Employment law newsletter

Transcription

1 Employment law newsletter 1. Early Conciliation ACAS has published guidance on the new early conciliation procedure which is now mandatory, in most cases, for claims lodged on or after 6 May. The guide explains how early conciliation will work, how early conciliation can help and contains details on how to make a request. It also explains how long early conciliation lasts, the procedure following successful conciliation and what will happen if an agreement is not reached. A copy of the guide can be found at uk/index.aspx?articleid=4787. On 20 April legislation came into force to amend the fi rst step of the procedure where there is more than one prospective respondent. A prospective claimant will now need to either submit a separate early conciliation form in respect of each prospective respondent, or name each prospective respondent when telephoning ACAS. 2. Employees had an implied contractual right to enhanced redundancy payments The Employment Appeal Tribunal has upheld a decision that an employer who had routinely made enhanced redundancy payments became contractually bound to do so. The Claimants were made redundant in They claimed that they were entitled to enhanced redundancy payments. Evidence before the tribunal showed that the employer operated a consistent practice over many years up to 2002 of making redundancy payments based on statutory terms, but without a cap on either years of service or the amount of weekly pay. Although evidence between 2002 to 2006 was of a more generalised nature, the tribunal concluded (and the EAT agreed) that a contractual term that redundancy payments would be made without either cap could be inferred as at The EAT concluded that once the position was reached that a term was to be inferred, a departure from that term by the employer would represent a breach. As there was no evidence to show that the term had been lawfully varied since that date, the enhanced redundancy package applied to the Claimants redundancies which took place in Redundant employees may be contractually entitled to enhanced redundancy pay if the employer s custom and practice has been to make payments beyond that provided for by the statutory redundancy payment scheme. Employers should proceed with caution (and with the benefi t of legal advice) if considering a redundancy exercise and enhanced redundancy payments have previously been paid over a number of years and it is no longer your intention to do so. Reference: Peacock Stores v Peregrine & Others 2014 Paris Smith LLP 01

2 3. Employer is given the go ahead to inspect former employees home computers The High Court has granted an injunction enabling an employer to instruct an independent computer expert to inspect and take images from the personal computers of two former employees. The former employees were accused of having copied and/or disclosed a customer database to a competitor whilst still employed by the claimant employer (Warm Zones). A court has the power to order the inspection of a former employee s computer. However, it is not an order it will make lightly. The overriding consideration in granting or declining the injunction is which course is likely to involve the least risk of injustice if it turns out to be wrong. In this case the following facts persuaded the court to make such an order: The employees had entered into employment contracts which contained express confi dentiality provisions prohibiting them from using or disclosing any confi dential information about the business and affairs of their employer during and after employment After their employment had ended, the employees took up employment with a competitor The employer had discovered documents (mainly in the form of s) which suggested that the former employees had disclosed, or had been prepared to disclose, details of its database information to the competitor while they were still employed and the court had a high degree of assurance about the strength of the employer s claim The employer had spent several years and signifi cant resources to create the confi dential information contained in its unique proprietary database The employer was not trying to prevent the former employees from working in their chosen fi eld as there were no restrictive covenants applicable to their employment If the former employees had done nothing wrong, then the inspection and imaging (which would be at the employer s expense) would reveal nothing and might bring the litigation to a swift end Overall, the order sought was a focused one, designed simply to secure the return, protection and security of [the employer s] confi dential information. The court was concerned that the computers held third party data and other confi dential information. However, it was satisfi ed that this could be dealt with in the order as the employer had stated that it was content to provide safeguards in respect of any client confi dential or third party data on the relevant computers. Applications for injunctions are costly and the courts have a wide discretion as to whether to grant an injunction or not. This decision is interesting because it appears to be one of the rare occasions where a judge has felt justifi ed in ordering the inspection and imaging of a party s computer. Any decision on such an application will be fact sensitive and much will depend on the individual circumstances of the case. Cogent evidence, a focused application and speed are going to be key when making such an application. Reference: Warm Zones v Thurley and Buckley 4. New guidance for data controllers The Information Commissioner s Offi ce (ICO) has published new guidance for data controllers on how it deals with complaints and concerns. Data controllers are expected to act as the fi rst port of call for any complaints made by data subjects. Rather than simply referring the issue or individual to the ICO, data controllers are expected to retain ownership of the concerns raised and work with the data subject to try to resolve matters. The ICO will not normally deal with concerns referred to it unless the data subject can show that it has fi rst raised that concern with the relevant data controller. The ICO expects data controllers to take concerns raised seriously and provide data subjects with a clear explanation of the actions taken to address or respond to the concerns raised. In most cases, the ICO will use the explanation given by a data controller to a data subject to make their decision about whether the data controller has complied with the Data Protection Act A good explanation of 2014 Paris Smith LLP 02

