Category Archives: employment law update

The perils of social media

 

There are a lot of good things about social media, the speed, the scope, the varied audience and the immediacy of communicating a message to large numbers of people and businesses around the world.

One major problem with both social media, emails and the internet is the simple fact that it is very difficult to take back or delete comments, messages or data made by individuals which may come back to cause them or others harm.

A recent employment tribunal case highlights this very issue.

Mr Smith was sacked by his employer, the British Waterways Board for gross misconduct once evidence came to light that 2 year’s previously he had posted derogatory comments about his supervisors and admitted drinking alcohol whilst on standby on his personal Facebook account.

This was despite Mr Smith having an unblemished service record and the company being aware of his misconduct for some time.

Mr Smith described his supervisors as “w******, f*****, p***** and c****” on Facebook.

The company found that Mr Smith had made derogatory comments about the company as an employer and had claimed to be drinking alcohol whilst on standby, bringing his capabilities into question and leaving the company open to condemnation in a public forum.

The company had a social media policy which prohibited any action on the internet which might embarrass or discredit the company, including defamation of third parties including posting comments on bulletin boards or chat rooms.

Despite this, the employment tribunal decided that the dismissal was unfair on the basis that the decision to dismiss Mr Smith was “outside the band of reasonable responses which a reasonable employer might have adopted”.

The Employment Appeal Tribunal disagreed and found the dismissal to be fair on the basis that it was fair to dismiss Mr Smith for his comments on Facebook alone, even though they were two years old and the employer had knowledge.

Comment

This case follows previous decisions (see http://osjlaw.co.uk/employee-sacked-for-sending-lewd-emails/) and is ultimately a strong reminder to employers on the importance of having and maintaining an effective social media policy and to employees of using their brains before posting online at anytime during their employment.

It is also a reminder to employee’s that you shouldn’t bite the hand that feeds you.

It is also good news for employer’s in that a failure to respond to an employee’s earlier act of misconduct will not necessarily mean that they will lose the opportunity to take action at a later date.  It also shows that a well written and policed social media policy can have teeth and save both legal fees and protect businesses from abuse by disgruntled staff.

If you need further advice on this blog whether you are a Business or an Individual, please send an email, (william.addis@keystonelaw.co.uk) or call me, on my mobile 07767 166705 or 0207152 6550 (London office number).

http://osjlaw.co.uk/about-me/

© OSJ Law Limited

Should travel time be paid ?

Van-drive

The law on what counts as working time for mobile workers was at the centre of a new employment law case in Spain.

A group of Spanish drivers who drove to customers throughout Spain installing security systems complained that their employer was breaching the law by not treating their first and last journeys of the day as working time as the company had done.

The company policy changed following a restructuring in which the workers were reassigned to Madrid but had previously had their working day as starting when they reported to their particular provincial office at the start and end of each day to pick up their company car.

The employer disagreed and argued that the first journey of the day (from home to the first assignment) or the last journey of the day (from the last assignment home) were not working time but rest time and therefore unpaid.

The workers brought a case against their employer in the Spanish courts via their union who were not certain what the correct legal position was and decided to refer the question to the European Court of Justice.

The Advocate General’s opinion was that that the workers were correct and that the first and last journeys of the day should be classified as working time because during such time the workers were at the workplace, at the employer’s disposal and were carrying out their activity or duties.

Although this decision is not binding on the European Court of Justice or UK employers at now, as most opinions are usually followed by the European Court of Justice, it may become good law, in which case, both employee’s and employer’s will then need to take note of this potential new right to claim for travel time and consider the implications of this opinion in the workplace, particularly where mobile or peripatetic working is commonplace.

Employee sacked for sending lewd emails

A recent High Court case (Williams v Leeds United Football Club) has decided that an employer was entitled to summarily dismiss an employee, who was already serving 12 months’ notice of redundancy, when it discovered that, five years previously, he had forwarded a pornographic e-mail to a junior colleague and two external contacts.

The Court held that the employer, Leeds United Football Club, was entitled to treat this conduct as a repudiation of the contract of employment, despite the fact that it was looking for a reason to justify immediate dismissal.

W was employed by LUFC as technical director from 2006 onwards. He was paid a salary of £200,000 per annum, terminable on 12 months’ notice. In 2013, LUFC began a restructuring exercise, which identified W’s post as being at risk. Concurrent to this exercise, the managing officers had decided to start investigations into a number of senior managers, including W, to see if evidence could be found that would justify dismissing them on grounds of gross misconduct, thereby avoiding any obligation to pay lengthy notice in the event of redundancy. This investigation extended to appointing a firm of forensic investigators to trawl through LUFC’s e-mail system.

On 22 July 2013, the managing director was instructed to stop all payments to W, even though this would be in breach of contract. The next day, W was given was given written notice of the termination of his employment by reason of redundancy. On 24 July, the forensic investigators reported to LUFC that they had discovered one e-mail containing lewd images, which had been received by W on 28 March 2008 and forwarded by him that same day. LUFC wrote to W, requiring that he attend a disciplinary hearing on 29 July. He did not attend, and was summarily dismissed by letter dated 30 July. W pursued a claim before the High Court, contending that he had been wrongfully dismissed and was entitled to the salary he would have received during his 12 month notice period.

