EMPLOYMENT BULLETIN

                                       APRIL 2010


CONTENTS:

•   Discipline: Injunction granted to ...
Discipline: injunction granted to prevent NHS from disciplining consultant

Where an employer has failed to follow a contr...
A recent case addressed the question as to whether the employment contracts of some
employees automatically transferred by...
employees in similar situations in the future and could produce a different outcome
depending on the circumstances.


Holi...
2. A senior manager has a duty to report a proposed poaching raid of his team by a
       competitor and to follow his emp...
Upcoming SlideShare
Loading in …5
×

BarrCo Employment Law Bulletin April 2010

1,053 views

Published on

Published in: Career, Business
0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total views
1,053
On SlideShare
0
From Embeds
0
Number of Embeds
1
Actions
Shares
0
Downloads
2
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

BarrCo Employment Law Bulletin April 2010

  1. 1. EMPLOYMENT BULLETIN APRIL 2010 CONTENTS: • Discipline: Injunction granted to prevent NHS from disciplining consultant; • Discipline: Conducting disciplinary before a grievance appeal not unfair; • Constructive dismissal: Objective test and “curing” the breach; • TUPE: Changing service provisions; • Volcanic ash absences; • Age discrimination: Requirement to hold a law degree not age discrimination; • Holidays: Moving from full-time to part-time employment status; • DDA: What amounts to a reasonable adjustment; • Date of termination; • Race discrimination: Employer not liable for abuse by agency worker; • Post employment obligations; • Constructive dismissal: Breach by employee; • Contempt of court; Margaret-Anne Trench – Solicitor 20 Green Lane, Lower Kingswood, Surrey, KT20 6TB T: 01737 833850 M: 07900 490070 Regulated by the Solicitors Regulation Authority (SRA No: 469453) Member of the Employment Lawyers Association VAT registration number: 941 1724 41 www.barrco.org.uk
  2. 2. Discipline: injunction granted to prevent NHS from disciplining consultant Where an employer has failed to follow a contractual disciplinary procedure, an employer’s remedy for breach of contract will usually be limited to loss of earnings for the period of time it would have taken to operate the procedure correctly. Previous attempts have been made unsuccessfully by employees to seek injunctions in relation to breach of disciplinary procedure, both while employment was continuing and once employment had ended. However, in a recent case, an employee has been successful in obtaining, firstly an injunction to prevent an NHS Trust from suspending her, and subsequently, successful in obtaining an injunction to prevent her employer from disciplining her, in breach of a complex disciplinary procedure. Notably, the cases to date in this area have concerned public authorities, reflecting the fact that their contractual disciplinary procedures are more complex and likely to make them vulnerable to this kind of claim for breach of contract. This case is a reminder to employers to ensure that any disciplinary procedure is non-contractual or if it is already contractual then it is followed when disciplining employees. Discipline: conducting disciplinary before a grievance appeal not unfair When employees raise a grievance during disciplinary proceedings, it is normally considered best practise to adjourn the disciplinary hearing and deal with the grievance first. The employees in the current case did submit a grievance which was not upheld. They refused to implement their employers request to reduce additional staffing hours, arguing that their employer had to hear their grievance appeal first. However the employer proceeded with a disciplinary hearing, which the employees refused to attend and dismissed them in their absence. The Employment Appeal Tribunal held that it had not been necessary for the employer to complete the entire grievance procedure (including appeal) before conducting the disciplinary hearing. It held that only in the rarest of cases would a dismissal be unfair where the employer proceeded with a disciplinary process before hearing a grievance appeal. Such cases might include where there was some clear evidence of unfairness or prejudice to the employee. This was not the case in the current matter, particularly given the fact that if the employees had attended the disciplinary hearing, they could have raised the points they intended to raise at the forthcoming grievance appeal. Constructive dismissal: objective test and “curing” the breach The Court of Appeal have confirmed that the correct test when an employer is alleged to have committed a fundamental breach of contract is an objective test and should not be assessed by reference to a range of reasonable responses tests (which has limited application only to ordinary unfair dismissal cases). In addition, an employer cannot “cure” a breach whilst the employee is considering whether or not to accept it as an act of constructive dismissal. That said, in practise, if an employer does uphold a grievance, admitting that a breach has occurred, and then takes steps to remedy that breach, in many circumstances this will appease the employee and prevent them from resigning and claiming constructive dismissal. TUPE: Changing Service Provisions Margaret-Anne Trench – Solicitor 20 Green Lane, Lower Kingswood, Surrey, KT20 6TB T: 01737 833850 M: 07900 490070 Regulated by the Solicitors Regulation Authority (SRA No: 469453) Member of the Employment Lawyers Association VAT registration number: 941 1724 41 www.barrco.org.uk
