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Wednesday 25 February 2015

Employment Law Bulletin February 2015

Welcome

“Think I just hit a cyclist. But Im [sic] late for work so had to drive off lol.”

Newspapers reported that the author of that tweet was sacked by his employer last month, despite his claim that there was no truth in what he had written and that it was just a bad joke.

Whatever the facts and the rights and wrongs (and as both a cyclist and a stickler for punctuation my opinion is that dismissal was entirely justified), the story is a reminder of the ever-changing challenges facing organisations all over the world, keen to not be tainted by association. The worldwide context is important because any single comment on social media has the potential to go global almost instantly.

One thing is certain in all of this – having a well-worded, well-communicated social media policy is more important than ever. Even if it does not eliminate employees’ misuse of Twitter, Facebook and the like, it will at least put you in a stronger position if you are forced to defend their dismissal.

Out of time at tribunal but claim goes on
Nayif v High Commission of Brunei Darussalam

Claimants have a three-month time limit to notify Acas that they want to bring a discrimination claim in the Employment Tribunal. Some employers will watch the clock tick down and, once those three months have passed, feel pretty safe in the knowledge that they are not going to face a claim.

There is, however, one important fact to bear in mind: the Employment Tribunal is not the only forum for employment-related claims. Some cases can be brought in the County Court or High Court where longer limitation periods apply. That is what has happened here.

Fit for Work?

By May this year, we should have a fully-functioning Fit for Work (FFW) service which aims to give clarity on employees’ ability to do their jobs.

Offering free occupational health assessment and return to work plans, FFW will be available to employers and employees as well as GPs, and it looks set to be a useful resource in the case of employees who have been on sick leave for four weeks or more. There will be two elements: a website and telephone line advice service; and a referral service. It is intended to complement, rather than replace, employers’ existing occupational health services and it is important to note that the service is not compulsory, with the employee having to consent to taking part. Time will tell what the take-up is like and how well it will work in practice.

You can access the latest employers’ guidance here:

https://www.gov.uk/government/publications/fit-for-work-guidance-for-employers

‘Virtual’ employee retains UK rights
Lodge v (1) Dignity & Choice in Dying and (2) Compassion in Dying

Can an employee who has worked in Australia for four years claim UK employment protection? In some circumstances, yes.

Ms Lodge worked as Head of Finance for the two employers (jointly) in London. It was agreed that, for family reasons, she could move to Australia and continue to work remotely for her employer via the virtual private network. That arrangement worked for four years until Ms Lodge resigned following the rejection of her grievance.

She brought an unfair dismissal and a detriment claim under UK employment law. The tribunal held that she had no right to do so.

Acas Code revised

It may not be the most momentous change in employment law and practice ever, but a change has been made to the Acas Code which affects the way employers should handle workers’ requests to be accompanied at disciplinary or grievance hearings.

It is in response to Toal v GB Oils, in which the Employment Appeal Tribunal held that in relation to disciplinaries and grievances, where a worker “reasonably requests to be accompanied at the hearing”, there is no reasonableness requirement relating to the identity of their companion. In other words, a worker does not need to be reasonable in choosing the person they would like to attend the meeting with them – they can choose someone who the employer considers to be a troublemaker or who the employer might not want to attend for some other (ostensibly legitimate) reason.

Appeal decision effective when made
Salmon v Castlebeck Care and Danshell Healthcare

Fishy goings-on relating to dismissal before a transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). Ms Salmon was dismissed before a TUPE transfer. The HR Director of the incoming employer, Danshell, heard her appeal and decided, post-transfer, that the dismissal was unsafe. However, she did not tell anyone about this – including Ms Salmon – or decide to reinstate Ms Salmon. Instead she instructed Danshell’s retained HR consultants to negotiate a settlement – but for reasons that are unclear, that did not happen.

Could Ms Salmon bring a claim against the new employer? The Tribunal held that she could not; as transferee, Danshell had never become her employer.

Place of work redundancy
EXOL Lubricants v Birch

The claimants were delivery drivers. They lived near in Manchester but their depot was in Wednesbury. EXOL arranged secure parking for their HGVs in Stockport near the drivers’ homes because of the cost to them of commuting. This became a term of their contract, which also said that their place of work was the depot in Wednesbury. Time spent travelling between Stockport and Wednesbury was treated as part of their working day.

EXOL gave notice to terminate the secure parking arrangement when it decided it was no longer affordable. The employees were unable to agree a compromise with EXOL and were dismissed. EXOL argued that these were fair redundancy dismissals, claiming that Stockport was the employees’ place of work and its requirement for lorry-driving there had diminished. The employer had ceased to carry on business in the place in which the employees were employed.

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