The High Court dismissed the claim. It observed that, at the time of dismissal, LUFC was under the apprehension that W had forwarded the e-mail to just one person – a former colleague, and close friend, who now held a senior role at another club. However, before the Court it transpired that the e-mail had also been forwarded to a junior female employee at LUFC, and to a second former colleague. This conduct, viewed objectively, was sufficiently serious to warrant summary dismissal. Indeed, the act of forwarding the e-mail to a junior colleague would itself be sufficiently serious, since it had exposed the employer to the possibility of a claim for sexual harassment.

 

http://www.bailii.org/ew/cases/EWHC/QB/2015/376.html

 

 

January 2015 Blog – recent changes and the year ahead….

 

Happy New Year!

2014 was an interesting and challenging year with many significant cases and changes in law. To make sure you are ready for the year ahead as a business or an individual, please see the recent and forthcoming changes in employment law below…

 

Recent and forthcoming changes in Employment Law

 

When Development
1 December 2014 The Paternity, Adoption and Shared Parental Leave (Parental Order Cases) Regulations 2014 and Statutory Shared Parental Pay (Parental Order Cases) Regulations 2014 came into force. Together with the Employment Rights Act 1996 (Application of Sections 75A, 75B, 75G, 75H, 80A and 80B to Parental Order Cases) Regulations 2014 (which came into force on 25 November 2014), these regulations gave various rights to the intended parents of a child born to a surrogate mother.
1 December 2014 Ban of “overseas only” recruitment by employment agencies takes effect.
31 December 2014 Proposed rules on bonus clawback to come into force as amendments to the Remuneration Code.
1 January 2015 Lock v British Gas Trading Limited and others employment tribunal hearing on whether holiday pay should include commission.
7 January 2015 The House of Lords Committee stage of the Small Business, Enterprise and Employment Bill 2014-15 is scheduled to begin. Previously, it had been reported that the Committee stages would take place in February 2015, which may refer to the employment sections.
5 February 2015 The Advocate General’s opinion in the Woolworths case is due to be released.
30 March 2015 Parliament will be dissolved and the period of pre-election purdah will commence.
5 April 2015 New system of shared parental leave will be available to parents of children due to be born or placed for adoption with them on or after 5 April 2015.
5 April 2015 Removal of the requirement for 26 weeks’ service before employees become entitled to adoption leave, introduction of a new right for both single and joint adopters to attend adoption appointments together with protection against suffering a detriment or being dismissed in relation to exercising that right and prevention of employees taking paternity leave if they have exercised a right to take paid time off to attend an adoption appointment in respect of that child etc.
5 April 2015 Provisions of the Maternity and Parental Leave etc (Amendment) Regulations 2014 to come into force, extending the existing unpaid parental leave regime to parents of children aged between five and 18.
5 April 2015 Provisions of the Paternity and Adoption Leave (Amendment) (No. 2) Regulations 2014 to come into force, extending current rights to adoption leave contained in the Paternity and Adoption Leave Regulations 2002 to individuals fostering a child under the “Fostering for Adoption” scheme run by local authorities.
5 April 2015 The Shared Parental Leave and Paternity and Adoption Leave (Adoptions from Overseas) Regulations 2014 and the Statutory Shared Parental Pay (Adoption from Overseas) Regulations 2014 come into force. Together with the earlier Employment Rights Act 1996 (Application of Sections 75G and 75H to Adoptions from Overseas) Regulations 2014 (which came into force on 25 November 2014), these aim to include couples who are adopting a child from outside the UK in the right to shared parental leave and pay.
6 April 2015 The amended record-keeping, returns and penalties provisions under the Finance Bill 2014 intended to combat false self-employment through service companies will apply from 6 April 2015 (with the first return due by 5 August 2015).
7 May 2015 General election.
Autumn 2015 New tax-free childcare scheme to be introduced.
Autumn 2015 Draft order to outlaw caste discrimination expected.

 

If you need further advice on this blog whether you are an Business or an Individual, please send an email, (william.addis@osjlaw.co.uk) or call me, on my mobile 07767 166705 or 01580 712718 (local office number) or 0207152 6550 (London office number).

http://osjlaw.co.uk/about-me/

© OSJ Law Limited

Summer Employment Law Update

It’s been a busy time for most people during the Summer months and most sensible people have put the blackberry’s away and gone somewhere hot to lay by a pool.  In the meantime, many important employment law changes and decisions have been made which I will bring to your brief attention during this Summer employment law update.

Exclusivity clauses in zero-hours contracts to be banned

The Government has confirmed that it will ban the use of exclusivity clauses and increase the availability of information on zero-hours contracts for employees.

The Government will also work with unions and business to develop a best practice code of conduct aimed at employers who wish to use zero-hours contracts.

The ban on exclusivity clauses will form part of the Small Business, Enterprise and Employment Bill. The Government states that 83% of the responses to the consultation were in favour of the ban.

Severe Obesity may be a disability

In the Danish case of Kaltoft v Municipality of Billund (C-354/13), which was referred to the European Court of Justice, the Advocate General has given the opinion that obesity may amount to a disability for the purposes of the EU Equal Treatment Framework Directive (No.2000/78) but only if it is ‘severe’.

The Advocate General thought it probable that only obesity with a body mass index (BMI) of over 40 would hinder an individual’s participation in professional life to such an extent as to amount to a disability.

He also rejected the argument that there is a freestanding prohibition in EU law on discrimination on the ground of obesity per se.

