Employment Bulletin - April 201224th Apr 2012
A year in the planning and a trawl of 21,000 statutory instruments later, we're finally here.
Parts of the government's Red Tape Challenge - the process of scrapping, merging, simplifying and improving regulations - are hitting employment law. Mooted for some time, new measures aimed at helping business and boosting economic recovery came into force on Friday, 6th April:
- Unfair dismissal qualifying period increases from one to two years for those whose jobs start after 6th April 2012
- Maximum deposit order doubles to £1,000
- Maximum costs award rises to £20,000
- Witness statements to be pre-read by tribunal, not read aloud
- Parties can be ordered to pay witness expenses
- Judges to sit alone on unfair dismissal cases
- A review is scheduled for 12 months' time. Just how different will things look then we wonder?
In the meantime below is a round up of some of the most important employment law developments over the last quarter.
Partner, Coles Miller LLP
Marital Status Not Quite Dunn and Dusted - Hawkins v Atex Group
In January we wrote about Dunn v Institute of Cemetery and Crematorium Management. The Employment Appeal Tribunal (EAT) had said that marital status protection covers situations where there has been discrimination based on marriage to a particular person, as opposed to just the fact of being married, or not.
Waters have now been muddied by Hawkins v Atex Group, a case in which the EAT was again asked to consider the 'particular person' point.
Ms Hawkins was employed by a company managed by her husband. Less than a year into the job, she was dismissed because of a company policy against employing close relatives. Ms Hawkins claimed unlawful discrimination.
She lost at tribunal and on appeal. The EAT said that the company had not applied a general rule or criterion against married women and the decision to dismiss was not motivated by Ms Hawkins being married to her husband. The EAT doubted some of the reasoning in Dunn and said that for there to be discrimination on the grounds of marital status the reason for the less favourable treatment had to be marriage, rather than because of who the claimant was married to.
This conflict with Dunn leaves the marital status provisions up in the air, for now at least.
Court of Appeal on Suspension and Police - Crawford v Suffolk Mental Health Partnership NHS Trust
The two claimants, hospital nurses, were reported to have tied an aggressive dementia patient to a chair in an attempt to restrain him. They denied the allegation but, after investigation, were dismissed for gross misconduct.
The unfair dismissal case went all the way to the Court of Appeal where the claimants succeeded. But the really interesting part of this case is the Court of Appeal's footnote to that judgment. Suspension of an employee should not be exercised lightly, the Court said. It warned against 'knee jerk' reactions in the face of alleged misconduct because of the psychological effect removal from the workforce can have on individuals.
Suspension wasn't an unconsidered action in this case, the Court added, but it was difficult to believe that the relevant body could have thought that there was any real risk of treatment of this kind being repeated. The Court also suggested that close attention should be paid to unblemished service when assessing future risk (which perhaps it was in this case).
The second part of the footnote is in relation to reporting employees to the police, a decision which in this case the Court said it found astonishing. Being under a cloud of possible criminal proceedings is a very heavy burden for employees to face, it added.
The facts of this case were specific, relating to the consistency of treatment of patients with aggressive tendencies. But it's useful to bear in mind the themes of the Court of Appeal's comments and, in particular, its view on the seriousness with which suspension and police involvement should be taken.
Cost and Discrimination Justification - Woodcock v Cumbria Primary Care Trust
This case looked at the knotty issue of whether a discriminatory decision based on cost can be justified.
As part of an NHS re-organisation, Mr Woodcock's role as Chief Executive was made redundant. But he continued to work for the Trust while other suitable jobs were considered.
Mr Woodcock was 48 at the time. If he were still employed by the Trust at 50 then he would be entitled to an enhanced early retirement package which could have cost the NHS an extra £500,000. So the Trust served redundancy notice on Mr Woodcock which meant that he would be dismissed before reaching 50. He claimed unfair dismissal and age discrimination.
