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Azam v Ofqual – Can a trade union representative be dismissed whilst participating in union activity for a non-union related reason?

Now that we are well into October we would like to remind you that the Modern Slavery act is now in force. To find out what your business might need to do read our briefing note here. If you have any questions about the act or would like advice on drafting a policy please email enquiries@pjhlaw.co.uk. Given the fact that Halloween is right around the corner we thought this weeks’ case should cover something many employers find scary…. trade unions

The question this week is:

Can an employer dismiss a trade union rep who despite participating in union activities has committed a disciplinary offence?

Ms Azam, the Claimant, was a delivery operator for the Respondent, Ofqual, a regulatory body for academic and vocational qualifications. The Claimant and roughly 50% of the Respondent’s staff were members of the Public and Commercial Services Union (PCS) and the Claimant was a union representative at the Respondent.  The Respondent went through a restructuring process which would see a change to the grade and salary of job roles. As Union rep the Claimant was involved in discussions with the Respondent about the proposed changes. Prior to this the Claimant had made several complaints to the Respondent on behalf of her union members, some of which were unresolved.

During the discussions the Respondent disclosed a spreadsheet to the Claimant detailing the changes between the old and new roles. The Respondent emphasised that this disclosure was to remain confidential and the Claimant was told not to share this information with colleagues.  The Claimant discussed the spreadsheet with senior Union members outside of the Respondent but she did not mention that the information should not be shared with the Respondent’s staff. The Claimant then sent the spreadsheet via email to all PCS union members at the Respondent. She masked the nature of the email so as not to arouse suspicion.

However the Respondent discovered that the Claimant had distributed the spreadsheet after a non-PCS member of staff complained that union members had better knowledge of the restructuring. The Claimant was suspended and dismissed for gross misconduct. She bought an unfair dismissal claim in relation to trade union activities before tribunal

The ET ruled that the Claimant had not been dismissed for her trade union activities but for disclosing confidential information against the express orders of the Respondent. The ET ruled that not only had the Claimant been told several times that the spreadsheet was confidential but that the Respondent also had this exact scenario listed in its handbook under gross misconduct offences. The Claimant appealed to the Employment Appeals Tribunal. The EAT dismissed the appeal citing the same reasons as the ET. Despite the Claimants participation in union activities it was her disclosure of confidential information that resulted in her dismissal

The take away point from this case is that despite the Claimant being an active union rep the Respondent was well within its rights to dismiss her. The Claimant had expressly gone against company policy by disclosing confidential information. Thus the gross misconduct dismissal was completely separate to any ongoing union work.

Many employers tread carefully in trade union matters, and rightly so, as there can be negative backlash from staff, even in this case staff went on strike to protest the employee’s dismissal. However, if the employer can prove the dismissal was gross misconduct and not related to union activity then the dismissal will be fair.

To read more cases on gross misconduct click here.

Posted: Oct 9, 2015 by admin in Employment Tribunal, Unfair Dismissal

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O’Brien v Bolton St Catherine Academy – Factors to take into account for medical incapacity

Hello , as its now the begining of October and thus the start of cold season we thought it fitting that today’s Case of the Week concerns long term sickness and medical incapacity.

The question this week is:

What medical evidence does an employer need before dismissing an employee who is a long term absentee for medical incapacity?

Ms O’Brien, the Claimant, worked for Bolton St Catherine Academy, the Respondent, as a Head of ICT. The Respondent is a school where many pupils displayed aggressive behaviour.

The Claimant was a long serving teacher who was well respected by staff and had an exemplary disciplinary and sickness record. The Claimant was assaulted by a pupil and this caused injury and stress resulting in the Claimant being absent from work.

On her return the Claimant relapsed when seeing the pupil in the corridor. She returned to work again but another relapse caused her to cease work. In her absence the Claimant’s teaching duties were covered by part time teachers on overtime and temporary staff.

The Respondent received medical reports that gave no indication of when the Claimant would be able to return, if at all. Meanwhile the Claimant and her GP were not forthcoming with any information that might help the Respondent make adjustments to aid a possible return to work.

