A very familiar employer obligation – to provide employees with a statement of their terms and conditions – receives an overhaul from the start of April. I summarise the extended requirements below. Beyond that, you will note how indebted we are to the public and health sectors for providing us with a steady flow of disputes which result in interesting reported cases.
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Section 1 of the Employment Rights Act 1996 requires employers to issue statement of particulars detailing various specific employment terms to all employees, currently within two months of the start of their employment. Sometimes elements of this information are given by referring the employee to ancillary documents.
From 6 April 2020 this long-standing and familiar requirement will change. All new employees and workers will be entitled to one document which sets out most of the prescribed details. This will have to be issued on or before the first day of work.
This requirement will also apply to any new contracts issued to existing staff. So too if an existing worker requests a section 1 statement after 6 April 2020, or if a term of the contract which should be stated in the new section 1 statement is amended (in which case the new statement should be provided within one month of the request or change).
In addition, the statement of terms must now also include:
- terms and conditions relating to working hours, specifically, normal working hours, normal working days of the week, whether such working days or variable and if so, the basis on how that variation is determined
- any other paid leave, such as family rights
- any other benefits additional to sick pay, holiday entitlement and pension (both contractual and non-contractual)
details of any probationary period
- any entitlement to training provided by the employer and whether any is compulsory
- any other training which the worker is required to complete and which is not financed by the employer.
If an employer fails to comply, the worker may make an application to the tribunal for a declaration. Additionally, if a claimant brings a successful discrimination, unfair dismissal or breach of contract claim, the tribunal must award the workers at least two weeks’ pay and this may be increased to four weeks’ pay.
Many employers discharge the section 1 obligation by issuing detailed contracts. That will remain the best way of doing so in the future.
In Jesudason v Alder Hey Children's NHS Foundation Trust (2020 EWCA Civ 73) the Court of Appeal has supported the finding of an employment tribunal that a whistleblowing detriment claim by a consultant paediatric surgeon should be rejected, although not for entirely the same reasons.
The surgeon raised concerns with various parties, including the media, about malpractice at Alder Hey NHS Trust. In responding to the media furore, the Trust incorrectly stated that the surgeon’s complaints were completely without foundation. It failed to acknowledge an independent report which accorded with some of the surgeon’s disclosures and recommended improvements (which the Trust had acted upon).
The Court of Appeal considered that the surgeon had made protected disclosures and, disagreeing with the Tribunal, that he had suffered a detriment to his reputation. The outright denial implied that everything the surgeon said was untrue, which was not correct and could have implied bad faith on his part. The detriment did not disappear just because of the Trust's purpose or motive, which was to ‘set the record straight’.
However, the claim failed because the detriment did not arise from the protected disclosures. The offending elements of what the Trust said were not included in retaliation for the surgeon’s earlier protected disclosures, but to seek to nullify the adverse, potentially damaging and, in part, misleading information that the surgeon had chosen to put in the public domain.
Once again, the case reveals that the causal link between an employee making a disclosure and suffering a detriment subsequently is a key element of many whistle-blowing cases.
It feels as if I have reported more employment tribunal decisions in recent months and here is another. Employment tribunal decisions are not binding, as this case evidences as its outcome was directly contrary to an earlier tribunal decision.
An Oxford University academic claimed direct age discrimination and unfair dismissal following his compulsory retirement under the University's ‘Employer Justified Retirement Age’ policy (a self-serving title if ever I’ve heard one). The University maintained that the policy was not discriminatory as it was a proportionate means of achieving a legitimate aim – the standard defence of an act of age discrimination.
The tribunal found that there were legitimate aims: intergenerational fairness and career progression for junior academics; facilitating succession planning; and promoting equality and diversity, amongst others. It also found that the policy was "in principle capable of contributing to the legitimate aims".
However, statistical evidence suggested that the policy created under 5% more vacancies than would otherwise have arisen. This was, in the tribunal’s view, trivial in comparison with the discriminatory effect. There was also no evidence of a system of career progression for junior academics - senior posts were often filled externally.
Consequently, the University had not shown that having the policy had made a sufficient contribution to the legitimate aims to justify its discriminatory impact. An appeal is likely.
I won’t go into the detail of Ishola v Transport for London (2020 EWCA Civ 112) because it is rather intricate and it is the principle the case establishes which is important.
In summary, Mr Ishola was disabled and off work owing to incapacity. Whilst absent he raised grievances which were not resolved by TfL before it eventually dismissed him on grounds of ill-health. They required him to return to work without the grievance having been investigated and he argued that this subjected him to a detriment owing to his disability - the “provision, criterion or practice" (PCP) of requiring an employee to return to work without a proper investigation into that grievance disadvantaged him as a disabled person. But could this singular decision and incident amount to a PCP?
In principle, yes, said the Court of Appeal, but only in certain circumstances. A one-off act in an interaction with a single employee would not be a PCP where there is no indication that the decision would apply to others in future. That was the situation in this case. Where there was evidence that it could do, i.e. if there were some form of continuum in the sense of how things generally are or will be done by the employer, then it could be a PCP.
I reported some time ago the Jhuti case, in which an employee’s manager misled another executive who was hearing a disciplinary case against the employee. The employee was dismissed and the Supreme Court held that reason for the dismissal was that of the manager - his motive could be attributed to the decision maker.
Uddin v London Borough of Ealing (UKEAT/0165/19) extends that principle to relevant facts which might influence the decision and the sanction applied, and hence to the general fairness of a dismissal.
Specifically, the decision-making executive who decided to dismiss Mr Uddin for alleged sexual misconduct had not been told by the investigating officer that the alleged victim, a work-placement student, had withdrawn her police complaint about the incident (the investigator having encouraged her to make the compliant in the first place). The executive should have been made aware of that and the fact that he was not rendered the dismissal unfair.
Mr Lafferty, a hospital theatre porter with 20 years of unblemished service, was charged with assault with intent to rape. The alleged offence had nothing to do with his work.
The employer, Nuffield Health, a charity, gave as its reason for dismissing him that, should Mr Lafferty be convicted, there was a genuine risk of potential damage to its reputation, given his access to vulnerable patients. The tribunal determined these to be sincerely held concerns. Nuffield had considered suspending Mr Lafferty on full pay but decided that that was not an appropriate use of charitable funds, particularly as it would continue for an undefined period as no trial date was known.
The decision, consequently, to dismiss was considered fair – for ‘some other substantial reason’ – by the tribunal. The Employment Appeal Tribunal (EAT) upheld that finding. (Lafferty v Nuffield Health UKEAT/0006/19 (15 August 2019).)
Last June I reported the Court of Appeal’s decision in Chief Constable of Leicestershire v Hextall, which decided that that the failure of an employer to pay a new father taking shared parental leave at the same enhanced rate as it would have paid to an employee on maternity leave did not amount to sex discrimination.
I suggested that the case would be appealed to the Supreme Court. Well, leave to appeal has been refused. So, the decision of the Court of Appeal appears to be the final word on the matter and differential rates are apparently lawful. The take up rate of shared parental leave is very low. The outcome of this litigation will not raise it.
In view of the rapid advance of this disease, ACAS has issued some guidance, which in particular deals with how to treat employees who are advised by the NHS to self-isolate, or who the employer believes should remain away from work due to the risk of spreading the disease, perhaps because they have recently returned from an area where the disease is prevalent."