The Queen’s Speech

 
The Queen’s speech which took place on 21 June, set out details of legislation that the government intends to carry over into, or introduce in, the 2017-19 Parliamentary session. Employment measures include:
 

• An increase in the national living wage (NLW) to 60% of median earnings by 2020. After this it will continue to rise in line with average earnings.
• The Immigration Bill will establish a new national policy on immigration, including new powers concerning the immigration status of EEA nationals. The Bill will allow the government to repeal EU law on immigration, which would otherwise have been saved and converted into UK law by the Repeal Bill.
• A new Data Protection Bill will replace the Data Protection Act 1998 and implement the EU General Data Protection Regulations (GDPR) putting the UK in a position to maintain the ability to share data with EU member states after Brexit.
• The government states that it intends to make further progress in tackling the gender pay gap and reducing discrimination on all grounds.

 
Cancer patient and redundancy
 
The claimant went into hospital for an operation for renal cancer and was absent from work for a couple of months. Shortly after his return he was informed of his potential redundancy. Consultation followed and the claimant was then dismissed for redundancy. Amongst other claims he brought a claim for discrimination because of something arising in consequence of his disability.
 
At first instance the tribunal noted that there was some link between the claimant’s absence and his dismissal as his absence gave his employer the opportunity to realise that it could manage without him. However, the tribunal held that his absence was not an effective or operative cause of his dismissal.
 
The EAT emphasised that every case will depend on its particular facts.
 
Maternity Pay comparative
 
An employment tribunal has held that a man was entitled to compare himself with a woman receiving enhanced maternity pay for the period following her two -week compulsory maternity leave period and that the failure to enhance his shared parental pay amounted to direct sex discrimination.
  
As things stand, the only decisions on shared parental leave and enhanced pay have been at tribunal level so there is no binding case law.
 
This case is being appealed, as is another case, it will be interesting to hear what the Employment Appeal Tribunal has to say.
 
Bus Driver wins unfair dismissal case

A bus driver ran a red light and won his case for unfair dismissal, after a judge ruled that a “five second” lapse in judgement should not discount more than 30 years of good service.

Abdul Jabbar worked for National Express West Midlands for 37 years.  Although the 59-year-old driver did not deny that he had skipped the lights, he claimed the company’s decision to sack him was too harsh and was inconsistent with the treatment of other drivers involved in similar incidences.  While Jabbar acknowledged that the incident was not “trivial”, he noted it was the type of offence that other employees had received warnings or final warnings. Before the incident took place, the bus driver had neither been involved in a driving accident nor received a driving penalty for 32 years.

In handing down the judgment, judge Glyn Lloyd accepted that Jabbar’s actions were “a five-second momentary lapse of concentration on his part, by a driver who sits in the cab facing the unpredictable environment of busy city roads eight to 10 hours each day”.  Final elements of the case are still being resolved with claims of race and age discrimination also linked; things are by no means straightforward. 

A woman has been awarded £25,000 in compensation

Lewandowski was initially employed on a year-long contract due to end in March 2016. She said her employer told her the contract would be extended for a year, but after the news of her pregnancy came to light she was informed this would no longer happen.

Lewandowski told Leeds Employment Tribunal that her contract had been verbally extended in early 2016 after she had been promoted and awarded a pay increase. However, the agency did not provide written confirmation of the extension.

Lewandwoski said she spent five weeks “chasing” the written terms of her extended contract, which would have kept her in her role until March 2017. She was later dismissed, shortly after announcing her pregnancy.

“I loved my job – I was punished for being pregnant,” she said, adding that the experience had caused her to lose trust and confidence in her current and future employers.

The agency denied Lewandowski lost her job because of her pregnancy, telling the tribunal that she was dismissed because of redundancy, and that her fixed-term contract had expired. 

However, the tribunal found that the agency had offered “unreliable” evidence. The tribunal said the agency’s behaviour was  “substantially and procedurally unfair”, stating that firing an employee over their pregnancy was a “serious act of discrimination”.

Lewandowski was awarded £9,130 for financial loss of earnings including interest, £15,600 for injury to feelings and £435 for loss of statutory rights.
 
Dress code – No Bra!

A woman has claimed she was fired for not wearing a bra to work. Kate Hannah, who worked in a bar, says she was left feeling upset and disgusted with the “blatant lack of respect for my right as a woman to wear whatever makes me personally comfortable”. Her employer has denied the dismissal.
The claim that Ms Hannah’s attire was brought into question following a derogatory remark about her appearance. Ms Hannah claims that an “inappropriate sexual remark” was made, which led her to feel uncomfortable and “objectified”. She says her manager’s response was to tell her she was “not allowed to work in the future unless I’m wearing a bra”. 

Watch this space!
 

TUPE and bonuses

The Employment Appeal Tribunal (EAT) has found that the Tupe rules on transferors informing transferees of their obligations towards transferred staff does not extend to specifying whether a bonus is contractual or not.
 
The case, Born London v Spire, involved a change-over in contractor carrying out print finishing work on the catalogues of auctioneers Sotheby’s. When providing employee liability information under Tupe, Spire had said that a Christmas bonus was non-contractual. In fact, the status of the bonus was unclear, but all 32 staff had always received it. Born was unable to recover the cost from Spire, because the EAT said the transferor had complied with the regulations.
 
When to apply suspension
 
Suspension will normally be appropriate where: if proven, the employee’s conduct would be sufficiently serious to be grounds for summary dismissal; the employer has reason to believe that the employee might deliberately cause damage or create problems if allowed to remain at the workplace; or the employee’s continuing presence at work might prejudice the investigation in some way. It is not usually however, appropriate in cases of minor misconduct.
 
A recent High Court decision, found that the suspension of a teacher amounted to a breach of the implied term of mutual trust and confidence.
 
In this case the teacher concerned was suspended because of the force she used with two children. However, she had not been asked for her response to the allegations and there was no evidence of consideration given to any alternative to suspension. She resigned the same day.
 
The High Court found that the suspension was not a neutral act, at least in the context of a qualified professional in a vocation, such as a teacher. It also considered the statutory guidance for local authorities to avoid knee-jerk reactions and not to default to suspension in such circumstances. It is also of note that the reason given for the suspension was not the protection of children, but to “allow the investigation to be conducted fairly”.
 
Whilst there are some fairly specific circumstances surrounding this case, including the local government guidance and the professional status of the claimant. It does highlight the importance of considering the individual circumstances of a situation and not automatically defaulting to suspension in cases of suspected gross misconduct.
 
When is a sub-contractor or contractor (or self-employed person) an employee?
 
Employers may believe that by engaging a person to carry out work on a self-employed or sub-contractor basis, they side-step the requirement to enter into an employment relationship and all the risks and obligations that come with that relationship.
 
All too often these ‘self-employed’ workers and the sub-contractors are actually, in reality employees in disguise.
 
Whether someone is an employee is a notoriously tricky question to answer. There is no hard and fast definition. A lot of it boils down to how much control you, as the employer have over that person and their work. If the control is high, the likelihood is, that person is an employee.