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Employment Law Bulletin June 2015


So, now the General Election is over and everything has settled back down again, it is time to review what changes we might see in employment law in the near future. As we reported in the last newsletter, the Small Business Enterprise and Employment Act  2015 and the DeRegulation Act 2015 were passed prior to the General Election. We now have the following implementation dates:

From 26 May 2015:

• Exclusivity clauses in zero hours contracts will be prohibited

• The increased penalties for breach of the National Minimum Wage are introduced

We will keep you informed as we hear of additional implementation dates.

In addition, the new Conservative government has indicated that it is going to address the following employment related areas:

• Balloting and picketing

Currently, to get a mandate for industrial action, there is just a requirement for a majority of those who vote to be in favour of taking action. It is not uncommon for there to be a low turnout at a ballot, meaning that industrial action can go ahead when just a small proportion of those involved have actually voted in favour.
The government wants to address this by putting in place a requirement that at least 50% of those eligible to vote do vote before there can be a mandate for industrial action. Then, at least 50% of those employees would need to be in favour.

They are also proposing to have a tougher threshold if the industrial action involves those providing essential public services, with a requirement that 40% of those eligible to vote are in favour of action before it can go ahead.

In addition, the government has suggested that the current Code of Practice on Picketing will become legally binding, and a breach of it will be a criminal offence.

• Agency workers during strike action
At present there is a prohibition on employment agencies providing agency staff if they are aware that the staff that they provide will be doing work that is ordinarily done by employees taking strike action. The proposal is that this ban will be lifted.

• Volunteers
The government has suggested that it will put in place a requirement for companies with 250 or more employees, and the public sector, to allow their employees to take up to three paid days off a year to do voluntary work. This will be in addition to the annual leave entitlement of 28 days.

• Europe
As we have all heard many times, there will be a referendum on membership of the European Union by the end of 2017. In addition, the government has indicated that it will scrap the current Human Rights Act, replacing it with a British Bill of Rights.

We will keep you informed as we hear more about the detail of all these proposals.

Deduction from Wages

There will be a change to the law on 1 July 2015 when the Deduction from Wages (Limitation) Regulations 2014 are introduced. These Regulations do two key things:

• Limit unlawful deduction from wages claims to two years prior to the date that the ET1 (claim to the Employment Tribunal) is submitted. This limitation does include claims relating to Statutory Maternity Pay, Statutory Sick Pay and guarantee payments.

• Specify that the right to paid holidays is not incorporated as a term in employment contracts.

The effect of these Regulations will be to limit the ability of employees to bring unlawful deduction claims going back over a long period of time. It will also mean that employees cannot bring a breach of contract claim if they consider that they have not been paid the correct amount of holiday pay.

Note, however, that this only applies to Employment Tribunal claims that are presented on or after 1 July 2015.

• If you receive a copy of a claim to the Employment Tribunal which is alleging unlawful deduction from wages check it carefully. If it is issued on or after 1 July 2015 ensure that the claim is within the law. Contact us for advice if you are not sure.

Definition of an ‘establishment’ in a redundancy

Back in March we alerted you to the Advocate General’s opinion in the Woolworths case – we now have the ruling from the Court of Justice of the European Union.

You might recall that Woolworths went into administration in 2008. It did not consult adequately with employees and they were given a protective award (the monetary award to compensate for inadequate consultation). However, only those who worked in stores with 20 or more employees received the protective award. Collective consultation is only required when there are 20 or more redundancies in an establishment in a 90 day period.

It was the definition of ‘establishment’ that was key to the case. Woolworths argued that each individual store was an ‘establishment’. USDAW, the trade union, argued that Woolworths as a whole was the ‘establishment’. If USDAW was correct then all employees, regardless of how many worked in their store, were covered by collective consultation and hence entitled to a protective award.

The Employment Appeal Tribunal concluded that Woolworths was the establishment, and the challenge against this ruling was referred to the Court of Justice. As always happens, we initially got the opinion of the Advocate General, but now we have the final ruling.

The Court of Justice has said that an establishment is the entity to which the employee is assigned to carry out their duties, and that there is no requirement to aggregate redundancies if they are happening across a number of sites. The case has now been formally referred back to the Court of Appeal in the UK who will apply this ruling.

• If you are in a redundancy situation and you operate at more than one location, there is no requirement to add up the redundancies to determine collective consultation requirements.

• A more complicated situation will arise if your employees are not clearly assigned to any one of your locations, but move around to work as needed. In that situation you are strongly recommended to contact us to seek specific advice.

Ensuring a clear reason for dismissal

If an employee makes a protected disclosure (also known as whistleblowing) that employee must not suffer any detriment for making the disclosure. However, is there a point at which the disclosures are no longer the relevant issue, but the issue becomes the conduct of the employee?