The employment tribunal and Employment Appeal Tribunal found for the Trust. It's the age discrimination point that provides real interest. The timing of Mr Woodcock's dismissal was potentially discriminatory but justified, it was held. It was legitimate for the Trust to have tried to avoid additional costs and, anyway, had notice not been served when it was then Mr Woodcock would have received a windfall. The Trust's primary aim was to achieve a redundancy whilst avoiding unnecessary cost and a windfall benefit, which meant that its actions were not purely cost-related.
Mr Woodcock appealed but lost at the Court of Appeal. The dismissal for redundancy was a legitimate aim. While timing a redundancy purely to save costs can not by itself be justified (it's not a legitimate aim), this case was about more than just cost. The circumstances of the dismissal were genuine.
An important reminder that discrimination based on cost alone might land employers in hot water. Other legitimate aims need to play a part.
Acas Relays Olympics Guidance
In anticipation of some tricky employee relations issues this summer, Acas has put together some useful advice on coping with London 2012.
Employees will fall into two groups, Acas says. There are those who plan to take time off work to watch or volunteer at the Games, and those who don't (but hope to watch them on TV, or are fed up with all the fuss). The guidance covers things like attendance and performance and raises some less obvious potential issues like perceived unfairness and favouritism towards those employees interested in sport.
The Heavy Burden of Proving Stress - MacLennon v Hartford Europe
Ms MacLennon was an HR manager at Hartford, a financial services company. Twelve months into her job she went home early with dizziness, saying that she felt unwell. A few months later, while still off work, she was diagnosed with Chronic Fatigue Syndrome (CFS).
She remained off work for three and a half years, paid through permanent health insurance, before the office at which she had been based closed. She was made redundant and brought a personal injury claim for £1.25m based on her CFS having been caused by long working hours and challenging HR issues.
She lost. The High Court said that she had not proved that her CFS had been caused by workplace stress and her employer couldn’t have foreseen that she would suffer CFS - her working hours weren't cause for alarm, she didn't appear to have too much work to do, and the employer didn't know that she was vulnerable to stress brought about by overwork. One of the factors taken into account by the Court was that Ms MacLennon worked in HR and so knew about stress and the importance of making an employer aware of the facts and risks.
Evidence of Solicitation Needed - Towry v Bennett
When Mr Bennett and six colleagues left the financial advisory business Towry to join a competitor, they were sued for breach of covenant. Towry alleged that they had broken the non-solicitation and confidentiality clauses of their contracts and had unlawfully conspired with their new employer by planning to poach Towry's clients.
The High Court dismissed Towry's claims, ordering it to pay costs. While the non-solicitation and confidentiality clauses were enforceable, the judge found that solicitation hadn't actually been proved. Towry had assumed that solicitation must have happened because of the level of business transferred to the new employer. But there had to be an element of directly or indirectly requesting, persuading or encouraging clients to move.
Here it was understandable that clients wanted to stick with their personal financial advisor. The burden of proving otherwise - that the clients hadn't exercised free will - was on the employer. Solicitation couldn't simply be inferred from the 'tidal wave' of clients switching firms.
Time for a review of your contracts? Towry's didn’t contain non-dealing clauses. Had they done, the company would have been better protected or would at least have had a better shot at winning in court.
Day two. 10.30am. Terry is in the witness box.
We could be another step closer to legal cases being televised. The subject was raised in a Westminster Hall debate with conservative MP John Whittingdale arguing for this sort of broadcasting. It could increase understanding and serve justice well, he said.
Relax. The viewing public won't be feasting on footage of your unfair dismissal cross-examination. It looks as though television cameras would only be allowed into the Court of Appeal and only then to film the judgments. But if successful, it could lead to cameras in the criminal courts too.
Arguments will continue to be thrashed out about how more general courtroom broadcasting could engender disrespect for the court system, encourage witnesses and lawyers to show off, or lead to jurors or witnesses being tampered with. Just how will this one pan out?
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