UK: Employment Essentials: May's Top 5

Gowling WLG's employment, labour & equalities experts bring you the latest top five employment law developments that may affect your business - what they are, and what you can do about them.

At number 1: Trade Union Act 2016 - the industrial battle lines are drawn

The controversial Trade Union Act 2016 received royal assent on 4 May, although we still await confirmation from the Government as to the precise date the provisions of the Act will be brought into force. The best guess at present is that there will be a phased implementation with many provisions such as those regarding balloting and picketing coming into force later this year, and others, such as those regarding check-off being delayed until 2017.

The Act had a rather rocky passage through Parliament, during which the Government made some significant concessions. While the Act's provisions are slightly tempered from those originally proposed, it will nevertheless have a huge impact on unions, particularly in key areas of the public sector.

The key changes employers should know about include:

Balloting

As the law currently stands, provided the union allows all those being called upon to take action to vote, they need only a simple majority of those who do vote to be in favour to validate the action. This can and has allowed action to be called on a very low turnout with, say, only 10% of the actual membership voting in favour.

The 2016 Act:

  1. Introduces a new minimum turnout threshold of 50% of those entitled to vote
  2. The ballot paper must include more information, including:
    1. a "summary" of the matter(s) in dispute (changed from the original draft requiring a "reasonably detailed indication");
    2. the specific type of action being proposed; and
    3. the period within which the action is expected to take place.
  3. In the "important public services" of health, education, fire, transport, border security and nuclear decommissioning sectors there will be an additional threshold of 40% of support from all members eligible to vote to take industrial action.

    This means required turnout of 50% + of those who can vote AND 40% of those who can (as opposed to who do) vote in support of the action. Following concessions by the Government, this will not cover ancillary staff (those who support the front-line staff) and a trade union will have a "reasonable belief" defence if it mistakenly breaches this requirement. Additionally, private sector education and health workers will no longer be included unless they are delivering specified publically-funded services.
  4. The minimum notice of industrial action will be doubled from the current seven days to 14 days unless the employer agrees to seven days' notice.
  5. Currently, provided industrial action is started within a four-week period (or longer period, as agreed), then action can be taken indefinitely, as long as the dispute remains live. This is being replaced by a new six months' time limit on the validity of each ballot (nine months with the employer's agreement). The Government had originally sought a four month time limit, but agreed a slightly longer period in light of fierce opposition.
  6. The question of electronic balloting has been very hotly debated. Despite the Government's opposition, it is obliged to commission an independent review within six months of the Act coming into force. How quickly the report will be done and the outcome (there is no legal requirement to actually introduce e-balloting), we shall have to wait and see.

Picketing

Parts of the Code of Practice on picketing will become legal requirements. In particular

  1. a picket supervisor must be appointed who is present (and identifiable) or readily available to attend at short notice; and
  2. reasonable steps made to inform the police of the supervisor's name, location of the picket and how the supervisor can be contacted.

The Act also gives new powers to control facility time in the public sector, the abolition of check-off in the public sector, an 'opt-in' rather than the current 'opt-out' system to making contributions to a union's political fund and increased powers for the Certification officer to investigate and take enforcement action.

At number 2: Sunday working - shop workers to get enhanced rights to object

Back in March, Government plans to give local authorities the power to alter Sunday trading rules were defeated by an unlikely alliance of Labour, the SNP and Conservative backbenchers. But not all of the proposed changes to Sunday trading laws contained in the Enterprise Act 2016 fell by the wayside.

It may have gone under some retail employers' radar that provisions strengthening shop workers' rights in relation to Sunday working have been passed and will come into force shortly under implementing regulations (date to be confirmed).

Currently, all shop workers can opt out of Sunday working (unless Sunday is the only day they have been employed to work) by giving three months' notice to their employer to opt out from Sunday working. (Those employed prior to 26 August 1994, subject to exceptions, have the right not to work on Sunday.) Employers are unable to reject such notice. Those that opt out are protected against detrimental treatment. Shop workers dismissed as a result of opting out can claim automatic unfair dismissal. These rights are soon to be enhanced.

