Newsletter February 2013


It has been a relatively quiet month after the recent breathless excitement either side of the New Year.

That is not to say things have stood still. The Government has announced some important changes to the law protecting whistle-blowers and to family rights, including the introduction of the bill providing for shared parental leave.

Read on.....

Darryl Evans
T: +44 (0)7771 725341

Period of parental leave increased

From 8 March 2013 the maximum parental leave entitlement has gone up from 13 weeks to 18 weeks per child.

At the same time, the right to request flexible working has been extended to agency workers returning to work following parental leave.

Children and Families Bill - shared parental leave and other changes

The Children and Families Bill 2012-13 has been introduced in the House of Commons and is anticipated to become law in late 2014.

This would bring in shared parental leave, under which an eligible mother would continue to receive 52 weeks' maternity leave, but after her two weeks of compulsory absence she would be permitted to end her leave early and share the remainder with her partner. There would be a new regime of statutory payments for parents on shared parental leave. The rights would inevitably be subject to complex administrative requirements and the Government has launched a consultation on its proposals.

The new law would also allow partners of pregnant women and fathers of expected children unpaid time off to attend ante-natal appointments (with equivalent rights for prospective adoptive parents) and extend the right to request flexible working arrangements to all employees.

Changes to laws protecting whistle-blowers

Various proposals are presently being debated in Parliament to change the laws on whistleblowing. Blink and you risk missing changes to the proposals, but the following identifies the key areas under discussion.

One proposal is to remove the requirement for protected disclosures to be made 'in good faith'. Instead, the employment tribunal would have the discretion to reduce compensation by up to 25% in cases where the disclosure is not made in good faith.

As something of a counter-balance it is proposed that there be a requirement that the worker making the protected disclosure must reasonably believe it to be in the public interest.

Another proposed change is to extend the protection to job applicants as well as current workers. This is still under consideration and implementation may be delayed.

Finally, an employee who is harassed by a colleague as a result of having blown a whistle will potentially have greater protection. First, the colleague responsible for the harassment may be personally liable. In addition, the employer may be liable, unless it could show that it took all reasonable steps to prevent the detrimental action. This would align the whistleblowing rules with those applying to discrimination.

Dismissal for political opinions or affiliations

In another Government proposal, the qualifying period for unfair dismissal if the reason for the dismissal relates to the employee's political opinions or affiliation is to be removed. This follows the decision of the European Court of Human Rights in the Redfearn case. The dismissal will not be automatically unfair, but an employee could start an unfair dismissal claim in such circumstances irrespective of his/her length of service.

Disability and absences

In Jennings v Barts and The London NHS Trust (UKEAT 0056/12) Mr Jennings was dismissed because of his sickness absence record. He has a long history of intermittent absences, for varying reasons, followed by a period of long-term absence. He claimed that he had been unfairly dismissed and been discriminated against as a result of his disability.

The Employment Appeals Tribunal (EAT) rejected the Trust's argument that they did not know he had a disability. They should have been able to ascertain from his symptoms, with the help of their Occupational Health department, that he was disabled, even though a wrong diagnosis had confused matters.

However, the EAT also decided that it was not a reasonable adjustment, in these circumstances, to exempt him from the Trust's short term absence process.

On that basis, it was not unreasonable for the employer to dismiss the employee within the terms of that policy.

Reopening final written warnings - Part 1

It is always a joy when two decisions arrive at the same time on the same issue, but with opposite outcomes.

In Davies v Sandwell Metropolitan Borough Council (2013 EWCA Civ 135) the Court of Appeal decided that an employer's reliance on a written warning can only be challenged in an unfair dismissal claim if it was issued in bad faith or was manifestly inappropriate. Otherwise, past warnings should not be reconsidered by the tribunal.

Ms Davies was dismissed for misconduct, which would not of itself have warranted dismissal, but as she was on a final written warning in respect of previous misconduct, she was dismissed. She said that the warning was invalid as she had not committed the alleged misconduct.

