BHW Employment Law

NewsletterWinter 2013

Welcome to the Winter 2013 edition of the BHW Employment Law Newsletter.

Why is it important for employers and employees to be clear on the effective date of termination? Our article on page 3 considers the legal implications in getting this wrong.

Can emails raising concerns about the dangers of driving in snowy conditions amount to a qualifying disclosure? Our article on page 4 focuses on a recent case.

Page 5 considers how far employers need to go to accomodate their employees religious beliefs.

What happens to your employee’s LinkedIn account when they leave? Page 6 looks at a recent High Court decision.

2014 looks set to bring in signifi cant legal changes/decisions. An overview is set out at page 7.

We look at the most common issues raised at a Disciplinary Hearing at page 8.

Finally, if you have any questions relating to the articles featured in the Newsletter or would like advice on a particular query you may have, please do not hesitate to contact me to discuss further.

Laura AllansonHead of Employment0116 281 6237 laura@bhwsolicitors.com

Inside this issue

The effective date of termination 3

Could the concern of an employer about their employees driving in the snow amount to a ‘qualifying disclosure’? 4

How far do employers need to accommodate their employees religious beliefs? 5

When is it reasonable to refuse suitable alternative work in a redundancy situation 5

Former employee ordered to give employer log-in details of LinkedIn account 6

Signifi cant changes/decisions expected in 2014 7

The most common issues raised at a Disciplinary Hearing 8

BHW Employment Law

Newsletter

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Editor Laura Allanson. Articles produced by Laura Allanson and Claire Bell.

Laura Allanson is an Associate Solicitor and heads up the Employment department.

She has over 11 years’ experience of dealing with contentious and non-contentious employment matters. Laura joined BHW after 10 years with the National Farmers Union (NFU) and has a wealth of agricultural and horticultural knowledge. Laura has a real ability to ensure that her client’s problems are resolved in a cost-effective and timely manner.

Claire Bell is a Solicitor in the Dispute Resolution and Employment departments and is involved with varied employment and dispute resolution work.

Claire completed a 13 month secondment with the Amateur Swimming Association and gained extensive experience of sports law during her time there.

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The effective date of termination When an employee says that they have no alternative but to resign, it is unclear when the employment relationship comes to an end given the “heat of the moment” resignation.

The effective date of termination is crucial as it will determine whether or not the ex-employee has the requisite service to bring a claim for unfair dismissal, whether or not a claim is brought in time in the Employment Tribunal and for calculating the basic award in an unfair dismissal claim.

The recent case of Secretary of State for Justice v Hibbert explored this point.

Further to Mrs Hibbert’s grievances not being upheld by her employer, on the 29th June 2012, she wrote to her employer stating the following:

“I am of the view that there has been a fundamental breach of my employment contract by my employer and I have no alternative but to resign from my position”. The employer attempted to persuade her not to resign and gave her fi ve days to review her decision.

Mrs Hibbert’s resignation was accepted by her employer on the 11th July 2012, but also informed

her that she was required to give four weeks’ notice and therefore her last working day was the 27th July 2012.

Mrs Hibbert subsequently lodged an unfair dismissal claim which was more than 3 months from her letter of the 29th June 2012 but it was within three months of the 27th July 2012.

The Employment Tribunal considered whether her claim was lodged in time. Mrs Hibbert argued that her employment terminated on 27th July 2012.

The Employment Tribunal ruled that her resignation took effect from the 27th July 2012, they also stated that her letter was “unambiguous as to resignation, but not as to the date on which the termination of the contract should take effect or as to whether any notice was given or the date on which it would expire”.

The Employment Appeal Tribunal ruled differently that the wording was in fact unambiguous. There was no question of Mrs Hibbert resigning

in the heat of the moment or being pressured to do so, therefore her employment terminated on the 29th June 2012 and therefore her claim was out of time.

The case demonstrates the importance of the date of the resignation being certain and therefore when the employee resigns, then the working relationship also ends.