Without further evidence the Respondent called a medical incapacity hearing. At the hearing the Claimant said she did not know if/when she would be able to return to work and said she would be in a better position to decide after 3 months of therapy. The Respondent decided to dismiss the Claimant for three reasons:

1 – 12 month continuing absence with no set date of return

2 – No signs of improvement to enable return

3 – High possibility of the illness recurring, resulting in further absence

The Claimant appealed the decision but this was rejected and she bought disability discrimination and unfair dismissal claims before the Employment Tribunal. The ET ruled that the Claimant had been discriminated against by the Respondent as they had not waited for further medical evidence before making the decision to dismiss, this made the dismissal unfair.

The Respondent appealed to the Employment Appeal Tribunal. The EAT allowed the appeal and stated that the reasons given by the Respondent and the financial impact of having to arrange cover for further absence justified the decision. It went on to say that the issue was not whether the Respondent could accommodate the Claimant’s prolonged absence but whether it should be required to do so.

The take away point is that an employer does not only need medical evidence before deciding whether to dismiss for medical incapacity but also financial and logistical. In this case financing and organising cover for a senior member of staff for over 12 months was a cost the Respondent could not cope with and thus the dismissal was fair.


Posted: Oct 2, 2015 by admin in Employment Tribunal, Unfair Dismissal

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Lighter side of the news – Bringing knife into work not a cleaver idea

Every month there is always a HR/ Employment Law story that makes headline news because it is either hilarious, sensationalist, ridiculous or down right stupid.

This month’s wooden spoon award goes to a 35 year old teacher from Suffolk, who was arrested after being found to keep a meat cleaver in his drawer. The teacher claims it was used as a teaching aid to brighten up lessons.

The charges were later dropped and the school has yet to decide what, if any, disciplinary action will be taken. However, if it wasn’t already blatantly obvious we advise everyone, especially those of you who work with children, not to bring knives into work!

Posted: Sep 25, 2015 by admin in Settlement Agreements

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Whistleblowing – UN failing to protect staff who make disclosures

Whistleblowing, putting your head above parapet in order to highlight issues for the benefit of the public. Where would you think these people would feel most comfortable about making a disclosure? A, the BBC. B, Poundland. C, the United Nations?

If you picked C then you are wrong. It has come to light that staff at the UN who make protected disclosures often suffer detrimental treatment and disciplinary action. This includes:

1. A senior UN diplomat who was sacked and arrested after raising concerns about corruption

2. A women who was dismissed after reporting the rape of a refugee

3. A man who was suspended after he reported peacekeeping forces for sexually abusing children

If any employee is left with the choice between keeping their job or blowing the whistle then it is unlikely many acts of misconduct would ever be reported.

Public accountability is an important legal principal and if an organization as big as the UN does not have the right mechanism in place to handle protected disclosures then it suggests reform may be in order.

Posted: Sep 25, 2015 by admin in Employment Tribunal

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The living wage – Lidl becomes the latest company to commit to paying

The living wage is the amount of money an adult person needs to earn in order to cover the cost of living. Before the election we mentioned how this might become a big issue and now the dust has settled the government has outlined its plans. This is currently calculated at £7.85 outside of London and £9.15 in London.

From April 2016 the minimum wage will change from having four rates to five. In practical terms this means the current 21+ NMW will become the 21-24 NMW and a new National Living Wage (NLW) of £7.20 will apply to over 25s.

Many large employers including; Sainsbury’s, Nestle, Chelsea FC and Burberry and now Lidl have adopted either the Living Wage or NLW but many have warned that this will impact on the consumer as prices will rise. Ironically if prices do rise then the living wage will need to be recalculated and rise to accommodate the rise in prices, meaning this may not be the best approach from employers. Thankfully Lidl have pledged that paying the Living Wage will not impact on their prices and thus will actually be paying a living wage. Bravo.

For advice about the living wage please click here.

