TUC Education courses from January 2022

I have just finished a year long TUC (virtual) employment law diploma taught by The College of Haringey, Enfield and North East London (hopefully I have passed) which I thoroughly enjoyed and learnt such a lot. If you are interested in union learning check out below :- 

Find out more about courses running in your area from January 2022

• Scotland

• Northern Region

• North West Region

• Yorkshire and the Humber Region

• Midlands Region

• London, East and South East Region

• South West Region

• Wales

If you know of other reps who don't receive these updates from TUC Education, they can sign up here.

"How not to handle a flexible working request"

Check out this article on how in King v Tesco our largest supermarket in the UK messed up a request by one of its employees for flexible working. It is an important but tricky subject so make sure you join a union (UNISON of course if you work in public services) and get advice from a local rep before you apply. It is an important (but imperfect) legal employment right. 

Hat tip Pure Employment Law

"Flexible working requests – the law

Before we look at some lessons to be learned around dealing with flexible working requests from a recent case, here’s a re-cap on the law:

Employees with at least 26 weeks’ service have a statutory right to make a request for flexible working. Employers should:

• deal with a request in a reasonable manner (including meeting with the employee to discuss it);
• notify the employee of their decision within three months (unless the parties agree an extension); and
• only refuse a request on one of 8 grounds set out in the legislation.

Click here to see our previous article for more about flexible working requests.

If the procedure is not followed or if the employee is not happy, they can bring claims against their employer for breach of the Flexible Working Regulations, and if the claim succeeds, the Employment Tribunal can order the employer to reconsider the request, and/or compensate the employee in such amount as the Tribunal considers just and equitable – up to a maximum of 8 weeks’ pay (currently capped at £489 per week).

Check out the sad tale of King v Tesco (2017)

A Short History of Trade Unions

If you ever wondered about the history of trade unions then I recommend this 5 minute 46 second introduction on YouTube. 

Part of my TUC Employment law course work. 

Update: Check out a very good analysis of the more recent history and possible way forward for the movement by James Moher

http://www.historyandpolicy.org/policy-papers/papers/trade-unions-and-the-law-history-and-a-way-forward

Philosophical Belief Discrimination

Interesting.... (no known relation)

Philosophical Belief Discrimination

"Can an employer discriminate on grounds of philosophical belief where the employee is the only person to hold such a belief?

No, held the EAT in Gray v Mulberry.

Ms Gray worked for Mulberry. She refused to sign a standard contract clause assigning copyright in her work to her employer, fearing it would give them ownership over a novel and screenplay she was writing (even though the contract was amended to exclude them). She was eventually dismissed.

She claimed her belief in the sanctity of copyright law was a philosophical belief and thus a protected characteristic. The Employment Appeal Tribunal, after considering the necessary limbs for establishing a philosophical belief, held that the tribunal was entitled to conclude that the belief lacked sufficient cogency to qualify under the Equality Act 2010.

Of more interest, the EAT held that even if it was wrong, there could be no indirect discrimination because Ms Gray was (as far as the evidence went) the only person known to hold such a belief. Accordingly there could be no disadvantaged group, as she was not part of any group. Thus her indirect discrimination claim had to fail. Permission has been granted to appeal to the Court of Appeal". hat tip www.danielbarnett.co.uk 

Employment Tribunal Fees Review: "You are fired because I can - and if you are by yourself there is little or nothing you can do about it"

Checkout this report by employment law expert Daniel Barnett.  Workers should not fool themselves that the law protects them at work.

Despite our faults, trade unions are the only real defenders of your rights at work. To get any chance of justice at work in this country you either have to be rich... or a trade union member.

The last Tory Government introduced upfront fees for seeking fairness at work. In most cases £250 for simply making a claim and then a staggering £950 for the hearing. £1200 in total!

Never mind the cost of paying for your solicitors or any other fees. No wonder there are so few actual claims now despite many of them thought to be potentially with merit and therefore winnable. Rogue bosses up and down the country are rubbing their hands with glee.

