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Archive for January, 2015

Wednesday 28 January 2015

Employment Bulletin January 2015


Late January, and what better way to cheer you up after the annual nonsense about “Blue Monday” (the idea that the third Monday in January is the most depressing day of the year, and nothing to do with New Order’s seminal 12”) than a new employment bulletin?

First up, good news for employers, albeit, less glad tidings for litigious employees and employment lawyers.

The tail end of 2014 saw the latest legal challenge resulting in defeat for UNISON, with the High Court turning down the union’s second application for judicial review of the government’s decision to bring in fees. While UNISON produced statistics showing a significant fall in the number of claims brought since fees were introduced, lack of evidence was a problem in the case – no actual individuals could be shown to have been unable to bring claims because of cost.

In the way of these things, that this is far from the end of the matter. The Court has given permission to appeal, and during the course of this year we could see the emergence of the evidence UNISON needs. Whatever happens, tribunal fees will remain firmly on the agenda in 2015.

Obesity can be a disability (possibly, sometimes)
Kaltoft v Billund

After much speculation, the decision is in: the effects of obesity can sometimes amount to a disability.

The European Court of Justice (ECJ) reached this conclusion following a referral from a Danish court in Kaltoft v Billund. The case concerned a childminder who claimed that his obesity was a factor in his redundancy.

Pensions auto-enrolment

January 2015 delivers another important date in the ongoing auto-enrolment timetable.

We are in the middle of the staged introduction of this pensions initiative which requires employers with at least one employee (meeting certain criteria) to automatically enroll them into a pension scheme. The largest employers should already have done it. On 1st January 2015, it is the turn of employers who have 58 PAYE scheme members. More staging dates (for ever-smaller employers) will follow.

Holiday pay claims limited

We have got a new set of regulations which take care of what, for some employers, was the worrying possibility of facing large, backdated holiday pay claims.

The Deduction from Wages (Limitation) Regulations 2014 limits holiday pay claims to two years before the date of the ET1 claim form. The Regulations apply to all unlawful deductions claims, with some exceptions – claims for SMP, SSP and guarantee payments, for example. The Regulations also make clear that the right to holiday pay is not incorporated as a term in employment contracts.

Redundancy and maternity leave
Sefton Borough Council v Wainwright

Ms Wainwright was on maternity leave when her role was made redundant. A new role was created and allocated to her colleague. She claimed automatically unfair dismissal, based on the requirement in the Maternity and Parental Leave Regulations for employees on maternity leave to be offered a suitable available vacancy where there is a redundancy situation.

She won her unfair dismissal claim, and a useful point emerged, which is that it is not necessarily discriminatory for an employer to fail to offer someone like Ms Wainwright the alternative position. Although she had been treated unfavourably, it was not necessarily because of her pregnancy or maternity leave.

Time limit in detriment cases
McKinney v London Borough of Newham

When an employee claims to have suffered a detriment because of having made a protected disclosure, they have three months in which to bring a tribunal claim. But when does the clock start ticking?

Mr McKinney brought a claim alleging detrimental treatment caused by his employer’s decision to reject his grievance. Should he have brought the claim within three months of the employer’s decision, or – as he had done – within three months of the date he learned about that decision by receiving his appeal letter?

Restrictive covenants under consideration
Re-use Collections v Sendall & May Glass Recycling

Changing employees’ terms and conditions presents a number of pitfalls for employers. Rather than impose new arrangements, there is a bargain to be struck; if the terms are to be less favourable to the employee, for example, then this usually calls for some sort of benefit or other sweetener (or “consideration” for the technically-minded amongst you). It is an important point of contract law.

In this case, a question arose over the status of restrictive covenants. Specifically, could the employer rely on covenants which it had introduced to the employee’s contract, but for which it had not offered any new consideration.

Offensive tweets and unfair dismissal
Game Retail Ltd v Laws

Mr Laws was Game’s risk and loss prevention investigator. He opened a Twitter account (which did not specifically link him to his employer) and began following the stores for which he was responsible so that he could monitor inappropriate activity. Sixty-five Game stores subsequently followed Mr Laws, after one of its managers encouraged them to do so.

But it was Mr Laws himself who got into hot water for posting offensive tweets. He was dismissed but initially won his unfair dismissal claim. Dismissal was not within the band of reasonable responses, the tribunal said. The tweets had been posted using Mr Law’s own phone, outside working hours, and for private purposes. It had not been established that any member of the public had access to Mr Law’s Twitter feed (keen users of social media might wonder at this point how familiar the Tribunal was with Twitter) and had connected him with the company. Also relevant was the fact that Game’s disciplinary policy did not specifically say that use of social media in this way could be treated as gross misconduct.

Schizophrenia and gross misconduct
Burdett v Aviva

Mr Burdett suffered from schizophrenia. He was dismissed for gross misconduct following a series of assaults in the workplace.

The question for the Employment Appeal Tribunal (EAT) was whether the tribunal was right to have found his dismissal fair. Mr Burdett had admitted the gross misconduct and he had admitted a serious error of judgment in discontinuing his medication without getting medical advice. The tribunal had held that in light of those admissions, very little investigation was needed and the employer had reasonable grounds for its belief. Given the nature of the misconduct, it was proportionate to dismiss, the tribunal said.

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