In the Advocate General’s view, ‘most probably’ only WHO class III obesity, also known as ‘severe, extreme or morbid obesity’ with a BMI over 40, will create such problems in mobility, endurance and mood as to amount to a disability.

Further reduction in number of Tribunal Claims in first quarter of 2014

The Ministry of Justice (MoJ) has published tribunal statistics for January to March 2014. The statistics show that the significant reduction in the number of claims since the introduction of fees in July 2013 has continued.

Ignoring the impact of multiple claims (those involving more than one claimant, which can skew the statistics), the number of claims brought by single individuals has dropped by 59% compared to the same period in 2013. This continues the trend shown in the October to December 2013 statistics of a reduction of 63% in single claims compared to the same period in the previous year. The reduction appears to be consistent across all types of claim and in all tribunal regions.

Of the complaints disposed of by the employment tribunals in the period January to March 2014, 37% related to working time, 19% were for unfair dismissal, 10% were for equal pay and 8% were associated with discrimination.

Source: Tribunal statistics quarterly, January to March 2014, MoJ, 12 June 2014.

Statutory holiday pay should include a sum in respect of commission

The ECJ has held that, where a worker’s remuneration includes contractual commission, determined with reference to sales achieved, the Working Time Directive precludes a national law that calculates statutory holiday pay based on basic salary alone. If commission payments are not taken into account, the worker will be placed at a financial disadvantage when taking statutory annual leave as no commission will be generated during the holiday period. In such circumstances, the worker might be deterred from exercising the right to annual leave. This would be contrary to the directive’s purpose.

This case was referred to the ECJ by the Leicester employment tribunal. The tribunal recognised that, under the natural wording of the Working Time Regulations 1998 and the week’s pay provisions of the Employment Rights Act 1996, the claimant was not entitled to a sum in respect of commission in his holiday pay. The case is now likely to return to the tribunal to consider whether the domestic legislation can be interpreted in line with the ECJ’s decision and, if it can, the level of holiday pay to which the claimant was entitled.

Contractual disciplinary procedure did not allow for increased sanction on appeal

The Court of Appeal has upheld the High Court’s decision that an employer could not increase the disciplinary sanction it imposed following the employee’s appeal. The employer, an NHS Trust, had incorporated a formal and detailed disciplinary procedure into the employee’s contract. The employee appealed against the imposition of a written warning and the Trust contemplated increasing the severity of that sanction, which would lead to the employee’s dismissal.

The court held that the contractual procedure did not allow for increased penalty on appeal. To construe the procedure in that way was inconsistent with the terms of the contract and the Acas guide on discipline and grievances. If the Trust wished to reserve its right to increase the disciplinary sanction on appeal, that should have been made explicit in the procedure.

Seldon: law firm partner’s mandatory retirement at 65 was objectively justified

The EAT has upheld an employment tribunal’s decision that, as at 31 December 2006, a law firm’s mandatory retirement age of 65 for partners was a proportionate means of achieving the legitimate aims of workforce planning and staff retention. The retirement age was objectively justified and did not amount to direct age discrimination against a partner, Mr Seldon, who was required to retire on that date. The tribunal correctly determined where the balance lay between the discriminatory effect of choosing a particular retirement age and its success in achieving the aims identified. (Seldon v Clarkson Wright & Jakes UKEAT/0434/13.)

HR letter advising the outcome of a grievance could bind employer to higher pay

The EAT has held that an employer was bound by rates of pay set out in a letter from an HR officer who had investigated a grievance about employees’ pay. The EAT held that the critical principle was whether it was intended that the communication would set out what had been decided by the employer and whether the HR officer was held out by the employer as authorised to make that communication.

However, the question of whether the contract was void for mistake was remitted to be considered by a fresh tribunal. The employer’s argument that the employees must, or ought to have known, that the information provided by the HR officer was in error therefore remains to be decided. (Hershaw and others v Sheffield City Council UKEAT/0033/14.)

Workers on call do not need to be at the workplace to be “working”

The Scottish EAT has held that ambulance paramedics who were contractually required to stay within a three-mile radius of the ambulance station and to respond within three-minutes were working during such on-call periods. It was not a rest period for the purposes of the Working Time Regulations 1998. The tribunal erred in finding that there needed to be a form of near confinement to one specific location for it to be considered working time. The decisive factor was that they were obliged to be present and remain available at a place determined by the employer.

Earlier ECJ cases have considered on-call time to be working time where the worker is required to be in the workplace and ready for work (even though they were sleeping). This case widens the scope to workers who are not required to be in the workplace while on call but are nevertheless subject to certain limitations. In this case, they were not completely free to choose where they would stay since they were limited to a specific area and a specific response time. (Truslove and another v Scottish Ambulance Service UKEAT/0053/13.)

New Acas code of practice and guidance on the right to request flexible working

The right to request flexible working has been extended to all employees with at least 26 weeks’ continuous service, effective from 30 June 2014. To assist employers with handling flexible working requests, Acas has published a new Code of practice: Handling in a reasonable manner requests to work flexibly and The right to request flexible working: an Acas guide.

The Acas Code of practice will be taken into consideration by employment tribunals when appropriate. It provides detailed steps for managing flexible working requests “in a reasonable manner”. The guide provides good practice tips for employers when implementing flexible working policies and considering requests, and sets out “business reasons” for refusing requests.

