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Archive for November, 2015

Thursday 26 November 2015

Employment Law Bulletin November 2015

Welcome

Back to the Future with the Trade Union Bill?

For most employers in the private sector, trade unions and industrial action are not a major concern. However the Government has decided to prioritise a significant tightening up of industrial action law designed to make calling a strike harder than it has ever been. The Trade Union Bill is likely to come into force next year. It builds on the changes made by the Conservative Governments of 1979 – 1997 by requiring all strike ballots to have a turn-out of at least 50 per cent and – in key services such as health education and transport – requiring the ‘yes’ vote to amount to at least 40 per cent of those entitled to vote. This presents a serious challenge for trade unions as strike ballots have to be conducted entirely by post – which tends to lead to a low turn out.

Unfair dismissal and consistency of treatment

Central to most people’s understanding of fairness is the idea of consistency – that similar cases should be treated in a similar way. In MBNA Ltd v Jones the employer organised an evening at Chester Racecourse for a number of its employees. It was made clear that this was a work event and that normal standards of conduct would apply. Mr Jones and Mr Battersby had both been drinking for some time when they arrived. They needled each other from time to time over the course of the evening, culminating in Mr Jones punching Mr Battersby in the face. Later in the evening Mr Jones went to a club. Mr Battersby followed him and sent him a number of text messages inviting him to join him outside where he would “rip your [expletive deleted] head off”. Luckily, as the EAT later observed, he “never carried out his threats” and Mr Jones did not even see the messages until the next day.

Whistleblowing and the public interest

Employees are given special protection when they make what is called a ‘public interest disclosure’ that someone has engaged in wrongdoing. A dismissal for such “whistleblowing” will be automatically unfair and there is no cap on the amount of compensation that a employment tribunal can award.

Wrongful and unfair dismissal

Surely the prize for the ‘most head-scratching’ employment tribunal decision of the year must go to the Employment Judge in the case of British Heart Foundation v Roy. Ms Roy was accused by her employer of stealing money. Following an investigation and a full disciplinary process she was summarily dismissed – that is, dismissed without notice. The employment tribunal found that the dismissal was fair because the employer had followed a fair procedure and reached the honest and reasonable conclusion that she was guilty. In fact the employment tribunal went further and found that even if the dismissal had been found to be procedurally unfair they would have awarded no compensation because she was guilty of stealing and so was 100 per cent to blame for her own dismissal.

False allegations of race discrimination

Direct discrimination occurs when one person is treated less favourably than another because of a protected characteristic – such as race. However discrimination is only unlawful when it involves less favourable treatment in specific circumstances such as deciding who to employ, dismissing someone or subjecting them to a detriment. The distinction is illustrated by the odd case of Cordant Security Ltd v Singh. Mr Singh was sent home one morning because his boss thought that he smelt of alcohol. Afraid of potential disciplinary proceedings, Mr Singh accused his boss of making racist remarks to him – although the employment tribunal later found that this allegation was completely false and rejected his subsequent complaint of racial harassment.

Disability Discrimination – absence dismissals

An employee who is dismissed for continued ill-health will often have also been dismissed because of something arising in consequence of a disability – so the employer may face not only an unfair dismissal claim but a disability discrimination claim as well.

Age discrimination

Indirect discrimination takes place when the employer applies a ‘provision, criterion or practice’, which places people who share a protected characteristic at a particular disadvantage. For example a practice of insisting that employees work full time has been held to amount to indirect discrimination against women on the basis that women are more likely than men to have caring responsibilities that require them to work part-time.

Disciplinary procedures

An employer should normally follow a fair disciplinary procedure before dismissing an employee for misconduct. Generally that means that the employee should be fully informed of the allegation that has been made, have a fair opportunity to put forward his or her side of the case and then have the matter considered in a fair and impartial way. Not every procedural failing, however, will render a dismissal unfair. The employment tribunal is entitled to look at all of the surrounding circumstances of the case.

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