UK: Employment Newsletter - April 2013

Last Updated: 1 May 2013
Article by Brian Gegg

COUNCIL LIABLE FOR FAILURE TO PROVIDE INFORMATION

By Jesper Christensen

This information must include details of the number of agency workers, the parts of the business which use them and the type of work they are carrying out. In addition, information must be provided on agency workers across the whole business, not just the parts affected by the redundancies or TUPE transfer. The maximum award payable to employees for failure to inform and consult is 90 days' pay for collective redundancies and 13 weeks' pay under TUPE.

In Unison v London Borough of Barnet and Another, an Employment Tribunal has awarded compensation of between 40 and 60 days' pay per affected employee because Barnet Council failed to provide sufficient information on agency workers to Unison during collective redundancy and TUPE consultation. Although Barnet complied with its other information and consultation requirements, it failed to provide details of where agency workers were used and the type of work they were carrying out. The compensation awarded in relation to redundancy consultation was higher than the TUPE compensation because the Tribunal recognised that information on agency workers is more useful where it could help avoid redundancies.

Although the requirements to provide information on agency workers often seem onerous and irrelevant, ignoring them could prove extremely costly. It is also vital to ensure that the relevant information on agency workers is kept up to date and readily available.

ENHANCED REDUNDANCY PAYMENT FOR OLDER WORKERS

By Brian Gegg

As a 26 year old with eight years' service, Miss Lockwood received a payment of £10, 849 under the DWP's voluntary redundancy scheme. Had she been over the age of 35 with the same length of service, she would have received an additional payment of £17,691. However, her claim of direct age discrimination was dismissed by the Employment Tribunal, and the EAT upheld the Tribunal's finding.

The EAT agreed with the Tribunal that since there was a material difference between her age group (under 35s) and the older comparator group (over 35s), it was not appropriate to compare the treatment of those groups. In Seldon v Clarkson Wright and Jakes, which had not been decided when the Tribunal reached its decision, the Supreme Court held that in order for age discrimination to be justified, the policy had to have legitimate objectives of a public interest nature. Statistical evidence produced by the DWP in Lockwood showed the comparative difficulties suffered by older workers when made redundant. The EAT concluded that the less favourable redundancy payment for younger workers was therefore a proportionate means of meeting a legitimate aim.

Whilst the circumstances of various age groups can be taken into account when implementing employment policies, any differences between employees on the grounds of age must be objectively justified and have a clear rationale. Most people would not consider over-35s to be 'old', but the DWP was able to demonstrate here that this age group does suffer comparative difficulty on loss of their employment.

WHISTLEBLOWING LEGISLATION PROTECTS DISCLOSURES MADE AFTER EMPLOYMENT ENDS

By Caroline Yarrow

The Employment Rights Act 1996 protects workers from being subjected to any detriment by their employer on the grounds that they have made a protected disclosure. It is established that a detriment occurring after termination of employment is covered by the legislation. However, in Onyango v Berkeley (t/a Berkeley Solicitors) the EAT has considered for the first time the question of whether a disclosure made after employment ends can be a protected disclosure.

Mr Onyango worked as a solicitor for Berkeley Solicitors. After he left his employment he made a protected disclosure concerning his former employer to the Legal Complaints Service. Berkeley then reported him to the Solicitors Regulation Authority (SRA) alleging forgery and dishonesty, which led to an investigation by the SRA into Mr Onyango's conduct. Amongst other claims, Mr Onyango alleged in the Employment Tribunal that Berkeley had reported him to the SRA because he had made a protected disclosure. The Employment Tribunal held that it had no jurisdiction to hear the claim because a disclosure made after termination of employment cannot be a protected disclosure.

The EAT overturned the Tribunal's decision. The definition of workers and employees in the Employment Rights Act includes those who have ceased to be in the necessary contractual relationship. A disclosure can therefore be protected if it is made after the contract of employment is terminated, and not just during employment. Mr Onyango's claim was therefore remitted to a different Tribunal to decide the merits of his case.

