UK: CABLE: Current Awareness Bulletin

Last Updated: 27 September 2016
Article by Ruth Bonino

Most Read Contributor in UK, October 2017

G4S Cash Solutions (UK) Ltd v Powell UKEAT/0243/15 - Reasonable adjustment could not be imposed without the employee's consent

An engineer's responsibilities were reduced because of his disabilities and subsequently his employer tried to impose a pay cut on him, claiming this was a "reasonable adjustment".

The EAT decided that any reasonable adjustment for disability which was incompatible with the terms of the employment contract could not be imposed by an employer and would only be effective with the employee's consent. There was no reason in principle why pay protection, in conjunction with other measures, could not be a reasonable adjustment - the question would always be whether it was reasonable for the employer to have to take that step.

Practical point

This is an important decision for employers because it establishes that the duty to make reasonable adjustments may extend to pay protection where an employee is transferred to a lesser role.

Although the EAT said that maintaining pay protection is unlikely to be an "everyday event", employers should adopt a cautious approach and take into account all the surrounding circumstances when deciding whether to protect a disabled employee's salary level if they agree to move to a lower-graded job.

Whistleblowing

Royal Mail Group Limited v Jhuti UKEAT/0020/16 - Dismissal was automatically unfair despite the decision-maker not being aware of the protected disclosures

The employee made protected disclosures to her line manager who subsequently deliberately subjected her to detriments by bullying and harassing her. Her line manager's temporary replacement carried on treating her in the same manner and dismissed her in ignorance of the disclosures.

The EAT concluded that the employee was automatically unfairly dismissed for making protected disclosures even though the person who dismissed her had been deliberately misled by the line manager as to the true facts and was unaware of those disclosures.

PRACTICAL POINT

A decision made by one person who is ignorant of the true facts, where those facts have been manipulated by someone else who is responsible for the employee, can still be attributed to their employer.

Line managers should be trained to spot protected disclosures and to understand their significance. HR should try to ensure that line managers involve HR when dismissing employees.

Unfair Dismissal

McWilliams v Citibank NA unreported 19 April 2016 - Employer's handling of subject access request contributed to unfairness of dismissal

A foreign exchange trader was suspended for breaching client confidentiality in online chat conversations with other traders. The employer did not respond to the trader's subject access request (SAR) to obtain information relevant to the disciplinary proceedings.

The ET found that the employer's refusal to respond to the employee's SAR was unfair and materially affected her ability to defend her actions. Even though the scope of the employee's initial SAR was unduly excessive, the employer did not attempt to provide her with any documents, based on a more limited or proportionate search, before the disciplinary hearing.

PRACTICAL POINT

This case deals with the interaction between the employer's response to a SAR and an employee's unfair dismissal claim.

This decision appears to conflict with previous judgments, that a SAR will not be enforced where it is intended to elicit information to further the requester's position in existing or prospective litigation. Despite this the tribunal's position is in line with the Information Commissioner's Office's guidance that if a data controller believes a SAR is made for an improper purpose, this does not relieve them of their obligation to respond.

Note that this is only a first instance decision, so is not binding on other tribunals or courts.

National minimum wage

NMW rates increase from 1 October 2016, when the following hourly rates will apply:

  • Workers aged 21-24: £6.95
  • Development rate: £5.55
  • Young workers: £4.00
  • Apprentices: £3.40

CABLE: Current Awareness Bulletin

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