include because they are 'younger' or 'older' than a relevant and comparable employee. In this month's bulletin new case law discusses a number of decisions made by the employer; to avoid paying extortionate pay-outs to long serving employees. Is this discriminatory? Or is it 'a proportionate means of achieving a legitimate aim?


E-Update 57 - January 2016

Consistency of Treatment
In this month's bulletin we focus on the case of the meercat, the monkeys and llama ...or more relevantly, staff at London Zoo who looked after these animals. This is the case of Westlake v ZSL London Zoo where at a Christmas party in 2014 Westlake was dismissed after being involved in a fight with another colleague... the question for the EAT then was why was only one of the employees dismissed and not both given that they both appeared to be equally involved in the fracas? Oh and if you are wondering about the animal references.. all will become clear.


E-Update 56 - December 2015

Sickness Absence - Reasonable Adjustments and Proportionally?
One of the hardest issues to judge in employment law is the extent of an employer's duty to make reasonable adjustments for employees with a disability. This is particularly the case where the adjustment in issue is not the purchase of specialist equipment, or alterations to the working environment but the application of the employer's absence management policies.


E-Update 55 - November 2015

Zero-Hours Contracts
In this edition of the HR Bulletin Darren looks at the differences between Zero Hour Contracts and genuine casual contracts… and remembering that for all the legal speak, its about treating people consistently and being explicitly clear about expectations right from the beginning.


E-Update Event Edition 

Darren in this edition gives an update on the impact of the case of Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL and the implications for the working time regulations and peripatetic workers.
 


E-Update 53 - September 2015

Welcome to our new resident HR Bulletin Barrister
In October 100+ delegates from our councils will attend WME’s annual Employment Law Update. Darren Newman has become synonymous with this event and no doubt his style and expertise helps to secure excellent attendance year after year. We are therefore delighted to welcome Darren as a regular contributor to the HR Bulletin. Darren will offer his commentary on an employment law topic or issue and WME will provide a commentary now and again to ensure relevance to our public sector readership. His first article focuses on social media and the case of British Waterways Board v Smith.


E-Update 52 - May 2015

Work Related Stress and Injury - How Foreseeable is Foreseeable?
We continue our theme on illness related dismissals but this time focusing on the area of stress in the High Court case of Easton v B&Q Plc. This case raises some challenging questions over the extent to which an employer should be able to identify and recongise the impact of work upon an employee who had been absent from work due to depression and following his return suffered a relapse. The case turned on the extent to which the employer was liable for the relapse as a result of the actions they took, or didn't take, in light of the foreseeability of the consequences. The evidence is lengthy and we invite you to form your own views! 


E-Update 51 - April 2015

What is a disability?
This proverbial difficult and diverse question continues to exercise Employment Tribunals and nearly became even more clouded in the case of Metroline Travel Ltd v Stoute, EAT. Here we find that the Employment Tribunal initially ruled that a person with type 2 diabetes, being controlled by diet, could be perceived as disabled. The EAT  however disagreed with the decision, citing abstaining from sugary drinks as insufficient to warrant a control measure in relation to definitions contained within the Equality Act.


E-Update 50 - February 2015

The continued importance of following (reasonable) procedures....
In this bulletin we review the case of Coventry University v Mian (2014, EWCA Civ 1275), where it is once again imperative to note that employers take all due care and attention when undertaking disciplinary proceedings. The Court of Appeal in this case was asked to determine if there was a breach of contract towards Mian who suffered a psychiatric injury which she determined was a result of the way Coventry University had commenced disciplinary proceedings against her.


E-Update  49 - December 2014

Polkey Percentages and Plausible Ponderings
We are sure you won't be deliberating this case over your Christmas dinner and instead joining in the merriment of the Christmas season! However just in case the repetitive humdrum of Christmas films starts to get to you, there is always the option of reading the case of Contract Bottling Limited v Cave EAT, where the calculation of Polkey deductions caused a stir as two differing approaches were taken. It  is always important for us to understand what tribunals consider - to know what to avoid - when dealing with redundancy scenarios. 


