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Impact of leaving the E.U on HR and Employment Law

Whether you are vote remain, exit/Brexit (not a real word), undecided or uninformed the E.U Referendum is certainly the talk of the town right now. Those of you who attended our seminar may remember the final section about the impacts of leaving the E.U on HR/employment law and we thought that as this was final newsletter before the referendum it would be a good time to go into further detail.

Before you roll your eyes at another potentially fear-driven piece of pro-E.U rhetoric it is highly unlikely that leaving the E.U will result in kids going back up chimneys and employers being able to discriminate at will.

Many of you will know that a large amount of current UK employment law stems from the E.U via the European Communities Act 1972, including:

- Equal Pay Act 1970 (Article 157 Treaty on the Functioning of the European Union)

- Data Protection Act (Data Protection Directive)

- Working Time Regulations 1998 (Working Time Directive)

- Agency Workers Regulations 2010 (Temporary and Agency Workers Directive)

- Trade Union and Labour Relations (Consolidation) Act 1992 (Collective Redundancies Directive)

- Health and Safety at Work Act 1974 (Health and Safety Directive)

- Maternity and Parental Leave, etc Regulations 1999 (Pregnant Workers Directive)

- (TUPE)  Transfer of Undertakings (Protection of Employment) Regulations 2006 (Transfer of Undertakings Directive)

If Britain did opt to leave the E.U there is a possibility that all these laws could be repealed. However, as many of these laws are deemed to be fair and unjust it is our view that they will not be repealed but tweaked and watered down.

For example, the Working Time Regulations could be amended to extend the working week above 48 hours and reduce holiday and/or rest time. Likewise certain aspects of TUPE consultation could be amended. In any case these amendments will often benefit employers despite being unpopular at a national level.

Furthermore, from a recruitment perspective, freedom of movement comes from the Immigration (European Economic Area) Regulations 2006 (Free Movement Directive) and an E.U Brexit could mean employers lose out on the productive labour that many EU migrants bring to the workforce. However, many E.U migrants may have lived in the UK long enough to be eligible for citizenship (5 years) which would circumvent the issue.

Even if Britain does vote to leave the E.U it will most likely take several years to negotiate an exit which would mean there would be a considerable transition period to prepare for any changes. It is also possible that a Brexit result could mean nothing changes. If the UK takes a similar deal to Norway or Switzerland, we will still bound by much of the E.U legislation, including freedom of movement.

Overall even if Britain does leave the E.U it will be a while before we know the full extent of its impact on HR/Employment Law.

Posted: May 27, 2016 by admin in E Learning

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Gender Pay Gap Reporting – Offenders could be named and shamed

One of the major future changes in employment law is Gender Pay Gap Reporting. Despite the Equal Pay Act being passed in 1970 it is estimated that the current gender pay gap between male and female employee is 19.2%.

Any company that employs more than 250 people will be required to conduct a gender pay gap report and publish the findings in a prominent place on their website with a statement confirming the data is accurate. This gender pay gap report should also include who gets bonuses, if there is a gender bonus gap and also if there is an equal distribution of genders in all levels of the company.

It is also suggested that the data will then be put into a league table and all the worst offenders will be named and shamed in a similar manner to minimum wage offenders. If you feel there may be a pay gap, conduct a dummy test and address any imbalance promptly.

For those of you that aren’t already doing so the start date for collecting bonus data was 1st May 2016 so there is no time like the present to begin a dummy test. If you would like any advice on this issue please contact us.

Posted: May 27, 2016 by admin in E Learning

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Man Utd bomb scare fiasco – Can one off mistakes lead to fair dismissals?

Some of you may have heard about a recent Man Utd game that was called off due to a bomb scare. It was later revealed that the ‘bomb’ was a dummy that had accidently been left there after a security exercise.

The cost of re-organizing game is estimated to be £3m and the incident caused national embarrassment for the security firm, Security Search Management & Solutions Ltd, and their client, Manchester United.

This incident raises the employment law question: Can a simple mistake be a dismissible offence if it results in a serious incident? Usually in incidents involving repeated mistakes it would be a performance scenario involving final warnings etc.