Sources: Acas: Code of practice: Handling in a reasonable manner requests to work flexibly (June 2014) and Acas: The right to request flexible working: an Acas guide.

If you need further advice on this blog whether you are an Business or an Individual, please send an email, (william.addis@osjlaw.co.uk) or call me, on my mobile 07767 166705 or 01580 712718 (local office number) or 0207152 6550 (London office number).

http://osjlaw.co.uk/about-me/

© OSJ Law Limited

May Employment Law Update

May Employment Law Update

“Lots of people go mad in January. Not as many as in May, of course.”

(Karen Joy Fowler, Sarah Canary)

Hopefully you have kept your sanity in May despite the pressures of work and life generally, whether a business or an individual. If you have, then you will be able to catch up on this brief summary of the latest changes in the ever changing minefield that is UK employment law.

Legal changes

1 May 2014 reminder: deadline for TUPE employee liability information notification increases to 28 days

The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 (SI 2014/16) came into force on 31 January 2014. The regulations make a number of amendments to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE).

One such amendment is to the timeframe for providing employee liability information.

Regulation 11(6)(a) of TUPE has been amended so that the deadline for notification of employee liability information to the transferee is increased, from 14 days to 28 days. This amendment only applies to transfers that take place on or after 1 May 2014.

Early conciliation mandatory from 6 May

Early conciliation becomes mandatory for most types of employment tribunal claims from 6 May 2014. It will make important changes to how limitation dates are calculated and how claims should be presented.

For further information  go to the ACAS website http://www.acas.org.uk/index.aspx?articleid=4028

 

Employment Law cases round up

Court grants order for imaging and inspection of ex-employees’ computers

The High Court has ordered that an employer may instruct an independent computer expert to inspect and take images from the personal computers of two former employees. The employer was granted the mandatory injunction after information came to light which suggested that the individuals had misused confidential information belonging to the employer during their employment.

The court took into account the fact that it had a high degree of assurance about the strength of the employer’s claim, and that the employer had taken years and used significant resources to create the confidential information at the heart of the proceedings.

(Warm Zones v Thurley and another [2014] EWHC 988 (QB).)

Receiving pay was not a prerequisite for employment status

The EAT has held that an individual can still be considered an “employee” for the purposes of the Employment Rights Act 1996 even if they have not exercised their right to be paid.

The individual, the Managing Director and sole shareholder of a company, remained entitled to a redundancy payment from the Insolvency Service under section 166 of ERA 1996, despite not receiving pay for two years. She had elected to forgo her salary in an attempt to keep the company afloat.

(Secretary of State for Business, Innovation and Skills v Knight UKEAT/0073/13.)

 

Statutory holiday pay should include a sum in respect of commission

The ECJ has held that, where a worker’s remuneration includes contractual commission, determined with reference to sales achieved, the Working Time Directive precludes a national law that calculates statutory holiday pay based on basic salary alone.

If commission payments are not taken into account, the worker will be placed at a financial disadvantage when taking statutory annual leave as no commission will be generated during the holiday period. In such circumstances, the worker might be deterred from exercising the right to annual leave. This would be contrary to the directive’s purpose.

This case was referred to the ECJ by the Leicester employment tribunal. The tribunal recognised that, under the natural wording of the Working Time Regulations 1998 and the week’s pay provisions of the Employment Rights Act 1996, the claimant was not entitled to a sum in respect of commission in his holiday pay. The case is now likely to return to the tribunal to consider whether the domestic legislation can be interpreted in line with the ECJ’s decision and, if it can, the level of holiday pay to which the claimant was entitled.

(Lock v British Gas Trading Ltd C-539/12.)

LLP member was “clearly” a worker and entitled to whistleblower protection

The Supreme Court has held that a former equity partner of a law firm incorporated as a limited liability partnership (LLP) was clearly a worker and therefore eligible to bring a whistleblowing claim against the LLP.

Overturning the decision of the Court of Appeal, the court found that the LLP member fell within the definition of worker in section 230(3) of the Employment Rights Act 1996, as she could not market her services as a solicitor to anyone other than the LLP and was an integral part of its business.

It was not necessary for there to be an element of subordination in order for worker status to be made out. While subordination may sometimes be an aid to distinguishing workers from other self-employed individuals, it is not a universal characteristic of being a worker.

The court also shed some light on the meaning of section 4(4) of the Limited Liability Partnerships Act 2000, which has been notoriously difficult to interpret. It does not mean (as the Court of Appeal found) that LLP members can only be workers if they would also have been workers had the LLP been a traditional partnership under the Partnership Act 1890.

The Supreme Court’s decision is significant as it means that LLP members will benefit not only from the statutory protection from detriment available to whistleblowers, but also from a range of other rights available to workers. These include the right to paid annual leave and the right to be auto-enrolled in a pension scheme.

(Clyde & Co LLP and another v Bates van Winkelhof [2014] UKSC 32.)

Source: The Practical Law Company

If you need further advice on this blog whether you are an Business or an Individual, please send an email, (william.addis@osjlaw.co.uk) or call me, on my mobile 07767 166705 or 01580 712718 (local office number) or 0207152 6550 (London office number).

http://osjlaw.co.uk/about-me/

© OSJ Law Limited

April Employment Law Update

April Employment Law Update

April is normally a very busy time for employment lawyers, as you will see from the following changes to employment law which came into effect on 6 April 2014, together with the cases below. April was also a busy month for me and included successfully representing a commercial client at a Judicial Mediation in which an agreed settlement was negotiated which saved my client over £30,000 in legal costs alone.  Sometimes it is good to talk!

