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Assuming the best…

In the recent case of Elmore v Darland High School, the Employment Appeal Tribunal upheld a Tribunal’s determination that a dismissal was fair, despite the fact that the appeal panel did not give any reasons for dismissing the Claimant’s appeal and none of the appeal panel gave evidence before the Tribunal. The Tribunal held that, in the absence of such evidence or express reasoning, it was entitled to infer that the appeal panel had upheld the capability dismissal for the same reason as the original capability panel. A somewhat surprising decision, particularly given that the Claimant, a maths teacher, had been employed by Darland High School for over a decade.

Assuming the best…

Social Media: The Employer Strikes Back

The recent case of Plant v API Microelectronics Ltd should serve as a reminder to employees of the potential dangers of using social media to post comments about their employer, and to employers of the importance of having in place a clear social media policy.

In that case, API introduced a policy which prohibited unacceptable social media activity, including posting comments that could damage the reputation of the company. Following an announcement of a proposed relocation, Mrs Plant unwittingly posted a comment about suing her employer on Facebook, not realising that the page was linked to her employer’s technology.

API instigated a disciplinary process, ultimately leading to Mrs Plant’s dismissal. Mrs Plant claimed unfair dismissal in the employment tribunal, relying on her otherwise clean disciplinary record and long length of service. The Tribunal held that, whilst the decision may seem harsh, the dismissal was still within the band of reasonable responses by the employer and, as such, ultimately fair.

Social Media: The Employer Strikes Back

Increase in limits

This week new limits applying to certain awards of employment tribunals, and other amounts payable under employment legislation, have been increased.

The increases apply where the event giving rise to the entitlement to compensation or other payments occurred on or after 6 April 2017. Limits previously in force are preserved in relation to cases where the relevant event was before 6 April 2017.

Key new relevant limits are as follows:

  • Minimum basic award in cases where a dismissal is unfair by virtue of health and safety, employee representative, trade union, or occupational pension trustee reasons: Old limit – £5,853; New limit – £5,970
  • Limit on amount of guarantee payment payable to an employee in respect of any day: Old limit – £26.00; New limit – £27.00
  • Limit on amount of compensatory award for unfair dismissal: Old limit – £78,962; New limit – £80,541
  • Maximum amount of “a week’s pay” for the purpose of calculating a redundancy payment or for various awards including the basic or additional award of compensation for unfair dismissal: Old limit – £479; New limit – £489
Increase in limits

Perry’s Motor Sales Ltd v. Edwards

This case involved a Claimant that had been dismissed for gross misconduct taken together with an existing final written warning. The misconduct (on both occasions) was in relation to invoicing issues with the latter incident involving the Claimant making a false submission. The Employment Tribunal (ET) found that the Claimant’s dismissal was unfair, but that the Claimant had contributed to his dismissal by 50 per cent and therefore ordered the compensation be reduced accordingly.

However, the Employment Appeal Tribunal (EAT) has found that the ET had erred in its finding of unfair dismissal because it:

  • determined an issue that the Claimant had not raised in his claim form, namely the validity of the earlier warning;
  • had applied the wrong test – it asked whether the warning was within the range of reasonable responses rather than whether the warning had been issued because of a hidden agenda, was manifestly inappropriate and/or was issued without grounds; and
  • substituted its own view for that of the reasonable employer.

The case has now been remitted to a different tribunal for rehearing.

Despite the ET’s incorrect approach, this is a good reminder for employers to ensure that the reason(s) for any warning is clearly documented so there cannot be any concern that a warning is issued without clear grounds.

Perry’s Motor Sales Ltd v. Edwards

Insight: UK Employment Law Round-up – December 2016

Employment Round Up THUMBNAIL Welcome to the December edition of our employment law round-up. In this edition, we couldn’t fail to give you an update on the most important piece of constitutional litigation of our time, which has been heard by the Supreme Court on Article 50. Other festive treats include a summary of recent restrictive covenants cases (first published on HR-Inform) and unfair dismissal litigation. We have also given you our take on calculating rest breaks for workers, and the dangers of using employees’ personal data unlawfully.

Read the full newsletter here.

Insight: UK Employment Law Round-up – December 2016

Insight: UK Employment Law Round-up – November 2016

Employment Round Up THUMBNAIL In this issue we look at a recent Court of Appeal decision focusing on sexual orientation protection following a refusal to bake a cake decorated with a gay rights message. We also look at the rights of breastfeeding mothers at work, and Asda’s equal pay claim case, which may lead to further claims against Asda. We consider Tribunal decisions deciding employment status and rest break rights. We review the importance of having clear guidelines on job descriptions, and proposals to provide an entitlement to bereavement leave. Finally, we give an update on changes to the Immigration Rules.

Read the full newsletter here.

Insight: UK Employment Law Round-up – November 2016

Calling HR: time to give your views on the work, health and disability green paper on “improving lives”

The government has produced a consultation paper, “Work, health and disability: improving lives”. The paper highlights the following striking statistics:

  • 1.8 million employees on average have a long-term sickness absence of four weeks or more in a year;
  •  ill health among working-age people costs the economy £100 billion;
  • sickness absence costs employers £9 billion a year;
  • there has been an increase of over 400,000 in the number of working-age disabled people in the UK since 2013, taking the total to more than 7 million;
  • 8 per cent of employers report they have recruited a person with a disability or long-term health condition over a year; and
  • less then half (48 per cent) of disabled people are in employment, compared to 80 per cent of the non-disabled population.

