DIXCART LEGAL - EMPLOYMENT LAW TRAINING:
Where is the time?
Training for your line managers, HR and in-house lawyers can help save time and unnecessary expense in the long run.
Won’t it just be another lecture?
No. We work interactively and our approach is to train and involve, not to just talk at you. Our sessions use case studies based on real life scenarios to show pitfalls and how to avoid them.
But where to start?
We offer training on a variety of topics and can assist you with your training requirements, tailored to meet your needs.
AT A GLANCE, KEY DEVELOPMENTS THIS MONTH
- Stress: Employer’s liability following withdrawal of post
- Working Time: Holiday carry over outside sickness grounds
- ET: Tribunal fees to continue
- Twitter: Public nature relevant to unfair dismissal claims
- Disability: Obesity may be included
- Disability: Enforceability relevant to reasonable adjustments
- Whistleblowing: Time runs from detrimental act
- Whistleblowing: Territorial scope for claims not extended
- Whistleblowing: No abuse of process
- ET: Strike out and proportionality
- Reasonable adjustments: Practicality considered
- Holiday Pay calculations: Regulations and Practice Direction to limit effects of 'Bear Scotland'
- Shared Parental Leave: Now in force
- Chancellor's Autumn Statement: Some implications for employment law
- Working Time: EC consultation on review of Working Time Directive
- Small Business, Enterprise and Employment Bill: Parliamentary progress
- Agency workers: Results of Pay Between Assignments Survey published
Yapp v Foreign and Commonwealth Office  IRLR 616; Rights at Work/disciplinary
In Yapp v Foreign and Commonwealth Office  IRLR 616 the High Commissioner of Belize was immediately suspended and withdrawn from his post following allegations of bullying and sexual misconduct. Following a subsequent investigation and disciplinary hearing, he was cleared of the sexual misconduct charges but not of bullying and he received a final written warning. He then suffered periods of depression and was unable to work until he retired. Mr Yapp claimed that stress resulting from the process caused his depression. He brought proceedings against the FCO for breach of contract and breach of duty of care with respect to the withdrawal of his post before an investigation had taken place and the unfair conduct of the disciplinary procedure.
The test for liability for tort is whether the damage suffered is reasonably foreseeable at the time the duty was breached. The Court of Appeal in Yapp held that the Foreign & Commonwealth Office had acted in breach of its duty of care by withdrawing Mr Yapp from office without a full investigation at that point; however, his resultant depressive illness was too remote in this case to be foreseeable.
It is clear, however, that there will be cases where an illness, which flows from an employer’s conduct of a disciplinary process, is not too remote. ‘Fair treatment’ will be fact sensitive. There may be prior indications of underlying anxiety, for example.
The Sash Window Workshop Ltd and another v King UKEAT/0057/14; Working Time/holiday
The Working Time Directive provides that member states ensure that every worker is entitled to paid annual leave. This is implemented by Regulations 13-16 Working Time Regulations, which provide that holiday must be taken in the leave year in respect of which it is due. In Pereda v Madrid Movilidad  IRLR 959 the ECJ ruled that workers should be entitled to carry forward holiday, including to the next leave year, if they do not want to take holiday during a period of sickness. This led to the Court of Appeal in NHS Leeds v Larner inserting the words, that leave should be taken in the leave year in which it falls due, ‘save where the worker was unable or unwilling to take it because he was on sick leave and as a consequence did not exercise his right to annual leave’.
R (on the application of UNISON) v Lord Chancellor (No. 2)
Employment tribunal fees will live on. UNISON has lost its second judicial review challenge to the fee charging system, despite being in a position to produce compelling statistics to indicate a notable drop in tribunal applications. The High Court did not agree that the introduction of charging fees to access the tribunal system was in breach of the principle of effectiveness. UNISON was unable to show that individual applicants were unable to bring claims because of the system.
Game Retail Ltd v Laws UKEAT/0188/14; Unfair dismissal/conduct
In Game Retail Ltd v Laws UKEAT/0188/14 Mr Laws worked as risk and loss prevention investigator for Game Retail Ltd, a games retailer with over 300 stores across the UK. In that position he was required to investigate losses, fraud and theft and to conduct audits in those stores for which he had responsibility. Games Retail’s stores depend upon Twitter and other social media as tools for marketing and communications. Each store had its own Twitter profile and feed, to which the manager and/or deputy manager had access for posts. A large number of customers followed their local stores on Twitter, and their posts could therefore appear on the store Twitter feed. Mr Laws opened his own Twitter account and began to follow GR’s stores for which he had responsibility in order to be able to monitor their tweets to check for any inappropriate activity. He then was followed on Twitter by a number of GR stores.
Kaltoft v Municipality of Billund (Case C-354/13), Equality At 2010 & Discrimination/disability
The ECJ in Kaltoft v Municipality of Billund has held that in certain cases obesity can amount to a disability where there is a limitation resulting from long-term physical, mental or psychological impairments which, in interaction with various barriers, may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers. So, where obesity results in reduced mobility, it may be a disability. In this case, Mr Kaltoft was a morbidly obese child-minder whose employment was terminated on ground of his obesity. For these purposes, the ECJ emphasised that the cause of a disability is irrelevant: the focus is on whether it limits full and effective participation in working life. The case went back to the Danish court to decide, on the facts, whether this was the case.
Firstgroup Plc v Paulley  EWCA Civ 1573; Equality At 2010 & Discrimination/disability
In a highly publicised decision, the Court of Appeal in Firstgroup Plc v Paulley has held that Firstgroup was not in breach of its duty to make reasonable adjustments in the case of disabled passengers where it operated a ‘first come first served’ policy in relation to wheelchair spaces. In this case Firstgroup’s policy was that if a wheelchair user wanted to board the bus and the wheelchair space was taken, the driver should ask that person to move. If that person refused, the wheelchair user would not be able to board the bus. The Court of Appeal held that the policy did put wheelchair users at a substantial disadvantage but that the requirement to make ‘reasonable adjustments’ did not go so far as to require third party passengers to move out of the way to allow a wheelchair user to use the space.
McKinney v London Borough of Newham UKEAT/0501/13: Rights at Work/whistleblowing
Mr. McKinney was employed by the London Borough of Newham in their Finance Department from 29 July 1985 until termination of his employment on 31 July 2012. He brought two complaints before the Employment Tribunal. The complaint in issue, lodged on 11 January 2011, alleged detrimental treatment short of dismissal on the grounds that he had made protected disclosures (the whistle-blowing complaint).
Smania v Standard Chartered Bank UKEAT/0181/14: Rights at Work/whistleblowing
The issue of territorial scope has been the subject of much litigation in recent years. It was considered again in the case of Smania v Standard Chartered Bank UKEAT/0181/14 where an Italian banker working for Standard Chartered Bank in Singapore under a contract governed by Singaporean law, tried to argue that UK law applied to enable him to bring whistleblowing claims because the Bank had its head office in the UK.