Posted: Sep 25, 2015 by admin in E Learning


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Modern Slavery Act – What does your business have to do?

Despite being banned by law in most of the world slavery still affects roughly 30 million people. Most businesses do not intentionally encourage or practise modern slavery however, many companies with subsidiaries or 3rd parties operating on their behalf, particularly abroad, do run the risk.

The new Modern Slavery Act consolidates many pieces of legislation relating to human trafficking and slavery. Come October this will affect businesses, or rather businesses with a turnover in excess of £36 million, as they will have to publish an annual statement which will state what the company is, or isn’t, doing to prevent slavery. This statement must feature in a prominent place on the company’s website.

A guide on what to include in the statement can be found here but as of yet no set rules have been published by the Secretary of State so it is at the company’s discretion as to how much of these draft guidelines they follow.

Should you need any further advice on this issue please contact us.

Posted: Sep 25, 2015 by admin in E Learning

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Mobile workers – commute to and from home counts as working time

In a recent case the European Court of Justice has ruled that mobile worker’s travel time between home and job sites is classed as working time. The case concerns a security system installation company whose workers brought claims after their employer wanted travel time between home and customer to be classed as rest time.

The ECJ has ruled in favour of the workers stating that when workers do not have a fixed place of work any time travelling between clients will be classed as work time otherwise only time spent on site would be classed as work which would jeopardise health and safety as 48 hours a week on site will also include additional travel time.

Employers need to consider how to implement this in their workplace, in particular for hourly paid employees who may not currently be being paid for travel time. Additionally employers need to ensure that their records kept for hours worked includes travel time for home based employees. If you need any further advice please click here.

Posted: Sep 25, 2015 by admin in Employment Tribunal

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Jeremy Corbyn – Radical or reformer – How might he impact employment law

In light of all the porcine hullabaloo mentioned above you may have forgotten that this month also saw Jeremy Corbyn elected as the new leader of the opposition. Corbyn is almost certainly not a man who spent his university days performing dining society initiations, from what we’ve read he prefers  making jam and cycling.

However that does not mean that should Mr Corbyn one day be elected there will not be some wholesale changes to the employment law landscape.

A Corbyn led Labour government is likely to seek to seek scrap court fees, allow employment rights from the first day of employment and want to promote a living wage of £10 an hour. It would also potentially seek to leave the E.U and increase the obligation to liaise with trade unions. One policy that would prove popular is a ban on working when the heat exceeds 30 degrees. In short, a Corbyn Labour government would do things very differently to the current one.

Posted: Sep 25, 2015 by admin in Employment Tribunal

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Salisbury NHS Foundation Trust v Wyeth – The difference between unfair and automatically unfair dismissal


Good afternoon, today’s case is quite an interesting case concerning whistleblowing, bullying and the fine line between fair dismissal and automatic unfair dismissal. There is no question as such today but that doesn’t mean there aren’t interesting points that can be taken away.

Mr Wyeth, the Claimant, worked for Salisbury NHS Foundation Trust, the Respondent, as a nursing assistant. The Claimant worked nightshifts, part of the night shift team included an Operating Department Practitioner (ODP) who assisted the anaesthetist and whom operations could not be performed without.

The Claimant raised concerns to his manager about the ODP on his team who he believed was misusing anaesthetic drugs. The Claimant had found the ODP asleep numerous times and he was very difficult to rouse. He also reported seeing the ODP inhaling a substance from a bottle. The Claimant was friends with the ODP but reported out of concern for public safety.

The manager spoke to the ODP about the allegations, the ODP denied and the matter was taken no further as the ODP had no previous record of poor conduct. The Claimant and other members of staff reported the ODP again the following year following similar incidents, these were classed as protected disclosures. This time the Claimant’s manager also witnessed the ODP’s behaviour and disciplinary procedures ensued.

The ODP was a popular member of staff and a colleague began a counter investigation to prove the ODP’s innocence. This colleague then became aggressive towards the Claimant and upon reporting this to his manager the Claimant was moved to the day shift in order to avoid confrontation. The Claimant felt humiliated and then went off sick with depression.