 E-Update 48 - November 2014

Come back to work...all will be forgiven
In the case of Sunrise Brokers LLP v Rodgers the High Court decided on an usual principle. This case demonstrates that just because an employee resigns and does not give notice, that does not mean it is the end of the contract even if the employer ceases the employee's pay. It simply meant that the obligation on one side was suspended until the other side was satisfied.


E-Update - Event Edition

It's been a while that we  have covered anything on pay and grading because at one time that was all we covered but this particular tale shows just how careful you have to be in pay discussions.  We give you the case of  Hershaw v Sheffield City Council, EAT


E-Update 46- June 2014

Whistleblowing - still alive and well
Bulletin readers will be aware that the Enterprise and Regulatory Reform Act has made things a bit harder for whistleblowers with personal concerns and consequent allegations needing to be expressly made in the public interest (as opposed to matters which may concern or impact upon their employment).  However, in the case of Cooperative Group v Baddeley, the events dating back to 2010, yes it has taken that long, the Court of Appeal makes clear the importance of understanding a full investigation as to avoid assumptions being made.  


E-Update 45 - May 2014

Early Conciliation - A Brief Guide
Following the introduction of the Enterprise and Regulatory Reform Act 2013, we have received a number of requests for advice on the process of early conciliation.  Therefore (and to hopefully clear the fog a bit) we depart this month from our usual bulletins centred around case law and offer some support as to what the changes in these regulations may actually mean for employers.


E-Update 44 - December 2013

Changing prognosis divides tribunals
We often get asked – how far does an employer have to go before they can dismiss an employee on medical capability, particularly when there are aggravating factors. In the case of BS v Dundee City Council, the Court in Session sets out a helpful guide of the issues a Tribunal should consider when determining the question of reasonableness.


E-Update 43 - October 2013

Restructure and Redundancy – Moving the Goalposts?
In Somerset County Council (SCC) v Chaloner (UKEAT/0600/12), the EAT dismissed an appeal from the employer against a finding of unfair dismissal in circumstances where during a ‘downsizing’, redeployment opportunities were subject to an internal recruitment process and the employer amended the job description for the vacancy without informing the (unsuccessful) employee.


E-Update - Event Edition

...in case you haven’t had enough employment law...
This Bulletin has been timed to coincide with the latest in our series of Employment Law events, where we will be joined by over 100 colleagues at the home of our new offices in Sandwell. Whether you read this on the day, on the way home or when you are catching up, we hope you enjoy(ed) the day and if you missed it, you will join us next time! Anyway, whether or not you feel submerged in the latest in employment and associated case law, we thought we would give you a little bit more to think about.

The case before the Court of Appeal in Singh v Moorlands Primary School (and Reading Borough Council) [2013] EWCA Civ 909 involved an unpopular Headteacher, aggrieved parents, aggrieved employees and a governing body trying to make sense of claims and counter claims concerning constructive dismissal, breach of contract and race discrimination, which had already been analysed and decided upon before at the ET and the EAT. Rather than focus on all that, this Bulletin will focus on the CA’s consideration of whether an allegation of an employer ‘tampering’ with a witness (through exerting alleged pressure) can prevail under the witness.


E-Update 42 - July 2013

Is spying on an employee permissible or a breach of human rights?
The case of City and Council of Swansea v Gayle saw the EAT overturning a Tribunal finding of unfair dismissal concerning a case where the employer had engaged a private investigator to gather evidence against an employee suspected of claiming to be at work whilst in fact engaging in a range of private, social activities.


E-Update 41 - June 2013

Serial complainant victimised
What do you do when all of your time is being spent with one employee raising numerous complaints about their colleagues? Find a way to end the contract? Well you may be right but the below case of Woodhouse v West North West Homes Leeds Ltd, EAT demonstrates that there may be some pitfalls to this approach, especially when relying on the grounds of trust and confidence.


E-Update 40 - May 2013

Disability is not about what an employee can actually do!
In this case, we look at the decision taken by the Employment Appeal Tribunal in Aderemi v London & South Eastern Railway Ltd (UKEAT/0316/12) where for the purposes of the Equality Act 2010, the EAT focused, incorrectly, on the tasks the employee could do instead of the ones that he could not undertake.


