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Employment Law Bulletin - August 2019

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News round-up 

We will be hosting our fourth Rising Stars in HR session of the year on Thursday 26 September 2019, you can find all the details and how to register on our website. There will be an Employment Law Update seminar on Thursday 24 October 2019. We will be sending the invitation for this event in due course.

Dr Hilary Jones, Acorn Stairlifts (also appearing on ITV’s This Morning) will be one of our guest speakers at our first Clarion Loneliness Summit taking place on 10th September 2019 at our offices from 12.30pm.

The event is aimed at organisations from the private, public and third sectors who contribute towards the older demographic living healthy and independent lives as part of the Government’s Industrial Strategy. If you would like to attend the event, please email marketing@clarionsolicitors.com.

We are always talking about key legal developments, topical issues and what we are up to, so please follow us (@ClarionEmpLaw) to be kept up to date between our monthly newsletters.

Proposed changes to the law for ex-offenders 

David Gauke, the Secretary of State for Justice, has announced proposals for changes to the law for ex-offenders. At present, any individual who has been sentenced to a custodial period of more than 48 months has to disclose the conviction to an employer, and must do so regardless of the length of time since the conviction (the conviction never becomes “spent”). Gauke is concerned that this makes it difficult for an ex-offender to turn their life around, because the conviction is always there on their record.

The proposals, therefore, are to remove the requirement to disclose any custodial sentence of more than 48 months (it is not clear what will be put in place of this) and also to reduce the rehabilitation period (the length of time during which crimes attracting lesser sanctions must be disclosed). Once this time has passed, the conviction is ‘spent’ and no longer has to be disclosed. There will still be a requirement to disclose convictions which are relevant to the job application (e.g. disclosing offences against children when applying to work with children).

Note that you should never ask a job applicant to give information about a conviction that is ‘spent’.

We will update you when more information is available on the changes, but in the meantime, it is a useful opportunity to refresh our memories on the current legislation, please click here.

Enforcing post-termination restrictions 

A restrictive covenant limits the activities of an employee after they have left your organisation. The covenant could be:

A restrictive covenant can be very useful to protect your business, but it must be reasonable and necessary for the protection of a legitimate business interest. If it is excessive or unreasonable it will not be enforceable. However, if part of the covenant can be deleted, such that the remainder is reasonable and still makes sense, it may remain enforceable - as was shown in the recent case of Tillman v Egon Zehdner Ltd [2019].

The employee worked for a recruitment consultancy and was Head of Financial Services. There was a clause in her contract that said she would ‘not directly or indirectly engage or be concerned or interested in any business carried on in competition with any of the businesses of [Egon Zehnder]’ for six months after leaving the business.

She resigned to go to a competitor, and argued that the restrictive covenant did not apply because the words ‘interested in’ were too broad, and therefore the clause was not enforceable. However, the Supreme Court has ruled that these words could be removed, leaving a clause that is still enforceable and makes sense.

Actions:

Expressing unacceptable views 

All employees are entitled to have their own views, but expressing those views must not bring the employer into disrepute. In Page v NHS Trust Development Authority [2019] a Non-Executive Director took part in a televised interview. He is a Christian and expressed a personal view that it was not in the interests of a child to be adopted by a same sex couple. He was told not to carry out any more television interviews, but he ignored this instruction and gave further interviews expressing similar views. He was dismissed from his role. It was held that this was not religious discrimination, as he was dismissed because he had disobeyed his employer, and had gone ahead with a televised interview when instructed not to. Further, he should have realised that his views would have a negative impact on engagement with the local community.

Actions:

Harassment and social media 

Employees posting unacceptable material on platforms such as Facebook continues to lead to difficulties in the workplace. In Forbes v London Heathrow Airport Ltd [2019] an employee posted a picture and caption on his private Facebook account that was racially offensive. A colleague, who was a friend on Facebook, saw it and showed it to the Claimant. The Claimant found it particularly offensive because of his own race and raised a grievance. The employee who posted the material was disciplined, but the Claimant was rostered to work with him again. The Claimant complained, was moved and claimed racial harassment, victimisation and direct discrimination.

