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Employment Law Bulletin February 2018


News round up

We have a number of exciting events in the pipeline and seminars already scheduled for later in the year. Please click here to view our seminar programme and keep an eye on your inbox for invitations to these events in due course.

Our next event is on Thursday 3 May 2018 where we will be discussing the Mental Health in the Workplace. More information is available on our website and you will receive the invitation for this event very soon.

You may have attended one of our recent events on the General Data Protection Regulations 2016 (“GDPR”) and be aware of its imminent introduction in May this year.

The new regulations pose a number of significant changes to current data protection legislation. To support you with the changes introduced by GDPR, we will be issuing a special ‘GDPR’ newsletter very soon, focussing on the impact of GDPR from an employment law and HR perspective. Look out for this in your inboxes in the coming weeks!

National Minimum Wage

The National Minimum Wage will increase on 1 April 2018. The rates effective from that date are as follows:

Age range (years)     New rate        Current rate 

25+                             £7.83               £7.50 
21-24                          £7.38               £7.05 
18-20                          £5.90               £5.60 
16-17                          £4.20               £4.05 
Apprentice                  £3.70               £3.50 

It is a good idea to start putting preparations in place now if you have any employees who are paid the NMW, to be sure that the increases can be made on the 1 April. Inform employees who are due an increase, so that they are clear what their new rates of pay will be.

It is also a good idea to make sure that birthdays are recorded for any employees under the age of 25 years so that you do not forget to make an increase during the year if they move into the next band of pay. There is no defence to paying the wrong rate of the NMW and the penalties for getting it wrong can be severe.

Get the Basics Right

Sometimes we can be so focused on getting the more difficult issues right that we forget some of the basics. This was demonstrated recently in the case of Zia v Poundland Ltd [2017].

A manager at a Poundland store was dismissed for giving away too many free items. He had been told that he could give discounts or free gifts to customers when there had been a complaint or when damaged goods were returned. However, he was accused of giving away too much (in a five month period he gave away goods with a total value of over £300 whereas another manager gave away goods worth just £1 in the same period). It was also said that he had been told to stop giving away free gifts – although he denied he had ever been told this.

He was dismissed, and this was found to be unfair. Firstly, the tribunal found that the employer had not carried out an adequate investigation. The employee’s assertion that he had never been told that free gifts were to be stopped was never checked. There were no legible notes of the disciplinary hearing, and the appeal took nearly three months to arrange.

There seem to have been a fair basis for starting the disciplinary process, but the dismissal was unfair due to some basic procedural errors.


Dismissing When a Fixed Term Contract Ends

If you employ an individual on a fixed term contract, and that contract comes to an end, there is a dismissal in law. As with a dismissal for any reason, it must be fair. Your obligation is to make sure that someone on a fixed term contract is made aware of vacancies in the organisation. In addition, the individual on the fixed term contract must not suffer any detriment due to being on that type of contract.

This does not mean that you must give someone on a fixed term contract a job in your organisation, but it does mean that you must treat them fairly.

In Royal Surrey County NHS Foundation Trust v Dryzmala [2017] the individual was a doctor who had worked on a series of locum contracts. A permanent vacancy arose, she applied and was interviewed, but was not appointed. She was then told her contract would be ending, and was not offered an appeal or told of any alternative employment.

She successfully claimed unfair dismissal. She had not been treated fairly, because she had not been allowed to appeal against her dismissal. The principles of fairness which apply to all dismissals, applied to this situation.


Discrimination: A future disability

It is discrimination if someone is treated less favourably because of a disability. If an individual does have a disability you are required to consider if reasonable adjustments can be made.

In Chief Constable of Norfolk v Coffey [2017] there was a Police Officer who had applied to transfer from one force to another. She suffered from hearing loss, which was just below the standard expected in the police force. Her application was rejected because of the concern that her hearing might deteriorate further, meaning that she would have to move to restricted duties. This was found to be disability discrimination, because it was based on a perception of what might happen.

Even if this perception was correct, there was still a requirement on the organisation to make reasonable adjustments to remove the disadvantage that she might suffer in comparison to non-disabled employees.


Adjustments must work

As we have just noted, there is a need to make reasonable adjustments if an employee is disabled. If you do identify reasonable adjustments you must be sure that they work. In Osifo v British Gas Trading Ltd [2017] it had been identified that there was some software which could help an employee with a hearing disorder. The software was installed but there were a number of faults with it. This caused stress to the employee, he went off sick and was eventually dismissed. This was disability discrimination.

Having identified a reasonable adjustment you should allow a period of time before reviewing whether it has had an impact. If it has had a positive impact it should remain in place. If it does not operate for some reason the employee should not be penalised for any drop in performance during that period.


You are to blame for what your employees do!

The concept of vicarious liability is nothing new – the employer is responsible for anything that the employee does in the course of employment. However, what happens if the employee does something that relates to their work, but is definitely not part of their work?

In Various Claimants v WM Morrisons Supermarket plc [2017] a Senior IT Manager had a grudge against his employer due to a disciplinary situation which had arisen. To take ‘revenge’ he published the personal details of nearly 100,000 employees on the internet and also sent the information to three national newspapers. 5,500 employees brought claims against the employer. The employer argued that they were not liable for the criminal acts of an employee (he was found guilty of criminal acts and jailed for 8 years).

However, the High Court has ruled that the employer was liable because there was sufficient connection between what he did and the tasks he was required to do in the course of his employment.


Jumped or pushed?

If an employee resigns it is important to get that confirmed in writing, so that there is no debate about what happened at a later stage. In Basra v BJSS Limited [2017] the employee wrote a letter which included the phrase ‘today will be the last day at BJSS’. The employer argued that the letter was a resignation, but the employee claimed that he had been dismissed. The tribunal decided at first instance that there was a resignation, but the EAT disagreed and found the employee had been dismissed.

Although there is no legal requirement for an employee to write a resignation letter, a verbal resignation is just as binding, there is always room for doubt if nothing has been confirmed in writing. Get it in writing!


Spying is not allowed

There could be a number of reasons that you decide to install CCTV cameras in the workplace. It could be due to the need to ensure the safety of employees, or it could be for security purposes. If the employees know that there are cameras in place there is no problem with using them to check what employees are doing, but using hidden cameras could be a breach of privacy.

In Lopez Ribalda v Spain [2017] there was a suspicion that supermarket workers were stealing from their employer. CCTV cameras were installed, both visible and hidden. The workers were told about the visible cameras, but were not aware that there were also hidden cameras in place. Film from the hidden cameras showed employees stealing, and helping others to steal. The individuals concerned were dismissed and argued that the hidden filming was a breach of their privacy. They were successful in their arguments.

Although this is a case from Spain, the ruling came from the European Court of Human Rights, and therefore it does apply to the UK.