This month's newsletter includes the following :-
- Bad mouthing the boss: the perils of social media
- Agency workers are entitled to be informed of job vacancies but not to be considered equally with permanent staff
- Court of Appeal dismisses Unison’s challenge to ET fees system
- Continuity of service for TUPE purposes
- Disproportionate to order compliance with subject access request
- Equality and Diversity Guides
British Waterways Board v Smith UKEAT/004/15
The EAT decision in British Waterways Board v Smith involves the use of Facebook and the issue of how long an employer can wait before acting after the commission of misconduct.
Coles v Ministry of Defence UKEAT/0403/14
The EAT in Coles v Ministry of Defence has upheld a tribunal decision that Regulation 13(1) of the Agency Workers Regulations 2010 (which provides that agency workers have the right during an assignment to be informed of any relevant vacant posts with the hirer) only applies to the right to be informed. It does not put the agency worker on an equal footing with a permanent employee to be considered for the post.
R (Unison) v Lord Chancellor and another  EWCA Civ 935
From 29 July 2013 claimants bringing claims in an ET and appellants pursuing appeals in the EAT have had to pay issue and hearing fees pursuant to the Employment Tribunal and the Employment Appeal Tribunal Fees Order 2013. Unison issued judicial review proceedings challenging the Lord Chancellor’s decision to make the Fees Order. The Equality and Human Rights Commission intervened in support of the challenge. The first claim was dismissed because the Court found that it was premature. Further proceedings were filed when Unison was able to rely on evidence about the actual impact of the fees in the period of more than a year since the introduction of the Fees Order. This claim too was dismissed. Unison launched an appeal and in R (Unison) v Lord Chancellor and another  EWCA Civ 935 the Court of Appeal heard the appeal. It dismissed Unison’s challenge which was on three grounds: a) the breach of the effectiveness principle in EU law (that persons who claim that their rights under EU law have been breached must have access to an effective remedy for that breach); b) indirect discrimination (the Fees Order was argued to be indirectly discriminatory against claimants with particular protected characteristics); c) the public sector equality duty (it was argued that in making the Fees Order the Lord Chancellor acted in breach of the duty imposed by section 149 of the Equality Act 2010).
Services for Education (S4E Limited) v White and Birmingham City Council UKEAT/0024/15
The EAT upheld an ET’s decision that a music teacher who worked for Birmingham Council on a succession of fixed term contracts each lasting for the academic year 1 September – 31 July and who was transferred to a new provider, S4E, pursuant to TUPE could rely on past continuity of service when the transfer took effect on 1 September.
Dawson-Damer and others v Taylor Wessing LLP and others  EWHC 2366
The High Court in Dawson-Damer and others v Taylor Wessing LLP considered whether to make an order enforcing the application of Ms Dawson-Damer and her children under section 7(9) Data Protection Act 1998 (order for compliance with a subject access request where the data controller has refused to comply) against the law firm Taylor Wessing (TW) in relation to its client Grampian’s documents. Grampian was the sole trustee of a discretionary settlement connected to the D-D family. There are ongoing proceedings in the Supreme Court in the Bahamas between Ms DD and Grampian.
ACAS has launched a series of equality guides to help employers and managers identify, tackle and prevent discrimination in the workplace. It has published three guides offering practical advice:
Keeping you up to date :
- Consultation: Closing the gender gap
- ACAS guides on right to antenatal and adoption appointments and surrogacy
- ACAS guide on staff pay
- Worker may carry forward holiday entitlement under Working Time Regulations for up to 18 months
- Procedural flaws can be corrected on a rehearing in the disciplinary process
- Compensation paid under a settlement agreement for change in contract is taxable as emoluments from employment, not as a potentially tax free termination payment
- Voluntary Overtime can be included in statutory Working Time holiday pay calculation
The government has published a consultation on closing the gender gap, with a view to making regulations in early 2016: these will require companies with at least 250 employees to publish gender pay information.
Acas has published a new guide to help explain leave rights that are available for antenatal and adoption appointments. The new includes ‘top tips’ that employers and parents should be aware of when considering leave requests. It has also published a separate guide on surrogacy to explain how potential parents could qualify for certain leave rights and pay.