Legal changes

6 April 2014

  • Abolition of discrimination questionnaires.

What does that mean now ? Acas has published good practice guidance on how employers should deal with questions regarding discrimination in the workplace after statutory discrimination questionnaires are abolished.

  • Mandatory pre-claim Acas conciliation.

There is now a four-step procedure for early conciliation (EC) through Acas before an employment tribunal claim can be commenced. Transitional provisions cover the period between 6 April and 5 May 2014 during which EC will be available to prospective claimants. EC will be mandatory for claims presented on or after 6 May 2014.

  • Increase to employment tribunal fees.

The Courts and Tribunals Fees (Miscellaneous Amendments) Order 2014 (SI 2014/590) will re-categorise a number of claims as “Type B” claims, which attract a higher fee. This is to remedy what the government has identified as a mistake in the original legislation which categorised certain claims incorrectly as “Type A”.

  • Financial penalties for losing employers.

Tribunals now have the power to order that a losing employer pay a financial penalty in specified circumstances. This will apply in cases presented on or after 6 April 2014.

  • Abolition of the Percentage Threshold Scheme.

The Percentage Threshold Scheme enables employers to reclaim Statutory Sick Pay (SSP) from HMRC, where the total SSP paid in a month exceeds 13% of their Class 1 National Insurance contributions for that month. A draft Order abolishing the scheme, as part of the government’s review of health at work, was laid before Parliament and approved by the House of Lords on 12 February 2014. It is expected to take effect on 6 April 2014.

  • Abolition of SSP record-keeping obligations.

The Statutory Sick Pay (Maintenance of Records) (Revocation) Regulations 2014 (SI 2014/55) will abolish the obligation on employers to keep specified records of dates of sickness and SSP payments

  • Maximum compensatory award increase.

The maximum compensatory award for unfair dismissals where the effective date of termination falls on or after 6 April 2014 will be increased to £76,574 (or 52 weeks’ gross pay, if lower).

  • Increases to rates and limits.

Several statutory rates and payments will increase on 6 April 2014, including statutory sick pay, maternity pay, paternity pay, adoption pay, and the cap on “a week’s pay”.

  • Increased penalty for employing illegal workers.

The maximum civil penalty which may be payable under section 15(2) of the Immigration, Asylum and Nationality Act 2006 will increase from £10,00 to £20,000 where an employer is found to have employed adults who are subject to immigration control but do not have the right to work in the UK.

  • Changes to TUPE: post-transfer pension contributions.

The Occupational Pension Schemes (Miscellaneous Amendments) Regulations 2014 come into force on 6 April 2014. From that date, transferee employers will have the option to match the transferor’s level of employee pension contributions into a defined contribution scheme, even if they are less than the current minimum of 6%. This is to avoid the situation where employees could be in a more favourable position than they would have been if they had not transferred.

  • MPs added to list of “prescribed persons”.

The Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2014 amends the schedule to the Public Interest Disclosure (Prescribed Persons) Order 1999 to make members of the House of Commons (MPs) “prescribed persons” in England, Scotland and Wales to whom a whistleblower may, under certain circumstances, make a protected disclosure.

 

Employment Law cases round up

TUPE: employees transferred to parent company following share purchase by subsidiary

Normally a share purchase will not be a TUPE transfer, however The Employment Appeal Tribunal (EAT) has upheld a tribunal decision that employees had transferred under TUPE to a parent company following a share purchase by one of its subsidiaries.

The EAT decided that the tribunal had been entitled to find, on the facts, that the share sale triggered a co-extensive but separate transfer to the parent company. In this respect the tribunal had taken account of a statement of intent made by the parent company that employees would be moving over to it, the arrival of its integration team, and the fact that day-to-day control of the transferor’s business activities had passed to the parent company.

The EAT also upheld the tribunal’s finding that affected employees had been entitled to bring claims for failure to inform and consult in their own names. While there had been an employee representative committee, on the facts, the mandate of representatives who had served on the committee had expired some time before the share sale. The ad hoc committees that had continued thereafter had not been mandated by the affected employees to carry out TUPE consultation.

Not sure if TUPE applies ? Take specialist legal advice.

12-month non-competition restriction enforceable against financial adviser

The High Court has held that a 12-month non-competition post-termination restrictive covenant in an agreement between a financial adviser and his employer was enforceable. Under a “goodwill agreement”, the financial adviser had been paid for the goodwill in the client base he brought with him to the firm, but was prevented from working in any capacity in competition with his employer for 12 months after his employment terminated.

The court held that the non-competition restriction was enforceable because the goodwill agreement was akin to a business sale agreement into which the parties had entered with equal bargaining power. It further noted that 12-month post-termination restrictions were common within the financial services industry and were reasonable in cases such as this where there was an exceptionally strong relationship between the employee and their clients.

The court rejected the employee’s argument that the employer had failed to mitigate its loss as it had not put him on garden leave or sought injunctive relief. It concluded that a claim for breach of contract was appropriate in these circumstances where the employer did not want to cause further damage to its client relationships. It ordered the financial adviser to pay damages for the employer’s loss of profit for two years after his departure.

