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Employment Law Bulletin May 2018

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News round up

We are delighted to announce the appointment of a new team member to our growing Employment team. Partner, Chris Booth has joined the team this month.

We have several 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 14 June and it's a joint seminar with Connect Yorkshire on Protecting your business. Chris Booth and Sue Streatfield from our IP team will speak at this event. If you would like to register, click here.

In addition, you should have received an invitation to our next Mock Employment Tribunal on Thursday 28 June. As many of you will know since fees to bring a claim to the Employment Tribunal were removed in July 2017, claims are now on the increase. Compared with the same time last year, claims have increased by around 90%. 

This means all businesses are more likely than ever to face an Employment Tribunal at some stage. It is important to understand what processes you would have to follow, how you would prepare and what requirements would be placed on you.

Our Mock Employment Tribunal was so popular last year that unfortunately, not all of those who wished to attend were able to do so. Therefore, to give everyone the opportunity to benefit from this valuable learning experience, we have decided to examine the same claim again. You can find more information on our website.

In the meantime, here is our round up of key cases and legal changes over the last few weeks.

Sexual harassment

Following revelations in the film industry, and then spreading wider to a range of employment sectors, the topic of sexual harassment has never been as prominent. The Equality and Human Rights Commission has recently published a new report called ‘Turning the tables: ending sexual harassment at work’. A key theme of this report is a criticism of employers for not having effective policies relating to harassment, not providing sufficient support for victims and not having processes to ensure that complainants are not victimised.

The report makes a number of recommendations for the government to consider, and we will let you know if any changes are made to the law. However, it is also worth noting these themes of the report.

The media profile given to harassment means that people are more ready to speak out if they are suffering, so you do need to make sure that you have a process in place to deal with any potential complaints.

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Date of termination

If you terminate an individual’s employment when does that termination take effect? In Newcastle upon Tyne NHS Foundation Trust v Haywood [2018], the Supreme Court has ruled that termination takes effect when the employee reads the letter of termination, not on the date that the letter is sent.

Haywood was informed that she was at risk of redundancy. She went abroad on holiday on 19 April, returning on 27 April. On 20 April, her employer sent her a letter by recorded delivery and ordinary post, and an email to her husband’s email account, terminating her employment. She did not read either until she returned from holiday on 27 April.

The Supreme Court ruled that the notice was given on 27 April. There was nothing in her contract of employment explaining how notice would be given, and hence she received notice when she became aware of it.

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Employment Appeal Tribunal overturns ruling on Shared Parental Leave

An employee can choose to end their Statutory Maternity or Adoption Leave early and return to work. The remainder of the leave can be shared with their partner, in the form of Shared Parental Leave (SPL). The rate of pay during SPL is £145.18 per week, the same as the lower rate for both Statutory Maternity and Adoption Pay. An employer can choose to have an enhanced rate of pay. If there is an enhanced rate of pay offered to women taking maternity leave does it also have to be offered to those taking SPL?

In Capita Customer Management Ltd v Ali [2018], the employee’s wife ended her maternity leave early and he started a period of SPL. In his organisation, women taking maternity leave were allowed 14 weeks at a rate higher than statutory maternity pay. However, whilst taking SPL he was told that he would only be paid the statutory rate. He argued that this was sex discrimination.

The Employment Tribunal agreed. They said that the purpose of maternity leave and SPL (after the 2 weeks of Compulsory Maternity Leave) was the same – to care for the child. Therefore, treating men and women differently was discriminatory. The Employment Appeal Tribunal has now overturned that decision.

The EAT has ruled that the purpose of maternity leave is to protect the well-being of a woman during pregnancy and after childbirth. The purpose of SPL is different, it is for caring for the child. Therefore, it is not discriminatory to pay a different rate for the two different forms of leave.

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Protected disclosures

If an employee makes a protected disclosure, they must not suffer any detriment for doing so. A protected disclosure is revealing information to an appropriate regulatory body (preferably after having raised it in the organisation), which it is in the public interest to disclose. For example, this could be raising a health and safety concern with the Health and Safety Executive. If the employee is wrong about what they reveal, but genuinely believed that they were right, they are still protected.

In Lane v Weymouth College [2018] the employee concerned was a School Finance Officer. He made a protected disclosure relating to two issues. Firstly, he said that the school had indicated in a reference that it would re-employ a teacher who had been dismissed for having an inappropriate relationship with a pupil.

Secondly, he said that the school Principal had a lax attitude to the consumption of alcohol in school hours. These matters were, in fact, not true. After raising these issues, he was ostracised at work, relationships broke down and he was dismissed.

This was an unfair dismissal because the reason for it was that he had made a protected disclosure.

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Be careful of banter

It is important to have fun at work, but make sure that your supervisors are alert for any fun or ‘banter’ that crosses the line into being offensive.

In Edwards v Hertfordshire County Council [2018] the employee was of Caribbean ethnic origin. He raised a large number of grievances about race discrimination. Most of these were rejected, but he was successful in arguing that he had suffered discrimination because a number of colleagues imitated his accent at work. The employer argued that this was just ‘banter’, but the Employment Tribunal found that it had crossed the line into discrimination and awarded just over £11,500 in compensation.

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Remain neutral when carrying out an investigation

We know that it can sometimes be difficult to remain impartial when investigating some employees but it is important to be as neutral as possible.

In Ferguson v National Oceanography Centre [2018], the employee had suffered a variety of problems, and was suffering from depression. Whilst he was absent during one period of depression, a notebook was found in which he had drawn sexually violent pictures. An investigation took place and it was decided to dismiss him for gross misconduct.

The dismissal was found to be unfair. The Employment Tribunal found that the employer had a pre-conceived view of what had happened, and interpreted the facts in a negative way. The employee was disabled, and no consideration was given as to whether the disability had contributed to what he had done.

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A Final Word

This week is mental health awareness week and many of you attended our recent seminar on mental health in the work place. It is clear that this is a hot topic at the moment and a number of the attendees at our seminar confirmed that supporting employee wellbeing is something that their organisations are trying to focus on. 

At our seminar, Rosana Rategh from Leeds Mind expained that 1 in 4 people will experience mental ill health in any given year and 1 in 6 workers are affected by mental health problems in any given year.

Mental ill health clearly affects or will affect many of us. We have prepared various blogs and articles on this topic during the mental health awareness week, so please have a look at our blogs and let us know if you want to discuss anything on managing employees' mental health.