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Redundancy Consultation Process And Unfair Dismissal

Redundancy Consultation Process And Unfair Dismissal

The Appeal Tribunal has set out a judgment that can be said to give the London Employment Tribunal a lesson in judging the fairness of a redundancy consultation. In this respect, it is essential reading for employers wishing to avoid unfair dismissal when consulting during a redundancy. Read More

Final Warnings and Unfair Dismissal

Final Warnings and Unfair Dismissal

n the case of Bandara v BBC (2016) the Appeal Tribunal has examined how to determine if a dismissal was fair when there was an inappropriate final warning on the employee’s record.

It is important to put the facts of this judgment into context. The employee had an unblemished record for nearly 18 years. Then, with a change in management, he committed two offences, three and a half months apart (March and July), that resulted in a disciplinary hearing and a final warning issued eventually in November. Read More

Employer Liability For Driver Negligence

Employer Liability For Driver Negligence

The case of Tomasz Kroker who killed a mother and 3 children because he was looking at his phone while driving has highlighted a risk to employers who do not take driver discipline seriously.

The driver, convicted and sentenced to 10 years in prison this week, is a reminder to employers about the importance of strict discipline for drivers and rules regarding distractions. Read More

Uber Drivers Are Workers So Far

The Tribunal of the first instance has released its detailed reasoning in the Uber case which looks at whether drivers of cabs, controlled by Apps on a smart phone, are self-employed, or Workers. The reason it is important, not only for Uber, for any business, is that a “Worker” is entitled to minimum wage, and paid annual holiday, whereas a self-employed person is not.  The employer in this case clearly thought they would not have to worry about such expense. In a nut shell, Uber said that the drivers were self-employed. They were called self-employed, they received what Uber called an invoice from the drivers, and they were free to not attend work if they wanted. Uber provided the App, passengers book the cab, and then Uber provide that booking to a driver. The driver takes the passenger, and then the passenger pays Uber with a credit card. At the end of the week, Uber then pays the driver, minus a commission from each fare. Worker Or Employee? There are in short three types of person who does work for money. The self-employed, who pay their own stamp, pay their own tax, and have few rights. They cannot claim unfair dismissal, and they cannot claim holidays or the minimum wage. Workers, who cannot claim unfair dismissal, but can claim holiday pay, and the National Minimum, or living, Wage. Employees, who get holiday, the minimum wage, and the right to claim unfair dismissal after two years’ service. This Case Uber said the drivers were self-employed, and so did not pay holidays or minimum wage. With the number of drivers involved,...

Gay vs Christian: Discrimination Bake Off

  Employment law shares certain standards with the supply of good or services to the public. Discrimination is one of those shared spaces and some may recall the so called “gay cake” debacle in Northern Ireland a little while back. The matter has continued “to rise” and has just been heard in the Court of Appeal. The facts, in brief, are that a gay group asked a Christian baker to bake a cake which had the image of Bert and Ernie from the Muppets and the slogan “Support Gay Marriage” emblazoned upon it. The Christian baker, having initially accepted the order, cancelled it and directed the gay group to several other bakers who would be content to make the cake. The baker stated the reason was that the message was in conflict with his Christian beliefs. The gay group sued the baker for discrimination. This case raises all sorts of interesting questions for employers and some fairly meaty issues for lawyers hiding amongst the cakes and hot cross buns. The result of what is at times an unintelligible judgment is that religious belief does not trump sexual orientation in a discrimination case. The baker discriminated against the gay group in its supply of services to the public, and that is all an employer or business really needs to know. No protected characteristic automatically trumps another. If the facts had been the other way around, ie a gay baker refused to bake a cake with a Christian slogan on it because he felt Christian views conflicted with his own, then the gay baker would have been guilty of discrimination because...

Data Protection: Financial Penalties for Misusing Employees Data

  The High Court this week has issued guidance on the financial penalties for misusing employees data. It’s a reminder that employers are not free to breach the data Protection Act without cost when it comes to employees. In this case, one Police force gave personal data to another force about one of their employees. The employee took umbrage and it cost £9,000.  The employer got away with this amount only because there was no intend to harm or embarrass or involving wide distribution. The lesson is to take data protection seriously and complaints by staff relating to it equally seriously.   The case can be read at the following link: Brown v Commissioner of Police for the Metropolis   Our thanks to our friend John Cook for drawing our attention to this case.   Back to legal...

