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Archive for May, 2016

Wednesday 25 May 2016

Employment Law Bulletin May 2016


It’s been a busy few weeks for employment law in the news: from striking junior doctors to high-heel wearing (or not) receptionists and that’s before we even get to the employment law implications of a potential exit from the EU. Before you spring for the delete key, don’t worry, this bulletin is a Brexit-free-zone. I can’t guarantee that it will be next month, though…

Entirely coincidentally, however, this month’s round-up does contain two cases involving human rights:

Employee handbooks – what is contractual and what isn’t?

An employee handbook typically sets out the procedures that an employer has in place for dealing with issues such as misconduct, poor performance and absence. Some issues dealt with in the handbook will be part of the employee’s terms and conditions of employment and others will not. The distinction is important because any change to contractual terms will generally need to be agreed with the employee, whereas non-contractual procedures can be changed whenever the employer feels it is appropriate.

In Department for Transport v Sparks, the handbook provided that absence management policies would not be instigated in respect of short-term absences until the ‘trigger point’ of 21 days’ absence was reached. The employer sought to amend this threshold but was challenged in the High Court by the employees’ trade union. The High Court granted an injunction preventing the change from taking place and this has now been upheld by the Court of Appeal.

Religious discrimination

The extent to which an employee is able to express his or her religious beliefs in the workplace is a sensitive and controversial issue. In Wasteney v East London NHS Trust an employee – an evangelical Christian – argued that she was discriminated against on the basis of her beliefs when she was disciplined for the way in which she dealt with a more junior Muslim colleague. The colleague complained that she had been pressured into attending church services and that the employee had prayed with her and given her a book about the conversion of a Muslim woman to Christianity.

Privacy and disciplinary procedures

Another human rights issue arose in Garamukanwa v Solent NHS Trust – this time in respect of the right to respect for private life and correspondence under Article 8 of the Convention. The employee was accused of conducting a personal vendetta against two colleagues following the ending of his relationship with one of them. He accused them of forming an inappropriate workplace relationship and a number of malicious emails were sent – from several anonymous accounts – to a large number of the employer’s staff. One of the victims of the campaign reported the employee to the police alleging that he was behind the malicious emails. He was arrested and questioned but not charged. However, the police did collect evidence from the employee’s own mobile phone which contained photographs and personal emails sent by the employee to the complainant. At the conclusion of the investigation the police handed this material over to the employer.

Non-compete clauses

The Government has announced a ‘call for evidence’ relating to the practice of requiring employees to agree to restrictive covenants in their contracts of employment limiting the extent to which they can work for a competitor once their current employment has ended. The Government is worried that preventing employees from leaving to work for a competitor may have the effect of stifling innovation.

As the Government acknowledges, however, there are already limitations on the extent to which an employer can prevent former employees from working for a competitor. The Courts have long held that such clauses could amount to a restraint of trade and therefore be unenforceable on public policy grounds. The key question is whether the clause protects a legitimate business interest and is reasonable in all the circumstances.

… and Finally

The National Living Wage came into force at the beginning of April at the rate of £7.20 per hour for those aged 25 and over. However, stories are already spreading that employers are seeking to meet the cost by cutting down on other benefits. That can itself be dangerous – workers are entitled not to be subjected to any detriment because they qualify for a particular rate of the minimum wage and employers who penalise employees by increasing their basic pay but reducing other benefits may find themselves in the Tribunal.

This hasn’t stopped several large chains making changes to their benefits in a suspiciously coincidental time-frame – often with explanations which are ostensibly unrelated to the introduction of the National Living Wage. It will be interesting to see whether any claims emerge, but in the meantime, employees considering changing benefits to compensate for the introduction of the National Living Wage should tread carefully.

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