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Employment Law Newsletter - April 2013


Where we're up to - for now, at least....

The Government must have realised that it is difficult to keep track of all the changes under way in employment law - perhaps it even needed to send an aide memoire to itself. In March, it published a 'state of play' document. Drawn from that and other information, here is our take, in chronological order and with minimal descriptive frills, on what's going on:

Recently/about now:
Parental leave increases to 18 weeks
Minimum advance timescale for commencing consultation on 100+ proposed redundancy dismissals (fixed-term expiries being excluded from the count) reduces to 45 days
Complaints/grievances about contracts of employment removed from scope of 'whistleblowing' protection

Summer 2013:
'Protected conversations' about termination
Alternative (and, where it is the lower, dominant) cap of 12 months' pay on unfair dismissal compensation
Fees (to start proceedings and to proceed to a hearing) for tribunal claimants
Tribunal costs award limit of £20,000 removed
New tribunal 'preliminary hearing' (combined case management discussion and pre-hearing review) and 'sifting process'

Autumn 2013:
Employee shareholders
Abolition of employer's liability for third-party harassment
Changes to TUPE

Unspecified in 2013:
Abolition of discrimination questionnaire procedure
Change in periods for criminal convictions to become 'spent'

Extension of flexible working to all employees with 26 weeks' service
Mandatory pre-claim conciliation by Acas
Financial penalties for employers losing tribunal claims

Extension of time off for ante-natal care to partners
Shared leave between parents (and abolition of current rules on maternity and additional paternity leave)
Maximum age of child for purposes of parental leave becomes 18 as standard

It's always possible we've missed something and it's quite probable things will change. But it's a start.


What exactly is (voluntary) 'recognition'?

'Compulsory' statutory recognition of a trade union is reasonably easy to discern - it is accompanied by some formal confirmation and the scope of the recognition is defined by the legislation.

But, where the statutory regime has not been used, the existence (or not) of recognition can be much less clear cut. In Working Links v PCSU, the union argued that there had been a failure to consult it, as a recognised union, over proposed redundancies.

The claim failed. The EAT ruled that true and effective recognition in law was about a union's involvement in collective bargaining and the negotiation of collective agreements with the employer. An agreement to consult on and discuss prospective redundancies and other 'matters of mutual interest' and an acceptance that the union could represent its members in disciplinary and grievance hearings did not satisfy this criterion.


For the record

Covert recordings of internal employment discussions, meetings or hearings are, in the words of the EAT in Vaughan v London Borough of Lewisham, 'very distasteful'. But, of course, they might also be a very necessary or, perhaps, the only way for a party - almost always the claimant (ex-)employee - to make out its case. So what rules, if any, should be laid down regarding the admissibility of secret recordings as evidence in tribunal proceedings?

In Vaughan, the EAT reduced some restrictions on their use in proceedings. First, it is not necessary for the claimant to produce full, independent transcripts of the recordings at the outset. A first step is for the claimant to provide the respondent with the full recording and a transcript - even though it might be imperfect and/or incomplete - that might suffice if the relevant passages are accurate or if any inaccuracy is not material. Secondly, the overall duration of the recordings and consequent length of transcript (in Vaughan, there were about 39 hours of material) cannot be a bar to admissibility.

Not quite a 'charter for bugging', but hardly a clear discouragement of the practice either.


Sleeping on the job

Here's another one of those decisions that needs reading and interpreting with care (see Mental Health Care (UK) v Biluan in March's edition). This time, the headline is 'fair dismissal for sleeping on duty in a residential care home'.

In Ajayi v Aitch Care Homes (London), the claimants, waking night support workers in a home, were caught 'red-handed' while sleeping when the home manager did a 'spot check'. They were dismissed for gross misconduct. They did not have the requisite continuous service for a 'general' unfair dismissal claim. So, instead, they brought proceedings that do not require a period of qualifying service - alleging they had been unfairly dismissed for refusing to comply with the employer's requirement that they work without a rest break, which breached the Working Time Regulations.

The EAT, while accepting that the workers were not allocated a 20-minute break as the Regulations required and being critical of the employer's ignorance in this respect, ruled that the claims of 'automatically unfair dismissal' should fail. The workers had not first made their 'refusal' to comply with the requirement of continuous working explicit to the employer. It was, at best, simply implicit in their act of sleeping.

What does the ruling mean and what does it not mean? Well, the good news is that it shows employees will often have difficulty in 'redefining' situations to suit their legal purposes (for another, unrelated example, see Blair v Hotel Solutions in our April 2012 edition). But the fact that the dismissals were not 'automatically unfair' is for a relatively narrow reason. The Ajayi decision does not go so far as to mean that such sackings will be 'automatically fair'. Although sleeping at work, particularly in sensitive environments such as residential care, is a serious offence (and will often be classified in the rules as 'gross misconduct'), proper investigation and evaluation of the circumstances under the disciplinary process remains necessary. Otherwise, there can still be an unfair dismissal - if the employee has the necessary continuous service.

If you would like to discuss this or any other issue facing your organisation please speak to your usual contact at Collinson Grant or Richard Hendry on 0161 703 5600

Although care has been taken in the preparation of this Newsletter, Collinson Grant cannot accept responsibility for errors, omissions or advice given. Readers should note that only Acts of Parliament and Statutory Instruments have the force of law and only the courts can authoritatively interpret the law.