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

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Thursday 16 September 2010

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Oliver McCann

Employment Partner Taylors Solicitors

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UK legislation
European Directives
UK case law –

Employment Tribunals, EAT, Court of Appeal and Supreme Court

ECJ
1. THE LEGAL SYSTEM

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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)
2. DISCIPLINARY HEARINGS & REPRESENTATION

Best Practice: Consider request for legal representation before rejecting it, but do not offer it as of right!

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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
3. CONDUCTING A DISCIPLINARY

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

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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

4. CONTRACTUAL DISCIPLINARY PROCEDURES

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

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Chagger
v. Abbey National (CA 2010)
Brown v. J&J Baxter t/as Careham

Hall (EAT 2010)

5. DISMISSAL AND STIGMA DAMAGES

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

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Exception to 12 month eligibility rule for unfair dismissal
BP Plc v. Elstone

& Another

6. WHISTLEBLOWING DISMISSALS

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

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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

7. RELIGION OR BELIEF?

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

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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

8. CONFLICTING DISCRIMINATION LAWS

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

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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)

9. EMPLOYEE STATUS

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Stringer v. HR Revenue & Customs
Pareda
v. Madrid Movilidad

SA

Shah v. First West Yorkshire
See “Holiday Update”
Possible future legislation
10. HOLIDAYS

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

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Bateman v. Asda

Stores Ltd

11. CHANGING TERMS AND CONDITIONS

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

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Retraction of job offer
Disability discrimination
Medical questionnaires (Equality Act 2010)
12. J v. DLA SOLICITORS 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 –

ffer can be

conditional on medical clearance

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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. BRITISH AIRWAYS v. UNITE THE UNION (Var

2010)

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… notify members of result (s231) – could have sent texts and emails with the statutory info (High Court held strike unlawful but CA overturned)

13. [continued] BA v. UNITE

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!

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Redundancy payment capped having regard to age
Loss of £13,600
Not age discriminatory –

justified to prevent windfalls!

14. KRAFT FOODS v. HASTIE

(EAT Jul 2010)

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

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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
15. DE BELIN v. EVERSHEDS LEGAL SERVICES (ET 2010)

Best Practice (a)Do not apply selection criteria differently to other employees …

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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

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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

16. RAPHAEL GEYS v. SOCIETE GENERAL (2010)

Best Practice (a)Take care with dismissal letters (b)Be clear on termination date (c) Expressly refer to exercising PILON

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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”

17. MISCELLANEOUS

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