Event Edition - April 2013

The case of Oxford Health NHS Foundation v Laakkonnen and ors. This case serves as an important reminder that the needs of the business are not always the over-riding factor in every employment scenario especially where family commitments are involved.


E-Update 39 - April 2013

Bulletin Bitesize?
Rather than our routine more detailed case update, we have decided this month to precis two cases, which have recently emerged and may be of interest. In Vaughan v London Borough of Lewisham and Ors EAT, the case concluded that whilst 'distasteful', covert recordings may be admissable as evidence to support a discrimination claim; and in Walker v Sita Information Networking Computing Ltd, the EAT reiterated that it is the effect of a disability, not the cause, that counts.


E-Update 38 - March 2013

.....and we're still discussing the Polkey principle
Freedom of speech and a bit of Polkey to boot, this Bulletin features the case of Hill v Governing Body of Great Tey Primary School, EAT, and in particular a criticism of the tribunal's approach to Polkey deductions and Article 10 of the EC Convention in Human Rights. The EAT helpfully set out, almost as a user guide, the balance that needs to be considered between confidentiality breaches and freedom of speech.


E-Update 37 - December 2012

'Private facebook comments - bringing the organisation into disrepute?
If you think naming an employer on facebook and then making controversial comments leaves an employee vulnerable you may need to think again following the High Court decision in the case of Smith v Trafford Housing Trust. It appears that who the message is intended for i.e. was it a private conversation (even if on a public site) carries some weight...do rad on...


E-Update 36 - November 2012

ETO reasons and timing
A familiar tale...a TUPE transfer, a cost saving exercise, requests for voluntary redundancies and wage cuts. However, the strength of an 'ETO' versus the timing of change is often the most challenging question as in the real world everything appears to happen at the same time. Not so says the EAT in the Manchester College v Hazel and anor. In the eyes of the Tribunal in this stinging case, it appears that 'entailing changes in the workforce' reg 7(1) has a much tighter remit than we previously thought.


E-Update 35 - October 2012

It's always tricky with Constructive dismissal
In the case of Logan v Celyn House Ltd the EAT ruled an Employment Tribunal had erred in looking for the 'principal' reason for the resignation. The fact that Logan resigned in part due to issues with the payment of sickness entitlement, despite other issues that had greater precedence, meant that she could argue that the failure in part to pay sick pay resulted in her resignation.


Event Edition - September 2012

TUPE- if the experts can’t agree…
In Seawell Ltd v Ceva Freight UK Ltd and anor the EAT focused on whether a claimant (in the singular) should have been classed as an ‘organised grouping of employees’ for the purposes of TUPE legislation because their total time was spent working for the client that the service transferred to. The Tribunal and the EAT disagreed… see what you think….


E-Update 34 - August 2012

Third party disclosures and 'Breakdown of Trust' as a reason for dismissal
In this Bulletin, we focus on the recent Court of Appeal decisions in Leach v OFCOM (2012 - EWCA Civ 959). Which we first covered in May 2010 (back then it was known as A v B EAT).The CA were required to determine whether or not OFCOM was entitled to dismiss Leach on the basis of 'a breakdown of trust' after being provided with an official disclosure from a third party, which could, if brought out into the public domain, impact on the reputation of the organisation as a whole.


E-Update 33 - July 2012

Restructuring, Suitable Alternative Employment And Redundancy
Continuing cases around recruitment this week, we look at the case of Samsung Electronics (UK) Ltd v Monte D’Cruz (2012) UKEAT0039/1. D’Cruz was made redundant having not been successful at interview for an alternative position with Samsung following restructuring. The Employment Tribunal ruled that the dismissal was unfair based on inadequate consultation and that Samsung has used `subjective` criteria during the selection process. The Employment Appeals Tribunal however upheld the appeal as it felt neither the consultation or selection process were sufficiently flawed to justify an outcome of unfair dismissal.