However if the mistake results in 75,000 people being evacuated from a stadium, national ridicule and large expense to a key client then maybe poor performance isn’t quite the correct term. Case law suggests that serious mistakes that jeopardizes health and safety can result in fair dismissals. For example, not following correct safety procedures or wearing correct safety equipment.

In this circumstance it could be said that a failure to catalogue fake bombs could have put health and safety of employees or the public at risk but if not an employer can still dismiss an employee if they believe gross incompetence could put the health and safety of others at risk if the person remained employed.

Mitigating factors in such a decision should include; experience, the safety procedure (and how well it is usually followed), level of supervision and impact of the mistake. If the mistake is so serious that the employer feels they have no choice but to dismiss this should only be done after a proper investigation and disciplinary meeting etc.

Posted: May 27, 2016 by admin in Settlement Agreements, Unfair Dismissal

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Tabloid HR – Unfairly dismissed despite calling boss the c-bomb

Fare dodging bankers, deaf snipers and knife wielding teachers, every month we bring you the most absurd and/or obscene piece of employment law news that stumbles into the hands of tabloid journalists. This month’s case is definitely on the obscene side of the spectrum.

An Australian case, the employee involved was said to have been involved in an expletive laden argument with the CEO about unpaid overtime. The language involved is very coarse but goes something along the lines of:Employee – You owe me money

CEO – I am an f****** wealthy man, let me worry about the f****** money, you are earning more f****** money than me, I can’t afford to put food on the f****** table for my family.

Employee – That’s not my f****** problem, you owe me money you old c***.

The Employee was later sacked by text. He was found unfairly dismissed and the judge summed it up by saying it takes two to tango, in this case the CEO’s conduct triggered the outburst even if it was offensive.

Posted: May 27, 2016 by admin in Employment Tribunal, Unfair Dismissal

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PJH Law News – No sexist policies here

You probably heard about PwC and its staff provider, Portico, causing national outrage for sending a female employee home after she refused to wear high heels. Not only is such a gender biased policy massively outdated and absurd it is also unfair.

At PJH Law we can proudly confirm that high heels are optional….for both genders!

Posted: May 27, 2016 by admin in E Learning

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Nursing and Midwifery Council v Harrold: Can a serial litigator be prevented from making future claims?

Welcome back to Case of the Week. Last week we looked at constructive dismissal and this week we have two cases for you. The first concerns serial litigators, a very rare topic since the introduction of court fees and the second is about religion/belief discrimination.

The question from this case is:

Can a serial litigator be prevented from making future claims?

Ms Harrold, the Claimant, was an experienced nurse whose attitude caused problems for the Nursing and Midwifery Council, the Respondent. The Claimant was a serial litigator who had brought fifteen claims against the Respondent in the space of four years. Each of these claims had been dismissed, often dismissed for being totally without merit.

Following the dismissal of the Claimant’s fifteenth claim the Respondent applied for a civil restraining order preventing the Claimant from bringing further claims against them, unless she had the permission of a judge.

When making such a decision, the court must decide whether limiting the Claimant’s right to bring claims is more important than, the cost to the Claimant of having lost so many claims, the cost to the Respondent of having to defend such claims, the strain on the resources of the ET in having to deal with such claims and the implications of the strain on other litigants.

The restraining order was granted and the Claimant was prevented from bringing claims against the Respondent for two years.

Today’s lesson is that employers do have some defence against serial litigators. Any litigant who continues to bring claims that are vindictive, frivolous or otherwise without merit can be barred from bringing future claims. Another, more practical, approach could be to seek a costs award against a litigant who makes a baseless claim.

As stated before this is a rather rare topic now that court fees have been introduced because the fees were designed to discourage such claims. However, there are two ways litigants can get round court fees, legal expenses insurance and fee remission.

In this case insurance is unlikely as the case has to have prospects of success to gain cover but remission is possible providing the Claimant meets the requirements of being on a state benefit, or, having less than £3,000.00 in savings and a monthly income less than £1,085.00.

 

Posted: May 20, 2016 by admin in Employment Tribunal

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Harron v Chief Constable of Dorset Police: Can a belief that public money is being wasted be discriminated against?

Our next case is about religion/belief discrimination and asks:

Can a belief that public money is being wasted be discriminated against?