Previous cases have shown that the employer should check the employee’s real intention and may wish to agree a resignation date. In cases where the employee is determined to resign, then the effective date of termination will be the date the resignation was provided.

If there is any doubt of the employee’s intention then a cooling off period of a day or two is advised. A resignation in the heat of the moment may not actually amount to a resignation.

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The Employment Appeal Tribunal (EAT) has upheld a tribunal decision that three e-mails raising concerns about the dangers of driving in snowy conditions amounted to a qualifying disclosure for the purposes of the whistleblowing provisions of the Employment Rights Act 1996.

The EAT has held in the case of Norbrook Laboratories (GB) Ltd v Shaw that a manager’s concerns about employees driving in snowy conditions could amount to a ‘qualifying disclosure’ about health and safety for the purpose of whistleblowing protection, despite being expressed in three separate e-mails to two different recipients.

S managed a sales team whose work included driving to customers and potential customers to obtain sales. The winter of 2010 was particularly severe and members of S’s team raised concerns with him about driving to appointments in the snow. S e-mailed NL Ltd’s health and safety manager asking whether the company had a policy concerning driving in the snow and whether it had done a risk assessment. When S received replies in the negative to both questions he sent a follow-up e-mail to the same manager asking for formal guidance, stating that his team was under a lot of pressure to keep on the roads and that it was dangerous. Several days later, following queries from his team, S e-mailed a member of NL Ltd’s HR department asking whether they would be paid if they were unable to attend appointments because of the snow. In the same e-mail, S said that he had driven on the roads himself, knew how dangerous they could be, and that he had a duty of care towards his team.

S sought to rely on these e-mails as a ‘qualifying disclosure’ for the purpose of claims that he subsequently

brought under Ss.47B and 103A of the Employment Rights Act 1996 alleging that he had been subjected to a detriment and ‘automatically’ unfairly dismissed on the grounds of making a protected disclosure. To qualify for these purposes, a disclosure of information is ‘protected’ if it tends to show any of the matters set out in S.43B(1), which include that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he or she is subject (S.43B(1)(b)) and that the health or safety of an individual has been, is being or is likely to be endangered (S.43B(1)(d)).

At a pre-hearing review, an employment judge concluded that S’s communications taken as a whole were capable of amounting to a qualifying disclosure within S.43B(1)(d) ERA. Although S was to some extent expressing an opinion, the judge concluded that S was also informing his employer that the road conditions were so dangerous that the health and safety of his team was being placed at risk. Consequently, his claims of detriment and automatic unfair dismissal could proceed. NL Ltd appealed.

The Employment Appeal Tribunal (EAT) upheld the employment judge’s decision that the three e-mails taken together could amount to a qualifying disclosure within the meaning of S.43B(1) ERA even though they were not sent to the same individual or department, and taken separately each e-mail was not such a disclosure. The EAT referred

to a previous case of Goode v Marks and Spencer plc which was authority that an earlier communication can be read together with a later one as ‘embedded’ in it, rendering the later communication a protected disclosure even if, taken on its own, the later communication would not fall within S.43B(1). It was clear in S’s last e-mail that he was referring to earlier communications and its recipient could have been in no doubt that these had been about the danger of driving conditions to his team.

Furthermore, in drawing attention to the danger posed to his sales team of driving in snowy conditions, S was not just expressing an opinion or making an allegation, which case law has established do not amount to qualifying disclosures. It was unnecessary for S to provide additional information as to which territories or members of his team were affected. In fact, in the EAT’s view, it was unsurprising that S had given no more specifi c information since the weather conditions would no doubt change from time to time and from area to area.

Since the qualifying disclosure that S relied upon fell within S.43B(1)(d), there was no need to consider whether it also amounted to a breach of a legal obligation so as to fall within S.43B(1)(b). S’s claims could proceed to a full hearing.

It is advisable for employers to have a policy on adverse weather to ensure that it has exercised its duty of care.

