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September Employment Law Newsletter

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Summer is over. We're not talking about the sun and the general good cheer (although they're nice!). It's the feeling that those six weeks or more of school holidays are a corporate hiatus.

For many organisations, business slows down as annual leave fever grips the country.

So as children are choosing their new pencil cases and parents preparing to get back to some semblance of routine, it's a good time for employers to do the same.

Why not inject some fresh ideas and order into things? Review your contracts, update your appraisal system, invite suggestions for better staff engagement. Whatever it might be, use the lead-up to Christmas (yes, Christmas) as an opportunity to reinvigorate your workplace and your workforce.

If nothing else, it will take your mind off the chill in the air.

Important change for companies which employ drivers

By 10 September 2014, all professional drivers (essentially lorry, bus and coach drivers) need to carry a Driver's Qualification Card (DQC). To get this, they must pass the Drivers Certificate of Professional Competence (CPC) – and it will be a criminal offence to drive without it.

Organisations could also find themselves criminally liable if their drivers drive in breach of the CPC requirement. Companies and their directors could be fined up to £1,000 each, and the business' operator licence could be threatened.

The message to employers is: make sure drivers know about the CPC requirement and are assessed before 10 September 2014. After that date they won't be able to drive legally without the CPC and that could mean they stand to lose their jobs. That all needs to be communicated to staff, giving them as much time as possible to get CPC arrangements in place.


Warnings and past offences

Sweeney (deceased) v Strathclyde Fire Board

Employers often get confused about what they can and can't take into account during the disciplinary process. In the Sweeney case, the Employment Appeal Tribunal (EAT) looked at a situation in which an employer had factored into its dismissal decision a later warning the employee had received.

Mr Sweeney was a fireman. In July 2010 he was charged with assaulting his wife. One month later he was given a final written warning for unauthorised absence from work. In March 2011 he was sentenced to community service for the assault.

The fire service investigated the conduct (the assault) that had led to the criminal sentence. Rather than give Mr Sweeney a final written warning for that, his employer dismissed him – it took into account the final written warning for unauthorised absence, even though it post-dated the assault.

The EAT held that the employer was entitled to look at Mr Sweeney's entire employment record when considering dismissal. It didn't matter that the written warning was for later misconduct; the fact that it had been issued could be taken into account in the disciplinary process.


Heavier sanctions at appeal stage?

McMillan v Airedale NHS Foundation Trust

Disciplinary appeals exist for an employee's benefit. So it would seem odd if the sanction already imposed could be increased at that stage in the process. Might employees who choose to appeal be shooting themselves in the foot?

Ms McMillan was a consultant employed by the NHS. She appealed, unsuccessfully, against her final written warning for misconduct.  Ms McMillan became worried that her warning would nevertheless become dismissal.  So before the appeal panel had decided the outcome, she obtained a High Court injunction stopping the Trust reconvening the hearing.

The Court of Appeal upheld the High Court's decision to grant the injunction, saying that if employers want the power to increase sanctions on appeal then this must be clearly set out in their disciplinary procedure (and it was not in the disciplinary procedure in this case).

The Trust was not entitled to increase the sanction, the Court said, because the right to appeal is for the employee's benefit or protection; employees would otherwise be deterred from appealing at all. Furthermore, if a warning were increased to dismissal then the employee would have no right to appeal against that dismissal because the end of the internal process road had been reached.


Adjusted scoring for disabled employees

Dominique v Toll Global Forwarding Ltd

Mr Dominique suffered a stroke. It resulted in him making mistakes at work and having difficulty with using computers.

A redundancy process ensued and Mr Dominique was selected based on productivity and accuracy criteria. Should his scores have been adjusted to take into account his disability? And did the employer fail in its duty to make reasonable adjustments even though making those adjustments would have made no difference to the outcome?

Yes and yes, said the Employment Appeal Tribunal. Mr Dominique was put at a substantial disadvantage by his employer's selection criteria, and a reasonable adjustment would have been to adjust the scores (but not necessarily to score Mr Dominique highest in his pool). Because it hadn't done this, the employer was liable for disability discrimination, attracting an injury to feelings award.


What the HR consultant says goes

Hershaw v Sheffield City Council

Every employer knows the importance of clear communication, especially during the disciplinary and grievance process. Ambiguity and misinformation have a habit of returning to bite. And that's what happened to Sheffield City Council when one of their HR Consultants got things wrong.

Twelve council staff members had taken issue with their pay grade and level of pay. They raised a grievance about their employer's inaction during the process. The Council engaged one of their HR consultants to investigate the grievance.

The consultant was authorised to write to the employees with the outcome of their grievance, but not to determine their pay. However, in her letter she mistakenly told them that they had been placed on a higher grade salary.