Christian nursery worker brings claim for religious discrimination against her former employer

A Christian nursery worker has brought a religious discrimination claim against her former employer, Newpark Childcare. Sarah Mbuyi alleges that she was dismissed from her position at a nursery in Shepherd’s Bush due to her beliefs, after she was asked whether she would be able to read books to children which featured same-sex parents, and replied that she would not be able to read them. Miss Mbuyi was also accused of harassing a lesbian co-worker with whom she had discussed her religious beliefs.

This case again highlights the conflict between the right to religious belief and the right not to be discriminated on grounds of sexual orientation.

http://www.telegraph.co.uk/news/religion/10776411/Christian-nursery-worker-sacked-after-refusing-to-read-gay-stories-to-children.html

If you need further advice on this blog, please send an email, or call me, on my mobile 07767 166705 or 01580 712718 (local office number) or 0207152 6550 (London office number).

 

http://osjlaw.co.uk/about-me/

© OSJ Law Limited

March Employment Law Update

Hello readers, March have been a significant month for OSJ Law, as it celebrated its first year anniversary!

Here’s to the next year as an even better year for OSJ Law and all businesses and employment generally in the United Kingdom and beyond.

In terms of the March employment law update I have compiled a top 5 of my most significant and relevant employment law cases and legal changes to update readers of this blog. Enjoy this and the start of spring with new confidence in the economy and your knowledge of employment law.

The Top 5

1.    Flexi-time schemes and unlawful deductions from wages

Businesses that use flexi-time schemes should take note of a recent EAT judgment that an employee, who was not paid on termination of employment for over 1000 extra hours worked under a flexi-hours scheme, had not suffered an unlawful deduction from wages.

The EAT recognised that the poor drafting of the flexi-hours scheme was at the heart of the problem in this case. The scheme differentiated between those employees who were entitled to overtime payments and those who were not and did not address the issue of payment on termination of employment at all.

To avoid this type of dispute, businesses should ensure that the terms of flexi-hours schemes make it clear what will happen to accumulated hours on termination and should, ideally, make sure that employees manage their accrued hours to avoid a significant build-up.

Source: The Practical Law Company

2.    Covert recording of private discussions at disciplinary and grievance hearings admissible

The EAT has upheld an employment tribunal decision that covert recordings made by an employee of the public and private discussions of the panel at her grievance and disciplinary hearings could be admitted as evidence at a final hearing.

The EAT held that the private comments made by the panel were not part of their deliberations on the matters under consideration and the case could therefore be distinguished from its decision in Amwell View School Governors v Dogherty. The tribunal was entitled to decide that the recordings were admissible in evidence, the cogency and relevance of which could be determined by the tribunal at the final hearing. (Punjab National Bank (International) Ltd and others v Gosain UKEAT/0003/14.)

Source: The Practical Law Company

3.    Responses to zero hours contracts consultation

BIS has announced that the government’s consultation on zero hour’s contracts, which closed on 13 March 2014, attracted more than 30,000 responses. The consultation identified exclusivity clauses and a lack of transparency as two key concerns posed by zero hours contracts and asked for views on potential solutions.

Since the consultation closed, Acas and CIPD have published their full responses online. Acas has suggested that exclusivity clauses in zero hours contracts are likely to be detrimental to relations between employer and employee. It calls for new guidance on zero hours contracts, to ensure that employers and employees understand their working arrangements. However, CIPD has taken this a step further and recommended that the government bans exclusivity clauses in zero hours contacts unless employers can demonstrate a “compelling business reason” for their use.

Sources: The Practical Law Company

Zero hours contracts consultation closes with over 30,000 responses, BIS, 15 March 2014; Acas Council response to the Government’s consultation on zero-hours contracts, Acas, 18 March 2014, and Exclusivity clauses in zero hours contracts should be banned where there is no compelling business reason for their use, says CIPD, CIPD, 14 March 2014.

4.    TUPE service provision changes: “intends” means more than “hope and wish” that task will be short-term

The EAT has upheld an employment tribunal’s decision on the meaning of “intends” in the “task of short-term duration” exception to the TUPE service provision changes rules, for situations where a client buys in services from a contractor on a one-off basis.

For the exception to apply, a client must have more than a “hope and wish” that a particular event or task will be short-term. In this case, there had been a service provision change when a local authority transferred the home care provision for an individual with learning difficulties to a new provider on an ad hoc basis, pending an application to the Court of Protection to change the individual’s care plan, which would have removed the need for home care.

The EAT also found that an employee of the transferor, who had been suspended from her duties at the time of the service provision change and told that she was not able to return to her post caring for the individual, was not assigned to the organised grouping of employees. Therefore, she had not transferred to the transferee. (Robert Sage Ltd (t/a Prestige Nursing Care Ltd) v O’Connell and others UKEAT/0336/13.)

Source: The Practical Law Company

5.    Employment tribunal fees to increase in some cases from 6 April 2014

The Courts and Tribunals Fees (Miscellaneous Amendments) Order 2014 has been laid before parliament and will come into force on 6 April 2014. The main effect of the order from an employment law perspective is to re-classify the following claims as “Type B” claims attracting the higher fees (£250 issue fee and £950 hearing fee for a single claimant):

  • Equal pay.
  • Sex equality in pension schemes.
  • Failure to inform or consult under TUPE.
  • Failure to allow compensatory rest under the Working Time Regulations 1998.
  • Breach of the right to request time off for training.