Mr Harron, the Claimant, worked for Dorset Police, the Respondent. The Claimant believed that public service was improperly wasteful of money which he felt resulted in him being discriminated against.

At a preliminary hearing the ET ruled that the belief failed to meet three of the five criteria required to be protected, which were:

1. The belief must be genuinely held.

2. It must be a belief and not an opinion or viewpoint based on the present state of information available.

3. It must be a belief as to a weighty and substantial aspect of human life and behaviour.

4. It must attain a certain level of cogency, seriousness, cohesion and importance.

5. It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others

The ET did not doubt that the belief met points 1 or 5 but felt it did not meet one of the other three. This resulted in the claim being dismissed. The Claimant appealed, alleging the threshold for protection was too high and citing Article 9 of European Convention for Human Rights, the freedom of thought, conscience and religion, which states:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society.

The EAT allowed the appeal, it held that a better threshold would be to that the belief must:

1. Be consistent with basic standards of human dignity or integrity

2. Relate to matters that are more than merely trivial

3. Possess an adequate degree of seriousness and importance.

4.    Be a belief on a fundamental problem.

Today’s lesson:

Yes, a belief that public money is being mismanaged can be a protected belief if it meets the necessary criteria. This case was remitted back to ET to be re-decided on the above criteria. The correct approach for employers to take would be that any belief can be discriminated against if it meets the necessary requirements, including far left socialist beliefs.

If you enjoyed this weeks’ case please read more or forward it to a friend.

Posted: May 20, 2016 by admin in Employment Tribunal, Unfair Dismissal

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Gibbs v Leeds United Football Club: Can a perceived demotion amount to breach of contract?

Welcome back, to your weekly case law update. Last week we had three cases for you covering Early Conciliation, sexual orientation discrimination and gross misconduct. We also had a piece on the recent British cycling allegations concerning discrimination and harassment.

Today’s question:

Can a perceived demotion amount to breach of contract?

This week’s case is about constructive dismissal and the Respondent, Leeds United, have recently been involved in another high profile court case for sex discrimination. Anyone who is familiar with Leeds will know they have a difficult owner, Massimo Cellino, whose lackadaisical attitude towards firing employees means there is a high turnover of staff, and, inevitably, tribunal claims.

Mr Gibbs, the Claimant, was the Assistant Manager of the Respondent. He had no detailed job description in his contract. He had a three year contract but after around eight months of employment the Respondent was bought by Mr Cellino. The Respondent, looking to recruit their own management, agreed with the Claimant’s manager to end the manager’s contract early and the Claimant expected something similar to happen to him.

The Respondent brought in a new manager and assistant manager but the Claimant was not offered a settlement package. In a meeting with the owner, the Claimant said if there was no work for him then he would be happy to end his contract early if a settlement package could be agreed.

No such deal was agreed and the Claimant reported to work under the new manager. The new manager and the Claimant did not get on and the Claimant was informed by email that his role had been altered to train the Respondent’s youth players instead of its first team. The Claimant felt this was a demotion and a slight on his abilities so promptly resigned.

Rather bizarrely the Claimant was then offered the role of manager four months later, after his predecessor had been dismissed. The Claimant refused, citing his previous treatment by the Respondent and how that treatment had undermined his relationship with staff he managed.

The Claimant sought a breach of contract constructive dismissal claim. The court held that the Respondent’s email changing the Claimant’s role amounted to a breach of contract, making the dismissal a breach of contract. The court also added that the Claimant’s suggestion of a settlement agreement was not relevant because he was happy to stay if a sum could not be agreed.

Interestingly it also held that the Claimant rejecting the Respondent’s offer to return four months later did not mean he had failed to mitigate his losses, it found that the Claimant’s position would have been untenable due to the Respondent’s previous conduct.

The lesson for employers is that a change in job role can amount to a breach of contract. In this case the new role was so far removed from the initial role it amounted to a breach, despite the fact that his salary and other terms did not change. Any form of demotion, even if only perceived, can be a breach of contract and therefore amount to constructive dismissal.

If you enjoyed this article please read our other cases concerning football teams.

