Adrian Fryer
The Employment Appeal Tribunal recently looked in detail at the definition of disability under Equality Act 2010 and, in particular, what should be regarded as ‘day to day activities’ when considering whether a Claimant’s impairment has a substantial adverse impact on day to day activities.
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During demanding times, many companies need to bring in temporary staff members to help take on the additional work. Seasonal workers can provide an effective short-term solution, however, it is important that you do not neglect their rights.
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A recent Employment Appeal Tribunal decision reminds employers that it is crucially important that redundancy proposals are shared with the workforce at a formative stage. Failure to do so could make any resulting dismissals unfair. In Joseph de Bank Haycocks v ADP RPO UK Limited, the Claimant and the wider workforce were not consulted about redundancy proposals before pooling and scoring took place. The criteria for selection and the Claimant’s own scores were not provided to him before his dismissal. This information was, however, provided on appeal. The EAT held that the failure to consult at a formative stage meant that the dismissal was unfair. The EAT held that ‘whilst the appeal could correct any missing aspect of the individual consultation process (e.g. the provision of the claimant’s …scores), it could not repair [the] gap of consultation in the formative stage’.
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Many of you will have heard Angela Rayner’s recent remarks in which she explained the changes that the Labour Party propose to make to employment law in the event that they win the general election next year.
The proposals are radical to say the least, and, if enacted, would completely change the employment law landscape for years to come.
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Fintech business Lanistar’s latest bold initiative to boost recruitment has landed them in hot water. Effective recruitment strategies are not just about a business picking the best applicants, they are about attracting the best applicants in the first place. In this way, recruitment comparison websites like Glassdoor, which include company reviews from existing and former employees as part of their job search functions, can have a significant impact on the quality of applicants coming through the door.
The House of Lords have amended the Worker Protection (Amendment of Equality Act 2010) Bill to remove the proposed third-party harassment provisions. Following a debate in July 2023, the Bill has been republished with the original clause 1 (which dealt with third party harassment) removed in its entirety. Objections in the Lords included the cost to businesses, curtailment of free speech and worries about excessive state intervention in business.
In the recent case of Fernandes v DWP the Employment Appeal Tribunal allowed an appeal in a disability discrimination claim of failure to make reasonable adjustments. The key question was how you should ascertain when a ‘failure’ to make a reasonable adjustment occurs. It is important for this to be established because time begins to run for instituting a claim (by commencing ACAS Early Conciliation) from the point that the failure occurs.
Where one business purchases the business and assets of another business (or part of it) then this is likely to amount to a ‘business transfer’ under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). A business transfer under TUPE automatically transfers the contracts of employment of all assigned employees to the new employer. The transfer will be on a single date rather than over a period of time. In some cases, the date on which the transfer occurs will be obvious but in others where there are a number of transactions over an extended period of time it may be more challenging to identify the date.
In the recent case of Stevenson and others v Mid and South Essex NHS Foundation Trust the respondent had undertaken a restructure which had resulted in three Head of HR role being made redundant. The three employees occupying the redundant roles were offered alternative employment as HR Leads. When they refused these roles, the respondent refused to pay them a redundancy payment. The respondent alleged that they had unreasonably refused their offer of suitable alternative employment so had forfeited their right to a statutory redundancy payment under section 141 Employment Rights Act 1996.
In the recent case of Mullen v Greater Glasgow Health Board the claimant was dismissed from his role as supervisor for gross misconduct after an investigation found that he had threatened a fellow employee. The tribunal held that the respondent had carried out a full investigation and held a reasonable belief that the claimant had committed an act of misconduct but they nevertheless found that the dismissal was unfair. This was on the basis that the tribunal had its own ideas as to what the real reason for dismissal was.
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