Matt's Employment Law and HR Update, 19 January 2022
Matt Huggett
Partner, Stephens Scown | Past President and Non-Executive Director, CILEX | Chartered FCIPD
Burn v Alder Hey Children's NHS Foundation Trust: Is there an implied term in employment contracts regarding the conduct of disciplinary proceedings?
How careful do we need to be that we conduct a reasonable investigation and disciplinary process?
Well, it is fairly obvious to most of us that it is important that we do so in order to ensure that we meet the normal legal requirements for a procedurally safe and substantively safe dismissal, thereby meeting the requirements of the Employment Rights Act 1996.
We also have to ensure that we follow the?#ACAS ?#CodeofPractice ?on?#Disciplinary ?and?#Grievance ?#Procedures ?which forms part of this assessment of fairness and can also result in a tribunal increasing compensation by up to 25% if we fail to do so.
But is there actually an implied duty / general obligation to act fairly? Does any failure to be acting fairly during the investigatory stage (for example) potentially trigger a breach of contract on the part of the employer for this failure which could then expose it to a constructive unfair dismissal if the employee resigns and therefore removing the opportunity for the employer to correct an errors in the early part of the process.
Well, yes. The case of Burn v Alder Hey Children's NHS Foundation Trust took a "strong provisional view" that a duty of procedural fairness can arise from the way that the disciplinary processes are carried out and that this is distinct from the normal challenge that is made regarding?#TrustAndConfidence .
This case therefore appears to open the door for cases to be brought by claimants who, in the face of a poorly conducted, biased or substantively delayed?#investigation ?may resign and bring a claim of constructive unfair dismissal.
The reason this is important is that in such instances previously, it would be incredibly risky for an employee to resign as the employer will simply argue that it is perfectly entitled to conduct an investigation and that any failure in relation to the investigation should be viewed in the round and as a whole with the disciplinary hearing and appeal hearing.
This also emphasis the real importance of the investigation stage of the process. It is often a stage that is somewhat overlooked. the most junior managers and supervisors tend to undertake this process because of the need for more senior managers to handle the disciplinary hearing and appeal hearings. But that does not mean that you can simply rely on those other managers to correct any earlier errors by your less senior managers. It is key that you ensure that you invest the appropriate time and?#training ?in your investigation teams to not only ensure that you have a fair process and assist the ?#disciplinary ?and?#appeal ?#hearing ?managers, but also to protect yourself against the risk of a?#constructive ?#dismissal ?as highlighted in this case.
Work from home guidance in England removed
Boris Johnson has announced that the "Plan B" COVID restrictions that were introduced in December 2021 are to be removed.
This means that:
Use of Non-Disclosure Agreements to cover up workplace abuse and harassment
Cast your mind back nearly three years. You may recall that during the height of the #metoo movement in the UK, the government commenced a consultation into the introduction of legislation to prevent that use of non-disclosure agreements to cover up workplace abuse and specifically sexual harassment. We still don't have an official response from the government to that consultation. However, there is a Private Members Bill which is attempting to make its way through Parliament to either become legislation in its own right, or to simply place pressure on the government to take action themselves to legislate on this issue as they previously indicated that they were considering (under Theresa May's government).
The second reading of the Non-Disclosure Agreements (No.2) Bill is scheduled to take place on 18 March 2022. We will keep you informed of developments.
4-day week pilot study begins
A pilot study has begun to explore the use of 4-day working weeks. Six companies has so far joined the study which will implement a 4-day week with no loss of pay. It is hoped between 20 and 30 companies of varying sizes will take part in the program, which will be run in collaboration between academics from Cambridge and Oxford universities, Boston College, the UK 4 Day Week Campaign (4 Day Work Week Companies | 4 Day Week ) and the thinktank Autonomy.
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There is growing interest in the potential benefits of giving employees an additional day off, such as increased productivity and staff retention which will be particularly interesting given the severe recruitment difficulties that some employers are experiencing at this time in a very tight labour market.
Several large businesses, including Morrisons can Canon have already committed to shortening their work week and others are trialling optional four-day weeks.
Duty on employer to provide PPE to all workers from April
The Personal Protective Equipment at Work (Amendment) Regulations 2022 will extend the duty of an employer to provide suitable personal protective equipment where there is a health and safety risk, so that PPE will need to be provided to all workers not just employees.
Employers will be prevented from charging workers for their PPE in the same way that they are currently prohibited from charging employees.
The regulations will come into force on 6 April 2022.
Parr v MSR Partners LLP?- time limits on discrimination claims
This is a (relatively!) interesting case on time limits in discrimination. It address the age old issue of when the discriminatory act took place specifically:
This is a very important distinction because it determines when the 3-month time limit clock for submission of the employment claim starts ticking.
This case involved Mr Parr who joined MSR in 1982 and was promoted to a salaried partners in 1988 and became an equity partner in 1995. Mr?Parr?wished to stay on after his normal retirement date of 30 April 2018 (a provision which was set out in the Partnership Agreement) In October 2017, the LLP decided that Mr?Parr?should continue for two years beyond his normal retirement date, but only as an ordinary non-equity partner.?A de-equitisation agreement was entered into providing for a change in Mr?Parr's?status, which took effect from 30 April 2018.
In September 2018, Mr?Parr?learned of proposals to sell the business. However, because of the de-equitisation agreement that signed in 2018, he was not entitled, as a non-equity partner, to a share in the proceeds of any sale.
In January 2019, he brought a claim for direct age discrimination, alleging losses of almost ￡3 million in relation to the proceeds of sale of the business. However, his claim would be out of time, unless the LLP's actions amounted to "conduct extending over a period" under section 123(3)(a) of the Equality Act 2010.
At a preliminary hearing, an employment tribunal allowed Mr?Parr's?claim to proceed on the basis that the application of the de-equitisation agreement on 30 April 2018 amounted to the continuing application of a discriminatory rule or policy therefore allowing the claim to be brought in time instead of concluding that agreement was a one-off act with continuing consequences which would have meant the claim was out of time.
However, that decision was overturned by the EAT which found that the effect of the de-equitisation agreement was to make a one-off and permanent change to Mr?Parr's?status as a member of the LLP.
Mr Parr appealed to the Court of Appeal but his appeal was dismissed.
It is of course sometimes difficult to draw a clear dividing line between whether something
The determining factor in this case was the firm's genuine discretion to extend an equity partnership beyond the partner's normal retirement date; there were examples of this occurring on previous occasions. It could therefore be demonstrated that there was no blanket discriminatory rule which applied to all members of the business. The fact that the "rule" remained in place (for others) following the de-equitisation agreement was immaterial, as there was no act extending over a period in respect of the claimant himself.