Posted: May 13, 2016 by admin in Employment Tribunal, Unfair Dismissal

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British Cycling – A guide to discrimination and harassment

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Our recent blog history might suggest that football is the only sport with a history of employment law issues. Well, we can now address this imbalance after the recent revelations about British Cycling technical director, Shane Sutton.

Cyclist Jess Varnish, who has recently been dropped by GB Cycling after failing to qualify for the Rio Olympics, alleges Mr Sutton said she had ‘a fat arse’ and told her to ‘go and have a baby’ she adds that she is raising the allegations in order to highlight attitudes in cycling.

Some might suggest Varnish’s claims are a reaction to her contract not being renewed but the allegations have been supported by Paralympic cyclist Darren Kenny, who claims that he and fellow Paralympians were treated less favourably and called ‘gimps’ by Sutton.

disability.

The issue of discriminatory, and in this case potentially harassing, behaviour at any workplace is something employers need to be careful of as they are vicariously liable for the treatment, meaning they could have claims brought against them and pay compensation if they lose. Furthermore the high profile nature of any discrimination claim, particularly if they are upheld, often leads to negative public scrutiny.

A further point is that criminal claims can be made using the Protection from Harassment Act, or, the Malicious Communications Act if the conduct is digital, which would not only result in a criminal conviction for the harassing employee but also potential damages awarded against the employer for vicarious liability. Interestingly criminal claims would not require the victim to have a protected characteristic like in employment cases.

Posted: May 10, 2016 by admin in E Learning, Unfair Dismissal

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Garamukanwa v Solent NHS Trust – Does using evidence from an employees phone during a disciplinary amount to a breach of human rights?

This juicy case, which is genuinely worthy of its own TV show, concerns gross misconduct and human rights, particularly the right to a private life. Mr Garamukanwa, the Claimant, was a Clinical Manager for Solent NHS Trust, the Respondent.

The Claimant formed a relationship with a nurse, Ms Maclean, on his ward. Upon this relationship ending the Claimant suspected Ms Maclean was in another relationship with Ms Smith, who worked on a different ward. The Claimant told Ms Maclean and Ms Brown that he felt their relationship was inappropriate (bit rich) and an anonymous email was sent to the Respondent with the same concerns..

The Respondent received a complaint from Ms Maclean saying she felt harassed. The Respondent warned the Claimant about his conduct and he denied sending the email. The Respondent then began receiving emails from numerous bogus accounts with malicious accusations and personal comments about Ms Maclean that suggested the author was following her.

The Claimant was also spotted following Ms Maclean to work on his day off. When confronted he said he was there on urgent business. Further nasty emails were sent and Ms Maclean went to the police. The police arrested the Claimant and advised the Respondent it was up to them whether to suspend the Claimant or not. The Claimant was suspended and a disciplinary investigation was held.

No criminal charges were brought against the Claimant but the police passed their evidence onto the Respondent. This included pictures on the Claimant’s phone of Ms Maclean’s house and a picture of all the login details to the bogus email accounts sending the malicious emails. The Claimant was dismissed for gross misconduct.

The Claimant brought an unfair dismissal claim against the Respondent and alleged his Human Rights had been breached under Article 8 of the European Convention on Human Rights and Fundamental Freedoms which states:

Everyone has the right to a private life. There shall be no interference by a public body except in accordance with law to prevent crime and to protect the rights and freedoms of others. The Claimant alleged the Respondent used information about his private life when deciding whether or not to dismiss him.

The ET rejected the claim, it held that the Claimant’s human rights were not breached because the Claimant himself had bought the issue to the Respondent’s attention by sending the anonymous emails to work colleagues. Furthermore the issue had been a criminal investigation and the police felt the private evidence from his phone was relevant to the Respondent. Lastly the Respondent had a duty to protect its staff from the Claimant’s conduct.      

The Claimant appealed but the EAT rejected the appeal for the same reasons. The lesson for employers is that sometimes private information about an employee’s personal life can be used during disciplinary investigations if it is in the best interests of the safety and wellbeing of other members of staff or the public to do so. In this case two employees were in fear of harassment and stalking which meant using photos from an employee’s phone was justified.

Posted: May 6, 2016 by admin in Employment Tribunal, Unfair Dismissal

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