The claims were unsuccessful. To be harassment, the actions had to be in the ‘course of employment’. Posting material on a personal Facebook account which was shared with a private group and did not mention the employer was not in the ‘course of employment’.

Actions:

Covert recordings of disciplinary procedures 

Given the ease of recording on a mobile phone, it is not unusual for an employee to ask if they may record a meeting with you. However, is it gross misconduct to record a hearing without telling those present that the recording is being made?

In Phoenix House Ltd v Stockman [2019] the employee was dismissed, and successfully claimed unfair dismissal. The employer was not aware that she had secretly recorded one of the disciplinary meetings that she had attended, and argued that her compensation for unfair dismissal should be reduced as they would have dismissed her for gross misconduct had they known that she made a covert recording.

The Employment Appeals Tribunal ruled that making a covert recording could be gross misconduct, but it would depend on the circumstances. If the recording was made to trap someone, that could be gross misconduct, but if it was made to keep a record of misrepresentation, it was unlikely to amount to misconduct.

Actions:

Obligation to keep pay records transfers 

A transfer of undertaking occurs when part, or all, of a business is sold to a new employer and continues in much the same way, or when the provision of a service transfers from one employer to another. All liabilities and contractual obligations transfer with the employees.

In Mears Homecare Limited v Bradburn and others [2019] a number of employees transferred to a new employer. Around four months after the transfer, they claimed that they had not been paid the National Minimum/Living Wage and their employer was given 14 days to produce pay records. They did not do this and the employer that they had previously worked for was ordered to pay £600 to each Claimant. The Employment Appeals Tribunal ruled that this was wrong. The responsibility for keeping pay records transferred when the employees transferred, and therefore the responsibility to produce the pay records lay with the new employer.

Actions:

Agency worker rights 

The Agency Workers Regulations 2010 require an employer to give an agency worker the same terms and conditions of employment as a permanent employee doing the same type of work (once the agency worker has worked in the organisation for at least 12 continuous weeks).

In Kocur v Angard Staffing Solutions Ltd [2019] the agency worker had worked for more than 12 continuous weeks and argued that he should receive the same annual leave and rest breaks as the direct employees he was working with, and that he should be offered the same amount of work. The employer argued that he received a higher hourly rate of pay and this compensated for his lower level of leave and rest breaks.

The Court of Appeal has ruled that there is a requirement to compare each individual term – an employer cannot argue, as in this case, that annual leave is lower but that this is compensated for by a higher hourly rate of pay. However, it has also ruled that the Regulations do not give an agency worker the right to the same number of hours of work as a permanent employee. This would defeat the key purpose of using agency workers (i.e. to cover busy periods and “fill gaps”).

Actions:

A final word – Upskilling HR Teams 

Our Breakfast Clubs’ event programme is set out to enable you to get key dates in your diary and help you plan ahead.

You’ll see that our Clubs are categorised as ‘Rising Stars’, ‘Masterclass’ and ‘Update’ events to suit different needs.

Our programme for Rising Stars is aimed specifically at supporting the learning, development and career progression of rising stars in HR. These clubs are designed to provide training, through interactive workshops, on basic cornerstone legal concepts, offer practical insight and host a range of inspiring guest speakers. They also provide an opportunity for rising stars to build a network with peers.

Our Masterclasses and Updates provide more in depth seminars on topical issues, with a focus on reviewing developments in employment law and HR.

Whether you are a rising star, seasoned professional or experienced manager, we look forward to welcoming you, over breakfast, to our Clubs, on a complementary basis, to learn, meet and network with peers and the Clarion Employment Team in a relaxed environment.

Please register your interest in any of our Clubs by sending an email to laura.courbet@clarionsolicitors.com.