In Nese v Airbus Operations Ltd [2015] an employee raised a number of safety concerns relating to an aircraft development project that he was working on. It was accepted that these were protected disclosures, and they were all investigated. He was told that his concerns were unfounded.

However, even though the concerns had been investigated he continued to raise them and eventually he was dismissed on the grounds of gross misconduct. He argued that he had suffered unfair dismissal and detriment because he had made a protected disclosure.

He was unsuccessful in his arguments. Once the disclosures had been investigated and he had been told about the outcome of the investigations he should not have persisted. They were no longer protected disclosures, and the reason for his dismissal was his unacceptable behaviour.

• Ensure that your line managers understand the definition of a protected disclosure, and ensure they understand that an employee cannot be treated less favourably for making a disclosure.

• Ensure that disclosures are always fully investigated, and that the findings are reported back to the person who made the disclosure.

• If an employee persists with raising concerns once a disclosure has been investigated make it clear that this is not acceptable, unless new issues are being identified

Not justification for direct discrimination

A case that has hit the popular press is of interest to employers. Although it is not specifically related to employment, there are some key points to learn from Lee v Ashers Baking Company Ltd and McArthur and McArthur 2015. In this case a bakery was asked to provide a cake with a slogan on it supporting same sex marriage. The bakery was run by Christians who said that same sex marriage was not compatible with their religious beliefs, so they refused to provide the cake. The customer brought a claim of direct discrimination on the grounds of sexual orientation.

The claim has been successful. It was clear that the customer was treated less favourably (he was refused the service of being provided with a cake) and that the reason was sexual orientation. Although there are exceptions in the Equality Act 2010 relating to religious belief that only applies when the organisation’s purposes include furthering religious belief. There was nothing in the bakery’s documentation that suggested that their purposes included this. The refusal to provide the cake was direct discrimination and this could not be justified.

• If you have any employees with strong religious views ensure that they do not express them in a way that could cause offence to their colleagues

• If you are aware of any harassment or other forms of discrimination against an employee who is homosexual or bisexual act quickly to stop this behaviour continuing.

Acas Early Conciliation: Getting it Right

There have been two cases of interest relating to the Acas Early Conciliation Scheme.

In the first, Sterling v United Learning Trust [2015] the claimant completed the ET1 (the Tribunal claim form) setting out her claim to the Employment Tribunal, but did not put in the complete Early Conciliation Number that she had been given on completion of the early conciliation process. The ET1 was returned to her to correct this error, but it was not received back at the Employment Tribunal within the three month time limit for her to lodge her claim. Her claim was rejected as being out of time.

In the second, Cranwell v Cullen [2015], the claimant did not comply with the early conciliation process at all and put in a claim to the Employment Tribunal. Her claim was rejected, due to the non-compliance. It appeared that she had not complied because her allegations related to sexual harassment and she was concerned that she would have to talk to her harasser (her employer) in the conciliation process and was not prepared to do this. In reality, it is likely that the Acas Early Conciliation Officer would have concluded that conciliation was not going to be successful and she would have been issued with an Early Conciliation Number and allowed to proceed to the Tribunal. However, as she did not engage with the process at all her claim was rejected.

• If you do receive notification from the Employment Tribunal that there is a claim against you, check the copy of the ET1 that you will receive very carefully. If there appear to be any errors write to the Employment Tribunal highlighting this. If you are not sure, contact us for advice.

Putting a disciplinary hearing on hold

If an employee is undergoing disciplinary procedures and raises a grievance, is there a requirement to put the proceedings on hold until the grievance has been heard?

In Jinadu v Docklands Buses [2015] it was concluded that this was not required. Jinadu was a bus driver and concerns had been raised about her driving. She was asked to attend a driving assessment, but she refused. Disciplinary proceedings commenced and during this she raised a grievance about her manager. Although this grievance was investigated the disciplinary proceedings were not stopped and she was dismissed. She appealed against her dismissal, and agreed to attend a driving assessment. She failed the assessment and the dismissal was confirmed. She argued that the dismissal was unfair.

The Employment Appeal Tribunal rejected her argument that one element of unfairness was proceeding with the disciplinary hearing when she had raised a grievance. However, it is important to remember that the fairness of continuing with disciplinary proceedings will depend on the nature of the grievance. If the grievance relates to matters that could affect the disciplinary decision it will clearly be fair to investigate the grievance before making any decisions on the disciplinary matters.

• Always investigate grievances promptly, and report back to the employee who has raised the grievance.

• If the grievance might affect the outcome of any disciplinary action conclude the investigation into the grievance before making decisions relating to discipline. If the grievance is not related you can continue with the disciplinary action.