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Employment Law Newsletter - July 2016

 
 

In this issue ...

  Off-season for silly seasons   Absolutely protected  
  The scope of the Acas Code   No excuses  
  Immigration status does not equal nationality   Every cloud...  

And...

Just a quick reminder that Collinson Grant does a lot more than advise clients in all sorts of organisations about the complexities, constraints and opportunities presented by employment law. Our consultants also provide support regularly on: employee relations, reward, restructuring, recruitment, leadership and HR strategy. And we have well-honed skills in operations: managing and reducing costs, organisational design, process improvement, procurement and managerial controls. Do ask if you would like to know more.

 

Off-season for silly seasons

It is almost a British tradition that, during the summer Parliamentary recess, nothing of political consequence is introduced or visibly dealt with, leaving the media with little choice but to unearth trivial stories to tickle the fancy of the consumer until normal service can be resumed in the autumn. There is likely to be a break with tradition this summer. In view of recent events and their continuing consequences, the political silly season has been suspended. We should be surprised if MPs, certainly Government members, had time for a long weekend in Scarborough or Bognor Regis, let alone three weeks in Tuscany.

Like Parliament, this newsletter has a summer recess (the next edition will appear in mid-September). But this regular brief break has never signified the onset of a silly season at Collinson Grant. As always, fitting our Tuscany fortnights around client requirements, we remain open for business and ready to respond to requests for guidance or support. In any event, whether you have cause to contact us or not over the next couple of months, do have a great summer, whatever you are doing and wherever you may be heading.

 

The scope of the Acas Code

On the tin, it says 'The Acas Code of Practice on Disciplinary and Grievance Procedures'. So, must the Code's provisions be applied to any dismissals other than disciplinary ones? According to the Employment Appeal Tribunal (EAT) in two recent cases, the answer is 'no'.

In Holmes v QuinetiQ, the EAT ruled that the Code's application is restricted to situations where there is culpable conduct which appears to require correction or punishment. Thus, while it could extend beyond straightforward misconduct to some situations of poor performance (on the borderline between 'conduct' and 'capability'), it could not cover those where the basic reason for an employee's shortcomings – whether in the form of absence and/or unsatisfactory work - is a genuine illness (pure 'capability').

In Phoenix House v Stockman, the dismissal was for a supposed irretrievable breakdown of the working relationship (so coming within the 'some other substantial reason' category). The claimant, although successful in establishing unfair dismissal, was not (because of that reason for dismissal) entitled to the statutory uplift in compensation for the employer's failure to abide by the Code.

So, that all seems quite clear, doesn't it? Well, except that, other than in quite rare circumstances, an employer would be ill-advised to terminate employment for any reason without adhering to basic standards of 'natural justice' (which are the foundations of the Acas Code). That can be illustrated by the Stockman case, where unfairness was partly procedural, the dismissal meeting having proceeded from the basis that irretrievable breakdown had occurred, leaving the employee to prove otherwise and, so, without a fair opportunity to present her case. In fact, despite its decision on the narrow point of the statutory uplift for failure to comply with the Code, the EAT went so far as to say that elements of the Code could and should be applied to SOSR dismissals. It just didn't say which ones...

 

Immigration status does not equal nationality

In two conjoined appeals, in the cases of Taiwo v Olaigbe and Onu v Akwiwu, the Supreme Court (SC) has handed down a judgment under the Equality Act (EqA) that is of considerable significance.

Both claimants were Nigerian migrant domestic workers, in the UK under visas. They were variously subjected by their respective employers to poor working conditions (including failure to pay the national minimum wage and breaches of working time laws), sub-standard accommodation, abuse and threats. They pursued claims of racial discrimination, on the basis that they were mistreated because of their vulnerable migrant status, a direct product of their 'nationality' (which is within the EqA's definition of 'race').

The SC, with some regret, concluded that the claims must fail. Although accepting that there was a link between nationality and immigration status, it pointed out that being treated unfavourably because one is a vulnerable migrant is not the same as receiving unfavourable treatment specifically because one is a Nigerian national (for example, these employers would probably have meted out the same to a Botswanan national). Given the obvious difference between specific nationality and broader vulnerable migrant status, Parliament's failure to include the latter expressly as a protected characteristic under the EqA meant there was no remedy.

However, the SC did suggest that consideration be given by the legislature to extension of the Modern Slavery Act's enforcement provisions to allow employment tribunals to award compensation for humiliation and distress. With the UK's existing reliance on migrant workers and Brexit's likely consequence of there being more under visas in the future, that recommendation seems sound.

 

Absolutely protected

Much better protected than immigration status is the statutorily-created 'protected conversation', whereby discussions about a settlement agreement cannot be relied upon as evidence in any subsequent tribunal proceedings for unfair dismissal.

In Faithom Farrell Timms v Bailey, the EAT ruled that the scope of this inadmissibility extended beyond the conversation's substance (for example, an offer or concessions about strength of case) to cover also the very fact of its having occurred and any related, internal communications or discussions about it within the employer's managerial team. Creating a second distinction with common law 'without prejudice' rules, the EAT went on to hold that the inadmissible quality of the protected conversation cannot be waived, as the governing legislation does not make provision for that.

Of course, this rigid approach is not to the permanent advantage of either 'side'. But, where a protected conversation and a 'without prejudice' one overlap (or become conflated), typically where claims to be settled encompass both unfair dismissal and discrimination, their different scopes and limitations become more of a minefield for the parties, their advisers and the tribunals.

 

No excuses

In Royal Mail Group v Jhuti, the EAT decided that a decision to dismiss an employee for poor performance fabricated by a manager who also deliberately concealed from the decision-maker the fact that the employee had made a 'protected disclosure' was automatically unfair. Unlike discrimination law, under the whistleblowing provisions the actual knowledge or motivation of the individual decision-maker is not relevant.

What does this mean? First, it puts whistleblowing law with unfair dismissal law, where an employer is treated as a monolith, judged by reference to the fullest knowledge held (or capable of being held) by its managers, not just the individual who decides to dismiss. Beyond that, of course, it commends candour in dealings between managerial colleagues and underlines the importance of full investigation and consideration by a decision-maker – indeed, in Jhuti, the decision-maker did not follow up potential leads to the true situation in several complaints the employee had made to Royal Mail's HR department.

 

Every cloud...

In Sobczyszyn v Skola Podstawowa w Rzeplinie, the European Court of Justice has ruled that a worker prevented by sickness from taking annual leave has the right to carry the entitlement over. There is nothing new in this point – we have known of the position under the Working Time Directive/Regulations for several years now.

So why do we bother to mention Sobczyszyn, particularly as the 'carry over' requirement is part (for employers, an inconvenient one) of the European Union's employment law regime and, as such, draws you back once again to the wretched subject of Brexit just when you were trying to forget about it? Well, because it does allow us to point out that one crumb of comfort in that sorry scenario is that, although many EU-driven laws would continue, this particular aspect of the working time rules is a prime candidate for post-Brexit elimination (see our May 2016 edition). We're not sure that's precisely why most Brexiters voted the way they did though... Once again, have an enjoyable summer.

 

 

 
 
 

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

www.collinsongrant.com/hr

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.