E-Update 32 - June 2012

Discrimination in Recruitment - The Burden of Proof?
Hopefully, you have all now recovered from the sausage rolls and cup cakes synonymous with jubilee celebrations and are ready for our latest bulletin. We all know that recruiting staff can be a bit of an obstacle course when it comes to legal compliance and this case (Meister v Speech Design Carrier Systems GmbH, ECJ) is no exception. We explore in this edition, the issue of what an applicant is entitled to know once they have been unsuccessful at being shortlisted. The results are a little surprising and predictably ambiguous.


E-Update 31 - February 2012

SAE - in favour of the employee?
Well we have seen some bizarre decisions over the years but the case of Readman v Devon Primary Care Trust, EAT takes some beating. Due to failing to correctly apply the test of reasonableness, a nurse who on the face of it did not want to work in hospitals anymore and incidentally wanted to emigrate to Canada was able to refuse suitable alternative employment and be entitled to a redundancy payment. However, there is a bit more to this case than meets the eye...


E-Update 30 - January 2012

Unfair Dismissal due to long term sickness absence
In this week's bulletin we continue the theme from last week with another unfair dismissal case, this time the focus is around the areas of capability and ill health. In the case of Dundee City Council v Sharp UKEATS/0009/11/BI, the Council dismissed Sharp after he had been off sick for 12 months, having referred Sharp to occupational health and had held meetings to discuss his future. The employer ultimately concluded that there was no imminent chance of a return to work. The Employment Appeals Tribunal overturned a finding of unfair dismissal reiterating some key principles for employers to consider.


E-Update 29 - January 2012

Consistency in decisions? - Not always!
Now we are all recovered from the festivities of Christmas and New Year, it is back to reality with our first e-bulletin of 2012 and a good old unfair dismissal case to ease you back in! Kay v Cheadle Royal Healthcare Ltd t/a Affinity Healthcare, EAT explored the argument of whether two employees guilty of the same treatment towards another employee should be treated the same ...do read on....


E-Update 28 - December 2011

Multiple Contracts - the WMC perspective
For those that attended the employment law session with Daniel Barnett in September, you will be aware of a debate about the implications of the rulings on Dawson and Lewis and the issue of multiple contracts which we promised to look into and let you know our findings. Unsurprisingly we support the e -guidance produced by the LGA but below we set out our reasons why…..


E-Update 27 - November 2011

Dismissal for working a second job whilst on sick leave in another job is determined unfair
The case of Perry v Imperial College Healthcare NHS Trust (Imperial College) UKEAT/0473/10/JO, serves as a useful reminder that when considering whether a dismissal is reasonable, it is still imperative that the 'test' of reasonableness' is applied as that is what is ultimately judged as being crucial at the time of the dismissal.


Event Edition - September 2011

Generation Android - a threat or an opportunity?
No doubt many of you will have already developed and implemented policies around social networking reflecting the need to get the balance right between abuse and risk of benefiting from a more networked and e-intelligent workforce. In light of the rapid growth of smart/android phones, ACAS has recognised the need to produce some guidance to help employers. In this E-Bulletin we briefly examine this and 'signpost' you to some of the case law that may influence decision making. If you'd like more details of these cases, let us know and we'll cover in a future E-Bulletin or if you have a social networking policy you consider to be 'best practice' share it with us and we'll post it in our 'policy library'.


E-Update 26 - August 2011

High Court ruling on Civil Service Compensation Scheme - Rights, Possessions, Interference and Justification?
In the High Court decision of 10th August, LJ McCombie rejected an application for a judicial review submitted by the Public and Commercial Services Union (PCSU) in response to the decisions taken by the Secretary of State in respect of changes leading to reductions in the Civil Service Compensation Scheme (CSCS), a statutory scheme under the 1972 Superannuation Act. In reaching this decision, the accrued rights of employees were deemed to be 'possessions' under the provisions of the European Convention on Human Rights, but found that the Secretary of State was nevertheless, justified in imposing changes without agreement. Can we draw any parallels with Local Government?