  3. 3. A recent case addressed the question as to whether the employment contracts of some employees automatically transferred by operation of the law under the service provision change provisions where some of the work was not transferred. The case involved a firm of solicitors who provided dedicated staff to look after the affairs of one particular client. That client moved its instructions in relation to new work to a different firm of solicitors but continued to use the original firm to complete work in progress. It was held in those circumstances that the employment contracts of the dedicated staff were not automatically transferred to the new law firm because they were required to remain with the original firm in order to complete the work in progress. Volcanic ash absences Over recent weeks many employers have been faced with the dilemma of what to do in practical terms when staff are unable to come to work effectively through no fault of their own. Whilst this recently has been the case in relation to flight disruptions due to the clouds of volcanic ash, there are a number of other situations, such as the travel chaos during the big freeze or flight cancellations due to terror threats or other acts of god, where employers will be faced with the same dilemma. Ultimately it is the employee who is responsible for getting to work and if they have failed to turn up for work due to a cancelled or delayed flight they have no automatic right to be paid (unless their contract of employment states otherwise). However, in taking this strict approach, employers may wish to balance this against potential negative consequences such as a reduction in staff morale. In such circumstances, employers may choose to take a more flexible approach by agreeing to allow the employees to take the leave from their annual leave entitlement, treat the time off as special paid leave or pay the employee as normal, provided that they make up the lost time over the coming weeks. Another possibility, where possible, is that employers may also wish to consider requesting that employees work remotely by using hotel or airport business facilities or via their blackberrys or laptops. In order to be prepared for any similar issues in the future, employers may therefore consider developing a Catch All Policy, dealing with no fault absences from work which gives clear guidance for staff and sets expectations for all parties at the outset. Age discrimination: requirement to hold a law degree not age discrimination In an important age discrimination case, the Court of Appeal has upheld that the introduction and application by the employer of a law degree requirement for career progression to the top level of its career structure had not put the employee and others in his age group (60-65) at a particular disadvantage. The employee had been unwilling to undertake the qualification because of his age (he was 61 and due to retire at 65 so would not have had time to complete the degree before his retirement) and argued that the law degree requirement constituted indirect age discrimination. The Court of Appeal confirmed that the barrier to the employee’s career progression was not one of age as there was no age restriction for taking the degree but was one of retirement before being able to obtain the qualification for appointment. The same result would have applied to anyone else of a different age who left the job before obtaining their degree. Interestingly the Court noted that the employee did not argue that those in his age group would find it harder to meet the requirement as they were less likely to have a law degree, or that it was in fact more difficult for a person in his age group to obtain a law degree. Thus these arguments remain open to Margaret-Anne Trench – Solicitor 20 Green Lane, Lower Kingswood, Surrey, KT20 6TB T: 01737 833850 M: 07900 490070 Regulated by the Solicitors Regulation Authority (SRA No: 469453) Member of the Employment Lawyers Association VAT registration number: 941 1724 41 www.barrco.org.uk
