Thursday 16 September 2010 Oliver McCann Employment Partner - PowerPoint PPT Presentation

Thursday 16 September 2010

Oliver McCann Employment Partner Taylors Solicitors

1. THE LEGAL SYSTEM  UK legislation  European Directives  UK case law – Employment Tribunals, EAT, Court of Appeal and Supreme Court  ECJ

2. DISCIPLINARY HEARINGS & REPRESENTATION  Statutory right to be accompanied  ACAS Code of Practice  What about legal representation? - Kulkarni v. Milton Keynes Hospital (CA 2009) - G v. Governors of X School (High Court 2009/CA 2010) Best Practice : Consider request for legal representation before rejecting it, but do not offer it as of right!

3. CONDUCTING A DISCIPLINARY  Roldan v. Salford Royal Foundation NHS Trust (CA 2010)  Where dismissal may end career, investigation should be more thorough  Not obliged to believe one employee over another  Can find case not proved  Give benefit of doubt  Consider implications of dismissal and immigration Best Practice : Investigation is foundation of disciplinary process – must be thorough and all lines of enquiry followed up. Where practicable, investigating officer should not be person holding disciplinary meeting

4. CONTRACTUAL DISCIPLINARY PROCEDURES  Edwards v. Chesterfield Royal NHS (CA 2010)  Failure to follow contractual disciplinary procedures will result in breach of contract claim  Damages for breach of contract not limited where breach of an express term of contract Best Practice : If introducing disciplinary policies, avoid them being contractual. Where they are contractual, review procedure adopted prior to making decision, to ensure no breach of contractual procedure

5. DISMISSAL AND STIGMA DAMAGES  Chagger v. Abbey National (CA 2010)  Brown v. J&J Baxter t/as Careham Hall (EAT 2010) Best Practice – take care when dismissing individuals in a regulated industry – ensure dismissal can be justified. Avoid “putting the boot in” by supplying bad references

6. WHISTLEBLOWING DISMISSALS  Exception to 12 month eligibility rule for unfair dismissal  BP Plc v. Elstone & Another Best Practice : Consider whether any complaint or grievance could constitute “blowing the whistle” before any action is taken. Whistle-blowing complaints can be founded on protected disclosures outside employment – all that is needed is the reason for the treatment to be linked to that protected disclosure

7. RELIGION OR BELIEF?  Grainger Plc & Ors v. Nicholson (EAT 2009)  Belief in mitigation of man-made climate change was a philosophical belief:- 1. Belief must be genuinely held 2. Belief must be on weighty and substantial aspect of human life 3. Must have cogency, seriousness, importance and cohesion 4. Must be worthy of respect Best Practice : Apply the 4 criteria above to determine whether a worker’s belief could be held to be a philosophical belief to gain protection

8. CONFLICTING DISCRIMINATION LAWS  Ladele v. London Borough of Islington (CA Dec 2009)  Macfarlane v. Relate Avon Ltd (CA May 2010)  Cases suggest it is permissible to infringe rights of one group in an attempt to meet the obligations of another group, but must be legitimate and proportionate Best Practice : Despite the above, employer must not without cause choose one group over another. Issues must be treated sensitively and with an even hand to both sides. Any decision having a disparate impact on one group must be proportionate

9. EMPLOYEE STATUS  Autoclenz Ltd v. Belcher & Others (CA 2009)  Employee status critical to unfair dismissal rights  Self-employed contractor, self-employed worker or employee?  Worker – in cases of personal performance  Community Dental Centres Ltd v. Sultan-Darmon (EAT 2010 )

10. HOLIDAYS  Stringer v. HR Revenue & Customs  Pareda v. Madrid Movilidad SA  Shah v. First West Yorkshire  See “Holiday Update”  Possible future legislation Best Practice :- (a)Encourage those on long term sick to take holidays whilst off sick (b)Pay a top up amount to those in receipt of PHI (c) Make clear holiday policy states must comply with sickness absence procedures if fall ill whilst on holiday

11. CHANGING TERMS AND CONDITIONS  Bateman v. Asda Stores Ltd Best Practice (a)Ensure contracts/staff handbooks contain a clear and unambiguous right to vary terms re: pay, hours and place of work (b)Don’t act arbitrarily or capriciously (c) Comply with collective consultation obligations where 20 + (d)Ensure genuine business reason and thorough consultation

12. J v. DLA SOLICITORS 2010  Retraction of job offer  Disability discrimination  Medical questionnaires (Equality Act 2010) Best Practice (a)Give full explanation for a job offer retraction and ensure supported by reference to documentary evidence (b)Withdraw use of medical questionnaires in recruitment process/interview arrangements unless job specific (ie. GOR) (c) Use questionnaires only once offer made – offer can be conditional on medical clearance

13. BRITISH AIRWAYS v. UNITE THE UNION (Var 2010)  Various challenges to ballot process/notice requirements (s.226-234A TULRCA)  Strike 1: Union included in notice employees who had accepted redundancy and would have left by time of action (strike unlawful injunction granted)  Strike 2: Union posted results of ballot on notice boards, handed out to some (not all) members and posted on website – BA argued not taken all reasonable steps to …

13. [continued] BA v. UNITE … notify members of result (s231) – could have sent texts and emails with the statutory info (High Court held strike unlawful but CA overturned) Best Practice (a)Carefully scrutinise the process undertaken for industrial action – take legal advice as soon as notice of ballot is received (b) Irregularities may be enough to avert action (c) Importantly – canvass for a “no” vote and make sure employees know that their not voting at all does not count as a “no” vote!

14. KRAFT FOODS v. HASTIE (EAT Jul 2010)  Redundancy payment capped having regard to age  Loss of £13,600  Not age discriminatory – justified to prevent windfalls! Best Practice (a)Review enhanced redundancy schemes for potentially discriminatory criteria (b)Any discriminatory criteria should be tested for objective justification (c) Involve any recognised trade union in reviewing the schemes to identify whether criteria can be objectively justified

15. DE BELIN v. EVERSHEDS LEGAL SERVICES (ET 2010)  Redundancy process – selection criteria  Females on maternity leave – score inflated  S2(s) SDA 1975 – no account to be taken of special treatment afforded to women in connection with pregnancy/childbirth  Male colleague selected for redundancy challenged as unlawful sex discrimination  Case subject to appeal Best Practice (a)Do not apply selection criteria differently to other employees …

15. [continued] DE BELIN v. EVERSHEDS … in the pool unless can be justified • Likewise ensure that selection criteria, although applied equally to all, do not indirectly penalise an individual from a protected characteristic • Assess individuals fairly and reasonably and remove or amend criteria where circumstances require it

16. RAPHAEL GEYS v. SOCIETE GENERAL ( 2010)  Employer cannot terminate summarily in breach of contract unless employee accepts the breach  Payment of PILON on its own is not enough to terminate either  Must expressly state exercising PILON to bring contract to lawful end Best Practice (a)Take care with dismissal letters (b)Be clear on termination date (c) Expressly refer to exercising PILON

17. MISCELLANEOUS  AstraZeneca UK v. HMRC (ECJ Aug 2010) - Vouchers schemes in exchange for salary and VAT implications  Rolls Royce v. Unite the Union (CA 2009) – length of service as redundancy criterion and age discrimination  Todd v. Strain and Others (EAT 2010) – information and consultation under TUPE 2006 on “measures”

Taylors Solicitors Employment Team Oliver McCann – Elaine Hurn – James Bellamy Rawlings House Ninth Floor Exchange Street 80 Mosley Street BLACKBURN MANCHESTER BB1 7JN M2 3FX Tel: 0844 8000 263 www.taylors.com