Employment

In Christou (1) Ward (2) v London Borough of Haringey the Court of Appeal upheld what may seem the surprising decision that an employer could revisit an earlier disciplinary decision to give a written warning for misconduct and decide to dismiss the employee after all. It would not be wise, however to treat this as any kind of general rule as it arose from fairly unique circumstances. The case related to dismissal of a social worker and team leader working for Haringey who were responsible for the safeguarding of Baby P, who died as a result of neglect and mistreatment by his mother and two men.

Prior to the Equality Act 2010, it had been recognised for quite a while that acts of victimisation taking place after the end of the employment relationship were unlawful under predecessor legislation (See Rhys Harper v Relaxion Group PLC [2003] UKHL 33). This would cover, for example, refusing to give an employee a reference for discriminatory reasons. However, it seems that the Equality Act doesn’t clearly cover this situation – although it is certain that this is not intentional. Notwithstanding an earlier ET decision which interpreted the Act purposively, and EHRC guidance suggesting that post employment victimisation is covered, in Rowstock Ltd v Jessemey, the EAT has made it plain that it would not be right to fill the gap in the legislation judicially, because:

The government has published “Employment Law 2013: progress on reform” which notes both that in the UK, “burdens from employment law are low by international standards”, and that there is a perception that employment regulation is a problem (perhaps fuelled by exercises such as the “Red Tape challenge"?), leading to a situation where “fear of getting it wrong still undermines business confidence”. To help to counter this fear (where many employers appear to be under the impression that the ill-fated compulsory dismissal procedures are still in force) ACAS are to develop an online interactive tool for use to help with disciplinary issues.

Redundancy selection can be a tricky business; faced with having to choose between a number of employees how do you make sure you do so fairly? Well, the standard advice is to establish a set of objective criteria and apply those. And very good advice it is too, but Mental Health Care (UK) Ltd v Biluan & Anor shows that it is possible to go too far in the quest for objectivity.

Employment Tribunals have a limited power to extend the 3-month time limit for bringing unfair dismissal claims where it was “not reasonably practicable” for a claimant to make a claim in time.

After we reported a case in last month’s newsletter (Simmonds v Milford Club) where it was thought appropriate to revisit previous warnings if they were “manifestly inappropriate” in considering the fairness of a misconduct dismissal, Davies v Sandwell Metropolitan Borough Council emphasises that that was very much the exception to the rule.

In Vaughan v London Borough Of Lewisham & Ors the EAT considered the question of the admissibility of covert recordings in ET proceedings. The claimant, who had raised a number of claims against Lewisham, made a blanket application that 39 hours of recordings she had covertly made at work should be admitted in evidence. The Employment Judge refused to admit the recordings. The claimant had not given access to any of the original tapes, or provided transcripts, and without knowing what the contents of the recordings, she could not form a view on whether they were relevant to the allegations made.

HM Revenue & Customs has announced a concession for employers of fewer than 50 employees allowing them to delay the full implementation of the new "Real Time Information" PAYE reporting scheme until 5 October 2013. Until then, smaller employers may provide the information when they do their usual payroll run, so long as it is not after the 5th of the month.

It was a mistake, the EAT held in Walker v Sita Information Networking Computing Ltd, for an ET to say that a claimant was not disabled because there was no identifiable or recognisable pathological or mental cause for his “constellation of symptoms”. The tribunal had been wrong to concentrate on the fact that there was no physical or mental cause for the impairments suffered – the point to look at was what effect the impairments had on everyday life, except where there was any doubt as to the genuineness of the symptoms.

With employment law changing so frequently, we are mindful that employers may find it hard to keep up to date with the latest regulations. Please download our guide to current key facts and figures relating to employment law. We hope that you will find this a valuable resource.