"The House of Common Justice Committee has published its review into Court and Tribunal Fees.  Note this is not the government review which was completed in 2015 but has not been published, about which the report is deeply critical at paras 58 and 59.

These are the key findings of the report:-

• there has been a significant drop in the number of employment tribunal claims

• the government's assertion that the drop is largely attributable to the success of Acas Early Conciliation is "even on the most favourable construction, superficial" (para 69)

• fees "have had a significant adverse impact on access to justice for meritorious claims" (para 69)

• the 'type A' and 'type B' claim distinction did not relate to the complexity or length of cases (para73)

• the level of fees should be a "substantially reduced" (para 79)

• the remission system should be overhauled, with only one application needed (to cover both issue and hearing fees)

The report also recommends special consideration - and a review of the three month time limit - in pregnancy discrimination cases (para 79).

This report is embarrassing for the government, but has little political impact (especially as the timing of the report, three days before the Brexit vote, means it will receive very little press attention)".

Monitoring Employees' Use of the Internet

Be warned!!!! I have made a number of urgent messages to union members over the years asking them to remove a post on social media about their employer or work colleagues.

"Is the right to respect for private life and correspondence breached if employers monitor employees' personal communications at work?

No, subject to reasonableness/proportionality, according to the European Court of Human Rights in Barbulescu v Romania.

Mr Barbulescu was an engineer who used his business Yahoo Messenger account to send and receive personal messages with his fiancee and his brother, including messages about his health and sex life. This was in breach of his employment contract. His employer, discovering this accidentally, dismissed him. Mr Barbulescu argued that the Rumanian courts should have excluded all evidence of his personal communications on the grounds it infringed his Convention rights to privacy.

The European Court of Human Rights held that Article 8 (right to respect for private life and correspondence) was engaged, but that the Rumanian courts were entitled to look at that evidence in deciding whether the dismissal was justified. The European Court was swayed by the fact that the Romanian court judgment did not reveal the precise content of the personal messages, but only the fact that they were personal messages. The Court recognised the need for employers to be able to verify that employees are completing professional tasks during working hours".

hat tip Daniel Barnett

"The 12 employment law cases of 2015"

"Before 2015 is consigned to history and 2016 presents a new set of employment law challenges, it is timely to reflect on the year’s significant cases. We have identified 12 cases which developed the law and potentially changed HR policies and practices:

Working time and travel FSP del COO v Tyco Integrated Security/Fire & Security: The CJEU ruled that for certain workers who do not have a fixed or habitual place of work, travel between home and the first and last assignments of the day counts as working time. The ruling does not mean workers must be paid for travel time but shift arrangements may need to be changed to comply.
Redundancy consultation USDAW v Ethel Austin Ltd and others: The CJEU confirmed that the trigger for collective redundancy consultation should be the dismissal of at least 20 employees from an establishment within a period of 90 days, not 20 employees across the whole employer. The CJEU reiterated that an “establishment” is the entity to which the workers are assigned to carry out their duties and this will depend on the factual circumstances.   Read our briefing here
HR’s role in disciplinary proceedings Ramphal v Department for Transport: In this unfair dismissal case, the EAT ruled that in disciplinary proceedings an Investigating Officer is entitled to call for advice from HR; but HR should confine their advice to questions of law and procedure and avoid straying into areas of culpability or, except when addressing issues of consistency, what is the appropriate sanction. The decision has been appealed.
Whistleblowing and the public interest Chesterton Global Ltd v Nurmohammed: Despite changes made to the law in 2013, which added a “public interest” element, the EAT ruled that a worker’s complaint about a breach of his own contract of employment may still satisfy that requirement and qualify as a protected disclosure where the alleged breach also affects other workers. The Court of Appeal is due to hear an appeal against this decision in 2016.   Read our briefing
Associative indirect discrimination CHEZ Razpredelenie Bulgaria: The CJEU ruled that the concept of so-called “associative” discrimination applies to indirect discrimination claims. This suggests that once it is established that those with a protected characteristic are particularly disadvantaged by a provision criterion or practice applied by an employer, anyone who suffers that same disadvantage can bring a claim of indirect discrimination even if they don’t share the same protected characteristic as the disadvantaged group.   Read our briefing
Indirect discrimination Home Office v Essop: This judgment could make it harder for some claimants to make out claims of indirect discrimination after the Court of Appeal stressed the need to consider the nature of and reason for the claimed disadvantage. This is because there will only be indirect discrimination if the disadvantage suffered by the claimant is the same as that experienced by other members of the disadvantaged group. The decision is being appealed to the Supreme Court.  Read our briefing
Employment Tribunal fees Unison v The Lord Chancellor: Unison's attempts to have the Employment Tribunal fees regime quashed suffered another setback, with the Court of Appeal rejecting the union’s claim that the fees regime is unlawful. Unison is now looking to take their case to the Supreme Court.  Read our briefing
Holiday pay Lock v British Gas: A Tribunal ruled that EU law can be read across into the Employment Rights Act 1996 so as to require employers to take into account commission payments when calculating pay for the basic four week holiday entitlement under the Working Time Regulations 1998. The EAT heard an appeal in December and its decision is awaited.  Read more about Lock
Carrying forward annual leave Plumb v Duncan Print Group Ltd: The EAT clarified that although workers on sick leave can carry forward up to four weeks’ untaken leave into a new holiday year (even if they are capable of taking annual leave during their sickness absence), such untaken leave will be lost if not taken within 18 months of the end of the leave year in which it arose.  Read our briefing
Pay during strikes Hartley v King Edward VI College: This case concerned how much pay can be withheld for a day's strike by salaried employees. The Court of Appeal accepted that the employer in this case was entitled to withhold 1/260 of the strikers’ annual salary, because they worked a regular five day week (5 days x 52 weeks = 260 working days). The case makes it easier for other employers to base deductions for strike time on the total working days per year, rather than calendar days, although in each case the contract of employment must be considered.  Read our briefing
TUPE: employees on long-term sick leave BT Managed Services v Edwards: Against a backdrop of prolonged sickness absence and exhaustion of phi cover, an employee was kept “on the books” for commercial reasons but with no expectation he would return. The EAT concluded the employee was no longer “assigned” to a relevant grouping for TUPE purposes. The case has now been appealed.  Read our briefing
Data protection and US safe harbor Schrems v Data Protection Commissioner: The CJEU ruled that the US Safe Harbor scheme does not provide adequate protection of personal data of EU citizens and is therefore not lawful. In the immediate aftermath, EU employers must either refrain from sending such data to US until an alternative solution is identified by the EU or do so with caution, where possible applying appropriate model clauses and internal or intra-group protections.  Read our briefing

Key
EAT Employment Appeal Tribunal
CJEU Court of Justice of the European Union

Employment law is very important but it is only at best a safety net (and has been watered down in recent years by this Government). The best protection at work is of course from joining a trade union (JG).

Hat tip Eversheds

"The most common reason for unfair dismissal"

I found this advert for an Acas training course interesting. Over the years I have come across some
appalling investigations. Often the main reason is that the investigator simply hasn't a clue what they are doing.

"One of the most common reasons for a dismissal to be found unfair is that an employer has failed to carry out a reasonable investigation. But what exactly is a reasonable investigation?

The Acas Code of conduct on disciplinary and grievance procedures, used by Employment Tribunal Judges, to assess the fairness of a dismissal, says: "Employers should carry out any necessary investigations, to establish the facts of the case".

"The nature and extent of the investigations will depend on the seriousness of the matter and the more serious it is then the more thorough the investigation should be. It is important to keep an open mind and look for evidence which supports the employee’s case as well as evidence against."