Over 3.3 million disabled people are now in work; however, many disabled people find employers reluctant to give them a chance. Disabled people also struggle with the interplay between work and the benefits system, which is not tailored to helping them stay in work. The government paper signals a desire for change (although this change may not happen overnight). The paper seeks employers’ views on areas including:

  • the key barriers preventing employers of all sizes and sectors recruiting and keeping the talent of disabled people and people with health conditions;
  • information that it would be reasonable for employers to be aware of to address the health needs of their employees;
  • reform of statutory sick pay to encourage a phased return to work;
  • how to ensure that all healthcare professionals recognise the value of work and consider work during consultations with working-age patients; and
  • the role of doctors in providing work and health information, making a judgement on fitness for work and providing sickness certification.

Views are sought from various respondents including both large and small employers, people with health conditions and disabled people, families, friends, teachers and carers. The consultation closes on 17 February 2017. Responses can be filed here.

Calling HR: time to give your views on the work, health and disability green paper on “improving lives”

It’s November – therefore we can now talk about Christmas!

Bramble Foods Ltd (the Company) generates a third of its total annual turnover in the eight weeks from mid-September onwards, in the lead-up to Christmas. As this is its busiest period, its employees are expected to work additional hours. Their contracts include a clause that requires them to “work such further hours as may be reasonably necessary to fulfil [their] duties or the needs of the business”. In 2014, the Company formalised its overtime arrangements by asking its employees to select between four to eight shifts, lasting four hours, on Saturday mornings in September and October when the Company would be producing its gift packs and hampers ready for Christmas. The Company adopted the same arrangement the following year. However, Mrs Edwards refused to sign up to the additional shifts, despite all of her colleagues doing so. Following a number of informal discussions, the Company dismissed Mrs Edwards. Its primary concern was that her colleagues would revoke their agreement to work overtime if the Company was seen to excuse Mrs Edwards. Mrs Edwards brought a claim for unfair dismissal as a result.

Whilst it accepted that there were minor flaws in the Company’s process, the Tribunal held that “dismissal was inarguably within the range of reasonable responses” as Mrs Edwards’ excuse that she spends Saturday mornings with her husband was not a legitimate one. The Tribunal considered that her refusal to work the overtime as requested had the potential to disrupt the whole business.

Many employers will be expected to meet tighter deadlines under a greater workload in the lead-up to Christmas. While this is only a first instance decision (and therefore not binding on other tribunals), it is helpful in highlighting what amounts to a reasonable request with regards to overtime. Of course, employers cannot expect their employees to agree to work overtime where they are contracted to work fixed hours and there is no clause (as above) which requires them to work more hours to meet the demands of the business. To avoid facing the same issues as in this case and to mitigate any risk of being short-staffed this Christmas, follow our top tips below:

  • Request that employees sign up to overtime as far in advance as possible – this will allow employees to plan around extended working hours as necessary;
  • Offer employees an incentive to sign up to the extra hours – for example, increased pay for any overtime worked, or a free breakfast or dinner if the employee is working particularly unsociable hours;
  • Ensure employees are given adequate rest breaks throughout the working day – this is especially important where an employee is working overtime;
  • Where possible, try to schedule a day with reduced hours (or even better, a day off) for an employee who has worked overtime the previous day – this will ensure that the employee does not feel overworked and is more likely to sign up for more hours on another day;
  • Take account of employees’ religious beliefs – not all employees will celebrate Christmas and may not mind working Christmas Eve or Christmas Day where required. Conversely, employees who do celebrate Christmas for religious purposes should be given enough flexibility to take time off at this time. Equally, employees who observe other religions should be offered the same flexibility when requesting time off to celebrate their religious events throughout the year.
It’s November – therefore we can now talk about Christmas!

Insight: UK Employment Law Round-up – October 2016

UK Employment Law Round-up In this issue we look at recent case law decisions which have provided a useful reminder of the position when dealing with contracts tainted by illegality and taking prior disciplinary warnings into account. We also bring you up to date with the latest thoughts on calculating holiday pay, and the scope of ACAS Early Conciliation certificates. We review the new judicial assessment procedure in the employment tribunal, along with proposals to inspect corporate governance and to ask employers to disclose employed foreign nationals.

Read the full newsletter here.

Insight: UK Employment Law Round-up – October 2016

Insight: UK Employment Law Round-up – July 2016

In this issue, we look at whether Britain’s decision to leave the European Union is actually likely to have a significant impact on UK employment law.

In our case law review, we will also consider the extent to which without prejudice privilege attaches to protected conversations.
UK Employment Law Round-up – July 2016
There is also some useful guidance from recent case law about the types of dismissal to which the ACAS Code of Practice on Disciplinary and Grievance Procedures applies.

We give comment on the current position in relation to Employment Tribunal fees, and the implication of the equal pay claims brought against ASDA in the Employment Tribunal.

Read the full newsletter here.

Insight: UK Employment Law Round-up – July 2016