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Thursday 21 May 2015

Employment Law Bulletin May 2015

Welcome

Well, who saw that coming?  New governments often herald employment law changes, and this time last month we were all confidently expecting some sort of coalition which was likely to make significant changes to the law, in particular in relation to the much-maligned (by Claimants, at least) Employment Tribunal fees regime.  Now that the Conservatives have surprised everyone by managing to form a majority government, it seems that Tribunal fee reform is unlikely to be happening anytime soon.  Instead, if the manifesto commitments are implemented (and that is quite a big if) then we can expect stricter thresholds for industrial action, particularly in “essential services”, and the introduction of three days’ paid leave for people working in companies with over 250 employees or the public sector for the purposes of volunteering – the latter being part of David Cameron’s Big Society concept, which we must admit we thought had been quietly put out to pasture.

Collective redundancy
USDAW v Woolworths

Remember the Woolworths and Ethel Austin case? It has been weaving its way through the courts for some time and now, finally, we have the European Court of Justice’s (ECJ) decision.

The issue was to do with collective redundancy consultations. Employers must carry these out where they are proposing 20 or more redundancies at any establishment within a 90-day period. It is quite onerous, involving at least 30 days’ consultation with recognised unions or – where you do not recognise a union – at least 30 days’ consultation with employee representatives specifically elected for that purpose.

Warnings issued in bad faith
Way v Spectrum Property Care

Warnings at work are a bit like stepping stones, each taking the employee a little closer to dismissal. But where it is alleged that a warning should not have been issued, is the employer still entitled to rely on it in later disciplinary proceedings?

Mr Way was an Electrical Contracts Manager for Spectrum. He was on a final written warning and went on to be dismissed for unrelated misconduct. The company took account of the final written warning in reaching its decision to dismiss.

Liability for psychiatric injury
Easton v B&Q

The state of someone’s mind is not always obvious. For employers who face liability for psychiatric injuries caused at work, this presents pitfalls. But the Easton case has shown that the foreseeability of injury – essential to a successful claim – is difficult for employees to prove.

Mr Easton was a successful manager at B&Q. He was diagnosed with depression, and two attempted returns to work were unsuccessful. He claimed that his initial illness was caused by occupational stress, resulting from B&Q’s negligence and/or breach of duty. He also claimed that B&Q caused his relapse by not properly managing his first return to work.

Whistleblowing – when is it ‘in the public interest’?
Chestertons v Nurmohamed

This case tested the meaning of “in the public interest” in relation to whistleblowing. These words were introduced in 2013 to prevent a worker from simply relying on a breach that is personal to him, as opposed to one that has wider implications.

Mr Nurmohamed was a director of the estate agency, Chestertons. He claimed to have been unfairly dismissed after making protected disclosures relating to the company’s financial matters. He believed that Chestertons was deliberately mis-stating costs and liabilities, and that that affected the earnings of 100 senior managers, including himself.

Political beliefs at work
GMB Union v Henderson

With politics high on the agenda, it is worth getting a good grasp of the legal protections that exist for people who hold philosophical beliefs. As the Employment Appeal Tribunal (EAT) pointed out in this case, these may be just as fundamental or integral to a person’s individuality and daily life as are religious beliefs.

Mr Henderson was a Regional Organiser for the GMB. A tribunal found that he was fairly dismissed for gross misconduct (upheld on appeal) but that he had suffered unlawful direct discrimination and harassment on the basis of the protected characteristics of his “left-wing democratic socialist beliefs”. The Union won its appeal of the discrimination and harassment finding.

Adopting the right approach

The government has issued guidance on the new adoption provisions that came into force last month (April 2015). These include the rights of parents to take adoption leave from day-one of their employment, and the right to take time off work to attend adoption meetings.

It is quite a hefty document, but certainly worth a read. Find it at:

 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/419080/bis-15-259-changes-to-adoption-leave-and-pay-from-5-april-2015-technical-guidance-for-employers.pdf

And finally

It has been reported that a bus driver from Bristol was unfairly dismissed after traces of cocaine were found in his saliva. He had never taken drugs, he said, and argued that the traces must have transferred from customers’ money to his hands and from there to the swab used for the saliva test. He also produced the results of a hair follicle test which showed that there had been no drugs in his body in the previous 90 days.

As well as highlighting the potential for alleged misconduct to be explained away – and the need for thoroughness in the disciplinary process – this case will be of interest to employers who rely on drug and alcohol testing at work. Remember that things may not always be what they seem.

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