E-Update 25 - August 2011

DDA (pre Equality Act) did not apply to selection ruling
Given the unfortunate number of redundancies that have needed to take place in recent times, it is important to cover some of the challenges that the selection process can bring along the way. This week's Bulletin focuses on the decision of the EAT in Lancaster v TBWA Manchester, where it was held that an employee with communication difficulties was not covered by the DDA in relation to communication related selection criteria for redundancy.


E-Update 24 - August 2011

Strike Special Edition!
As the rioting and financial crises have consumed the media spotlight, the focus has shifted from the threat of industrial action following the short strikes by the PCS and Education unions in June. Nevertheless, we were advised by Trade Unions to prepare for the most widespread industrial action since 1926. So, if this is the calm before the storm, our Strike Special Edition provides some information and guidance which may come into play in the weeks and months ahead.


E-Update 23 - August 2011

A False Mutuality of Obligation?
In the case of Autoclenz Ltd and Belcher & Ors (2010) IRLR 70 CA, the Court of Appeal ruled that a group of car valeters were employees, despite them having written agreements which stated that they were categorised as 'independent contractors'.

The Court determined that the written agreement was not an accurate reflection of the reality of the arrangement between the two parties and the requirements for an employment contract were adequately satisfied.


E-Update 22 - August 2011

Young people take precedent in age dispute
Just when you thought there was clarity in respect of managing older workers, it all becomes a bit grey again with the ECJ ruling in Fuchs and anor v Land Hessen where it was held that setting a retirement age of 65 for permanent civil servants was not in breach of the EU Equal Treatment Framework Directive because its objective was to encourage the recruitment and promotion of young people, improve personnel management and avoid performance disputes with older workers!


E-Update 21 - July 2011

Dismissal ruled fair for employee who sent offensive email from home
Whilst we don’t normally cover decisions below the appellate courts, the case of Gosden v Lifeline Project Ltd (ET/2802731/09) was of interest and concerned the dismissal of an employee for sending an offensive `chain email` outside of his normal working hours and from his home computer.The Tribunal concluded it was reasonable for the employer to determine that Gosden had committed an act of gross misconduct that in turn could damage the company’s reputation or integrity.


E-Update 20 - June 2011

Refusal to allow employee to attend religious prayer does not amount to indirect religious discrimination
An EAT has ruled that by not allowing a Muslim guard to attend a mosque during his working day was no indirect religious discrimination as it could have put his employer's commercial contract in jeopardy.

This is the case of Cherfi v G4S Security Services Ltd (EAT/0379/10) where the employee lodged six claims against his employer. The Tribunal rejected five, but found that the claim of direct discrimination on the grounds of his religion was justified as his employer had disciplined him in October 2007 for leaving his workplace and attending prayer. Of the five rejected claims, Cherfi appealed against one to the EAT stating he had been subjected to indirect discrimination by the organisation applying a provision, criteria or procedure requiring him to remain at his workplace at a time when he wanted to attend congregational prayer of site.


E-Update 19 - June 2011

Dismissing on Grounds of Capability - A Management not a Medical Decision
The facts of the case of D B Schenker v Doolan (EAT/0053/09) will no doubt echo with many Bulletin readers, particularly perhaps in respect of occasional frustration arising from ‘non committal’ medical advice from occupational health advisers.Overturning a finding of unfair dismissal, the EAT held the employer properly decided a capability dismissal on the basis of the evidence available to it, including reports from both occupational health and a ‘second opinion’ from independent psychologist. In doing so, the EAT has reiterated that the decision to dismiss is a managerial one and not a medical one. An employer should make its own assessment of the risk to an employee’s health from returning to work. The standard of enquiry required is no different to the established Burchell test, namely, a) whether the employer genuinely believed in their stated reason, b) whether there was reasonable investigation, and c) whether they had reasonable grounds on which to conclude as they did. The requirement to ascertain the "true medical position" as set out in East Lindsay District Council v Daubney [1977] ICR 566 does not require a higher standard of evidence than in a conduct case.


E-Update 18 - June 2011

"Modern Workplaces" - Government consultation on Parental Leave, Flexible Working, Working Time and Equal Pay ...
In a slight change of departure from employment cases normally covered by the Bulletin, this week we focus on the Government's recent consultation under the banner of 'Modern Workplaces' which was launched earlier this month.


