Employment Law Bulletin – Issue 160 – 14 January 2014

Tuesday 14 January 2014

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Employment Law News

Low-paid government workers go to law over pay freeze

About 250 workers in the House of Commons will launch legal action this month in an attempt to show that the 2011 decision by Chancellor George Osborne to scrap their automatic annual pay increases, amounted to a breach of their contracts of employment. To read more, click here.

Minority ethnic workers in UK twice as likely to be unemployed as whites

Some of Britain's most disadvantaged minority ethnic groups are more than twice as likely to be unemployed than their white counterparts, official figures recently released show. In September 2013, the Department for Work and Pensions found that the unemployment rate for white people aged 16-24 was 19%. The rate was 46% for young members of the Pakistani and Bangladeshi community and 45% for young black people. All minority ethnic groups in the study had a higher joblessness rate than white people, especially those under 25. To read more, click here.

Employment Case law

Court of Appeal

A, R (On the Application Of) v The Chief Constable of Kent Constabulary [2013] EWCA Civ 1706

Enhanced Criminal Record Certificates | Disclosure of allegations made during employment

The respondent (A) was an experienced senior nurse who had qualified in Nigeria. She relocated to the UK in 2006 and then worked in various nursing homes. In 2010 she commenced work with Southern Cross Healthcare in a nursing home as a staff nurse. During the course of her employment, other members of staff made serious allegations against her amounting to criminal offences. A was dismissed following an investigation but she was fully reinstated following a successful appeal of the dismissal. However, despite her reinstatement, A resigned as she was upset at the way she had been treated.

In accordance with the law, the allegations that led to the dismissal were referred to the Independent Safeguarding Authority (ISA). The ISA decided not to include A on any barred list following their investigations. Kent Constabulary (the appellant) then referred the matter to the Nursing and Midwifery Council. The appellant conducted their own investigation into the allegations concluding with the Crown Prosecution Service offering no evidence and A was acquitted of all the allegations.

Despite the fact that the allegations against her had not been proven and A was formally acquitted, when she applied for another nursing post, the appellant police force disclosed the detail of the original allegations made against her.

In dismissing the appeal, the Court of Appeal (Beatson LJ delivering the decision of the Court) held that the disclosure of the allegations under the ECRC procedure was disproportionate given the serious questions over the reliability of the allegations and A's good working record. Click here to read the full decision.

Mr Ian McCubbin v Perth & Kinross Council [2013] EAT 0025/13

Disability Discrimination | Constructive knowledge of disability

The claimant is a school teacher who started work with the respondent in 1976. At the date of the hearing before the Employment Appeal Tribunal (EAT) he was still employed by the respondent and had been re-deployed to a different school. In August 2012 he commenced claims against the respondent for, among other things, disability discrimination, the disability being clinical depression.

The Tribunal below made a number of factual findings on the issue of his disability and the respondent's knowledge. They found that the claimant had suffered from two periods of feeling "down" when he was 20 and then again when he was 23, and that he was first diagnosed with clinical depression in July 2010. The Tribunal also found (again, one of a number of findings on the topic of "knowledge") that the claimant told the deputy rector of the school during a meeting in March 2010, that he suffered from work-related stress. Nonetheless, the tribunal found that the respondent actively and constructively knew of the disability only from 25 September 2010.

The claimant appealed this decision. In upholding the appeal and remitting the case back for a decision on knowledge, the EAT (Slade J) held it was not convinced that the Tribunal had applied the law properly in relation to whether the respondent "could reasonably be expected to know" that the claimant was disabled. Click here to download the decision.

Mr L Garcia v Market Probe Europe Ltd [2013] EAT 0024/13

Drafting of ET1 | Whether certain claims included

The claimant drafted and filed his ET1 form either by himself or with some limited assistance. In the ET1 he stated that he wished to make claims for unfair dismissal, detrimental treatment and unlawful deduction of wages. The Tribunal concluded that this did not include a claim of public interest disclosure and ruled that the claimant would either have to amend or bring a fresh claim. The EAT, in allowing the appeal, noted that the claimant did not have professional assistance in drafting the ET1 and in those circumstances the form should be read generously. Click here to download the judgment.

Employment Law Events

Employment Lawyers' Association Lecture: A Shared Platform with John Cridland, Director-General of the CBI and Frances O'Grady, General Secretary of the TUC
Tuesday 4 February, London, 19:00 - 20:00
CPD: 1 Hour
For more information, click here.

The Industrial Law Society: Toleration in the workplace
The Royal College of Surgeons, 35-43 Lincoln's Inn Fields, London, WC2A 3PE
February 11 2014, 18:30 -20:00
CPD: 1.5 Hours
For more information, click here.

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