Welcome to our July 2013 Employment Law Newsletter, keeping you up to date with changes in employment law and informing you of recent case law developments.
On 25 June 2013, most of the new provisions in relation to whistle-blowing came into force.
The changes consist of: –
- A worker must have a reasonable belief that the disclosure is in the public interest. There is no definition of public interest so it is left to case law to test this point, but it is likely that it must affect a class of people and not just the individual.
- The requirement for the disclosure to be made in good faith has been removed. Of course, this does not mean that employees can deliberately make false disclosures, and Tribunals will have the power to reduce compensation by up to 25% if the disclosure is made in bad faith.
- Most crucially employers can now be vicariously liable under whistle-blowing legislation. This means that if a worker makes a protected disclosure to another worker and they are then treated differently by the fellow worker, the employer can be held to be vicariously liable and ultimately have to pay compensation. We would therefore advise that all Managers and employees are made aware of your internal whistle-blowing policies. If you require advice on this please contact me. We are also able to run internal courses for your staff.
The current cap for compensation for Unfair Dismissal is £74,200, but from 25 June 2013 the Secretary of State has the power to amend the statutory limit at any time. The Secretary of State is expected to exercise this new power imminently by amending the limit to the lowest of either £74,200, or 52 weeks’ pay. There has been some speculation that in the not too distant future, the Secretary of State may exercise the power to limit the compensation to the lowest of either £28,000 or 52 weeks’ pay. We will of course keep you updated.
Case Law Developments
Covertly Surveying Employees – is it Legal?
The recent case of City and County of Swansea v Gayle, was referred to the Employment Appeal Tribunal (EAT). Mr Gayle was dismissed after his employer obtained video evidence showing him, one several occasions, at a sports centre whilst he was being paid to be at work.
The Tribunal found that the Council’s investigation was too thorough and breached Mr Gayle’s rights in relation to Data Protection and Human Rights law so the dismissal was unfair. The Council appealed. The EAT however decided that Mr Gayle was attending the sports centre on the employer’s time and he could have no reasonable expectation that he could keep this private from his employer. One of the important points to draw from this case is that the EAT considered what would be a reasonable investigation in the circumstances, which means that using covert surveillance may not always be the best source of evidence.
Workers on Parental leave and Redundancy
The Court of Justice of the European Union (CJEU) recently dealt with the case of Riezniece v Zemkopbias Ministriia, which asked whether an employer can assess workers who have been off work on parental leave on different criteria to those who have not during a redundancy selection process.
The Court found that EU law precludes this. Assessments must apply the same criteria for all workers involved in the redundancy process regardless of whether or not they are physically in the workplace. Employers should therefore ensure that any assessment for redundancy does not prejudice employees who have been off on maternity or paternity leave.
Date for Your Diary…
Employment Event: Disability Discrimination – is your organisation able to tackle this legal minefield?
Disability discrimination is a complex area of employment law and employers often get caught by the positive duty to make reasonable adjustments in cases where employees are deemed disabled under the Equality Act.
With an increasing number of employees alleging disability discrimination, does your organisation know how to protect itself against these potential risks and what steps to take?
This seminar will be a comprehensive update on disability discrimination and will assist organisations in identifying potential risk areas; what steps to take when dealing with protected employees; and how to deal with difficult issues relating to employees on long term sick.
For further details and to book your place, please click here.