Emplaw Monthly - January 2015

Employment Law News

Draft revised Code on disciplinary and grievance procedures

Acas has published results of its consultation on small revisions to the Code of Practice on disciplinary and grievance procedures together with a draft Code, which was laid in parliament on 15 January 2015. The revisions take into account the EAT decision in Toal and another v GB Oils. The statutory right to be accompanied now specifies a fellow worker, a trade union representative or an official employed by a trade union. Additional provisions are set out in paragraphs 14-16 and 36-38 of the revised Code.

http://www.acas.org.uk/index.aspx?articleid=4105  

Consolidated NMW Regulations

Following consultation, HM Stationery Office has just published the draft NMW Regulations 2015 which will repeal and re-enact the previous Regulations and amendments. The new Regulations will come into force on 6 April 2015.

 http://www.legislation.gov.uk/ukdsi/2015/9780111127964

Changes to employment agency advertising of vacancies in EEA

The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2014 which came into force on 5 January 2015 amend the Conduct of Employment Agencies and Employment Businesses Regulations 2003 to include a prohibition on the advertising of jobs by the recruitment sector in countries in the EEA other than Great Britain. The prohibition applies in the case of jobs where the employee will usually work in Great Britain. Subject to a defence, employment agencies and employment businesses will have to advertise these jobs in English in Great Britain before (but no more than four weeks before) or at the same time as advertising them elsewhere in the EEA. 

http://www.legislation.gov.uk/uksi/2014/3351/introduction/made 

Fit for Work Advisory Service

The government has launched a fit for work service with advisory website. The aim is to help those employees who are sick and off work. The stated aims are:

  • Helping employers to better manage sickness absence.
  • Complementing the service GPs provide to patients who are off sick from work.
  • Supporting employees at work, and if they’re off sick, in a way that’s right for them.

This will be achieved by:

  • Free, expert and impartial work-related health advice via our website and telephone line available to all – including employers, employees and GPs.
  • Referral to an occupational health professional for employees who have been off sick or who are likely to be off sick for four weeks or more.

Three guidance notes |(for GPs, employers and employees) have also been published by the Department for Work and Pensions on the service.

http://fitforwork.org/introducing-fit-for-work/
 
https://www.gov.uk/government/collections/fit-for-work-guidance


Whistleblowing to protect student nurses and midwives

The draft Protected Disclosures (Extension of Meaning of Worker) Order 2015 has been laid before parliament and will extend the meaning of worker in section 43K Employment Rights ACT 1996 to include student nurses and student midwives. The change will come into force on 6 April 2015. 

Employer's Technical Guide to Shared Parental Leave and Pay

BIS has published a revised version of the technical guide to shared parental leave and pay, with minor amendments.

https://www.gov.uk/government/publications/shared-parental-leave-and-pay-employers-technical-guide

Updates to the Employment Income Manual

HMRC has updated its Employment Income Manual to reflect the coming into force of the Income Tax (Recommended Medical Treatment) Regulations 2014. These give effect to section 320C of the Income Tax (Earnings and Pensions) Act 2003 which excludes from liability to income tax the funding by an employer of medical treatment which is recommended to an employee as part of an occupational health service for the purposes of assisting the employee to return to work after a period of absence due to injury or ill health.
The exemption will apply to expenditure up to a cap of £500 per tax-year per employee, where the recommendation for medical treatment meets the conditions set out in sections 320C(3)(a) and (b) of ITEPA 2003 and any other requirements specified in regulations.

'Bear Scotland 'retrospectivity regulations'

In our December newsletter we covered the government’s announcement to take legislative action to limit the effect of the Bear Scotland decision. The Deduction from Wages (Limitation) Regulations 2014 have now been published which amend the ERA 1996 and Working Time Regulations 1998.
Regulation 2 amends section 23 of the Employment Rights Act 1996 to insert a limitation on how far back in time an employment tribunal is able to consider when determining whether a worker has suffered unauthorised deductions from their wages. The effect of this amendment is that the Employment Tribunal can only consider deductions from wages where the wages from which the deduction was made were paid within the previous two years before the worker brought their complaint.
In particular these changes relate to complaints in respect of deductions from wages which arise as a result of the employer failing to pay appropriate levels of holiday pay in accordance with the requirements of the Working Time Regulations 1998. 

CASES: 

Chandok and another v Tirkey UKEAT/0190/14

‘Caste discrimination’ covered under race discrimination

The full content of this page is available to subscribers only. Please purchase a subscription if you feel this content will be of use to you.

London Borough of Hillingdon v Gormanley and others [2014] UKEAT/0169/14

In the context of service provision transfers, regulation 3(3)(a)(i) of TUPE 2006 provides that immediately before a service provision change there must be an organised grouping of employees whose principal purpose is carrying out the relevant activities on behalf of the client. 

The full content of this page is available to subscribers only. Please purchase a subscription if you feel this content will be of use to you.

