Employment Law Newsletter – February 2014

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


Attendees of our recent Breakfast Briefing ‘ A Word of Warning’ will note the following two cases covering some thorny issues discussed at that briefing:

Fairness of Dismissal when warning under appeal
In Rooney v Dundee City Council the EAT considered whether a dismissal can be fair in reliance on a final written warning when that warning is under appeal. In this case the Claimant had a final written warning for failure to follow an instruction which she appealed. The appeal hearing was rearranged a number of times but never heard. In the meantime a separate disciplinary issue arose for inappropriate behaviour whilst the final written warning was still ‘live’. The latter incident would only have justified a final written warning on its own but taken together, it justified dismissal. The EAT held that the tribunal were entitled to take into account the fact of the warning including whether it was under appeal. However, a final written warning does imply that any misconduct will usually be met with dismissal and the resulting dismissal in this case was fair. Employers should exercise caution in relying on this decision as the employer in this case did review the circumstances of the disputed warning as part of the appeal against dismissal. If time and circumstances allow, it would be safer to deal with any outstanding appeal first.

Tribunal’s consideration of an earlier warning
In Adegobola v Marks and Spencer plc the Court of Appeal confirmed that a tribunal is able to consider the reasonableness of a final written warning when assessing the fairness of a dismissal. In this case the Claimant had received a final written warning for misconduct following an incident with another member of staff. She was then dismissed for arguing with a manager and the investigation revealed that she had resold goods purchased with her discount card in breach of Company policy. The Claimant raised a number of issues regarding the fairness of the procedure followed and her earlier warning. The CA confirmed that the tribunal was wrong to find they could not consider the earlier warning as they must at least be satisfied that it was issued in good faith. However, the dismissal was ultimately fair as they could have dismissed fairly for gross misconduct in relation to the discount card allegations alone. This case emphasises the importance of getting non-dismissal disciplinary situations right as they can be examined to a certain degree in a claim arising from a later dismissal.

Difference between ‘holding’ and ‘manifesting’ a religious belief
In Grace v Places for Children the EAT considered the appeal of an employee who had been unsuccessful in her claim of religious discrimination in the employment tribunal. The Claimant was a Nursery Manager who had been dismissed after holding an unauthorised training session at which manifestations of her religious beliefs had led to various complaints from staff. The EAT upheld the tribunal’s decision and held that she had been dismissed due to the inappropriate way she manifested or shared her beliefs and not on the ground of her beliefs. Having said this, employers should exercise caution before dismissing an employee for manifesting a belief as the EAT noted that there was ‘no clear dividing line between holding and manifesting a belief and that unjustified unfavourable treatment because an employee has manifested his or her religion may amount to unlawful discrimination’.

Lying Not Automatically Unreasonable Conduct
In Kapoor v Governing Body of Barnhill Community School the EAT considered the extent to which false evidence should result in a costs order being made against a party. The Claimant was an exam invigilator who brought claims of race discrimination against her employer. In dismissing the claims, the tribunal found that the Claimant’s evidence was not believable and that she had falsified documents. It ordered that not telling the truth is unreasonable conduct “as simple as that” and made a costs order of £8,900 as a contribution to the Respondent’s costs. The EAT overturned the decision stating that the nature, gravity and effect of the lie was relevant and by not considering these issues the tribunal had misdirected itself. The case was remitted to the tribunal for reconsideration. This case highlights the difficulties with recovering legal costs in tribunal proceedings and the unpredictability of this area of law.


National Minimum Wage Penalty Increased
Draft regulations have been published to increase the maximum financial penalty for employers from £5,000 to £20,000. The regulations are expected to come into force in February 2014. The government also wants to introduce legislation to enable the maximum penalty to apply in respect of each underpaid worker.

New Rates of Statutory Maternity Pay and Sick Pay Announced
The changes that come into force on 6 April 2014 are:

• An increase in SSP from £86.70 to £87.55 per week;

• An increase in maternity pay, paternity pay and adoption pay from £136.78 to £138.18 per week

TUPE Regulations come into force
Further to previous updates and newsletters the new TUPE regulations came into force on 31st January 2014.

The most significant changes include:-

• Amendments to the definition of a service provision change to clarify that activities carried out after the change in provider must be fundamentally the same as before;

• Changes to allow a change in workplace to be potentially permissible following a transfer;

• A provision allowing micro businesses to inform and consult directly with the affected employees;

• Provisions to allow a transferee to start consultation before the transfer if the transferor agrees.

If you have employees and are involved in the purchase, sale or other transfer of a business; or you have won or lost a client contract; these regulations might apply to you. They are extremely complex and can have significant consequences to your business so it is worth seeking specialist advice.

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.

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