Employment Newsletter: Commercial - April 2014 - DAC Beachcroft

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Employment Newsletter: Commercial - April 2014

Published 8 April 2014

Case law keeps coming thick and fast and this month has been no exception. One of the many interesting cases in this alert concerns covert recordings made by an employee of the private deliberations at her grievance and disciplinary hearings. The EAT decided that the evidence was admissible.

A number of legislative changes were made to employment law on 6 April 2014. One of these, ACAS early conciliation (EC), may turn out be nothing more than an administrative hurdle for prospective claimants, but where ACAS do get involved in negotiations a late change to the legislation means that prospective claimants will have to fill in a separate EC form in respect of each potential respondent. This means that if individuals are named as potential respondents in, for example, potential discrimination claims these individual employees will be called by ACAS about whether the claim can be settled. This late change makes it all the more important that all organisations put in place a structure for dealing with early conciliation and let their employees know what to do if they are called by ACAS. All the April changes are outlined below.

Legislation Update

What changed on 6 April 2014?

  • ACAS Early Conciliation: On 6 April 2014, the government's new Early Conciliation service commenced, operated by ACAS;
  • Levy of up to £5000 may be imposed by the tribunal on losing respondents;
  • Abolition of discrimination questionnaires;
  • Immigration: Maximum penalty for employing someone who does not have the right to work increased to £20,000;
  • Unfair Dismissal Compensation Cap: Increase to the maximum award;
  • Whistleblowing: MPs added to the list of "prescribed persons".

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Dismissal for absence due to post-natal depression was not discriminatory

In this case the EAT found that an employee who had been dismissed after her maternity leave, because of long-term sickness absence arising from post-natal depression, had not been discriminated against either because of her pregnancy or her sex.

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Disciplinary and grievance hearings

Covert recordings of private deliberations were admissible

In this case the EAT decided that covert recordings of the private deliberations of a disciplinary and grievance panel should be admissible in evidence.

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Data Protection

ICO announces that it will bring into force the provision which makes it a criminal offence to require an individual to make a subject access request and disclose the results

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Post termination restrictions

12 month non-compete restriction upheld despite drafting error

In this case the High Court considered whether to enforce a non-compete clause which, because of a drafting error, offered the employer no protection at all. The High Court amended the clause and upheld it.

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Enhanced redundancy payments

Employer's consistent practice meant contractual right to an uncapped redundancy payment was implied by custom and practice

In this case the EAT considered whether an employment judge had mistakenly decided that the employer's consistent practice of not applying statutory caps to redundancy terms meant the claimants had a right to an enhanced redundancy payment.

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There was a service provision change where the "activity" as defined in the contract remained the same, despite the contract being performed in a different way post transfer

In this case the EAT confirmed it had been open to a tribunal to conclude TUPE applied where the responsibility for the distribution of goods transferred from a haulage company to a brokerage.

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Disclosure must materially influence action taken against employee for them to win a detriment case

This case reminds employers that when deciding whether a whistleblower has suffered a detriment because they have "blown the whistle", tribunals must consider whether the disclosure materially influenced the decision or action taken against them.

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The Equality Act contains a drafting error and does prohibit post-employment victimisation

In this case the Court of Appeal overturned an EAT decision and held that the Equality Act 2010 does provide protection against post-employment victimisation.

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Deborah Hely

Deborah Hely


+44 (0)161 934 3025

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