Employment Law Bulletin – Issue 143 – 5 March 2013

Wednesday 6 March 2013

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Employment news

Amendments to Enterprise and Regulatory Reform Bill

Various government-sponsored amendments have been made to the Enterprise and Regulatory Reform Bill, which is presently before the House of Lords, including:

  • Disapplying the qualifying period for unfair dismissal where the reason for the dismissal is the employee's political opinions. The purpose of this amendment is to implement the decision of the ECHR in Redfearn v UK;
  • Removing the requirement for protected disclosures to be made "in good faith", while enabling the employment tribunal to reduce compensation by up to 25% where the disclosure was not made in good faith;
  • Requiring the Tribunal to have regard to an employer's ability to pay when considering the financial penalties provided for in the Bill; and
  • Making employers vicariously liable for detriments by a worker towards another because the complainant has made a protected disclosure; while also introducing a defence, modelled on the "statutory defence" in equality legislation, to protect employers who take all reasonable steps to prevent co-workers causing detriments to whistleblowers.

Further details here and here.

Employment case law

European Court of Justice


Alemo-Herron and ors v Parkwood Leisure Ltd Case C-426/11
Where the ownership of an undertaking transfers to a new owner, the employee's contract is not terminated but continues to have effect as originally agreed (TUPE Regulations 2006, EC Directive 2001/23). What happens where the contract specifies that wages will be determined by collective bargaining at an external body, to which the original owner was a party, but the new owner is not? The EAT dealt with this question by determining that the original contract continued to apply (i.e. so that the new employer must give effect to any pay rises agreed through collective bargaining); the Court of Appeal held however that as a matter of EU law this was wrong and the employer could not be bound by decisions to which they were not a party. The Supreme Court has referred this question to the European Court, and the Opinion of the Advocate General is that there is no reason of principal why the new employer should not be bound by collective bargaining decisions. While this Opinion does not bind the European Court of Justice, by convention, it is usually followed by the Court. For the full text of the Opinion, click here.

Court of Appeal

Final Warnings

Davies v Sandwell Metropolitan Borough Council (Rev 1) [2013] EWCA Civ 135
The fairness of a dismissal is determined in accordance with equity and the substantial merits of the case (section 98 Employment Rights Act 1996). It is not unusual for employers, on receiving information of misconduct by a worker, to warn them as to their conduct. Where appropriate, an employer will give the employee a final warning; and simply as a matter of common sense, the employee will know that any further misconduct will be likely to result in dismissal even if the final misconduct was not of such seriousness that it would ordinarily justify dismissal. What happens however, where an employer has never considered evidence which might have caused it to revoke the final warning? In principle, the Court of Appeal has held, it is legitimate for an employer to rely on a final warning, provided that it was issued in good faith, that there were at least prima facie grounds for imposing it and that it must not have been manifestly inappropriate to issue it. Applying these principles, the Court went on to hold that the mere possibility of alternative evidence could not be enough to prevent the employer from being able to rely on the warning. For the full text of the Judgment, click here.

Employment Appeal Tribunal

Reasonable Adjustment

Jennings v Barts and The London NHS Trust [2012] EAT 0056/12
Where a provision, criteria or practice puts a disabled worker at a substantial disadvantage, an employer is obliged to take such steps as is reasonable to avoid the disadvantage (section 20 Equality Act 2010). But when deciding a reasonable adjustment claim, does the reverse burden of proof apply? The EAT has held in the past that the reverse burden does not help in reasonable adjustments cases which it tends to complicate unhelpfully. In a case concerning a worker with depression and various personality disorders who was wrongly diagnosed by his managers as suffering from hypochondria, the EAT held that the Tribunal erred in directing that the claimant's reasonable adjustment case had failed to satisfy the first stage of the burden of proof exercise. In a reasonable adjustment case, the EAT held, the Claimant need do no more than raise an adjustment for consideration. The Claimant does not need to prove anything as to "how the respondent has failed to comply". For the full text of the Judgment, click here.

Notices & coming events

Who is a worker in European Labour Law? And who should be?
21 March 2013, 6:30pm

Nicola Countouris will address the Industrial Law Society on 'Who is a worker in European Labour Law? And who should be?' at the Royal College of Surgeons of England, 35-43 Lincoln's Inn Fields, WC2A 3PE from 6.30pm. More details here.

The Blacklist Support Group AGM
23 March 2013 from 10.30am to 4pm

At Faraday House on Old Gloucester Street, Bloomsbury WC1N 3AE. More details here.


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