What’s the Latest Employment Law News?
In X v Y Ltd, it was held that an email from the company’s solicitor to them (containing advice on how to use a restructuring/redundancy programme to cloak unlawful victimisation) was not protected by legal advice privilege. It could be used by the employee as evidence in her Tribunal claim given the way it was disclosed.
The case is a useful reminder. You cannot guarantee that all correspondence between you and your solicitor will always be protected from disclosure. To take it a step further, do not assume that copying your solicitor into any correspondence or mentioning them in meeting is a good idea.
>£15k for sexual harassment in two cases
A 17 year old schoolgirl, working as a receptionist, has been awarded >£15k. Her manager engaged in unwanted conduct of a sexual nature including hugging her and whispering in her ear. A 15% uplift for her employer failing to correctly handle a grievance she had raised was also awarded. (Sudra v Kash PH Limited and Kashif Jaffer.)
In Podlecka v MYM Global Ltd, Ms Podlecka (“P”) was dismissed after alleging sexual harassment by her manager (“G”). She also raised a formal grievance about conduct by other employees. G dismissed P, calling her conduct “immature”. Her grievance went unanswered. P’s award included £10k in respect of injury to feelings as the harassment: took place over 3 months and involved unwanted sexual advances (touching as well as comments); caused physical and mental illness and it resulted in the loss of P’s job. The payments due were also increased by 12.5% for the employer’s failure to comply with the Acas Code in dealing with the grievance.
>£8k award for employee accused of faking symptoms
Miss James (“J”) was absent from work due to ill health and diagnosed with anxiety and depression. She gave her manager (“A”) permission to speak to her counsellor regarding a work grievance, which she said contributed to her condition. A told J’s counsellor that J might be faking her symptoms to receive a substantial pay out. J said that A’s comments aggravated her condition. She was awarded >£8k. (James v Capital Care Service and Other).
Refusal to postpone disciplinary hearing was unacceptable
In Talon Engineering Ltd v Smith, Mrs Smith (“S”) was summarily dismissed for gross misconduct. Whilst the employer had a potentially fair reason for dismissal the decision was procedurally unfair. It was fatally flawed by their refusal to postpone the disciplinary hearing for a second time, to enable S to be represented by her trade union official. The delay (around 2 weeks) was not considered to be unreasonable and S had not acted in bad faith when requesting the postponement before the dismissal decision.
No proof of right to work? Employee can still appeal dismissal
Mr Alfaz (“A”) could not provide evidence of his continued right to work in the UK to his employer. Subsequently he was dismissed, as his employer wished to avoid any risk arising from employing him illegally. However, no right of appeal was given. The Employment Appeal Tribunal held that appeal option should have legally been provided. A’s dismissal was therefore unfair. (Afzal v East London Pizza Ltd t/a Dominos Pizza.)
Overheard comments: employee was constructively dismissed
An employee (“W”) was constructively dismissed after overhearing remarks that “getting rid” of her was a “work in progress”. Prior to 2016 she had no formal disciplinary record; by this time, she had 12 years of service. Subsequently, some concerns were raised. Her line management had changed. She also had had a period of ill health absence. (Warrington v Lloyd’s Pharmacy Ltd).
Reduction in hours and pay = one more than >£85k, another circa £17k
In Duffy v University Hospitals Morecambe Bay NHS Foundation Trust, a consultant (“D”) was deemed to be constructively unfairly dismissed due to his employer’s breach of contract concerning payment terms. He resigned after claiming that £36k had been deducted from his annual salary relating to overtime pay. D was awarded £75k for unfair dismissal and £10k for unlawful deduction from wages.
In another case, Mr Decker (“D”) was asked to agree a 50% reduction in hours with a corresponding pay cut. He refused and suggested a 35% reduction in hours but at an increased day rate. This was not accepted. He resigned. He was awarded circa £17k for unfair constructive dismissal. The enforced reduction in hours and pay was a fundamental breach of contract. The award was uplifted by 10% due to the employer’s failure to treat an email from D as a grievance; this was raised before he resigned and was connected to the reduction of pay issue. (Decker v Extra Personnel Logistics Ltd.)
TUPE can apply even if there is a gap in services
The recent case of Colino Sigüenza v Ayuntamiento de Valladolid and Others offers a reminder that a gap in the provision of services will not automatically preclude TUPE. Here, the European Court of Justice held that a five month temporary closure was a relevant factor but not determinative. TUPE could still apply.
Watch out for The Pensions Regulator’s crack down!
Insofar as The Pensions Regulator is concerned, it has announced plans to undertake 100 spot checks a month on employers. They will target those suspected of providing false or misleading information as to how they meet their automatic enrolment duties. This can have adverse ramifications as can be seen in the recent case of Samuel Smith Old Brewery.
The regulator requested details of its pension schemes, which related to more than 2k employees. The company’s chairman (“C”) dismissed the request as tiresome. The company having been summoned to Court pleaded guilty to the offence of neglecting or refusing to provide information without a reasonable excuse, which constituted a breach of the Pensions Act 2004. The company was fined circa >£18k. C was also fined £8k.
Sick days dropped to a record low in 2017, according to ONS (almost half the number since records began in 1993). This sounds good but, as previously reported, https://www.pdt.co.uk/thought-piece/itandrsquos-heating-up we have seen a huge increase in presenteeism, which has its own problems.
Also, YouGov research has found that that 60% of employees who use email for work check their inboxes while on holiday (even when their managers wouldn’t expect them to be in touch). Workers might not be switching off, which can lead to burnout and illness (such as anxiety or stress).
The government has confirmed that it will not extend disability legislation to include caste as a protected characteristic. It will continue to be addressed where it is connected with an existing characteristic such as race/ethnicity. Reasons included difficulties in defining caste and differentiating caste from social class.
A survey commissioned by a leading US e-learning software provider, has found that poor knowledge sharing, and onboarding processes result in lost productivity and a knock-on cost to companies. This can be tackled by improving onboarding for new recruits, ongoing training and finding ways to preserve/share employee knowledge.
Research at the University of Arizona suggests that workers in open plan offices are more active and less stressed. More sedentary office workers are more likely to have health issues such as tiredness, low mood and heart problems. Open plan offices, whilst having less privacy, can also have benefits such as better communication and increased awareness of colleagues.
A minister has said that businesses have a duty to support women through the menopause. Flexible working, access to advice, adaptable policies and environmental changes (such as USB desk fans) could all help employees. This should be underpinned by a culture in which women feel able to talk about their symptoms and ask for support.
The government has issued a 5-point plan to tackle sexual harassment in the workplace https://bit.ly/2JRNbTs.
Our Environmental Audit Committee has called for a consultation on introducing maximum workplace temperatures https://bit.ly/2uSVFF2.
Our Home Office has produced an employer toolkit to assist workers applying for Settlement Scheme https://bit.ly/2mHoJuI.
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.