Employment Law Update, March 2018: Our Eggstra Special News has lots of twists and turns...

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Employment Law Update, March 2018: Our Eggstra Special News has lots of twists and turns...

Given the Employment Tribunal's President's recent news the need to be a step ahead is absolutely essential. It also avoids any personal liability. Tribunal claims are on the up since the abolishment of fees late last year. Claims have exceeded 90%.

Data Protection/GDPR


Unless exempt, the yearly fee will change for Data Controllers from 25 May 2018 to 3 tiers. The impact is as follows:

A failure to pay can result in a penalty of £4,250 for example.

The ICO has also published an “Introduction to the Data Protection Bill”. It’s a good starting point.


Disability discrimination


In the case of Carreras v United First Partners Research, the Court of Appeal ruled that the development over a period of an expectation/assumption that Mr Carreras (“C”) would work late and choose when to do so gave rise to a situation in which the duty of reasonable adjustments for the employer had been triggered. The Court recognised the fact that employees can feel obliged to work in a particular way, even if it is disadvantageous to their health.


In terms of the case, the key facts are as follows:


C sustained severe physical and psychological injuries as a result of a cycling accident. Due to the accident he became disabled.


Initially, C was allowed to work shorter hours, but the employer then made it known its expectation and assumption that C would work late a few evenings, if that, per week. C complained after having worked late, but to no avail. He then resigned. His resignation was based on the fact that he had been forced to work late, which caused fatigue, dizziness and lack of concentration.


Tribunal proceedings were thereafter issued. C claimed that his employer had failed to comply with the duty to make reasonable adjustments. The Court of Appeal at the final stage of the dispute found there had been a provision/criterion/practice, which disadvantaged C in view of his disability, and the reasonable adjustment duty had been triggered.


Compensation is in the process of being determined.


Working Time Saga Continues


Mr Matzak (“M”) issued proceedings against his employer with regard to being on standby. The dispute was referred to the European Court of Justice. The Court ruled in his favour for the following reasons:


M was required to be on unpaid standby at certain times other than when carrying out firefighting duties. When on call his employer required that M be contactable and report to the fire station within 8 minutes. This restricted his activities during standby. That was deemed to be “working time” under the Working Time Directive. The determining factor was the requirement for M to be physically present at the place determined by his employer and immediately available to work. That is however different from a standby duty situation where a worker simply has to be contactable and personal and social activities etc. are not restricted as such.


Whistleblowing: What You Must Know


In Bell v Cordant People Limited & Others, Mr Bell (“B”) disclosed information to his line manager that a company purchased by his employer had falsified invoices thereby declaring a falsely elevated profit. These concerns were not raised within the business or investigated and B’s manager reacted angrily when B raised the matter again. B was dismissed for underperformance in his part of the business. The Tribunal gleaned from all the evidence that B was unfairly dismissed for making protected disclosures. He was awarded more than £250k compensation.


In Parsons v Airplus International Limited, Ms Parsons (“P”) was dismissed 6 weeks into the role because of a “cultural misfit”. The Employment Appeal Tribunal found that she had not been dismissed for whistleblowing as alleged. Concerns she had raised about non-compliance during her employment were solely made not in the wider public interest but in her self-interest, namely protecting herself against personal liability.


Other Discrimination


The Employment Appeal Tribunal in HMRC v Saldanha (“S”) ruled that as S had been directly discriminated once the offer had been retracted because of his race. He had been offered a posting in Italy conditional upon his passing an assessment relating to his psychological resilience. Further, as someone of Asian origin S had not met the resilience required having been asked many questions relating to his ability to cope with racism in Italy.


Both the assessment and the decision to withdraw the offer in the Tribunal’s view were inherently discriminatory. The mental processes of the decision-takers were explicitly based on S being of Asian origin. The fact that HMRC might also have had other, non-discriminatory reasons in mind did not detract from this conclusion.


So far as pregnant workers are concerned, in Porras Guisado v Bankia, S.A. & Others, the European Court of Justice held that EU law does not prevent the dismissal of a pregnant worker in the context of a collective redundancy. Further whilst dismissal reasons connected with a worker’s pregnancy would contravene EU law, dismissal during the period from the beginning of pregnancy to the end of maternity leave is not unlawful if the employer sets out in writing the:


  • (i) Economical, technical or organisational reason(s) justifying the redundancy.
  • (ii) Objective criteria chosen to identify any worker to be made redundant.


It’s worth noting that pursuant to the Employment Rights Act 1996, pregnant employees and those on maternity leave are entitled to written reasons for dismissal regardless of length of service.

The content of this webpage is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. PDT Solicitors LLP accepts no responsibility for the content of any third party website to which this webpage refers.

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