The disciplinary investigation into the ODP’s conduct took place whilst the Claimant was off work and the Claimant was not interviewed. The manager concluded that whilst the ODP had fallen asleep at work there was no evidence to support allegations of drug misuse. The Claimant received this outcome via letter which also warned staff not to gossip about the ODP upon his return to work.

When the Claimant himself returned to work he was again only allowed to work day shift and discovered that staff were openly talking about the events surrounding the ODP’s suspension. The Claimant felt he had been made out to be a liar and promptly resigned and bought a constructive dismissal claim against the Respondent.

The ET allowed the claim citing the fact that had the Claimant not made the protected disclosure he would not have been moved to the dayshift, bullied or gossiped about. It further noted how despite other employees also making protected disclosures the Claimant was the only one who was threatened by the ODP’s colleague and also should have been interviewed in disciplinary process.

The Respondent appealed the decision rejecting the ETs judgment that the protected disclosure was not only the cause of events but also the reason for the dismissal (the ‘but for’ test). Or, alternatively that the ET had failed to identify a reason for dismissal. The EAT dismissed the ‘but for’ appeal but allowed the rest of the appeal stating that the dismissal was unfair but not automatically unfair.

The takeaway point is:

An employee who is found to be (constructively) dismissed after making protected disclosures can be unfairly dismissed but not always automatically. The importance of this is that despite the Claimant making a disclosure the dismissal could be deemed as unrelated to the dismissal and therefore not automatically unfair.

Furthermore automatic unfair dismissals have no cap on awards meaning that the Respondent could have potentially saved themselves from a large compensation payout.

To read more whistleblowing cases click here.

Posted: Sep 18, 2015 by admin in Employment Tribunal, Unfair Dismissal

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Edwards v BT Managed Services Ltd and Ericsson Ltd – Should a permanently incapacitated employee TUPE transfer to new employer?

Hello, today’s case concerns everyone’s (least) favourite employment law issue, TUPE.  Before you all collectively groan I would like to draw you attention to the accompanying image which makes any TUPE article more amusing.

Today’s question:

Should an employee who is permanently incapacitated but still employed TUPE over to a new employer?

Mr Edwards, the Claimant, was employed by BT Managed Services Ltd, the 1st Respondent, as a Field Operations Engineer. After 12 years of service the Claimant was stricken by a series of medical problems including a cardiac condition which prevented him from doing the strenuous work his role required.

The 1st Respondent did not have any suitable alternative roles for the Claimant and despite being permanently incapacitated kept him on as an employee so he could enjoy Permanent Health Insurance payments, after this expired he remained on the company’s books and received discretionary sick pay.

The Claimant’s department was then sold to Ericsson Ltd, the 2nd Respondent. The Claimant, despite still being on the books of the 1st Respondent, had not worked for 5 years. The rest of the Claimant’s department TUPE transferred from the 1st Respondent to the 2nd Respondent. However, the Claimant did not transfer.

The Claimant bought his case to Tribunal. The ET ruled that despite still being assigned to Field Operations department the Claimant had not actively participated in that department for a considerable amount of time and would be unlikely to do so in the future. This made the assignment only administrative and therefore the 2nd Respondent had no responsibility to transfer the Claimant’s employment and therefore the liability fell to the 1st Respondent.

The 1st Respondent appealed citing the Claimant’s position similar to that of an employee on maternity leave or long term sick meaning that they should have TUPE transferred to the 2nd Respondent.

The EAT rejected the appeal stating that most absent employees will have some involvement in the economic or practical functioning of a group, if not immediately then in the future, in the Claimant’s case this was not possible. The appeal was dismissed.

To answer today’s question, no. An employee who has no economic involvement in the functioning of a transferring group of employees does not have to transfer. In the event that an employee a transferor’s company is permanently off work then the transferee is not obliged to undertake their employment.

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Posted: Sep 11, 2015 by admin in Employment Tribunal, TUPE

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