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Tuesday 29 September 2015

Employment Law Bulletin September 2015

Welcome

We’re back after our summer break, fully-rested and ready to grapple with more employment law issues.

We have updates for you on several hardy employment law perennials – including Tribunal fees, misconduct and social media and agency workers’ rights. And no round-up would be complete without a Working Time Regulations case, and we are as ever happy to oblige…

Tribunal fees to stay

The biggest single change to the employment law system since the 1970s has been the introduction of employment tribunal fees. Since the fees were introduced the trade union, UNISON, has been seeking to challenge the legality of the fee regime in the hope of persuading the courts to strike it down. However, their latest claim has now been rejected by the Court of Appeal.

The Right to be Accompanied

Employees are entitled to be accompanied at disciplinary and grievance hearings by a fellow employee or a trade union official. The choice of the representative is a matter for the employee, and so is the task of finding someone willing to take on the role. The employer must permit the employee to be accompanied by the chosen representative, but if the employee cannot find an appropriate person then that is generally not the employer’s problem.

Misconduct and social media

All but the most saintly of employees have at some stage made derogatory comments about colleagues, or moaned about having to go to work in the morning. In the past, there were rarely consequences, but in a world of social media, comments made in anger or without thinking can form part of a person’s digital footprint with the potential to be read by others years after they would otherwise have been forgotten.

Agency workers – the right to be told of vacancies

One of the provisions of the Agency Workers Regulations – regulation 13 – requires a hirer to inform an agency worker of any vacancies that they may have, to give that agency worker ‘the same opportunity’ as current employees to find permanent work with the hirer.

Carrying forward annual leave

The labyrinthine law on holiday and holiday pay doesn’t get any simpler. We have known for some time that an employee who is on sick leave must not lose out on the 4 weeks’ annual leave guaranteed by the Working Time Regulations – and that, if necessary, entitlement to that leave must be allowed to carry over into the following holiday year. What has not been so clear is how long this situation can continue. What if the employee is off for two years, or even three? Leaving aside the need to address the employer’s absence management procedures(!) would an employee in those circumstance be able to keep building up his or her holiday entitlement?

Indirect discrimination – Bulgarian electricity meters

It may not seem obvious that a case about the placement of Bulgarian electricity meters could have an impact on UK employment law, but the decision of the European Court of Justice in the catchily titled CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia (I wonder how much that is worth in scrabble) may prove to be important. An electricity company was taken to court for placing its electricity meters in certain areas of a city at a height that made it difficult to read the meter directly – but also difficult to tamper with. That was held to be a potential example of indirect race discrimination because the meters were only placed in this way in areas where the majority of the population was of Roma origin.

Preventing vexatious claims

Being taken to an employment tribunal is a costly and time-consuming business. The process is made even more frustrating when the claim is completely without merit. In some, very rare, cases employers are subjected to repeated claims from the same employee (or, more likely, a former employee) in a campaign of litigation that can drag on for years. While individual cases can be struck out by the tribunal if they have no reasonable prospect of success, the tribunal cannot simply disregard further claims brought by the same individual. In extreme cases an application can be made to the Attorney General to have the person declared a vexatious litigant, preventing him or her from bringing further claims, but it seems that there is now an easier way.

And Finally…

Anyone employing drivers will have a rule in place forbidding the use of a mobile phone while driving. A bus driver in Ireland, however, seemed to think that there would be no problem with using an iPad – because it wasn’t a phone! He was seen by other road users driving his empty bus at 60 miles an hour down the motorway, using his elbows to steer while he switched his iPad on to listen to the radio – and then steering with one hand while holding the iPad up to his ear. He appealed against his dismissal but the Employment Appeals Tribunal in Ireland upheld the decision to dismiss. The fact that he didn’t realise that the ban on the use of phones also extended to other electronic equipment such as iPads did not alter the fact that he had been seen driving in an unsafe manner.

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