Welcome to our November 2014 Employment Law Newsletter, keeping you up to date with changes in employment law and informing you of recent case developments over the last month.

DEVELOPMENTS TO LEGISLATION

Family-friendly rights: further draft regulations and new Acas guide published
The government has published new draft regulations relating to family-friendly rights. and Acas has published a new guide to help employers and employees with understanding shared parental leave.

As previously reported, the new regulations extend the existing unpaid parental leave regime to the parents of children aged between five and 18, create new rights for couples adopting a child born to a surrogate mother and extend current adoption rights to individuals adopting a child from outside the UK and fostering children as part of a Fostering for Adoption placement.

The new rights are due to come into force on a variety of dates ranging from 25 November 2014 to 5 April 2015.

If you would be interested in further information or would like assistance in updating your policies please contact us.

Employment law proposals
At the Conservative Party’s Annual Conference, the Prime Minister David Cameron proposed several reforms which affect employment law.

Mr Cameron proposed the following reforms:

• Introduction of a British Bill of Rights.

• Ending the use of exclusive zero hours contracts.

• Preventing the trafficking of workers.

The Liberal Democrats also made a number of announcements relevant to employment law at their party conference in Glasgow. Like the Conservatives, their plans for reform so far appear to be less radical than the Labour Party’s which include increasing the national minimum wage, requiring businesses to publish average pay details, and equal rights for self-employed individuals (amongst others).

The key announcements from the Liberal Democrats were:

• Increase to the national minimum wage for apprentices.

• More assistance for litigants in person.

• New Workers’ Rights Agency. Dr Cable also announced plans for a ‘one stop shop’ for workers’ rights enforcement for the enforcement of national minimum wage, the Working Time Directive, the Employment Agency Standards inspectorate, and the Gangmasters Licensing Authority.

• Jobseeker names blanked out. Party members have backed a ‘name-blank’ application form in the public sector, in an attempt to cut discrimination.

ICO publishes updated code of practice for CCTV and surveillance cameras
The Information Commissioner’s Office (ICO) has published an updated code of practice for CCTV and other types of surveillance cameras. It provides best practice advice, for those involved in operating CCTV and surveillance cameras that view or record individuals’ information, on how to comply with the Data Protection Act 1998.

It is advisable to check that your existing policies comply with the new code. In many respects, the code remains the same based on compliance with the eight data protection principles. However, in the new code the ICO recognises that surveillance cameras are no longer a passive technology that records and retains images, but a proactive one that can be used to identify people and keep detailed records of their activities.

If you would like us to assist with preparing a Data Protection Policy or reviewing existing policies, please contact us for a no obligation estimate.

CASE LAW DEVELOPMENTS

Injunction did not infringe principle that employee should not be compelled to work
In Sunrise Brokers LLP v Rodgers [2014] the Court of Appeal has upheld an injunction which bound an employee to his employer for six months of his notice period without pay, then prevented him from working for a competitor for a further four months, again without pay.

Mr Rodgers was employed under a contract that had a 12 month-notice period and post termination covenants of 6 months. The contract stipulated that he could not give notice before September 2014 and Mr Rodgers tried to give notice to terminate his employment on 27 March 2014. He left the office and said he was not prepared to work beyond that date. Sunrise refused to accept this and indicated it would hold Mr Rodgers to his notice period and post-termination covenants but that if he was willing to work his notice period they would pay him.

Mr Rodgers refused to reconsider his stance and Sunrise sought a declaration that the contract subsisted and an injunction to restrain him for a further 4 months post-termination. The Court held that the principle that the employee should not be compelled to work was not infringed since the employee was not being required to perform work and neither had he adduced evidence that the injunction would, in effect, compel him to work.

This is an interesting case which may assist employers to deal with employees who disregard their contractual obligations.

Bringing disciplinary proceedings did not breach duty of care
In Coventry University v Mian [2014] the Court of Appeal has held that an employer did not breach its duty of care to an employee by bringing disciplinary proceedings against her. It had been alleged that the employee had been complicit with a colleague in the preparation of false and misleading references which he then used to obtain new employment.

Whether a breach of duty was established depended on whether the decision to instigate disciplinary proceedings had been unreasonable. This required an objective assessment, not one that was made with the benefit of hindsight.

The circumstances included both the evidence which had been available to the employer at the time, and such other evidence as would or should have been available had the investigation been properly conducted. Reasonable people could reach different judgments on the same question meaning that it was possible to be “wrong” without being negligent.

