It's a trap!

Employment Law Newsletter - May 2016


In this issue ...

  Brexit – the land of milk and honey?   No snooping here  
  No red card   'Policy' or more?  
  Ballots and pickets   Fact as belief?  

Brexit – the land of milk and honey?

It seems there is a divide on the Brexit question between smaller and larger businesses. The former's support for the UK's withdrawal from the European Union (EU) is, we suspect, based significantly on a view that 'red tape' will be substantially reduced. Although the adhesive strip of such hue covers many facets of business activity, one of the better publicised is employment – it is said (and we have sometimes joined in here) that the EU's employment laws, as worded or as interpreted by the European Court of Justice (ECJ), impede efficiency. But, be that as it may, what are the prospects for changes in employment legislation if Britain votes for out?

In and of themselves, the UK's leaving the EU (perhaps two years after the referendum) and the restoration of Parliamentary supremacy would cause minimal automatic change. Westminster's current stock of legislation implementing the various EU Directives would, despite its source, not simply wither on the vine. But, even with new constitutional and legislative freedom, would a UK Government be likely to move to wholesale elimination of such measures from the statute book? Well, not necessarily.

First, any 'substitute' relationship between the UK and the EU, built around freedom of trade and movement of goods, might well require that EU regulatory standards on employment are maintained. And, even without such continuing external control, it is doubtful that there is the political will, appetite or latitude in the short to medium term for widespread change, which would be much more fundamental, costly and disruptive than the recent, politically cheap removal of 'gold plating' from EU-derived laws.

The prime candidates for complete abolition post-Brexit would seem to be UK laws based on EU Directives which are, relatively, peripheral to day-to-day employment activity for most businesses and individuals – those about parity of treatment for agency workers and on works councils, domestic and transnational. To this short list, the TUC suggests, should be added the more central statutory machinery for consultation with employees' representatives, especially about large-scale redundancies. It is true that these collective consultation rules serve to frustrate employers on occasion. However, it is difficult to envisage their withdrawal post-Brexit. In their pared-down form (the minimum 90 days' advance starting point for consultation having recently been halved), they are an established part of a now-limited industrial relations fabric. More significantly, even the Conservatives, the principal advocates and exponents of de-regulation, have recently had to tread carefully in the arena of high-profile closures and relocations.

Moving to more central employment protections driven by the EU, social evolution and political reality look to present an even greater barrier to an 'all change' policy. Certainly, it is difficult to foresee any material dilution of the core 'family-friendly' regimes (unpaid parental leave could be an exception) or, beyond the introduction of a compensation cap, discrimination laws (the substance of which the UK actually 'exported' to the EU).

Even such renowned betes noires as TUPE and the Working Time Regulations (WTR) would be likely substantially to survive, albeit perhaps with some inconvenient aspects removed. So, TUPE's restrictions on harmonising terms and conditions and effecting redundancies pre-transfer would be vulnerable. The WTRs' basic limit of 48-hours on the working week could come under pressure. Additionally, the current effect of ECJ rulings under the Working Time Directive (WTD) about the inclusion of 'on call' hours as working time, calculating holiday pay with reference to non-basic elements of remuneration and accrual of holiday entitlement during sickness would be subject to scrutiny and active exclusion by legislation.

If this analysis holds water, it doesn't look as if Brexit would make life much easier for managers, business people, HR practitioners (or employment lawyers) to an extent that should dictate or seriously influence the debate. Larger employers seem to recognise this and, indeed, to be focusing on another, potentially more significant employment-related consequence of Brexit – the end of the free movement of workers and, therefore, of good labour supply and flexible recruitment. Of course, as another part of the price for a substitute relationship with the EU, some element of the free movement principle might survive Brexit and so continue to assist the competitiveness of British business. But it might not, or it might be ineffectual. That's in the political future. But now we're getting to the point of speculating. In the Brexit debate, that's only a short step from being accused of scaremongering. So we'd better stop here...


No red card

Does an employee's willingness to engage in, even initiate, discussions about a mutual termination under a settlement agreement wipe the slate clean, so that he or she can no longer bring a claim of 'constructive' dismissal relying on the employer's alleged repudiatory behaviour that prompted those discussions?

Not according to the High Court in Gibbs v Leeds United Football Club. Provided the employee's ultimate resignation following the failure to agree terms was in response to the employer's repudiation – and here, the club's assistant first team manager left because, following the first team manager's departure and his own rejection of promotion, he was sidelined to work with the youth academy players – a constructive dismissal claim could proceed.

This has to be correct for policy reasons. While many discussions on mutual termination occur as statutory protected conversations and, as such, cannot be disclosed in later legal proceedings, there are exceptions to that protection and, in any event, other discussions might not be instigated in a way that allows for it.


Ballots and pickets

The Trade Union Bill received the Royal Assent earlier this month. As yet, there are no commencement dates specified, but, when they are later this year, new provisions will:

Require 50% turnout in ballots for industrial action;
Demand 40% support in certain public services;
Create a definitive six-month (or nine-month if employer and union agree) limit for a ballot's validity; and
Impose the need for a 'picket supervisor', who must be identified to the police and be readily available.

No snooping here

Most of us are familiar with the proposition that an employee's conduct outside work can, on occasions, have implications within the workplace and so properly be the subject of disciplinary investigation and action. In Garamukanwa v Solent NHS Trust, the Employment Appeal Tribunal (EAT) has applied an analogous principle to communications from a dismissed employee's personal phone.

Garamukanwa was dismissed for gross misconduct when, having become concerned that a female colleague with whom he had formed a personal relationship was conducting a same-sex relationship with a fellow worker, he sent from his phone anonymous e-mails with malicious content about his two workmates to the Trust's management. In a development of the broad approach of giving employers scope to monitor sources of communications, the EAT concluded that Garamukanwa's Article 8 right to privacy was not engaged by the Trust's investigation and consideration of his e-mails so as to make his dismissal unfair. He could have no reasonable expectation of privacy when his messages concerned work-related matters and were sent to the recipients' work addresses.


'Policy' or more?

In Department of Transport v Sparks, the Court of Appeal (CA) considered whether a 'short-term absence management policy' in a staff handbook had contractual status. It held that neither use of the word 'policy' nor the general premise that it was often desirable for managers to deal with absence in less rigid ways could defeat incorporation into employees' contracts if the provisions were 'apt' for that purpose. Here, those provisions were very precise (about trigger points for taking disciplinary action) and, moreover, the handbook's introduction pointed to 'a distinct flavour of contractual incorporation'.

The message is quite simple. If you wish to have clear thresholds and triggers but, equally, wish to preserve flexibility of action (in both directions), ensure that your policies are clearly stated not to have contractual status.

The CA also observed that, because contractual interpretation by the courts often entails examination of previous editions of employment documentation, the modern practice of electronic publication and irretrievable deletion of those previous editions was far from satisfactory.


Fact as belief?

In Harron v Dorset Police, the EAT has ruled that a person's view that public bodies are improperly profligate with money is capable of being a 'philosophical belief' and, therefore, potentially a 'protected characteristic' under the Equality Act. With apologies to the many working diligently and effectively in the public sector, there is a temptation here to ask why the EAT is being so cautious on something that many of us accept as a given...


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

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.