The Employment Appeal Tribunal held that although the consultant didn't have actual authority to increase the grade, her letter bound the council to pay the higher salaries. It had contractual effect. The employer had authorised the consultant to answer the employees' grievance and so the effect of her letter was as if the employer had written directly to the employees.

There's a lesson here about setting boundaries and keeping an eye on what's being done on your behalf, particularly as this rule would also apply to external contractors. Be clear about what a third party is and isn't authorised to do in this sort of situation. A good way of looking at this is through the eyes of an employee; if they were to receive a letter on company paper, for example, then it would be reasonable for them to assume that it was official and binding.


Employer's liability for disclosures to police

Melik Camurat v Thurrock Borough Council

Mr Camurat's settlement agreement contained an agreed reference. It was mostly positive, except for a mention of his final written warning for an incident involving the confiscation of a pupil's mobile phone.

It's usually the case that a reference is enough to inform future employers about past performance – and former employers must tread very carefully in departing from the terms of an agreed reference. But in Mr Camurat's case, the issue concerned a safeguarding disclosure that his former employer was required to make to the authorities.

The information Thurrock gave to the police included details of allegations that Mr Camurat had used inappropriate force in the classroom. Those details became part of an Enhanced Criminal Record Check (ECRC) which led to Mr Camurat losing his new job and being unable to get another. He fought for five years to get the ECRC cleared, which it eventually was.

Mr Camurat claimed that Thurrock owed him a duty of care when making this safeguarding disclosure. He lost his case. The Court held that if there were a duty of care then that would discourage people from providing safeguarding information in good faith to the police. Also, there was nothing to say (or be implied) that safeguarding disclosures would be in the spirit of the agreed reference.

Mr Camurat has been given permission to appeal the decision and so this might not be the last word.


Illegal immigrant claims discrimination

Hounga v Allen

The law takes illegal contracts seriously. Those who try to enforce their terms usually hit a brick wall. But that isn't necessarily so where discrimination is concerned, as the courts have just re-stated in Hounga v Allen.

Ms Hounga was born in Nigeria. She came to the UK in 2007 under a falsely obtained visitors' visa. Despite having no right to work in the UK (or, after 2007 any right to remain here) she became employed by the Allen family as a nanny. Things didn't go well – Ms Hounga says she was mistreated – and the arrangement came to an end with Ms Hounga's eviction from the house, and the loss of her job.

She claimed discrimination. This launched a sequence of disagreements between the courts about whether, in light of the illegal contract, the right to bring a discrimination claim existed.

It went all the way to the highest court in England and Wales, the Supreme Court, where Ms Hounga won. The Court held that there was an insufficiently close connection between the illegality and the discrimination claim. The illegal aspect merely provided the setting for the discrimination to happen.

Now that the discrimination claim can proceed, a tribunal will decide the outcome.


Location, location, location?

Cetinsoy v London United Busways Ltd

A TUPE transfer usually preserves continuity for workers in carrying out their day-to-day duties. But occasionally it brings about changes. In the case of some bus drivers employed by London United Busways, one change came in the form of a new depot out of which to operate.

The drivers had been based at Westbourne Park. After the transfer they were told they would move three and a half miles away to Stamford Brook. It meant an additional 30 to 60 minutes extra daily travelling time for each person.

They resigned and claimed constructive dismissal. The Employment Appeal Tribunal found against them. It held that although there was a contractual term that they should work out of Westbourne Park, the change to Stamford Brook - whilst being a breach of contract - wasn't a fundamental one.  The new location and the additional travelling time wasn't a substantial, detrimental change to working conditions and so couldn't lead to constructive dismissal.


And finally…Body art discrimination – a step tattoo far?

The boundaries of discrimination law are being tested all the time. As more classes of people gain protection, others naturally seek it out.

Stories like those of Jo Perkins hit the headlines every now and again. Her contract was terminated because she hadn't covered up a four-inch butterfly tattoo on her foot. This contravened the "no visible inking" policy which many employers have in place.

It's a difficult one for businesses, keen to protect their brand image. There is a risk of appearing to be out of touch, stifling individuals' freedom of expression. But in reality tattoos aren't always well received, particularly when it comes to certain types of customer-facing jobs.

The bottom line is that there is no specific legal protection from being dismissed (or suffering another detriment) simply for having a tattoo. It's for employers to introduce the right policies in the right way and to follow the correct disciplinary procedures when a tattoo becomes an issue.

And a word of caution: remember that while many tattoos are fashion statements, others can be deeply symbolic, religious requirements or cultural norms. In those types of cases, anti-discrimination protection kicks in – and that really needs to be handled carefully.

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