This case provides welcome clarification of the whistleblowing legislation. It is now clear that whistleblowing claims can be brought in respect of protected disclosures made both during and after employment.

TRIBUNALS CAN LOOK BEHIND FINAL WRITTEN WARNING

By Nicholas Le Riche

In Davies v Sandwell Metropolitan Borough Council, the Court of Appeal has considered whether a Tribunal should look behind a previous final written warning which was taken into account by an employer when deciding whether to dismiss an employee.

Miss Davies was employed as a teacher by Sandwell MBC. In 2005 she was given a final warning in connection with alleged misconduct in the classroom. At the disciplinary hearing Miss Davies had not been allowed to submit evidence that undermined the allegations against her because she had failed to produce that evidence within the required timescale. She did not pursue an appeal, having been advised that the Council could increase the sanction from a final warning to dismissal. In 2006 further misconduct was alleged against Miss Davies. Taking her final warning into account with this further misconduct, the Council decided to dismiss her. It was accepted that the new allegations alone would not have justified the decision to dismiss.

The Tribunal rejected Miss Davies' claim of unfair dismissal, noting that she had failed to pursue her appeal against the final warning, and holding that the Council had been entitled to proceed on the basis that the final warning was valid and live. Miss Davies appealed to the EAT and the Court of Appeal. She argued that her final warning should have been ignored because the Council had deliberately chosen not to consider evidence which might have shown that the misconduct had not occurred as alleged, and which therefore might have led to the warning not being issued. The Court of Appeal dismissed her appeal, confirming the basic principle established by Stein v Associated Dairies Ltd that an employer can rely on a final written warning where it was issued in good faith and was not manifestly inappropriate.

It is clear from this case that a Tribunal will not generally re-open a final warning. However, it is vital to ensure that disciplinary processes are applied fairly and consistently at every stage, particularly where a decision to dismiss is affected by a prior warning. If a final warning is retrospectively found to be invalid, it could still take a subsequent dismissal outside of the band of reasonable responses and render that dismissal unfair.

EXEMPTING DISABLED EMPLOYEE A REASONABLE ADJUSTMENT

By Kevin Poulter

In Jennings v Barts and The London NHS Trust, the EAT has upheld a Tribunal decision that it was fair to dismiss a disabled employee who had been on long-term sick leave, and that it would not have been a reasonable adjustment for the employer to exempt him from its absence management policy.

Mr Jennings had a long history of both intermittent and longterm absences, in part due to a mental impairment which the Trust accepted amounted to a disability for the purposes of the Equality Act 2010. The Trust applied its short-term absence policy rigorously. Eventually Mr Jennings was dismissed on grounds of poor attendance due to ill health, despite an occupational health report which recommended a phased return to work. Mr Jennings considered that in the light of his disability, an adjustment should have been made exempting him from the absence policy.

The Employment Tribunal agreed that a duty to make reasonable adjustments was triggered in relation to the short-term absence policy, since it did not allow unplanned intermittent absences without disciplinary sanctions, which would have a greater impact on disabled employees. However, it held that given the extent of Mr Jennings' absences, the consequent operational difficulties and his failure to engage in the process which could have assisted his return to work, exempting him from the absence procedure would not have been a reasonable adjustment.

Although this case is an example of circumstances where an absence policy could be applied without adjustments to a disabled employee, employers should still be cautious. Consideration should be given to whether reasonable adjustments should be made to accommodate disabled employees, for example, by increasing the absence threshold before formal meetings are held, or increasing the number of warnings before dismissal.

ENTERPRISE AND REGULATORY REFORM BILL

By Garvey Hanchard

Key amendments to the employment provisions of the Enterprise and Regulatory Reform Bill 2012-13 have been introduced.