E-Update 17 - May 2011

Negligent misstatement - not just references!
The High Court (ABD) decision in McKie v Swindon College alerts readers concerning information about former employees passed on to a subsequent employer. Whilst, in the case, the information provided was outside a formal reference, (where the legal pitfalls are better known) employers are reminded to remain vigilant across all methods of communication.


E-Update 16 - May 2011

Agency Workers Regulations
As we get closer to the October implementation date for the Agency Workers Regulations and in light of the recent publication of Draft BIS Guidance, with final guidance expected as we write, it seemed timely to remind colleagues of the provisions of the Regulations. On a related theme, we also briefly cover a recent EAT decision with regard to liabilities upon employers for acts of discrimination within the workplace by agency workers.


E-Update 15 - April 2011

Indirect Discrimination - Defining the Pool for Comparison
In the case of Hacking & Patterson (HP) & Anor v Wilson, the EAT reaffirmed that in cases relating to indirect sex discrimination, where the complaint is based on the employers refusal to grant a 'benefit', then the appropriate pool of comparators should only include those employees who request that benefit. However, in doing so, they stressed that is circumstances it remained necessary to consider whether any such refusal would put a (female) claimant at a "particular disadvantage".


E-Update 14 - April 2011

Not 'brought up above the parapet' - compromise agreements hold
We've not covered an equal pay case for a while but that is not to say that the issues regarding equal pay do not continue to rumble on. This week we are pleased to report a sensible and pragmatic decision of the EAT in McWilliam and ors v Glasgow City Council where the question of the validity of compromise agreements was brought into question.


E-Update 13 - April 2011

'Whistleblower' dismissed due to being an 'author of this own misfortune'
In the case of Ezsias v North Glamorgan NHS Trust, EAT, the appeal focused on whether or not a dental consultant had been dismissed due to his working relationships breaking down or because of his conduct. The dilemma was pertinent as if the reason for dismissal concerned a trust and confidence breakdown, the employer did not need to follow conduct dismissal procedures to terminate contract.


E-Update 12 - March 2011

No error of law or perverse decision - ET decision reinstated
In the case of Fuller V London Borough of Brent, the Court of Appeal has overturned the EAT decision that the Tribunal has substituted its own view, rather than providing a more objective test. The CA felt that the EAT had been overly critical in its findings and needed to read the judgment more in the round as opposed to focusing on the language which lead to subsequent over-analysis.


E-Update 11 - March 2011

Abolition of the DRA - transitional arrangements and beyond!
I am sure that many of you have read that on 18th March 2011, the HR/PPMA meeting will be looking at the whole issue of the older workforce and extending working lives from a longer term strategic perspective. Indeed we will be joined by the LGE to give a national perspective on the topic. However by then you will be less than one month away from transitional arrangements coming into force so we want to ensure you are prepared.


E-Update 10 - February 2011

Selecting for Suitable Alternative Employment - Levels of Objectivity in Assessment?
In the case of Morgan v Welsh RFU (UKEAT/0314/10/LA), the EAT has recently issued an interesting judgment on the degree of objectivity, transparency and consistency required as part of an organisational downsizing delivered through a management restructure. In doing so, the decision distinguishes between the need for application of established redundancy selection criteria and the use of interviews as an assessment and selection method of appointment.


E-Update 9 - February 2011

Discretionary severance and the over 55’s – Can it be justified?
Making a guest appearance as a Bulletin author, we are grateful to John Galbraith, Senior Employment Solicitor at Warwickshire County Council. Based on research and practical experience, John explores the contractual nature of local discretionary policies on enhanced severance and also seeks to answer the question many have raised with us over the last few months i.e. can it be justified in the eyes of the law to treat the over 55’s in receipt of LGPS benefits differently by exercising lower levels of discretion under the relevant severance regulations?