3 how the principles of the Data Protection Act have been applied can help avoid disputes escalating unnecessarily. This may mean that data controllers may need to change their current practices in order to demonstrate that they have been responsive to any concerns raised with them. When deciding whether or not to take action against a data controller found to have breached the Data Protection Act, the ICO will consider the severity of the potential breach, how the data controller dealt with the concerns raised and any other relevant information. A full copy of the new guidance can be found at ico.org.uk/for_organisations/guidance_index/~/media/ documents/library/data_protection/practical_application/ how-we-deal-with-complaints-and-concerns-a-guide-fordata-controllers.pdf. 5. DBS application form has been updated The Disclosure and Baring Service has updated its application form for criminal records checks. The updated application form no longer asks applicants to provide information about minor and historic offences that they are not required to provide. The DBS has indicated that it will be reviewing and updating its existing guidance to applicants to explain what information will be passed to their prospective employer. 6. Direct Earnings Attachments The Department for Work and Pensions has published two guides for employers on what they need to do if they receive a Direct Earnings Attachment notice. The DWP Debt Management has the power to issue an employer with a Direct Earnings Attachment notice instructing it to make deductions from an employee s earnings to recover money owed to it by a former recipient of benefi ts. Unlike other means of debt enforcement, the DWP does not need to obtain a court order to issue a Direct Earnings Attachment notice. The two guides can be found here government/publications/direct-earnings-attachmentsan-employers-guide. The fi rst guide explains how a Direct Earnings Attachment operates including the employer s responsibilities and when exemptions apply. The second guide is more detailed and includes worked examples to help employers. Employers who fail to comply can be fi ned up to 1,000 per notice. 7. Employee was not unfairly dismissed for breach of health and safety rules The Employment Appeal Tribunal has held that the dismissal of an employee for serious health and safety breaches was fair. The Claimant had 34 years service. His work involved working under ground in hazardous conditions which could lead to a serious or even fatal injury. The event which gave rise to the Claimant s dismissal concerned his failure to wear breathing apparatus when inspecting a sewer on 19 July Safety requirements of the inspection were discussed in advance and a safe system of work risk assessment form was completed wherein the requirement to use breathing apparatus was detailed. The Claimant fully understood the requirement to wear breathing apparatus on entry to the sewer and signed the relevant paperwork. The Claimant was the most experienced and senior operative on site. Despite the fact that the employee, in this case, had 34 years of service and a previously clean disciplinary record his dismissal was still fair. He had entered a sewer on two occasions without breathing apparatus contrary to a specifi c instruction, which he understood, and contrary to the company s health and safety policy. There were known dangers in doing so and he and/or his colleague who accompanied him could have been seriously injured or killed. The seriousness with which the employer treated breaches of health and safety requirements was made clear in their health and safety policy and the company s disciplinary 2014 Paris Smith LLP 03