The enhancements

  • The existing three month notice period to opt out of Sunday working will be reduced to one month for workers who work in large shops - i.e. those where the internal floor space used for serving customers or displaying goods occupies more than 280 square metres. For those working in smaller shops, the notice period will remain unchanged at three months.
  • A new right for shop workers to object to working additional hours on Sundays beyond their 'normal Sunday working hours'. This too will be done simply by giving an objection notice to their employer (one month's notice for workers in large shops and three months for other shop workers). Employers will be unable to reject such notice, with workers being protected against detrimental treatment or dismissal for serving a notice. The forthcoming regulations are expected to clarify details, such as how 'normal hours' will be calculated.
  • Employers must provide workers with an explanatory statement, clarifying their entitlements. Failure to provide an explanatory statement will have the effect of reducing the applicable notice periods to seven days for workers in large shops and one month for other shop workers. Employment tribunals will also have a new power to award compensation (capped at two to four weeks' pay) on top of any other award they make for the employer's failure to provide an explanatory statement.

The changes to Sunday working rights are likely to cause a significant administrative headache for some retailers. The introduction of new rights for employees not to work additional hours on Sundays, together with a reduction in the notice period for employees in large shops who wish to stop working on Sundays altogether, may cause potential problems for retail employers trying to ensure sufficient levels of staffing for weekend trading.

Calculating workers' 'normal Sunday working hours' may also prove difficult. While 'normal Sunday working hours' is to be defined in future regulations, the Act suggests that a rolling calculation period may apply, which may challenge some retailers' HR systems.

While we still await the date that the new provisions will be brought into force, retailers need to consider now their potential impact on HR systems and Sunday working arrangements to mitigate the impact of the new enhanced protections.

At number 3: A fair dismissal for gross misconduct or unlawful discrimination arising from disability?

Scenario

A large employer organises a series of personal development workshops for managers, including Mr X who is a wheelchair user. As part of a cost-saving drive, expenditure on external venue hire is banned. As a result, the series of workshops is moved to available internal rooms.

As the session Mr X originally booked on is no longer wheelchair accessible, Mr X is rebooked on the same session taking place at a slightly later date in a wheelchair accessible room.

Mr X, known to have a short temper, is unhappy about this change. He flies into a rage of temper and shouts at a junior HR colleague of mixed race using foul and highly offensive racist language, reducing the junior colleague to tears. Mr X is promptly suspended and escorted from the office.

At the disciplinary hearing, Mr X is summarily dismissed. His behaviour could not be tolerated as it was contrary to the employer's equal opportunities policy and because of the effect on the junior colleague.

Mr X then brings a claim for unfair dismissal and discrimination arising from disability.

In Risby v London Borough of Waltham Forest, the employment tribunal agreed with the employer that this was a fair dismissal for gross misconduct. However, on appeal the Employment Appeal Tribunal (EAT) says it was possibly unlawful discrimination arising from disability.

The EAT accepted that tribunal's finding that Mr Risby's tendency to be short tempered was a personality trait unrelated to his disability of paraplegia. However, there only needs to be a loose causal link between an employee's conduct and their disability for a discrimination arising from disability claim to be made out. The EAT reasoned that the reason Mr Risby became upset and angry only arose because he was a wheelchair user and it was therefore incorrect for the tribunal to find that the misconduct was unrelated to his disability. The case was remitted back to the tribunal for rehearing.

Does this go further than the Equality and Human Rights Commission's Employment Statutory Code of Practice? The Code gives the following example:

"A woman is disciplined for losing her temper at work. However, this behaviour was out of character and is a result of severe pain caused by cancer, of which her employer is aware. The disciplinary action is unfavourable treatment. This treatment is because of something which arises in consequence of the worker's disability, namely her loss of temper. There is a connection between the 'something' (that is, the loss of temper) that led to the treatment and her disability. (Paragraph 5.9.)"