This is to remedy what the government has identified as a mistake in the original legislation which categorised those claims as “Type A”, attracting the lower fees (£160 issue fee and £230 hearing fee). The Order also corrects errors in the existing legislation concerning the definition of “excluded benefits” in relation to fee remission.

Source: The Practical Law Company

If you need further advice on this blog, please send an email, or call me, on my mobile 07767 166705 or 01580 712718 (local office number) or 0207152 6550 (London office number).

http://osjlaw.co.uk/about-me/

© OSJ Law Limited

 

February Employment Law Update

February Employment Law Update

February has been a mixed month in terms of good and bad news on the employment and economy front. (Let’s leave the weather out of it)…

The economy

Good news

  • Official figures confirm that the UK economy grew by 0.7% in the final three months  of 2013, helped by rising business investment.
  • House  prices rose by 0.6% in February, a 9.4% increase on the same month in  2013, Nationwide says.

Less good news

  • Real earnings fall to 2002 levels. The Office for National Statistics has revealed  that the weekly earnings of full-time workers in the UK fell each year, in  real terms, between 2008 and 2013.

Employment law changes

In terms of employment law changes, needless to say a lot has been happening as always on both the changes in law and case law.  Within this February update, I have tried to select the most relevant and interesting changes for both Employers and Employees alike to give readers and quick snapshot of what’s going on. I hope you enjoy it!

Legal changes

Limits on tribunal awards to increase from April 2014

Tribunal compensation limits will increase on 6 April 2014 under the Employment Rights (Increase of Limits) Order 2014.

The maximum compensatory award for unfair dismissal will rise from £74,200 to £76,574. However, since 29 July 2013 there has been an additional cap of one year’s salary on the compensatory award for unfair dismissal.

The maximum amount of a week’s pay, used to calculate redundancy payments or various awards including the basic or additional award of compensation for unfair dismissal, also rises from £450 to £464.

Acas early conciliation: operational from 6 April 2014, mandatory from 6 May 2014

Currently ACAS conciliation is optional for employers and employees involved within an employment tribunal claim. However, from 6 May 2014 Early Conciliation will be mandatory for claims presented on or after 6 May 2014.

Transitional provisions cover the period between 6 April and 5 May 2014 during which Early Conciliation will be available to prospective claimants.

The Early Conciliation Rules of Procedure are set out in the Schedule to the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations (SI 2014/254) and will take effect from 6 April 2014.

Changes to the draft Rules provide that, as an alternative to submitting a completed Early Conciliation form online or by post, prospective claimants will be able to telephone Acas who will fill in the form. It will not be possible to deliver an Early Conciliation form by hand. The mandatory required information, omission of which risks rejection of the EC form, is now limited to the name and address of both the prospective claimant and respondent. The provisions in the draft Rules regarding the consequences of settlement have been removed.

New Acas guidance on TUPE 2014 changes

Following the recent changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE), Acas has published a short guide, 2014 changes to TUPE, to assist employers who are dealing with TUPE transfers. The guide summarises the new rules which came into force on 31 January 2014 and provides illustrative examples of how some of the changes will apply.

Acas is also in the process of developing new guidance on TUPE generally, which will be available in the coming months.

For further details see

http://www.acas.org.uk/media/pdf/l/1/9908-2901767-TSO-ACAS-TUPE_is_changing-ACCESSIBLE.pdf

Source: Transfer of undertakings (TUPE), Acas, 31 January 2014.

 Tribunals: financial penalties for losing employers

On 11 February 2014. New Paragraphs 3(e) and (h) of the Order bring section 16 of the Enterprise and Regulatory Reform Act 2013 into force on 6 April 2014.

Section 16 inserts a new section 12A into the Employment Tribunals Act 1996 to give tribunals the power to order that a losing employer pay a financial penalty in specified circumstances. This will apply in cases presented on or after 6 April 2014.

  

Employment law cases

Whistleblowing (in snowy conditions!)

The Employment Appeal Tribunal has upheld a tribunal decision that three e-mails raising concerns about the dangers of driving in snowy conditions amounted to a qualifying disclosure for the purposes of the whistleblowing provisions of the Employment Rights Act 1996. (Norbrook Laboratories (GB) Ltd v Shaw UKEAT/0150/13.)

The Employment Appeal Tribunal held that although each e-mail was not a qualifying disclosure on its own, the three e-mails taken together amounted to such a disclosure. It did not matter that the last e-mail did not did not have the same recipient as the earlier two because the earlier communications were “embedded” in the later communication.

The Employment Appeal Tribunal held that the e-mails communicated information about danger to the health and safety of individuals within section 43B(1)(d) of the Employment Rights Act 1996 and were not simply an expression of an opinion.

What are the implications of this case ?

This case highlights the risk of not taking the concerns of an employee seriously enough, particularly when they raise issues which could amount to whistleblowing.  To avoid whistleblowing claims, employers should ensure they have a clearly defined policy and procedure for dealing with employee’s who “blow the whistle” and ensure that they don’t suffer any detriment or exclusion for doing so.

 Redundancy and collective consultation – “the Woolies Case”

When Woolworths became insolvent and went into administration, all of the trade union members who lost their jobs claimed 90 days gross pay on the basis that they argued that Woolies had not carried out the required collective consultation procedures before they were dismissed.