These include:

  • Removal of the unfair dismissal qualifying period where the reason or principal reason for dismissal 'is, or relates to, the employee's political opinions or affiliation'. This follows the case of Redfearn v United Kingdom, in which the European Court of Human Rights held that the UK is in breach of the European Convention on Human Rights by preventing individuals who do not have the qualifying period of service from claiming unfair dismissal on the grounds of their political opinion or affiliation.
  • Removal of the requirement to show good faith when making a protected disclosure. Instead, Tribunals will have the power to reduce compensation by up to 25% if they consider that the disclosure was not made in good faith.
  • Introducing protection for whistleblowers from acts of detriment by workers or agents of the employer. This extends the scope of vicarious liability to whistleblowing. Employers will have a defence to claims if they can show that they took reasonably practicable steps to prevent acts of detriment.
  • Introducing a duty on Tribunals to take account of the employer's ability to pay when imposing financial penalties for breach of employees' rights in cases where there are 'aggravated features.'

RIGHT TO REQUEST FLEXIBLE WORKING

Under the Children and Families Bill, from 2014 the right to request flexible working will be extended to all employees with at least 26 weeks' continuous employment. ACAS has published consultation on the draft statutory code of practice to accompany this new right.

The current statutory procedure will be replaced with a more flexible procedure under which employers will be under a broad duty to consider requests in a reasonable manner. Responses must be submitted by 20th May 2013.

The consultation outlines the key features of the proposals:

  • Employers should discuss a flexible working request as soon as possible.
  • Employees should be informed of their right to be accompanied by a work colleague to meetings.
  • Consideration of the request should start from the presumption that the request will be granted unless there is a business reason for not doing so.
  • Requests should only be rejected on one of the existing statutory business grounds, for example, detrimental impact on costs, performance, or the ability to meet customer demand.
  • Employers should not discriminate against the employee when considering the request.
  • Employees should be allowed to appeal against a decision to refuse their request.
  • There will be a general requirement to deal with requests promptly, and requests and appeals should be decided within three months.

SHARED PARENTAL LEAVE AND PAY

The Children and Families Bill also includes proposals for shared parental leave and pay which will come into effect in 2015. Details of the scheme have been published in a consultation document published by BIS on 25 February 2013:

  • There will still be a total leave period of 52 weeks (39 weeks paid).
  • Women will still be required to take the compulsory maternity leave period of two weeks.
  • Parents who qualify can then opt to share the remaining 50 weeks' leave and 37 weeks' pay. They can take the shared leave at the same time as each other or separately.
  • Parents will be expected to give at least eight weeks' notice of their intention to take parental leave.
  • Leave can be taken flexibly, in separate blocks of a week or more, if agreed with the employer. If agreement cannot be reached, the default position is that leave will have to be taken in one continuous block.
  • In order to qualify for the new right, parents will need to meet a joint and individual economic activity test.
  • The Government is consulting on the extent to which employees should have the right to return to the same job after shared parental leave.

This consultation closes on 17 May 2013.

AND FINALLY...

The draft Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013 was published on 5 February 2013. This Order implements the reduction in the redundancy consultation period from 90 days to 45 days (for 100 or more redundancies) and the exclusion of the expiry of fixed term contracts from the scope of collective redundancy consultation. The changes, and accompanying ACAS guidance, came into effect on 6 April 2013. The Enterprise and Regulatory Reform Bill will make pretermination negotiations inadmissible in unfair dismissal cases unless there has been 'improper behaviour' by one of the parties. ACAS has issued a draft statutory code of practice which provides further details of this new law, basic guidance on making voluntary settlements (including template letters) and examples of improper behaviour. Consultation closes on 9 April 2013.

The EU is to introduce new rules to reduce bankers' bonuses. Bonuses would be capped at one year's salary, or at two years' salary with the agreement of at least 65% of shareholders owning half the shares represented.

The Government has published its response to the consultation on implementation of the Nuttall review's recommendations on share buybacks. It proposes to amend the Companies Act 2006 in order to simplify the procedure for share buybacks. The changes should make it easier for companies to deal with the shares of departing employees, and for smaller companies to use employee share schemes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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