The EAT seems to loosen the causal link between the disability and the "something arising in consequence of the disability" one step further than the example set out in the Code. In the Code's example, the employee loses their temper because their disability has caused them to be in severe pain. However, in this case, Mr Risby's short temper was found to be due to a personality trait which was unrelated to his disability. Unsurprisingly, the Council is currently seeking permission to appeal to the Court of Appeal.

Even if the employer does not succeed in an appeal, at the remitted tribunal hearing, it will be open to it to defend the discrimination arising from disability claim on the basis that its actions in dismissing Mr Risby were a proportionate means of achieving the legitimate aim of upholding its equal opportunities policy. This decision should not be taken as a suggestion that it is incorrect to sanction an employee in Mr Risby's situation. However, it may be that the tribunal finds that it would have been proportionate for the employer to issue a final warning rather than dismiss Mr Risby in the circumstances.

At number 4: "Legal highs" and the Psychoactive Substances Act 2016

The Psychoactive Substances Act 2016 (the Act) came into force on 26 May 2016, banning the production and supply of so-called 'legal highs'.

Legal highs are largely substances which imitate the psychoactive effects of illegal drugs when consumed, but are not actually illegal to consume themselves. As they are currently marketed as legal and sold openly in shops or online, many users may not fully realise the effects they might have. As with illegal drugs, they can have a range of effects on users and employers should consider their impact on their employees and workplaces.

Many users may be unaware that, despite being "legal" to consume, their use is probably banned in most workplaces under the organisation's drugs policy. Since 26 May, an employee supplying such a substance to a colleague will also be committing a criminal offence, with potential consequences for an employer who fails to take reasonable steps to prevent such illegal supply taking place on its premises.

In "Legal highs" and the Psychoactive Substances Act 2016: what employers need to know we examine the implications of the new legislation for individuals and employers and suggest some steps that employers may consider taking to ensure their policies on drugs and alcohol comply with the new rules.

At number 5: 10 years of service provision changes under TUPE and the introduction of anti-age discrimination legislation

TUPE & Outsourcing: 10 years on

It has been 10 years since the concept of 'service provision change' (SPC) was introduced by TUPE 2006, heralding a new era in TUPE developments and case law. 10 years on and the path is not always easy, especially when dealing with the commercial realities.

In our podcast, TUPE & Outsourcing: 10 years on, we discuss the risks in the constantly developing area of TUPE and outsourcing.

Answering these questions:

  • It's 10 years since the SPC concept was introduced. Where are we now and what might the future hold for SPCs?
  • What are the other challenges to SPCs and the key trends in this area?
  • What advice do you give on the key question of assignment?

Listen to the podcast here.

Age discrimination: ten years on and it's alive and kicking

Contrary to what many may believe, harassment related to age appears to be alive and kicking in the 21st century workplace, despite age discrimination being outlawed a decade ago.

There have been several recent examples of the type of workplace 'banter' that not only results in successful discrimination claims but also leads to the kind of adverse publicity that most employers would be keen to avoid.

In Age discrimination: ten years on and it's alive and kicking we look at the recent "Gramps" case leaving an employer with a £63,000 compensation bill for age discrimination and unfair dismissal, including an award of £9,000 for injury to feeling.

Update to April's Top 5: Non-compete views & innovation cues

Last month we reported on Business Secretary Sajid Javid's announcement dated 24 April that the Department for Business, Innovation and Skills would shortly launch a call for evidence on whether post-termination restrictions in employment contracts act as a barrier to employment, innovation and entrepreneurship preventing British start-ups from prospering.

On 25 May, the Non-Compete Clauses Call for Evidence was finally published. The Call for evidence runs until 19 July and seeks views on whether non-compete clauses stifle entrepreneurship and innovation by preventing people from:

  • moving between employers
  • developing innovative ideas
  • creating a start-up
  • growing a business

Responses to the Call for Evidence will be used to inform future Government policy and possible action.

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.

To print this article, all you need is to be registered on Mondaq.com.

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