DAC Beachcroft's Employment Matters focuses on some of the most interesting cases and events occurring within the Employment Law sector.Case law developments this month include:
1. Whistleblowing: The motivation behind a whistleblowing dismissal, and whether whistleblowing can be separated from the employee’s conduct.
The Employment Appeal Tribunal (EAT) has upheld a Tribunal judgment that a whistleblower who was dismissed for criticising a colleague was not automatically unfairly dismissed, and confirmed that when determining the reason for dismissal, only in very rare instances will the motives of anyone but the decision maker be attributed to the employer.
2. Age discrimination: Justifying a compulsory retirement age.
The EAT has upheld opposing Tribunal decisions on justification of the same compulsory retirement policy.
3. Privilege: Employer’s email demonstrating a desire to dismiss protected by litigation privilege.
An email between an HR consultant and an employer suggesting a pre-determined decision to dismiss has been held by the EAT to benefit from litigation privilege and not fall within the “iniquity principle”.
4. New legislation: Carer’s leave.
The Government has confirmed that it will introduce a statutory right to carer’s leave.
5. Flexible working: Government consultation and amendment to Agenda for Change.
The Government has launched a consultation on making flexible working the default position, proposing various reforms to employees’ rights to flexible working. Contractual changes have also been introduced in Agenda for Change providing for flexible working.
6. COVID-19: Updated guidance follows end of shielding.
The COVID-19 guidance for people previously considered clinically extremely vulnerable has been updated following confirmation of the end of the shielding programme.
7. Mandatory vaccinations for care staff: Guidance published for those who are exempt from vaccination.
As we have set out in previous alerts, from 11 November, COVID-19 vaccination is mandatory for staff working or volunteering in a CQC-registered care home in England who provide direct treatment or personal care unless they are medically exempt. However, we have been awaiting clarification of how such workers prove that they are exempt. Those details have now been published and in this article we look at what is required for self-certification and the NHS COVID Pass.
8. Data protection: Consultation on the Information Commissioner’s Office Employment Practices Code.
The ICO is planning to update its Employment Practices Code and has issued a “call for views” from interested parties.