The Employment Appeal Tribunal (EAT) has upheld a tribunal decision

E-mail correspondence taken as a whole amounted to a qualifying disclosure

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How far do employers need to accommodate their employee’s religious beliefs?Many will recall the recent media coverage concerning Marks & Spencer’s (M&S) policy of allowing their members of staff to refuse to service customers who are trying to buy pork or alcohol. This generated much comment. M&S have indicated that in the event an employee’s religious beliefs restrict their ability to handle food or drink, then M&S will work closely with the particular employee, to make sure that they are placed in a suitable role. Unfortunately, on the occasion which made the headlines this was not the case.

What does the law say?

Equality legislation states that employers must not indirectly discriminate against employees by applying a policy or practice that applies to all employees regardless of their religion or belief but the effect of disadvantaging employees of a particular religion or belief, unless the employer can demonstrate justifi cation for the policy or practice.

The Tribunal and Courts would need to determine:

1. Whether or not an objection to handle certain goods were “intimately” linked to the religion or belief and;

2. The policy in question would disadvantage the employee and others who shared his or her religious belief.

If the answer to both of the questions is yes, then they would then need to consider whether or not the employer could be justifi ed in their actions.

The test would be whether or not there was a real business need (legitimate business aim). In this case that the supermarket’s customers should be able to purchase all their groceries from each checkout without having to wait, and whether or not the policy is proportionate to that aim.

This will require a balancing act between the needs of the employer and the discriminatory effect of the policy. Each case would depend on its facts.

Employers are always advised to have a policy to consider employee requests and accommodate them as far as is practical.

When is it reasonable to refuse suitable alternative work in a redundancy situation?The Court of Appeal case of Readman v Devon Primary Care Trust, has recently addressed the test for whether an employee is considered to be acting reasonably if they refuse what appears to be suitable alternative employment.

The Court of Appeal decided that the matter should be remitted back to the Employment Tribunal on the basis that the test is not to “import” the band of reasonable response test which applies in unfair dismissal cases, but whether the employee in their particular situation, acted reasonably in refusing the offer of employment.

The Employment Appeal Tribunal (EAT) had previously found that the employee in this case had not unreasonably refused an offer of suitable alternative employment and was therefore entitled to receive their statutory redundancy payment.

This case involved a nurse employed by a NHS Trust since 1976. The employee nurse was employed as a community

modern matron responsible for around 120 staff. Following an amalgamation of services, the employee nurse found that she was at risk of redundancy.

There were three offers made to the employee nurse of alternative work, two were at a lower grade and one at the same grade based at the hospital where the employee nurse’s offi ce was based. The employee nurse decided to reject this offer on the basis that her career path and qualifi cations were in community nursing.

The employee nurse did eventually commence employment in one of the roles on a lower band but subsequently received a job offer for a position in Vancouver, Canada and therefore terminated her employment during her trial period.

The employee nurse brought a claim in the Employment Tribunal (ET) for payment of her statutory redundancy payment. The ET found in favour of the employer in that the offer made was of suitable alternative employment, which

had been unreasonably refused by the employee nurse.

The employee nurse appealed to the EAT which found that the ET had not considered the employee’s reason behind her decision that she had no desire to work back in a hospital environment and that this was therefore a justifi able reason for the refusal. The EAT found that the decision to refuse the offer had been within the band of reasonable responses. The employer appealed.

This case will be of concern to those employers where there is an incentive to redundancy over redeployment, such as the NHS, local government or situations where long service exists. This decision supports the trend that employees who have fairly subjective grounds for refusing alternative employment following restructures in particularly the NHS and local government meaning that these situations are potentially more expensive and challenging than fi rst thought.

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Former employee ordered to give employer log-in details of LinkedIn accountThe High Court has ordered that a former employee hand over the details of their LinkedIn account which they set up during their employment, despite the account also being used for personal purposes. Whitmar Publications Ltd v Gamage and others

Three long-term senior employees of a publishing company resigned from their senior positions on 7th January 2013, stating their intention to set up a competing company.