Whilst this case does assist employers by reiterating the wide discretion of employers to instigate disciplinary proceedings it emphasises the importance of a thorough investigation beforehand.

Ignoring a final written warning for sickness absence was not a reasonable adjustment
In General Dynamics Information Technology Ltd v Carranza the EAT has overturned findings of disability discrimination based on failure to make reasonable adjustments and unfair dismissal in a case involving recurrent sickness absence which was unlikely to improve. The employee had received a final written warning for repeated absences, about 90% of which had been disability-related. He was then dismissed following further absence caused by a shoulder injury that was unrelated to his disability. The EAT rejected the employee’s argument that the employer should have ignored the final written warning when deciding whether to dismiss the employee for the later absence. In the EAT’s view, the mental process of disregarding a warning was not a “step” for this purpose.

Whilst this case appears to give good news to those employers wanting to rely on previous warnings for sickness absence you should still take care before disciplining or relying on disability related absences or previous warnings that may be called into question.

Early conciliation: failure to initiate EC prior to presenting claim could be remedied
In Thomas v Nationwide Building Society an employment judge has held that a claimant who incorrectly completed her ET1 to suggest that she was exempt from undertaking Acas early conciliation (EC) could rectify that defect by completing the EC procedure and by applying for a reconsideration of the tribunal’s decision to reject the claim.

However, her ET1 was then treated as presented on the date that the defect was rectified. This meant that, while there was no need for a fresh ET1 to be presented (and no need for a further issue fee to be incurred), the question of whether the claim had been presented in time would need to be considered.

This is an interesting and early case on the interpretation of the new Early Conciliation rules. Whilst it is good to see that some common sense is being used, it is also a warning to employers that you may not always be safe from a claim where an employee omits to follow the EC rules.

Employee liability information: reasonable belief employees would bring claims
In Eville & Jones (UK) Ltd v Grants Veterinary Services Ltd (In Liquidation) an employment tribunal has ordered a transferor to pay compensation of £65,500, representing £500 for each of 131 employees, to a transferee for failure to provide employee liability information in a TUPE situation for breach of regulation 11 of the TUPE Regulations 2006.

This case demonstrates that a simple mistake to comply with a relatively straightforward requirement can result in a very costly lesson! Please be sure to contact us if you think you may have a situation that could amount to a TUPE transfer so as to avoid such penalties being levied on your business.

Tribunal erred in finding that employee with Asperger’s dismissed after criminal conviction suffered discrimination arising from disability
In Hensman v Ministry of Defence the EAT has overturned a tribunal’s decision that an employee with Asperger’s syndrome, dismissed because of his criminal conviction for covertly recording a colleague in the shower area of shared accommodation, had suffered discrimination arising from disability under the Equality Act 2010. The tribunal had failed to carry out the appropriate balancing exercise and had taken into account a comment made by the Crown Court judge that the employee was not at fault for his crime because of his “abnormality of the mind”. However, the tribunal should also have considered the matters weighing on the employer’s mind. These related to breach of trust and the fact that the filming had been covert.

Similarly, the EAT held that the tribunal had erred in finding that the employee had been unfairly dismissed. The tribunal had again focused on the Crown Court judge’s comments absolving the employee of blame. The tribunal did not consider the employer’s concerns about breach of trust and covert conduct. Nor did it take into account that, during the disciplinary process, the employee gave a different account of his conduct than that given in court.

Time off for dependants: failure to contact employer as soon as reasonably practicable
In Ellis v Ratcliff Palfinger Ltd the EAT has upheld an employment judge’s decision that an employee was not automatically unfairly dismissed for exercising the right to take time off for dependants. The employee had been taking his heavily pregnant partner to hospital, at first due to illness and then because she had been admitted to give birth. However, he had failed to tell his employer the reason for his absence as soon as it was reasonably practicable to do so.

The employee, whose mobile phone battery had run down, should have used alternative available means to make contact with his employer, but had failed to do so.
As always please remember that each case turns on its facts and that whilst this case is good news for employers who want to ensure employees maintain contact in respect of absence at all times, it is important to take advice before dismissing employees in situations such as this.

Contact Us
If you require any further clarification in relation to the above developments, or if you need any further assistance then please do not hesitate to contact our team of specialist employment solicitors on 0161 832 3304.