Emplaw Monthly - January 2015
Employment Law News
Consolidated NMW Regulations
Changes to employment agency advertising of vacancies in EEA
Fit for Work Advisory Service
Whistleblowing to protect student nurses and midwives
Employer's Technical Guide to Shared Parental Leave and Pay
Updates to the Employment Income Manual
'Bear Scotland 'retrospectivity regulations'
‘Caste discrimination’ covered under race discrimination
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.
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 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.
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.
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.
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 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.
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  IRLR 289, Duncombe v Secretary of State for Children Schools and Families (No 2)  IRLR 840 and Ravat v Halliburton Manufacturing and Services Ltd  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.
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.
Salmon v (1) Castlebeck Care (Teeside) Ltd (in administration (2) Danshell Healthcare Ltd and others  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.