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February Employment Law Bulletin


It's important to remember that employment law doesn't operate in a vacuum. There's a challenge for employers in honouring obligations and rewarding staff, while ensuring a perception of fairness and reasonableness - which is always subjective and rarely static - among the wider workforce.

So Stephen Hester has relinquished a small fortune and Sir Fred is back to being Mr Goodwin (with a reduced pension). It’s been interesting to watch these stories unfold and to feel the force with which various political, social and moral standpoints come to the fore, particularly when times are hard.

Qualifying Period for Unfair Dismissal to Increase to Two Years

The details of the increase in qualifying period for unfair dismissal are now known. Anybody whose continuous employment starts on or after 6th April 2012 will not gain rights to claim unfair dismissal until after they have been employed for two years. 'Continuous employment' normally means the date that somebody starts work, but the date can reset if they are absent for certain reasons.

If you are in the early stages of a recruitment exercise, you may wish to consider making sure any new employee does not start until on or after 6th April. That way, you will have two years - rather than one - to decide whether they are suitable in post.

Employer’s Indemnity Doesn’t Quite Cover It - Coulson v Newsgroup Newspapers

Andy Coulson was employed as Editor the News of the World until 2007. On termination he signed a compromise agreement which included an indemnity from the employer for re-imbursement of legal expenses "which arise from [Coulson] having to defend, or appear in, any administrative, regulatory, judicial or quasi-judicial proceedings as a result of his having been Editor of the News of the World".

After Mr Coulson was arrested and interviewed by police in connection with allegations of intercepting communications and making unlawful payments to police officers, he claimed his professional costs from his former employer.

The High Court held that the scope of the indemnity didn’t cover police investigations into alleged misbehaviour. It couldn’t have been intended that this fairly standard indemnity wording included alleged personal wrongdoing by an employee.

Cue a collective sigh of relief from employers who regularly sign off these sorts of indemnities.

Violence and Vicarious Liability - Weddall v Barchester Healthcare; and Wallbank v Wallbank Fox Designs

Two similar cases involving violence against employees. The same question applied: is an employer vicariously liable for an employee’s attack on another employee where the violence was in response to the employer’s lawful instruction?

The facts of each case produced different outcomes. It boiled down to how closely connected the violence was with the employment.

Mr Weddall, the deputy manager of a care home, phoned an employee at home to ask him to cover a night shift. The employee refused but shortly after turned up at work and assaulted Mr Weddall. The employer was not vicariously liable. The employee was acting personally for his own reasons, unconnected with his work.

But in Mr Wallbank’s case, the employee – a powder coater in a small manufacturing company - was carrying out a task which was central to his employment. While he was doing this, Mr Wallbank (the company’s managing director) tried to help him load furniture onto a conveyer belt, issuing instructions as he did so. In response, the employee reacted to the employer’s instruction with spontaneous force, throwing Mr Wallbank onto a table. The employer in this case was held liable for the assault.

Tribunal Opts for Pick ‘n’ Mix at Woolworths - USDAW v WW Realisation

Woolworths had 814 stores across the UK and it recognised a number of trade unions. The business went into administration and then compulsory liquidation, changing its name to WW Realisation 1 Limited (in Liquidation) and making its retail employees redundant.

The union and employee representatives brought tribunal claims on the basis that Woolworths had failed to comply with its collective consultation obligations. The tribunal upheld these complaints and, because Woolworths couldn’t rely on a special circumstances defence (financial circumstances and even administration by themselves weren’t enough), it made protective awards of 60 days’ gross pay. But not every employee received the award. The tribunal held that Woolworths’ duty to consult didn’t apply to stores with fewer than 20 employees and so the protective award would not be made to employees at those stores.

An important part of this case was the tribunal’s decision not to class the entire network of Woolworths’ stores (as opposed to each individual store) as a single establishment. Had it done so then all employees would have been entitled to a protective award. But the tribunal said that each employee was assigned to a particular store and each store was distinct from each other.

There’s some fact-sensitivity here. The tribunal found that the employees were not assigned to the business as a whole. That won’t apply in every case. Making redundancies when you have more than one place of work is complicated – speak to us.

Acas Relays Olympics Guidance

In anticipation of some tricky employee relations issues this summer, Acas has put together some useful advice on coping with London 2012.

Employees will fall into two groups, Acas says. There are those who plan to take time off work to watch or volunteer at the Games, and those who don’t (but hope to watch them on TV, or are fed up with all the fuss). The guidance covers things like attendance and performance and raises some less obvious potential issues like perceived unfairness and favouritism towards those employees interested in sport.

Well worth a read. www.acas.org.uk/index.aspx?articleid=3392.

Subjective Test for Suitable Alternative Employment - Readman v Devon Primary Care Trust

Mrs Readman was a nurse who had been placed at risk of redundancy. Her employer offered her three alternative posts, one of which (hospital matron) was suitable alternative employment. She refused the post, saying that she didn’t want to return to a hospital setting after more than 20 years spent working in community nursing. The employer refused to pay her a redundancy payment, believing that her refusal to take the alternative job was unreasonable.

The employment tribunal upheld the employer’s decision. The question was: would a reasonable employee have accepted the offer? The answer was yes.

But the Employment Appeal Tribunal said that the tribunal had asked itself the wrong question. It should have asked: was Mrs Readman acting reasonably in refusing the offer? Mrs Readman’s reason for turning down the offer was a sound and justifiable one and so she was entitled to a redundancy payment. Who says employment law is complicated?

And Finally.... Law Firm in Hot Water Over Homosexual Remarks - Bivonas LLP v Bennett

A case which shows there can be discrimination even where a comment has been written down and is only discovered long afterwards.

Bivonas LLP is a small niche litigation practice specialising in criminal and fraud cases. Mr Bennett, a non-practising barrister, was headhunted to join the firm. The tribunal found that the firm knew that Mr Bennett was gay.

While looking through a client file Mr Bennett stumbled across a note which detailed a discussion between two members of the firm. In it, Mr Bennett was accused of giving work to his “batty boy mate”. He brought a claim for constructive dismissal and sexual orientation discrimination. The firm argued that Mr Bennett had not been treated less favourably because he was never meant to have seen the note.

The tribunal rejected this, finding in Mr Bennett’s favour. The note was inherently insulting and amounted to a serious professional slur. It didn’t matter that Mr Bennett was never supposed to read it. By committing the comment to paper, the writer risked it being discovered.

The Employment Appeal Tribunal rejected the employer’s appeal.

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