The Court of Appeal held that he tribunal's role was to consider the fairness of the dismissal, taking account of the latest misconduct and the fact of the existing final written warning. However, that that did not mean deciding whether the previous warning should have been issued, except in an exceptional case of bad faith or where the warning was manifestly inappropriate.

In fact Ms Davies had not pursued an appeal against the final written warning and it appears that would likely have made it easier for the employer to argue that it was not manifestly inappropriate.

Reopening final written warnings - Part 2

The case of Simmonds v Milford Club (UKEAT/0323/12) can, in fact, be placed comfortably within the principle of the Davies case summarised above, but as an example of the exceptional case when the earlier final written warning should be investigated.

Mr Simmonds was disciplined for giving staff a £15 Christmas bonus in cash instead of a bottle of wine up to the value of £15 as instructed. He was already under a final warning and was therefore dismissed.

The final warning had been given after Mr Simmonds had asked his wife to deposit the club's takings while he waited outside in the car (he had been unable to park near the bank).

The EAT said that that prior warning should have been considered by the tribunal if there were grounds for thinking it was 'manifestly inappropriate'. That is, said the EAT, a higher test than the test applied to the reasonableness of a dismissal.

So the upshot seems to be that final written warnings will not bear the same scrutiny as dismissal decisions in unfair dismissal proceedings, but if they are manifestly inappropriate or made in bad faith, they are likely to be reopened.

Dismissal at the behest of a customer

This situation is coming up increasingly often, as services such as (in this case) catering are provided by a service provider to a customer through employees who are physically based at the customer's premises.

Mr Bancroft was employed by Interserve and worked at a bail hostel under the responsibility of the Home Office. The catering contract between Interserve and the Home Office stated, as is very normal, that undesirable Interserve staff had to be removed.

Mr Bancroft fell out with the manager of the bail hostel, as a result of which he was sacked after the Home Office wrote to the Respondent asking that he be replaced. There was no inquiry into the justification for the request.

Consequently, the EAT held that he was unfairly dismissed. The employer, said the EAT, must always consider whether there will be an injustice to the employee, and the extent of that injustice, in deciding whether the dismissal is fair. In this case the employer simply acted on the Home Office's request without question and that was not good enough. (Bancroft v Interserve UKEAT/0329/12).

Dynamic or static - Advocate General's opinion

In previous editions I have highlighted the very difficult and potential risky area of whether an acquirer of staff under TUPE can find itself bound by changes made to collective agreements which it has inherited even if those changes have been made after transfer and by the former employer.

This issue is being considered in the case of Alemo-Herron v Parkwood Leisure Limited (C-425/11), which has now gone all the way to the European Court.

Part of the Court process is for the Advocate General, its legal adviser, to give an opinion on the matter, which is not binding but is usually followed.

The Advocate General's view is that the Acquired Rights Directive does not deal with this issue. He therefore thinks that a 'dynamic' interpretation is possible - in other words, that subsequent changes can bind a transferee - as long as that does not infringe the transferee's freedom to conduct business. However, national governments can cover in their own implementing legislation (i.e. TUPE in UK) whether a dynamic interpretation is permitted.

So the next step is a decision by the Court. Then look out for a possible clarification in the TUPE regulations themselves.

Religious belief discrimination

Following the European Court of Human Rights' judgements last month in the Eweida case, the Equality & Human Rights Commission has published new guidance on the approach to be taken by employers to issues arising in the workplace regarding employees wishing to express their religious belief.

The information and any commentary contained in this newsletter are for general information purposes only and do not constitute legal or any other type of professional advice. Darryl Evans and Evans Employment Law Limited do not accept any and, to the extent permitted by law, exclude all, liability to any person for any loss which may arise from relying upon or otherwise using the information contained in this newsletter. If you have a particular query or issue you are strongly advised to obtain specific, personal advice and not to rely on the information or comments in this newsletter.

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