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Archive for July, 2016

Wednesday 27 July 2016

Employment Law Bulletin July 2016

Welcome

The shockwaves of the decision taken on 23 June will be felt for years, if not decades, to come. We already have a new Prime Minister and a –ahem- controversial Foreign Secretary, and Brexit has the potential to transform our economic and legal landscape in profound ways. But will employment law be affected by all this?

As with so much at the moment, it is not certain, and much depends on the sort of relationship with the EU that the UK ends up enjoying. If, as some advocate, the UK becomes a member of the European Free Trade Association and remains within the single market as part of the European Economic Area (like Norway, Iceland and Lichtenstein) then it is possible that very little will change. EFTA countries are automatically bound by the Directives passed by the EU relating to employment law and are equally subject to decisions made by the European Court of Justice – albeit through their own EFTA Court.

Vulnerable migrant workers

The Supreme Court has taken a restrictive view of what constitutes direct discrimination in two disturbing cases involving the abuse and exploitation of migrant domestic workers.

Equal Pay

The award for the most optimistic appeal of the year so far must surely go to Asda Stores Ltd who are facing equal pay claims brought by some 7,000 store workers. A mainly female group of employees are claiming that they are doing the same job as (mainly male) warehouse workers and should be entitled to equal pay with them. It is believed that this is the biggest – and potentially most expensive – equal pay claim ever brought against a private sector employer. At a preliminary hearing Asda asked the Employment Tribunal to delay the case, essentially forcing the workers to bring their case in the High Court instead.

Acas and ill-health dismissals

Now for some welcome good news for employers in connection with dismissal procedures. The Acas Code of Practice on disciplinary and grievance procedures is important not just for the guidance that it gives employers in how to follow a fair procedure when dismissing an employee, but also because an unreasonable failure to follow its provisions can result in an ‘uplift’ of compensation of up to 25 per cent.

Conducting a hearing in the absence of the employee

A difficult issue for many employers is when it may be appropriate to conduct a disciplinary hearing in the employee’s absence. On the one hand it is important to give the employee a proper opportunity to be heard, but on the other, allowing a hearing to be repeatedly postponed can make the process both expensive and time consuming – not to mention frustrating! It can also cause a disruption and stress for the other employees affected by the process.

And finally…

The Government has announced that by the Autumn, Employment Tribunal decisions will be made available online – for free. Anyone who is interested will be able to search through cases to see who is suing who – and which employers are being found to be in breach of employment law. There is reason for both sides to feel some concern at this development. Employers will worry that having their dirty linen displayed so publicly will increase the reputational damage that a tribunal case can cause. Employees will be concerned at being identified as trouble makers by potential employers who might be tempted to vet job applicants by searching for them by name on the Employment Tribunal website.

The only consolation might be that as this is essentially a Government-run IT project, experience suggests that it might take a long time to be implemented. In the meantime the only way to access most decisions is by visiting the public reading room at the tribunal offices in Bury St Edmunds, where the decisions are stored in cardboard boxes with 250 to each box. Not exactly hi-tech…

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