Employment Briefing - May

Martin Stephen

Published by
Martin Stephen

7th June 2018

Welcome to May's Employment briefing.

If you have any questions about any of the topics covered, or would like to meet with our Employment team, please call Martin Stephen on 0141 248 3434 or email mss@wjm.co.uk

Constructive Dismissal – The Last Straw Rule

In the recent case of Kaur v Leeds Teaching Hospitals NHS Trust, the Employment Tribunal helpfully summarised the questions which a tribunal should ask when determining a claim of constructive dismissal. These are:

(a) What was the most recent act or omission on the part of the employer which the employee says caused, or triggered his or her resignation?

(b) Has the employee continued to perform services for their employer despite the breach of the contract?

(c) If not, was that act or omission by itself a breach that was sufficient to terminate the contract?

(d) If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a breach of the implied term of mutual trust and confidence that was severe enough to end the contract?

(e) Did the employee resign in as result of that breach?

These are the factors which employers should consider in circumstances where constructive dismissal is possibility. They should be borne in mind in any grievance procedure brought by an employee who is threatening to bring a constructive dismissal case.

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Time Bar: Extension of Time

In DHL Supply Chain v Fazackerley the claimant missed the three month time limit to raise a claim after following advice from ACAS to continue to exhaust all internal procedures before submitting his claim. The advice from ACAS might not have been erroneous in the broad sense, in that it was appropriate to exhaust the employer’s appeal process. However, the advice was wrong as the claim should have been lodged before the deadline, even if the internal appeal had not been heard.

The Employment Tribunal, decided that in the circumstances it was not reasonably practicable to have lodged the claim on time. The Employment Appeal Tribunal agreed, but pointed out that a different employment judge might reasonable take a different view. The decision had to be perverse before it could be overturned by the Employment Appeal Tribunal and it was not perverse in this case.

It is well established that if an employee instructs a solicitor and the claim is not lodged in time because of the solicitor’s negligence it will seldom be allowed late. A more relaxed approach is taken when the advice has been given by a government agency.

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Law evolving in relation to parental pay

Last year’s case of Capita Customer Management Ltd v Ali has been overturned by the Employment Appeal Tribunal. In Ali, an Employment Tribunal had found that it was direct discrimination on the grounds of sex for a father’s employer not to pay him the same rate of pay that a mother would receive as enhanced maternity pay. However, the Employment Appeal Tribunal overturned this in Ali. The purpose of enhanced maternity leave was primarily to support the mother to recover after going through childbirth rather than to care for the child. However, employers should be warned, as the Employment Appeal Tribunal also found that depending on the facts of the case there may be a circumstance where a father could compare himself with a mother on late maternity leave.

You should always seek advice on the specifics of each case. Our Employment Team is on had to assist.

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Religious Harassment Claims

In Bakkali v GMB (South) Ltd, the Employment Appeal Tribunal said that harassment claims ‘related to’ a protected characteristic will require a broad enquiry with an intense focus into context, where the mental processes of the alleged harasser will be relevant. In this case, the claimant had made comments in front of a colleague from which the colleague inferred that the claimant had sympathies for the Islamic State group. The alleged harasser later asked Mr. Bakkali ‘are you still promoting IS?’ Mr. Bakkali’s claim that had he had been discriminated against on the grounds of being a Muslim was rejected, on the grounds that that the comments were made to him in reference to his own earlier statements referring to Islamic State.

Care must however be exercised in cases involving harassment and discrimination as these are always case sensitive.

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Employment Status: Addison Lee Couriers

Addison Lee couriers have been found to be workers by the Employment Appeal Tribunal.

In Addison Lee the Employment Tribunal appealed decision appealed on two grounds.The first was that the tribunal erred in law in finding that there was sufficient mutuality of obligation. The second was that the tribunal's multi-factorial assessment that Mr Gascoigne was a worker was perverse on nine grounds.

The Employment Appeal Tribunal rejected both grounds of appeal, upholding the tribunal's finding of worker status and thus Mr Gascoigne's entitlement to holiday pay.

On the first ground of appeal, which although framed as an appeal based upon an error of law was actually an appeal based upon an error of fact, the tribunal had correctly determined that there was mutuality of obligation between the parties when Mr Gascoigne was logged on to the app. He had to accept jobs offered to him when logged on to the app. His entitlement to log off at any time did not affect his obligation to accept work when logged on.

On the second ground of appeal the tribunal's multi-factorial assessment that Mr Gascoigne was a worker was not perverse.

This is the latest in a line of cases involving the Gig Economy in which workers rights to holiday and sick pay have been established. We will report on further developments.

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Dress Codes Guidance

New guidance from the Government Equalities Office on Dress Codes and Sex Discrimination can be found here:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/709535/dress-code-guidance-may2018-2.pdf

Dress policies for men and women do not have to be exactly the same, but standards imposed should be equivalent. It also warns that requiring any gender-specific items, such as high heels, make up or having manicured nails is likely to be unlawful.

It also warns against requiring both men and women to dress provocatively as, whilst that might not be direct sex discrimination, it raises the risk of harassment.

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Guidance on Religion and Belief

ACAS have provided helpful guidance on religion and belief which can be found on the link below.

http://www.acas.org.uk/media/pdf/a/p/Religion-or-belief-discrimination-key-points-for-the-workplace.pdf

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The WJM Online Employers' Manual

We have re-launched our highly successful Employers’ Online Manual. The latest version has additional content and improved functionality. If you would like trial access to this must have resource please contact a member of the Employment Team.

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The information contained in this newsletter is for general guidance only and represents our understanding of relevant law and practice as at June 2018. Wright, Johnston & Mackenzie LLP cannot be held responsible for any action taken or not taken in reliance upon the contents. Specific advice should be taken on any individual matter. Transmissions to or from our email system and calls to or from our offices may be monitored and/or recorded for regulatory purposes. Authorised and regulated by the Financial Conduct Authority. Registered office: 302 St Vincent Street, Glasgow, G2 5RZ. A limited liability partnership registered in Scotland, number SO 300336.