In the tribunal, those staff working in shops where 20 or more employees were employed succeeded but those staff working in shops where less than 20 employees were employed failed in their claims.  This was because the tribunal decided that there has not been a proposal to dismiss as redundant 20 or more employees “at one establishment”, namely each shop.

The unsuccessful staff appealed to the Employment Appeal Tribunal, which disagreed with the previous tribunal’s decision on the basis that it decided that the legislation regarding collective redundancies applied whenever 20 redundancies or more dismissals within 90 days takes place anywhere is the employer’s business, even if they are all at different locations.

Because of another case in Northern Ireland which was linked to these issues, the government (in the form of the Secretary of State) appealed against the judgement of the EAT and stayed the case pending this.

The Court of Appeal then decided to refer the case to the European Court of Justice.

Commentary

As with many areas of employment law whether or not the duty to collectively consult with staff about redundancies where more than 20 employees are at risk has remained a grey area.  The Woolies case has highlighted this and will hopefully lead to a definitive answer which will avoid expensive claims for 90 days gross pay per employee against employer’s who fail to follow the correct collective redundancy consultation procedures.  Watch this space!

 Restrictive Covenants – do they work ?

In the case of East England Schools CIC(trading as 4myschools) v Palmer and another [2013] EWHC 4138 (QB), the High Court has held that the restrictive covenants in the employment contract of a recruitment consultant were enforceable.

The restrictive covenants included a 6 month non-solicitation and non-dealing restrictive covenant  which prevented the employee from soliciting or dealing with candidates or schools with whom she has dealt with in the 12 months prior to the termination of her employment, for a period of 6 months after termination.

This was because they decided that the employer, which was an educational recruitment consultancy has a legitimate interest to protect, namely the connections which the employee had made whilst employed by them. This was despite the fact that recruitment information was widely available on social media.

The employer was awarded £7040 in damages.

Commentary

This case will give encouragement to employers seeking to reply upon the restrictive covenants within their employment contracts to prevent former employees from damaging their business. However, whether or not any other restrictive covenant clauses will be enforceable will depend upon all the circumstances and can only ultimately be determinable by a court.

TUPE

A recent Court of Appeal case (Hazel and anor v Manchester College) has confirmed a previous employment tribunal’s decision that two employees were unfairly dismissed when they refused to accept a pay cut as part of a “harmonisation process” following a TUPE transfer.  The court held that although the employees were dismissed for an ETO reason (economic technical or organisational reason) connected with the transfer; it was not one that entailed “changes in the workforce” meaning that the dismissals were automatically unfair under Reg 7 of TUPE.

The Court endorsed the employment tribunal’s decision to order the re-engagement on the employee’s previous salaries.

Commentary

Employers’ should take care when considering making any changes to the terms and conditions of employment of any employee’s following a TUPE transfer as it could lead to successful tribunal claims against them.  Following this case, harmonisation of terms or process will not qualify as an ETO exemption, so employers beware.

 

If you need further advice on this blog, please send an email, or call me, on my mobile 07767 166705 or 01580 712718 (local office number) or 0207152 6550 (London office number).

http://osjlaw.co.uk/about-me/

© OSJ Law Limited

January Employment Law Update

January Employment Law Update

“The first thing we do, let’s kill all the lawyers.” – William Shakespeare King Henry VI Part 2.

As 2014 slowly unravels, together with most of our well intended New Year’s resolutions, it makes sense for people running businesses or managing people to update themselves on the most significant changes in employment law in order to avoid future employment litigation from disgruntled staff.

The other alternative would be to follow the advice above, although this could take some time and lead to further criminal and civil litigation and is not recommended by this lawyer…!

Employment law changes 2014: 10 things employers need to know

Personnel Today have produced a user friendly article on the top 10 things employment law changes this year that employers need to know about

Primary Source: http://www.personneltoday.com/hr/employment-law-changes-2014-10-things-employers-need-know/

Muslim staff at M&S permitted to refuse to serve customers alcohol or pork

The Telegraph has reported that a policy at Marks and Spencers permits its Muslim staff to refuse to serve customers alcohol or pork. The retailer stated that it usually attempts to assign suitable roles to employees who could not handle certain items because of their religious beliefs. However, it admitted that it had breached its own internal policy by making its employees choose between their religious beliefs and their responsibilities to the retailer.

Source: The Practical Law Company

Secondary Source: M&S faces furious backlash from customers over Muslim policy, Telegraph, 22 December 2013.

Top

Whistleblowing on the rise in UK

Research undertaken by an investigations company, Kroll, has revealed that conscience, fear and the possibility of financial rewards have encouraged whistleblowers to provide information to regulators. As a result, the Financial Conduct Authority (FCA) opened 72% more cases (between January and October 2013) than in the preceding 12 months, based on information provided by whistleblowers. In addition, figures obtained by Kroll show that 5,150 people contacted the FCA’s whistleblower hotline during the same period, compared with 3,813 in the previous year. Meanwhile, BIS has asked the FCA to conduct research as to whether rewards for whistleblowing work.

Primary  Source: The Practical Law Company

Secondary Source: Whistleblower tip-offs soar in the UK, Financial Times, 23 December 2013.

If you need further advice on this blog, please send an email, or call me, on my mobile 07767 166705 or 01580 712718 (local office number) or 0207152 6550 (London office number).

http://osjlaw.co.uk/about-me/