Case Summary Tag: 

Brito-Bapapulle v Ealing Hospital NHS Trust [2014] EWCA Civ 1626

Dismissal for gross misconduct was fair irrespective of label of conduct

In Brito-Bapapulle v Ealing Hospital NHS Trust Ms B-B, a consultant haematologist, took sick leave from Ealing Hospital but continued seeing private patients during that time, in contravention of the Trust’s instruction that she should not do so during her sick leave. The disciplinary panel dismissed her for gross misconduct on the ground of fraud. The ET found that, whilst a difficult decision, the dismissal did fall within the range of reasonable responses and that Ms B-B’s actions did amount to gross misconduct.

The full content of this page is available to subscribers only. Please purchase a subscription if you feel this content will be of use to you.

Case Summary Tag: 

Doran v Department for Work and Pensions [2014] UKEAT/0017/14

The EAT in Doran v DWP held that there was no duty to make reasonable adjustments when an employee, Ms Doran, was certified as unfit for any work and had not given any indication of when she might be able to return to work. Her medical certificates stated that she was not fit for any work. 

The full content of this page is available to subscribers only. Please purchase a subscription if you feel this content will be of use to you.

Westminster Kingsway College v University and College Union [2014] EWHC 4409

Under section 226 Trade Union and Labour Relations (Consolidation) Act 1992 an act done by a trade union to induce a person to take part in or continue to take part in industrial action is not protected unless the industrial action has the support of a ballot. 

The full content of this page is available to subscribers only. Please purchase a subscription if you feel this content will be of use to you.

Robinson v Combat Stress [2014] UKEAT/0310/14

In Robinson v Combat Stress, Ms Robinson, a nurse, was dismissed in relation to three incidents (not observing procedures ‘the car park incident’, inappropriate sexualised behaviour (the ‘sexual assault incident’), and sexualised references to a veteran (the ‘one-to-one incident’). CS did not believe the 1-to-1 incident merited dismissal but when all the incidents were considered together, gross misconduct was justified and it dismissed Ms Robinson. 

The full content of this page is available to subscribers only. Please purchase a subscription if you feel this content will be of use to you.

Case Summary Tag: 

Moultrie and others v Ministry of Justice [2015] UKEAT/0239/14

Mr Moultrie and other fee-paid medical members of certain tribunals were not given access to a pension scheme in respect of their service whereas salaried or full-time regional medical members were.  In Moultrie and others v MOJ, they argued that the work of the typical fee-paid medical member was the same as or broadly similar to that of the regional medical members within the meaning of regulation 2(4)(a) (ii) of the Part–Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

The full content of this page is available to subscribers only. Please purchase a subscription if you feel this content will be of use to you.

EXOL Lubricants Ltd v Birch and another UKEAT/0219/14

The EAT has held that where two delivery drivers were dismissed on purported grounds of redundancy when the employer removed their overnight parking facility in Stockport, the dismissal was unfair. 

The full content of this page is available to subscribers only. Please purchase a subscription if you feel this content will be of use to you.

Lodge v Dignity & Choice in Dying and Compassion in Dying [2014] UKEAT/0252/14

Whether an employee has jurisdiction to pursue a claim under the Employment Rights Act 1996 must be decided in line with case law, in particular Serco Ltd v Lawson [2006] IRLR 289, Duncombe v Secretary of State for Children Schools and Families (No 2) [2011] IRLR 840 and Ravat v Halliburton Manufacturing and Services Ltd [2012] IRLR 315. In Lodge v Dignity & Choice in Dying the EAT held that Ms Lodge, who, with her employer’s consent, moved to Australia for family reasons and continued her work remotely there for Dignity’s London branch, was entitled to bring claims for unfair dismissal and whistleblowing. 

The full content of this page is available to subscribers only. Please purchase a subscription if you feel this content will be of use to you.

Case Summary Tag: 

Dass v College of Haringey and another [2014] UKEAT/0108

In Dass v College of Haringey and another the EAT had to consider entitlement to membership of a pension scheme for the period from 3 July 1995 to 14 March 2003.  If there was no stable employment relationship or continuity of employment between that period, retrospective membership of the pension scheme could not be awarded beyond 3 July 1995 for the purposes of an equal pay claim. 

The full content of this page is available to subscribers only. Please purchase a subscription if you feel this content will be of use to you.

Salmon v (1) Castlebeck Care (Teeside) Ltd (in administration (2) Danshell Healthcare Ltd and others [2014] UKEAT/0304/14

The EAT in Salmon v (1) Castlebeck Care (Teeside) Ltd (in administration) (2) Danshell Healthcare Ltd and others extended to a TUPE context the established principle that a successful appeal against dismissal meant the reinstatement of the employee with retrospective effect. 

The full content of this page is available to subscribers only. Please purchase a subscription if you feel this content will be of use to you.