After their departure, it emerged that in fact the competing company had been established during their previous employment.

The three employees had allegedly while still employed by Whitmar solicited or attempted to solicit client’s and staff, used confi dential information, used LinkedIn groups that were managed on behalf of Whitmar in attempts to market the new company and take circulation lists and customer databases when they left.

When one of the employees was questioned regarding the use of the LinkedIn groups, they claimed that they were her own personal hobby. She refused to reveal the username and password to Whitmar and continued her use of the account post resignation.

The High Court upheld Whitmar’s application for an injunction, pending a full trial of the issues, as they found strong evidence that active steps had been taken by their former

employees for over a year before their resignations.

The High Court also ruled that the information that had been removed by Whitmar was suffi cient to provide the new company with a competitive advantage.

Following reviewing the use of the LinkedIn account, the High Court ordered that the employee should deliver up the details that would enable Whitmar to access and amend the database.

The Court concluded that the LinkedIn account was the property of Whitmar and the log-in details should be passed to it as they allow ownership of the account.

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Signifi cant legal changes / decisions expected in 2014There are a number of very important employment law cases pending on the following:

1. Collective redundancy consultation

As a result of a decision of the Employment Appeal Tribunal, an employer that is proposing 20 or more redundancies across the whole organisation within a period of 90 days or less will have collective consultation obligations. This matter will now be put before the Court of Appeal.

2. Calculation of holiday pay

The Employment Tribunal referred to the ECJ a number of questions on the relationship between holiday pay and commission, including whether or not “normal pay” when calculating pay for annual leave should include those contractual payment which are received through commission.

3. Post - employment victimisation

Two separate Employment Appeal Tribunal cases have arrived at different decisions regarding whether or not the wording of the Equality Act 2010 covers victimisation that occurs after the end of employment. The Court of Appeal will decide which decision is right.

4. Maternity rights for mothers in a surrogacy arrangement

As UK Law stands, mothers in a surrogacy arrangement do not have the same employment rights as conventional mothers, although the government has said that they will look to amend domestic maternity laws to take in account surrogacy.

5. Discrimination against civil partners in pensions

The Employment Tribunal held that the Equality Act 2010 failed to provide the necessary protection under EU law for a couple in a civil partnership who were denied accrual of benefi ts to which married couples were entitled to under a pension scheme. The EAT is currently considering whether this decision is correct.

6. Disability discrimination

A Danish court has referred to the ECJ various questions about whether or not obesity is covered by EU legislation, including whether or not obesity can be deemed to be a disability under the Equal Treatment Framework Directive.

Keep looking out for these decisions and their implications in future issues of our Employment Newsletters.

Legislation update

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The content of our Newsletter is provided for general information purposes only and does not constitute legal or other professional advice. This fi rm is authorised and regulated by the Solicitors Regulation Authority - SRA number 383490

We have developed the BHW Employer Support and Protection Schemes to support and protect employers of all sizes with their employment needs. If you would like more information on the schemes please contact Laura Allanson on 0116 281 6237 or email laura@bhwsolicitors.com

The most common issues raised at a Disciplinary Hearing XpertHR asked employers over a two year period how frequently each of the following issues were the subject of disciplinary action.

The Respondents in the survey could answer “never”, “occasionally” or “frequently”. The research looked at the procedures of 166 employers. In the two years that were examined, the organisations surveyed handled 5,145 instances of disciplinary action. The results are as follows:

Disciplinary Offence

Frequently Occasionally Never

General Misconduct

43% 50% 7%

Poor Performance/Capability

87% 13%

Poor Timekeeping 16% 59% 25%

Unauthorised absence

70% 30%

Misuse of email, internet or social media

4% 58% 38%

Bullying and Harassment

3% 53% 44%

Theft or Fraud 7% 40% 53%

Health and Safety 7% 42% 51%

Violence 0% 27% 73%

Substance misuse 1% 25% 74%

Discrimination 0% 19% 81%