Monthly Professional Services Newsletter - March 2014
Published 4 March 2014
This month we have wide ranging cases to report on from illegal working to post TUPE harmonisation. The TUPE case illustrates that even if an employer is reducing terms and conditions outside the context of a TUPE transfer, great care should still be taken to ensure proper collective and individual consultation.
Another interesting case concerns whether an employer could rely on its wording in a contract to dismiss summarily for "theft", which was gross misconduct for unfair dismissal purposes. The EAT found they could not and the employee was wrongfully dismissed because the "theft" had not been deliberate. On the subject of contractual wording we also have an EAT case where, because it was not sufficiently clear on what happened to accrued flexi-time on termination of employment, an employee ended up not being paid for over 1,000 hours of work. We also set out some of the legislative changes happening on 6 April in order that you can plan ahead.
Post TUPE Harmonisation
Re-engagement at pre-transfer pay rate upheld
In this case the Court of Appeal upheld the tribunal's finding that two employees were automatically unfairly dismissed for failing to agree to new terms and conditions, and that they should be re-engaged at their former rates of pay.
Gross Misconduct Dismissals
Employer could not rely on express summary termination provision to dismiss lawfully without notice, despite dismissal being substantively fair
In this case the EAT considered whether an employer could rely on a contractual clause which set out examples of misconduct that would entitle them to dismiss an employee without notice.
The EAT allows a successful appellant to recover fees from respondent
In what appears to be one of the first such cases since the introduction of employment tribunal and EAT fees in July 2013, the EAT has ordered a respondent to pay all of the successful appellant's fees for bringing an appeal.
Contracts of Employment
No payment needed to be made on termination for accrued but untaken flexi-time
This case looks at whether a claimant should be paid for accrued hours of flexi-time on the termination of his employment where his contract of employment was silent on this issue.
An employee wins a claim of sexual harassment despite being unlawfully employed
In this case the EAT said illegality was no defence against claims for sexual discrimination and harassment.
What's changing on 6 April 2014?
- ACAS Early Conciliation: Operational from 6 April and prospective claimants required to contact ACAS from 6 May 2014;
- Levy of up to £5,000 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 may be increased to £20,000;
- Flexible working: Changes to the right to request flexible working delayed until 30 June;
- Unfair Dismissal Compensation Cap: Increase to the maximum award.
Employee could bring unfair dismissal claim in respect of events leading up to her constructive dismissal despite a successful internal appeal
This case looks at whether an employee could bring an unfair dismissal claim as a result of her employer subjecting her to a faulty redundancy process which they tried to cure on appeal.