So do you need to interview the employee concerned? Do you need to interview all witnesses? Can the same person that carries out the interviews carry out any subsequent disciplinary hearing?

Acas Investigations training courses will answer these questions and more, covering:

The legal background and burdens of proof
Purpose and stages of disciplinary procedures
The responsibilities of the employer
The rights of the employee
The stages of an investigation
Listening and questioning techniques
The role of suspension
Case for dismissal
Writing the report and presenting findings

Essential cover at work. Join UNISON now on 0800 328 11 22 or http://joinunison.org

Another powerful TV advert from UNISON explaining the many advantages from joining our union. One of the worse things about being a union rep is explaining to people facing redundancy, bullying, disciplinary or sickness proceedings, that I am unable to help them because they are not members or have only joined after they were aware of an issue. (UNISON has like every other union has a waiting period before representation).

If you value your job then join a union. Union reps do not have any magic wands but believe me it can be so frightening and scary if you have a problem at work and have no one to turn to for help. Even in the very best of employers.

Of course, the key thing about joining a trade union is that the more of us in the union in any employer, the better the deal we will get - the better the pay, the better the health and safety, the better the pension, the better the maternity pay, the better the sick pay' the better the flexible working - the better all fringe benefits and employment policies.

This is something our Grandparents knew but has sadly be lost in recent decades but I think workers are beginning to realise again that they cannot rely on their employers or the courts for justice at work, they can only rely on their union and their work colleagues.

So if you work for any (none civil service) employer providing public services, don't delay and look to join UNISON now! (online 24/7). Do not leave it until it is too late!

CRATUPEAR!

CRATUPEAR is the acronym of the "The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014" which comes in force on 31st January 2014. 

Hat tip to Daniel Barnett Employment law bulletin  for this information and the summary of the changes below. The Tories have tried to water down employment protection for workers but it seems to me they are making TUPE even more complex, confusing and potentially litigious than ever.

"The summary below of what the government is not changing is probably as important as what it is changing. The main changes which the government is proceeding with are amending the TUPE Regulations to:-

allow renegotiation of terms agreed from collective agreements one year after transfer, provided any changes are no less favourable to employees,

the location of a workforce can be within the scope of an economic, technical or organisational reason entailing changes in the workforce, thus preventing genuine place of work redundancies from being automatically unfair.

clarify that for there to be a TUPE service provision change, the service provision must be "fundamentally or essentially the same" as before the transfer

allowing microbusinesses to inform and consult directly with employees (in some circumstances) allowing TUPE consultation to satisfy collective redundancy consultation rules.

Importantly, the government is not:- removing 'service provision change' from what amounts to a TUPE transfer removing the transferor's obligation to provide employee liability information; rather, the time for providing such information is increased to 28 days.

 Also mentioned is the extension of the right to request flexible working to all employees with 26 weeks' service, which will come into force on 6th April 2014".

Employment Law Prospects 2012: Workers are going to be stuffed

This is from the newsletter published yesterday by Employment Law Barrister Daniel Barnett:-

"Expected Developments in Employment law" 2012 (my comments in italics)

"31 January
closure date for calls for evidence on the effectiveness of TUPE and the scope of the collective redundancy rules - may result in a formal consultation later in the year (TUPE protection will be brought down to the absolute minimum and you could be made redundant in just 30 days)

1 February
new tribunal award limits come into force (Good but still inadequate)

6 March
consultation closes on fees in tribunals and the EAT (It could cost you around £1750 to go to an employment tribunal - far more if you want to appeal)

April
expected that qualifying period for unfair dismissal will increase to 2 years · various tribunal reforms to take effect, e.g. increase in deposit orders and costs awards (bad)· unpaid parental leave to increase to 4 months · working time rules to be amended to allow holiday to be carried forward in limited circumstances · maternity/paternity/adoption pay increases · SSP increases (you could be sacked for no good reason after 1 year 11 months and you will have no effective legal remedy)

