Employment and regulatory law update - Nigel Tillott of Davies and Partners
There hasn't been a great deal of excitement on the new legislation and case front - writes Nigel Tillott, head of Employment and Regulatory Law at Davies and Partners.
Instead a lot of energy has been spent in wrestling with the return to the workplace and issues arising from this. It appears that flexible working requests are coming to the fore. It is a very brave employer who doesn't look into requests very seriously.
But there are a few key developments in the employment and regulatory law industry that businesses should be aware of:-
Anecdotally, it seems increasingly common for employees to claim that they have been dismissed or subject to some other detriment following whistleblowing on their part.
Such allegations are dangerous for employers as an employee does not need two years' service to bring an unfair dismissal claim or claim based on suffering a detriment as a result of whistleblowing and such claims often catch employers unaware.
There is also concern about a tendency of tribunals to put two and two together and always decide that if the whistleblowing precedes a dismissal that dismissal is automatically unfair.
There was some good news for employers in the case of Secure Care UK v Mott. In that case Mr Mott who was a logistics manager made nine whistleblowing allegations. It was found that three of these counted as protected disclosures. Soon after his ninth disclosure, in fact the following day, Mr Mott was informed that he was at risk of redundancy.
He was later made redundant. The Tribunal did take the view that there was a genuine redundancy situation but decided that the disclosures had in fact had a material impact upon the decision to select him for redundancy. It therefore found that the dismissal was unfair.
However, the employment appeal tribunal overturned this decision. It decided that the correct question was what was the sole or principle reason for the dismissal. In this case and especially given that there were six other disclosures which did not count as protected disclosures it wasn't convinced that the three protected disclosures were the sole or principle reason for the dismissal.
National minimum wage
Tribunals are likely to have some degree of sympathy with employees in national minimum wage cases. This was the case in the matter of Augustine v Data Cars Ltd.
The employment appeal tribunal looked at this matter. Mr Augustine was employed as a driver. He wasn't required to rent his vehicle and uniform from the employer but there was certainly encouragement for him to do so especially if he wanted to access higher levels of work.
In this case the tribunal decided that the sums being deducted from his pay to pay for the uniform and car should be taken into account when looking at the pay which was being received.
Once the sums were deducted from the top line figure of pay Mr Augustine was receiving less than the national minimum wage and therefore his employer was in breach of the regulations.
Unfair dismissal and activities/remarks outside of work
No one can have missed the storm within Yorkshire Cricket Club and indeed wider within the cricket community concerning the making of racist remarks. There is sometimes a link between what an employee does outside of work and the employment relationship.
In the matter of London Borough of Hammersmith and Fulham and Keable, Mr Keable, a long-serving council employee went on a demonstration and made controversial remarks about Zionism.
Mr Keable was perhaps unfortunate because the demonstration and his involvement with it got very significant coverage over social media without his knowledge or consent.
This filtered back to the council which undertook an investigation and Mr Keable was eventually dismissed for serious misconduct.
In this case Mr Keable was successful at tribunal in getting a finding of unfair dismissal and the employment appeal tribunal agreed with the tribunal.
The challenge for the council was that the reason actually given for the dismissal which was a question of what the average person would think of the remarks was not something which was actually put to Mr Keable either before or during the disciplinary hearing and he wasn't given the opportunity to comment about potential alternative sanctions such as a warning.
This was a rare case in which the tribunal actually made a reinstatement order. This means that the employee was entitled to return to his old job - I suspect that this wasn't popular with the employer.
This case does not mean that employers cannot dismiss for activities of an employee outside of the workplace. The lesson for employers to take from this is that when handling a disciplinary hearing they need to be very careful about the basis of the decision.
If it is different from the allegations made to the employee in advance of the hearing they need to give the employee a proper opportunity to address the concern which has not previously been raised.
The area of worker status is one in which the tribunal is again likely to side with the employee on the basis of inequality of bargaining power.
This was demonstrated by a court of appeal decision in the matter of Stuart Delivery v Augustine. In this case the courier did have the option of not taking up a particular delivery and instead circulating a notification via the company's app to other couriers such that they could take up the delivery instead.
The courier had no idea who would actually take up the delivery. If no one took it up the original courier was required to take up the delivery.
The view taken by the court of appeal was that there was sufficient control over the courier for him to be a worker.
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