Emplaw Monthly - December 2014
Employment Law News
Carr Review into industrial disputes
Bruce Carr has published a report on his scaled back review of industrial disputes. The review was commissioned in the wake of allegations by employers that members of the union had intimidated their staff. As there was insufficient evidence the review was limited in scope.
The report found that there were certain industries that were targeted with ‘extreme tactics’ more than others, e.g. construction and manufacturing. Carr identified 8 themes of tactics: inappropriate behaviour on picket lines; victimisation/ harassment of non strikers; victimisation/ harassment of managers; disruption to business etc; attempts to influence third parties; wildcat action and extreme tactics by employers. Carr also published contributors’ suggestions how to deal with these issues.
CCTV Code of Practice.
In the light of the rapid technological developments of surveillance equipment (such as automatic number plate recognition), the Information Commissioner’s Office has published an updated data protection Code of Practice for CCTV/ surveillance cameras. The Code notes public concerns about the use of technology to collect evidence to inform wider decisions than the original purpose. There has been a strengthening of the regulatory landscape through the Protection of Freedoms Act and there has been an appointment of a Surveillance Camera Commissioner to promote a new surveillance camera code and review its operation and impact.
Meanwhile the new CCTV Code provides good practice advice for those involved in operating CCTV/ other surveillance camera devices. The recommendations are based on the data protection principles.
Government guidance on 'Bring Your Own Device'
Bring Your Own Device (BYOD) is the practice of employees using their own laptops, phones and tablets to conduct business. With the expansion of home and flexible working, security risks have increased with staff using their own devices. The government has now published a set of guidance notes on managing these risks, setting out best practice to ensure that personal devices do not access sensitive data whilst ensuring that employees do not compromise security by finding ways round the controls. The guidance should be read together with the Information Commissioner’s BYOD data security guidance published in March 2013.
Family friendly Regulations
New regulations have been published extending parental leave to parents of children aged between five and 18 from 5 April 2015 and extending adoption leaver to foster carers who foster a child under the ‘Fostering for Adoption’ scheme:
There are also further draft regulations extending shared parental leave to prospective parents adopting from outside the UK and draft regulations giving rights to prospective parents of a child born to a surrogate.
Separately, BIS has published a guide for employers on administering the new shared parental leave/ pay rights: https://www.gov.uk/government/
All Change... possibly
The three main parties, Labour, Conservative and Liberal Democrats have each made their employment lawproposals at their respective annual conferences. What can we expect? Labour proposes to increase the minimum wage to £8 by the end of the next parliament; to require companies with more than 250 employees to publish average pay of men and women; to provide ‘equal rights for the self employed’; and to extend free childcare to working parents with children aged three or four.
The Conservative party proposes a British Bill of Rights (no surprises there). Whilst the Conservatives would wish the Bill of Rights to replace the Human Rights Act, there is pressure for it to be retained alongside the new Bill. The Conservative party also intends to introduce legislation (the Modern Slavery Bill) to prevent the trafficking of workers and to end exclusive zero hours contracts.
The Liberal Democrats intend to establish an agency for workers’ rights, which would streamline functions presently carried out by four organisations. It plans to increase the national minimum wage for apprentices, give greater assistance to litigants in person and to ensure that the names of jobseekers in the public sector are blacked out to reduce discrimination.
No breach of contract in holding disciplinary hearing for employee in relation to provision of false reference
The Court of Appeal’s decision in Coventry University v Mian illustrates both the need for employees to exercise the greatest caution when providing references for colleagues and for employers to undergo meticulous disciplinary procedures.
Dr Mian, a senior lecturer at Coventry University (‘Coventry’), provided a reference for a colleague, Dr Javed, at his request. The pro vice-Chancellor of the University of Greenwich, Dr Javed’s new employer, contacted Coventry to express his concern about the disconnect between the reference and Dr Javed’s performance.
In General Dynamics Information Technology v Carranza the EAT has held that an employer was not required to disregard a final warning as a ‘reasonable adjustment’.
Mr Carranza suffered from a disability which meant that he had taken significant periods of time off work. He had additionally taken sickness absence for other ailments and he was given first a warning then a final warning for absences totalling 41 weeks over a three year period.
The EAT overturned a tribunal’s decision that the employer’s dismissal of Mr Carranza following a three month absence for a shoulder injury was disability discrimination as the employer had failed to make reasonable adjustments.
Calculating pension loss
Pension loss is notoriously difficult to calculate as a head of damages. In Griffin v Plymouth Hospital NHS Trust, the Court of Appeal found that the pension element of compensation awarded to a former employee of Plymouth Hospital who succeeded in her disability discrimination complaint had been incorrectly assessed.
Ms Griffin had been a member of a final salary pension scheme at the time she left employment and so would have both accrued rights of future loss.
Set off of pension claim in tribunal
The EAT has upheld a tribunal’s decision in Ridge v HM Land Registry, a breach of contract (inter alia) claim, that although HM Land Registry was in breach of contract by failing to pay Mr Ridge a sum for loss of pension benefits during his notice period, there was a set off for overpayment of salary.
Mr Ridge had argued that in principle the tribunal had no right to deal with set off, arguing that set off was only available where rules of procedure of the court in which a claimant brings an action allow set off to be pleaded.
Court of Appeal upholds injunction to prevent employee working with competitor
Injunctions for specific performance are notoriously difficult to enforce. In Sunrise Brokers LLP v Rodgers, the Court of Appeal upheld an injunction requiring Mr Rodgers from starting work with EOX, a competitor company for the remainder of his notice period (ten months) even though he had purported to leave summarily.
Mr Rodgers, a derivatives broker, had told his employer, Sunrise, he was leaving immediately and did not return to work. Sunrise withheld his pay and their solicitors wrote to him noting that it did not accept his resignation as he did not terminate his employment in accordance with his contractual terms and he remained employed.
Some useful pointers on Polkey deductions for unfair dismissal compensation has been given by the EAT in Contract Bottling Ltd v Cave. In that case, Contract Bottling had financial problems, went into insolvency and then was bought out of administration. As a result, it was decided to make redundancies in order to save the business. Four redundancies were made out of a selection pool of ten employees, who had different roles and functions.
Clawback of joining bonus was negative taxable earnings
Clawback clauses providing that an employee must pay back part of a bonus or other sum paid for a benefit in the event that he leaves employment early are relatively common. In HMRC v Julian Martin, the issue was whether tax on the bonus paid up front should still be paid on the sum repaid to the employer.
Mr Martin had been required by his employer, JLT, to enter into a new employment contract under which he received a signing on bonus of £250,000, with an obligation to make repayment of all or part in certain events of termination. The new contract also contained post termination restraints.
Failure to undertake early conciliation can be rectified
In Thomas v Nationwide Building Society an employment tribunal considered the question of a tribunal’s jurisdiction to hear a claim where the claimant had failed to follow the Acas early conciliation procedure. Ms Thomas claimed in her ET1 that she had been subjected to a detriment after she had made a protected disclosure. In the ET3 Nationwide argued that Ms Thomas did not have jurisdiction because she had not embarked on Acas early conciliation and also argued her claim was out of time.
Following its introduction set out in the Enterprise and Regulatory Reform Act 2013, early conciliation is now compulsory in most cases.