October
pensions auto-enrolment begins for larger employers (Good) · national minimum wage may increase, depending on what the Low Pay Commission recommends in February (wait and see)

Developments with no confirmed date but likely to be progressed in 2012
penalties for employers who breach of employment rights (Good but expect wrist slap)· early compulsory ACAS conciliation of all tribunal claims (possibly good) · amendment of whistleblowing rules so that disclosures about breaches of employment contracts are no longer covered (Bad) · compromise agreements to be simplified (possibly good) · consultation on 'protected conversations' between employers and staff about employment issues without risk of dispute (your employer could bully you out of your job legally without protection)· consultation on rapid resolution scheme as alternative to tribunal for low-value and straightforward disputes (Fixed penalty ticket justice?)

· Acas Disciplinary and Grievance Code to be 'looked at' with a view to a simpler dismissal process (nuf said?)

Do not expect the "law" to protect you at work. Time to join a union for collective protection and the Labour Party to get rid of this Government in 2015.

Anti-trade union legal parasites touting for trade

I find it incredible that supposedly reputable solicitors are cold calling employers that are facing pension strike action next week, claiming that due to trivial balloting irregularities, they could claim damages against unions and that they can then discipline their staff. 

Now I can understand that if solicitors are contacted by their clients for advice they would have to give the appropriate legal guidance. Every employer knows that due to the anti-trade union laws in this country it makes it possible to challenge perfectly legitimate disputes. 

What we have here are solicitors who claim on their web site to be committed to always acting in a “Socially Responsible Manner” touting for fees. Exploiting procedures to try and discipline (and I assume) sack ordinary workers striking to save their pensions.

Apart from the morals or the ethics of trying to get people sacked for exercising their human right to withdraw their labour, you have to question the judgement of such people who think they can make a quick buck out of other people’s misery. When I look at their list of clients I recognise a number of employers who I know will be shocked at what they are trying to do.  I can only hope that they immediately review whether or not such people are fit and proper to advise them and that they take appropriate action. 

This doesn’t let the Labour Party off the hook either. You can argue the pros and cons of whether there is the right balance in legislation over industrial disputes (and you can guess my view) but what is indefensible and simply wrong is that the last government did little or nothing to stop minor and petty procedural issues being raised to stop legitimate action and to potentially sack people.

Faced with such disgusting behaviour motivated only by fat fees and commissions for already rich and highly paid people is it no wonder that so many young people despise our current political system.  They think that the injustice is such that it legitimises carrying out direct action and occupations.

Lord Justice defends Employment tribunals

"In a fascinating judgement handed down today, the Court of Appeal has delivered a robust, compelling and bold defence of the employment tribunal and judicial system". So said Employment law solicitor, Daniel Barnett, in his e-newsletter last Friday about "Red" Lord Justice Mummery's recent judgement.

Now, I must admit that I think there are indeed serious problems with the employment tribunal system. For me the system is unfairly biased against workers and I would like to see it reformed and rebalanced otherwise. 

But, the present government is pushing ahead with plans to get rid of many of the already basic and minimal employment protection and enforcement rights that British workers "enjoy".

So, since we already have possibly amongst the worse employment rights in Europe already it is actually a relief to read that a very senior judge believes that the existing system works and therefore (by implication) does not need to be watered down any further.

The judgement makes a number of points but I think No. 20 is compelling   "...as for those who complain about the time taken and the legal costs and other expenses and losses incurred, I think that they would want the hearings to be conducted in the interests of justice to both sides. I have seen very few constructive suggestions for practical improvements. If workers are given rights, there must be properly qualified, impartial and independent tribunals to adjudicate on them in accordance with a fair procedure. If workers are not given the necessary means for the just adjudication of their claims, procedures of a more rough and ready non-judicial kind may be used. The alternative procedures would probably not be impartial, independent or just, and are unlikely to do much for public order, social harmony or national prosperity".