Martin Stephen

Published by
Martin Stephen

4th December 2018

Welcome to our Employment news briefing, providing a summary of some of the main employment judgements in November.

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

Parental Bereavement (Leave and Pay) Act 2018

The Parental Bereavement (Leave and Pay) Act 2018, a piece of legislation designed to allow employees two weeks of paid leave where they have lost a child, was given Royal Assent on 13 September 2018.

The Act, due to come into force in April 2020, entitles employees who have suffered the bereavement of a child under the age of 18 to up to two weeks’ of time away from work. For the purposes of the legislation, references to a ‘child’ include a child who has been stillborn after 24 weeks of pregnancy. The definition of a ‘bereaved parent’ has not yet been provided, but we are told it will be determined by reference to the relationship the employee had with the child in question.

According to Chapter 4 of the legislation, ‘parental bereavement leave’ must be taken within at least 56 days of the child’s death, during which time the employee will receive ‘Statutory Parental Bereavement Pay’. Should an employee suffer the death of more than one child, he/she will be entitled to leave and remuneration in respect of each of those children.

Supporting Regulations, detailing how much remuneration will be payable during periods of absence and defining what constitutes a ‘bereaved parent’, will be published in due course.

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Establishing Disability under the Equality Act 2010

An Employment Tribunal has ruled that an employer cannot be said to have ‘constructive knowledge’ of an employee’s disability where that employee has denied having one.

In Mutombo-Mpania v Angard Staffing Solutions Ltd, the Employment Appeal Tribunal (EAT) found that the claimant, who suffered from essential hypertension but had advised his employer that he had no disability, was not, on the evidence led, a disabled person and that the employer did not know and could not reasonably have been expected to know of any disability.

The claimant was employed by Angard Staffing Solutions Limited (Angard) as a flexible resourcing employee. He worked no normal hours of work, his hours being determined, instead, by the needs of the business and the availability of work. During the recruitment process, the claimant completed both an application and ‘Your Health’ form, on which he failed to disclose any form of disability. After one year of employment, the claimant wrote to his employer to advise that he had a disability that prevented him from working regular night shifts. Following a number of unauthorised absences, the claimant was informed that he would not be offered any further work. On appeal, he argued that he had been discriminated against on the grounds of disability.
On the question of ‘disability’, the EAT held that the claimant had failed to lead evidence of what particular day-to-day activities would be affected by his impairment and, on that basis, failed to establish ‘disability’ for the purposes of section 6 the Equality Act 2010. As to the question of whether his employer ought to have had knowledge of the claimant’s condition, the EAT considered the extent of his disclosures.

Taking account of the factors implying constructive knowledge (i.e. the claimant’s vague reference to his health condition, and subsequent absences) and balancing those against the claimant’s denial of any disability during the recruitment process, and ability to work night shifts in the past, the EAT concluded that Angard did not know and could not reasonably have been expected to know of any disability.

Although this case may, at first sight, appear to suggest that employers can rely solely on the disclosures made by their employees, this is only one of the factors the ET will consider when determining the question of constructive knowledge. It is therefore important that employers ensure they are always mindful of their obligations towards their workforce, irrespective of what has been indicated on an application form or health questionnaire.

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New ACAS Guidance- Employment References

New guidance, detailing when an employment reference should be provided, what it should contain, and whether an employer can provide a bad reference, was released by ACAS this month.

According to the guidance, ex-employers have the option of whether or not to provide a reference, with only certain industries – such as those regulated by the Financial Services Authority- compelled to do so by law.

The volume of information provided in a reference will ultimately be determined by the former employer, but can and will be influenced by the number of questions asked by the potential employer. Previous managers and colleagues might also be asked to provide character details.

As for whether employer’s can provide ‘bad’ references, the guidance is clear: if a former employer makes the choice to provide a reference, it must be accurate and fair. In other words, references must be objective and should not contain misleading, or inaccurate information.

In the event that a job applicant is unhappy with a reference provided about them, they may request a copy of the reference sent to their new employer. Of course, before disclosing references requested under a ‘subject access request’, employers must always consider, and observe, their obligations under the new General Data Protection Regulations. Specifically, new employers should be mindful of the fact that, under the Data Protection Act 2018, any reference given or received in confidence is exempt from disclosure.

For more information, see the full guidance here.

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Does giving Notice constitute a Resignation?

A letter of notice does not constitute an act of resignation, an employment appeal tribunal judgment has confirmed.

In East Kent Hospitals University NHS Foundation Trust v Levy, Judge Jennifer Eady found that the Claimant, an employee in the NHS Foundation Trust’s Records department, had not voluntarily resigned her employment but had, instead, been unfairly dismissed.

The Claimant worked in the Records Department of the Trust since 29 March 2006 but, having become dissatisfied with her role, successfully applied for an alternative position in the Trust’s Radiology Department on 9 June 2016. The following day, the Claimant handed in a letter to her Operational Manager stating: ‘Please accept one Month’s Notice from the above date’. The letter was treated as a notice of resignation, and the job offer from the radiology department was subsequently withdrawn. The Claimant’s subsequent attempts to retract her notice were blocked by her Operational Manager and, on 18 April 2017, the Employment Tribunal upheld her complaint of Unfair Dismissal.

On appeal by the Respondent, the EAT considered the question of who terminated the contract of employment and, in doing so, made clear that it was required to adopt an objective test for the construction of the words used by the Claimant, having regard to all the circumstances of the case.
The EAT concluded that the ‘objectively reasonably interpretation’ was that the claimant was doing no more than informing her manager, at the earliest opportunity, of her intention to accept the offer of an internal transfer, and her letter was not a termination of employment. Explaining her reasoning, Judge Jennifer Eady stated: “I am not sure…that the expression “giving notice” can only refer to resignation from employment…there were special circumstances in this case such that it would be wrong to simply take the reference to “giving notice” at face value”.
Addressing the Respondent’s reliance on the Claimant’s subsequent retraction of her ‘resignation’ as evidence that she had intended to terminate her employment, the EAT warned against taking account of later events unless genuinely explanatory of what was really intended.
The EAT’s ruling in this case, whilst fact-specific, should serve as a timely reminder to employers to clarify an employee’s intention when they receive a notice of resignation.

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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 December 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.