Use of Zero Hours Contracts: A Threat to County Business

  Zero hours contracts are like any other contract, in that one person agrees to do work for an employer in exchange for wages. The difference is that a zero hours contract means that the employer does not have to offer any work to the employee. The advantage to employers is clear, in that they can reduce their wage bill (a significant overhead) when work is less. A leading employment lawyer in the county has this week slammed their use describing it as “Bad business and irresponsible behaviour”. Not only is the use of these contracts a suggestion of absolutely no commitment to the local economy, but it is a serious risk to the business and employers seem totally blind to this risk. Of course there are a few occasions when they are appropriate, but these are few in reality. In effect, these contracts are simply a way for an employer to avoid obligation to its employees. The wage bill is a significant overhead, and needs to be controlled by good management. These contracts transfer some of the business risk from employers to employees (who face periods with no work or wage) but in exchange for this risk, the employee does not get any enhanced profit, indeed it is usually at minimum wage. It’s the stuff of a Dickens novel as we have seen at Sports Direct. However, it’s not only irresponsible, it’s a business risk for three very real reasons: The employer risks reputational damage as word gets out that they view staff in this way; It damages the local economy, because if employees don’t have security in...

New National Minimum Wage Rates

  The national minimum wage increased as of Saturday, 1 October. The new rates are: Age 21+                      £6.95 Age 18-20                   £5.55 Age 16-17                   £4.00 Apprentice rate           £3.40 There was no change to the National Living Wage for those aged 25 years and over. This stays at £7.20.   Back to legal...

Disability Discrimination: Important case for HR Practitioners

An important judgement has been handed down by the Appeal Tribunal which is a warning to HR professionals that just because a policy is justified, it does not mean that any action taken under the policy is justified. In a case of discrimination arising from a disability (Section 15 of the Equality Act) it is possible for an employer to argue that, while an employee may have suffered a disadvantage which “arose” from their disability, it was justified and so lawful. The case concerned a disabled employee, who was not likely to return.  The employer, knowing the employee was unlikely to return in the foreseeable future, followed its clear performance management process and moved the employee toward dismissal. This situation will be familiar to most readers. It was accepted that the employer knew the employee was not likely to return. The employee argued that the process caused him distress, and this was a disadvantage arising from his disability. The employer said that it was simply applying its recognised policy, a policy that was justified. The employer lost. The reason is that while the policy may have been justified, the actions in following it were not. The lesson that, just because you have a policy on absence that is justified, you cannot then think that you are safe in simply applying it without some thought as to the circumstances and the effect on the employee. The disability in question was post traumatic stress disorder, and the profession was policeman. The full judgement can be read at the following link: http://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKEAT/2016/0112_16_3009.html&query=(buchanan)+AND+(metropolitan)+AND+(police)   Back to legal updates...

Agency Workers and Whistleblowing Claims

In employment law, a whistleblowing claim is the general term for where employees claim that they have been treated to their detriment because they raised, or threatened to raise, a matter of public interest.  The damages are unlimited and such a claim can allow an employee with less than two years’ service to claim unfair dismissal (sometimes). This protection applies to workers, as well as employees. The case in hand involved an agency nurse supplied to a specialist centre for victims of sexual abuse, whose job was, in part, to medically examine victims. In this case, the agency worker was placed with the NHS. The worker brought a claim and the original Tribunal (the Bristol Tribunal in this case) felt that it should only be brought against the agency. The Appeal Tribunal disagreed and said that the claim could be brought against the end user. This is because the end user (the NHS in this case) had determined some of the terms of engagement.  The end user did not need to determine all of the terms, but it must have been substantially involved in them. The lesson for employers is that just because a worker is provided by an agency does not mean you can disregard principles such as protected disclosure safeguards.  Take any such disclosure by a worker of any kind as serious until you have looked into it.   The Appeal Tribunal judgement can be read at the following link. http://www.bailii.org/uk/cases/UKEAT/2016/0354_15_2107.html   Back to legal...
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