E-Update 8 - January 2011

The Working Time Directive - the debate coming to an end...?
The good ole working time directive is back firmly on the European agenda with a 2nd stage consultation process published on 21st December 2010 by the European Commission. The focus of the paper is unsurprisingly centred around the whole issue of standby and what constitutes working time following the SIMAP and Jaeger rulings. Clearly it is in our best interests to have a strong UK focus on the matter so comments on this paper are actively encouraged by 2nd February 2011.


E-Update 7 - December 2010

Rest breaks that are interrupted do not always count as `on call` time
A Court of Appeal (CA) in Northern Ireland has held that a nurse was `not on call` during her rest breaks, and therefore not entitled for payment during these times, even though the employer could not guarantee that the breaks taken would be uninterrupted. For the purposes of the Working Time Regulations (Northern Ireland) ... which are very similar to those in Great Britain, the breaks taken did not equate to `working time`, and therefore the nurse was not entitled to be paid during these periods. The CA took account of the fact that the arrangements had been specifically negotiated with trade unions to ensure that any employee took rest breaks that were uninterrupted other than in `exceptional circumstances`.


E-Update 6 - December 2010

In the case of Fecitt & Ors v NHS Manchester (EAT/0150) the EAT found that a group of employees were found to have suffered a detriment from less favourable treatment following an instance of whistleblowing. In referring the case back to the ET, the EAT ruled that the employer, had to prove the treatment, redeployment and (in effect) dismissal, was in no sense whatsoever on the ground of whistleblowing action.


E-Update 5 - November 2010

"if it looks like a duck, walks like a duck and quacks like a duck"
In the case of Tilson v Alstom Transport the Court of Appeal dismissed an appeal by an agency worker claiming employment rights to support an unfair dismissal claim, despite the fact that all of the working arrangements appeared to replicate that of an employment relationship. In doing so the CA have reinforced ear not equate to `working time`, and therefore the nurse was not entitled to be paid during these periods. The CA took account of the fact that the arrangements had been specifically negotiated with trade unions to ensure that any employee took rest breaks that were uninterrupted other than in `exceptional circumstances'.


E-Update 4 - November 2010

In McCormack v Hamilton Academical Football Club, the Scottish Court of Session concluded that a series of incidents may amount to gross misconduct if the cumulative effect of these actions destroys the employer's trust and confidence in the employee. However, the obligation to maintain trust and confidence was a mutual one and the employer also has a duty to keep the employee fully informed of any perceived deficiencies in their conduct which is causing the employer to lose trust and confidence in them. The failure to do so led to a finding of wrongful dismissal.


E-Update 3 - November 2010

Applying Redundancy Selection Criteria - Individual Consultation and Microscopic Analysis?
In the case of County Print v Page, the EAT assessed the extent to which an employer is required to consult with and explain to individual employees the application of scoring criteria used within a redundancy selection process. In dismissing the employer's appeal, the EAT concluded that "fair consultation involved the provision of adequate information on which an employee can respond and argue his case" and that this included giving an employee an explanation for why he had been marked down in a scoring exercise. In reviewing case law, the EAT did not challenge the established principles set out in British Aerospace v Green, where the CA stated that for an assessment process to be a reasonable and achieve its purpose, a Tribunal must not subject the employer's actions to an "over-minute" or "microscopic" analysis, but rather defined a context or the application of such.


E-Update 2 - November 2010

TUPE - Defining an ETO? / Case Contamination
In Nationwide Building Society v Benn and ors, the decision of the EAT gives us an interesting insight into the meeting of an ETO reason and the permissible concept that an organisational change can be deemed to have occurred even if it only affects the employees transferring and not the rest of the organisation. In addition the EAT determined that the Tribunal erred in considering the failure of the organisation to consult as this was not part of the ET1 claim.


E-Update 1 - November 2010

The EAT has overturned and employment tribunal decision in the case of Brownbill and Ors v St Helens and Knowsley Hospital NHS Trust, stating determining that in certain circumstances, individual contractual terms should be treated separately in cases of equal pay. Following the implementation of Agenda for Change 2004, five females initially lost their case in relation to the former Whitley Council schemes due to the tribunal ruling their overall benefits should be aggregated resulting in them being better off than their chosen comparators.