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Employee or worker status – the diagnosis of a doctor

In Community Based Care Health Ltd v. Narayan UKEAT/0162/18, the Employment Appeal Tribunal (EAT) has characterised a GP as a worker under the Employment Rights Act 1996.
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Employee or worker status – the diagnosis of a doctor

Whistle blowing and the “public interest”

Is it enough that a worker believes a disclosure is in the public interest? In the recent case of Okwu v. Rise Community Action, the Employment Appeal Tribunal (EAT) considered whether it is sufficient for whistle blowing protection for an employee to have a reasonable belief that their disclosure is in the public interest.
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Whistle blowing and the “public interest”

Could a tribunal claimant freeze their employer’s bank account?

The Scottish courts have held that they can make protective orders against the assets of an employer where a claim is brought against that employer in the employment tribunal.
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Could a tribunal claimant freeze their employer’s bank account?

Covert recordings: “For the times they are a-changing”

Almost everyone carries around with them a recording device nowadays, in the form of a smartphone or wearable technology.  Where does this leave HR managers and employers in dealing with employees who ask (or don’t ask as the case may be!) to record meetings?

The Employment Appeal Tribunal (EAT) has recently handed down its judgment in the case of Phoenix House v. Stockman.

Ms Stockman (a finance employee) had secretly recorded a meeting with HR during which she was told that she would be disciplined for having earlier interrupted a meeting about allegations she had made against her line manager. Ultimately Ms Stockman was dismissed as a result of an irretrievable breakdown in relationships.  The secret recording only came to light during her subsequent tribunal claim.

Without going into the details of the other findings of the Employment Tribunal (ET), it was found that Ms Stockman did not make the covert recording to try to entrap the company managers, but only because she felt flustered at the time. The impact of this finding was that she was still found to have been unfairly dismissed, but the ET reduced the compensatory award by 10%.

Phoenix House appealed against the ET’s approach to the covert recording of the meeting.  Its position was that, had it known about the recording, it would have dismissed Ms Stockman for gross misconduct and that she should not be entitled to any compensation on that basis.

Ultimately the EAT agreed with the ET, finding that Ms Stockman had not recorded the meeting with the intention of snaring her employer or obtaining confidential information (she had recorded a single meeting concerned about her own position) and that the tribunal had made a legitimate assessment of these facts and reduced the compensation accordingly.

The EAT made some interesting comments around covert recordings more generally.

The accessibility of a recording device being the first observation: “Times have changed … it is now not uncommon to find that an employee has recorded a meeting without saying so.” The EAT said that the reason for the recording must always be considered – this reason will not always be sinister or to gain a dishonest advantage, but will be relevant and, occasionally, justifiable. Importantly, the EAT rejected the employer’s argument that covertly recording a meeting will necessarily undermine the trust and confidence between employer and employee.

The culpability of the employee must also be considered – the EAT suggested inexperience could lead to an employee recording a discussion completely innocently? What about the content of the recording? If a note of the meeting would be shared in any event, then perhaps there isn’t (or shouldn’t be) a problem. This is contrasted with a meeting during which confidential information or information about others is disclosed.

The EAT’s concluding remarks pointed out that rarely does “covert recording” appear on a list of instances of gross misconduct in a disciplinary procedure and that this might also be pertinent. Indeed, there was no mention in the disciplinary procedure used by Phoenix House of such misconduct (even by the time the case was being heard by the ET, as pointed out by the EAT).

Going forward the EAT suggested, practically speaking, that it would be good employment practice for an employee or employer to say if there is any intention to record a meeting, save in the most pressing of circumstances – and it will generally amount to misconduct not to do so.

Covert recordings: “For the times they are a-changing”

Foretelling the future: when can you take into account future ability in recruitment decisions?

A recent case demonstrates the risk in considering an individual's future performance when making management decisions about them. It is a reminder that, when making assumptions about an employee's ability to perform a role, it is very important not to cross the line into making discriminatory decisions.
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Foretelling the future: when can you take into account future ability in recruitment decisions?

Vento bands increase

The Presidents of the Employment Tribunals in England and Wales and Scotland have issued an update to the Vento guidelines, setting out new bands as adjusted for inflation.
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Vento bands increase

Employers to be named and shamed for non-payment of Employment Tribunal awards

The Department for Business, Energy and Industrial Strategy (BEIS) has launched a naming scheme for employers who fail to pay employment tribunal awards. The naming scheme was recommended in 2017 by the Taylor Review of Modern Working Practices. All tribunal awards registered with BEIS on or after 18 December 2018 and over £200 in value are in scope of the scheme. The naming scheme will run alongside the BEIS penalty scheme for unpaid tribunal awards (established in April 2016).
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Employers to be named and shamed for non-payment of Employment Tribunal awards

Food for thought: Employment Tribunal to consider whether ethical veganism is protected under discrimination legislation

In March 2019, an Employment Tribunal will decide for the first time whether ethical veganism is a "philosophical belief" under one of the nine protected characteristics covered by the Equality Act 2010, namely "religion or belief".
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Food for thought: Employment Tribunal to consider whether ethical veganism is protected under discrimination legislation

Employment Tribunal not bound by list of issues that miscategorises claim

In the recent case of Saha v Capita plc the Employment Appeal Tribunal (EAT) held that an Employment Tribunal (ET) is not compelled to rely on a list of issues that wrongly categorises the claim to be heard.
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Employment Tribunal not bound by list of issues that miscategorises claim

Disciplinary investigations: Common sense and even-handedness should prevail

In the recent Employment Tribunal (ET) case of Ball v. First Essex Bus Limited, the claimant, a 60-year-old bus driver who suffers from diabetes, has been successful in his unfair dismissal claim. He persuaded an ET that his dismissal for being under the influence of cocaine whilst on duty was both substantively and procedurally unfair. The claimant had failed a random drug test.
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Disciplinary investigations: Common sense and even-handedness should prevail