The most controversial employment decisions of 2016 and the repercussions for HR professions - ANSWERS

Transcription

1 The most controversial employment decisions of 2016 and the repercussions for HR professions - ANSWERS Partners Employment Lawyers

2 1. Can an employer require an employee to divorce, in order to keep a job? Pendleton v Derbyshire County Council and another (2016) (EAT) The EAT held the dismissal was religious discrimination. Surprisingly, the EAT suggested that a person of faith who believes in the sanctity of marriage can be placed at a particular disadvantage if the employer requires him or her to end a marriage with a convicted sex offender. This is unlikely to be the last employment case in which an employer has to weight up whether or not to dismiss an innocent employee who works with children because of a third party s wrongdoing (for example, a relative s conviction for sex offences).

3 2. Can an employer dismiss an employee for pulling a sickie? Metroline West Ltd v Ajaj; Ajaj v Metroline West Ltd (2016) (EAT) This case does not say anything that the seasoned HR professional will not already know about a malingering employee. The EAT confirmed that an employee who makes up, or exaggerates the effects of, an injury or illness to take fraudulent sick leave is fundamentally breaching the implied term of trust and confidence. This could entitle the employer to dismiss for misconduct (not capability). A dismissal for fraudulent sick leave must be based on reasonable grounds, following a reasonable investigation.

4 3. Is immigration status nationality? Onu v Akwiwu and another; Taiwo v Olaigbe and another (2016) (Supreme Court) In this case, the Supreme Court did not extend the definition of race/nationality to include immigration status. The mistreatment of two migrant workers on the basis of immigration status did not amount to race discrimination. This case could take on added significance in the next few years if employers find themselves having to dismiss workers who lose the right to work in the UK because of Brexit.

5 4. When are you entitled to a rest break? Grange v Abellio London Ltd (2016) (EAT) The EAT held that an employer has a proactive duty to ensure a worker's entitlement to take a rest break, regardless of whether it has been requested. If a worker s daily working time is in excess of six hours, they are entitled to a rest break of 20 minutes under the Working Time Regulations If a worker is refused this right, they can bring a claim in the employment tribunal. The EAT said that entitlement to a rest break will be refused if the employer puts in place working arrangements that fail to allow the taking of 20 minute rest breaks.

6 5. Can pay protection be a reasonable adjustment? G4S Cash Solutions (UK) Ltd v Powell (2016) (EAT) The EAT accepted that, while not an everyday event, there is no reason why pay protection cannot be a reasonable adjustment as part of a package of measures to get an employee back to work. Changing a disabled employee s duties will often be a sensible and reasonable adjustment for an employer to make in respect of a disabled employee. Generally an employer has been able to approach the matter on the basis that the employee will be paid the going rate for the revised role, which may involve a reduction. Mr Powell s case will encourage employees to argue that their existing higher pay should be maintained.

7 6. EAT limits scope of Acas discipline and grievance code Phoenix House Ltd v Stockman and another (2016) (EAT) The Acas code of practice on disciplinary and grievance procedures applies where an employer is disciplining or dismissing an employee for misconduct or poor performance. On appeal the EAT upheld the Tribunal s decision that Mrs Stockman s dismissal was unfair. However, it found that the ACAS Code does not apply to dismissal for some other substantial reason and the EAT declined to accept that there should be an uplift in compensation.

8 7. Does holiday pay include commission? British Gas Trading Ltd v Lock and another (2016) (Court of Appeal) In this case, the Court of Appeal followed the trend in recent years by accepting that holiday pay must include more than just base pay. The Court of Appeal concluded that the Working Time Regulations 1998 can be interpreted to require results-based commission to be included. British Gas is expected to appeal the decision one last time to the Supreme Court.

9 8. Is the refusal to provide childcare vouchers during maternity leave discrimantory? Peninsula Business Services Ltd v Donaldson (2016) (EAT) In this case, the employment tribunal held that a clause limiting an employee s entitlement to childcare vouchers during maternity leave was discriminatory because of sex and was unfavourable treatment because she was asserting a right to maternity leave. However, the ET decision was overturned by the EAT. The EAT found that employers that make deductions from an employee s salary in return for childcare vouchers do not have to continue to provide the vouchers during maternity leave. According to the EAT, the position is different if childcare vouchers are provided in addition to the employee s salary. If this is the case, they are a benefit and must continue during maternity leave.

10 9. How much should employers pay those on shared parental pay? Snell v Network Rail (2016) (employment tribunal) The employment tribunal concluded that paying a male Network Rail employee only the statutory minimum shared parental pay, while his wife (also a Network Rail employee) received full pay, was blatantly discriminatory. The case cost Network Rail over 28,000, prompting nervous HR professionals up and down the land to check their own shared parental leave policies.

11 10. Are uber drivers self-employed or workers? Aslam and others v Uber BV and others (2016) (employment tribunal) The employment tribunal accepted without hesitation that the drivers are workers, giving them access to some employment rights such as to receive the national minimum wage and be paid annual leave. In its extraordinary judgment, the employment tribunal severely criticised Uber for the lengths it went to mask the true nature of its relationship with its drivers. Despite the one-sided nature of the decision, Uber is expected to appeal to the EAT.