  4. 4. employees in similar situations in the future and could produce a different outcome depending on the circumstances. Holidays: moving from full-time to part-time employment status In what seems to be dealing with an obvious point, the European Court of Justice has held that a reduction of working hours when moving from full-time to part-time employment does not reduce the right to annual leave that the worker has accumulated during the period of full-time employment. During the time they worked full-time they are still entitled to their full- time entitlement which is only reduced upon commencing part-time hours. DDA: what amounts to a reasonable adjustment? What is a reasonable adjustment under the DDA depends on the facts of each case. However, this particular case demonstrated that an employer who completely fails to even consider and discuss adjustments, before simply terminating an employees employment on the grounds of medical retirement, is likely to face a very difficult task explaining itself to an employment tribunal. The swapping over of a disabled post holder with another post holder within the same organisation, to avoid dismissal or medical retirement, can be a reasonable adjustment. This is what had been proposed by the employee in question, but was simply ignored by her employer allowing the tribunal to find that there had been discrimination through the failure to make reasonable adjustments. Date of termination: The High Court has held that an employer must expressly state it is summarily terminating an employee’s contract under a PILON clause. It held that the employee’s employment contract did not terminate on the date his employer made a payment in lieu of notice silently to him. The contract continued until the date the employer unequivocally communicated its decision to exercise its contractual right to summarily terminate by making a payment in lieu of notice. Race discrimination: employer not liable for abuse by agency worker The EAT has held that a tribunal was wrong to hold an employer liable for the racial abuse suffered by its employees at the hands of an agency worker. The facts did not support a finding either that the worker was an employee for whose actions the employer could be held liable, or that the employer had knowingly aided the workers actions. Post employment obligations Last month I reported on a case involving a number of brokers who had moved to work for a competitor in breach of restrictive covenants and their ongoing duties. Other important points coming out of the decision are: 1. Contractual provisions requiring employees to report to their employer any approach by a competitor are enforceable; Margaret-Anne Trench – Solicitor 20 Green Lane, Lower Kingswood, Surrey, KT20 6TB T: 01737 833850 M: 07900 490070 Regulated by the Solicitors Regulation Authority (SRA No: 469453) Member of the Employment Lawyers Association VAT registration number: 941 1724 41 www.barrco.org.uk
  5. 5. 2. A senior manager has a duty to report a proposed poaching raid of his team by a competitor and to follow his employer’s instructions to prevent the raid; 3. It is a breach of duty for an employee to disclose information to a competitor to assist the competitor to poach the employees, even if that information is not confidential. Constructive dismissal: breach by employee A recent case held that an employee could not claim constructive dismissal if he himself had committed a repudiatory breach of contract before his employer had breached his contract of employment entitling him to resign. The High Court has now held that this decision was wrong: such a claim is possible, although the employee’s prior conduct will be relevant in considering whether the employer has sufficiently damaged trust and confidence to support the constructive dismissal claim. Contempt of court Although this recent case concerned a former employee it would also be relevant to any evidence given by a company in legal proceedings. The High Court sentenced the former employee to three years imprisonment, suspended for 18 months, for contempt of court. The employee was dismissed for carrying on personal account trading in breach of both company policy and FSA requirements. When a routine forensic examination of his computer suggested that large amounts of confidential data had been uploaded to various internet accounts, the employer applied for a Search and Seize Order which was endorsed with a penal notice. The employee accepted that he breached the order, he lied to the search party about whether he had confidential information, he lied about the content of the uploads and failed to reveal at least one computer hard drive containing back-up material. He had also committed purgery when he swore an Affidavit that he had complied with the order, knowing that to be untrue. and finally…. A retired art teacher has lost his claim that he was a victim of disability discrimination because he is bald! Homer has been referred to in English cases many times but such allusions previously only referred to the ancient Greek poet. However, for the first time a British lawyer has citied Homer Simpson in court. The client had pleaded guilty to a firearms offence, having been caught with a million-volt Taser gun which he had fired at his own chest “to test it”. To mitigate the offence, the lawyer told the court: “There have been scenes in The Simpsons when Homer has given himself electric shocks and leapt in the air screaming with his tongue hanging out. This was a bit like that”! Disclaimer The information contained in this Bulletin is only intended as summary guidance. No liability is taken for reliance upon it, without seeking further advice and assistance. Margaret-Anne Trench – Solicitor 20 Green Lane, Lower Kingswood, Surrey, KT20 6TB T: 01737 833850 M: 07900 490070 Regulated by the Solicitors Regulation Authority (SRA No: 469453) Member of the Employment Lawyers Association VAT registration number: 941 1724 41 www.barrco.org.uk

×