4 rules provided that a deliberate and serious infringement of health and safety rules would constitute an act of gross misconduct. Employers should exercise caution before dismissing long serving employees for a fi rst offence. However, in a work place where health and safety is of paramount importance, breaches of a health and safety policy are likely to be regarded as serious offences and therefore, provided the employee is educated and trained on the same, a dismissal may be justifi ed. Reference: Thames Water Utilities Limited v Newbound The Council and LLPs were associated employers for the purposes of the same employment test and therefore the female employees, who transferred from the Council to the new LLPs, were entitled to compare their pay with that of male comparators still working for the Council. Employers who deal in any outsourcing model need to be alert to the possibility of an equal pay claim (particularly for transfers from the public sector to the private sector) and, if necessary, address potential fi nancial liability for the same in the commercial agreement. 8. Council and LLPs were associated employers for equal pay purposes Reference: Glasgow City Council and others v Unison claimants and another The Court of Session has ruled that a Council and arm slength Limited Liability Partnerships were associated employers for equal pay purposes. 9. Employee s dismissal was not for whistleblowing The Employment Appeal Tribunal has upheld a Tribunal s decision that the reason for an employee s dismissal was his conduct rather than for whistleblowing. The Claimants were initially employed by Glasgow City Council to provide parking or care services. These services were transferred to two legally distinct entities set up for this purpose. These were City Parking (Glasgow) LLP (parking) and Codia (Services) LLP (care). These were each arm s-length external organisations. However, the Council maintained signifi cant control over the LLPs. For example, the Council was entitled to % of City Parking s profi ts, reserved the power to approve business plans, and was entitled to appoint or remove board members. The LLPs were responsible for setting their employees terms and conditions, and changes to those terms did not require the Council s approval. Mr Panayiotou, a police offi cer, made a number of protected disclosures concerning the attitude of his colleagues towards certain racial groups and the victims of rape, abuse and domestic violence. Following an investigation, Mr Panayiotou s concerns were found to be largely wellfounded. However, he was not satisfi ed with the outcome and began his own campaign for actions he believed appropriate. He continued to raise numerous complaints and a great deal of management time was devoted to responding to his correspondence and investigating those complaints. As a result of this campaign, Mr Panayiotou was subject to some fairly heavy handed treatment by the force. He was eventually dismissed. Female LLP employees who had transferred from the Council under TUPE brought equal pay claims seeking to compare their pay with that of male comparators still working for the Council. The Tribunal found that Mr Panayiotou s actions subsequent to the protected disclosures were suffi cient to have exhausted the patience of any organisation and that he had become completely unmanageable. It held that conduct was the reason for his dismissal and not the making of protected disclosures. The EAT agreed Paris Smith LLP 04

5 The dismissal of an employee who has made a number of protected disclosures does not necessarily mean that their dismissal is unfair. It will only be unfair if the reason, or the principal reason, for the employee s dismissal is that they have made the protected disclosures. In this case, the fact of the protected disclosures was separable from the manner in which the police offi cer had pursued his complaints, which had made him completely unmanageable. The Employment Appeal Tribunal said that it would be diffi cult to argue that cases concerned purely with performance, particularly performance that the employer had not considered warranted improvement through use of any formal procedure, could fall within the heading of culpable or blameworthy conduct justifying a deduction. In particular, where an employee was suffering by reason of some lack of capability, without any intention on their part, it would be very diffi cult if not impossible to hold that to be culpable or blameworthy. This case highlights that protection for whistleblowers does have its limits, and that the fact of the disclosure and the manner in which it is pursued can be distinguishable. This is nevertheless a complex area and it remains essential that all disclosures are taken seriously and investigated in accordance with your whistleblowing policy. Reference: Panayiotou v Chief Constable Paul Kernaghan & The Police and Crime Commissioner for Hampshire 10. Constructive dismissal: reducing compensation for contributory fault The Employment Appeal Tribunal has said that there is no reason in law why a reduction for contributory conduct should not be made in a constructive dismissal claim. However, the circumstances giving rise to the successful constructive dismissal claim may provide limited opportunity for employers to argue for a reduction. A 62 year old employee, who resigned after her employer raised concerns about her performance with her son instead of her, was found to have been constructively dismissed as her employer had breached the implied term of trust and confi dence. Her employer argued that she had contributed to her dismissal by failing to accept criticism and continuing to make errors. If employers are concerned as to the performance of one of their employees they should follow their capability procedure. The employer s concerns had been genuine in this case and its intentions had been good but that did not justify its actions of speaking to the son. Whilst a Tribunal does have jurisdiction to make a reduction for contributory conduct in a constructive dismissal case, the focus on the employer s conduct and their repudiation of the employment contract means that it would be unusual for a fi nding of contributory conduct to be made. Also, genuine incompetence on the part of the employee is very unlikely to equate to contributory fault for cases involving alleged incompetence or poor performance. Reference: Frith Accountants Limited v Law Find out more This is a summary of some of the key principles only and is aimed at providing general information rather than giving any specifi c advice. If you would like further detailed advice on the matters dealt with in this newsletter then please contact a member of the Employment Team. Clive Dobbin Partner [email protected] 2014 Paris Smith LLP 05

6 David Roath Partner Stephanie Merritt Associate Kathryn Casey-Evans Associate Claire Merritt Solicitor Jane Biddlecombe Solicitor Gemma Robinson Solicitor Paris Smith LLP 06