Top Friday Facts (TFFs)

It’s Friday and it’s nearly Christmas…

This week it falls to me to post the final Top Friday Facts for 2019 on behalf of the Knights’ Employment team. So, whilst you eat (another) mince pie or get ready for (another) festive night out, take a quick moment to note my TFFs:

1.        The relevance of (mis)conduct outside of work

What? On Tuesday, Caroline Flack stood down from her role as the host of ITV2’s Love Island, after being charged with assault by beating, stating “I feel the best thing I can do is stand down for series six”.

So what? Flack’s resignation took a potentially difficult decision out of ITV2’s hands, but to what extent can employers take into account (and act upon) their knowledge of an employee’s conduct outside of the workplace?   

As noted in the ACAS Code of Practice on Disciplinary and Grievance Procedures “if an employee is charged with, or convicted of a criminal offence this is not normally in itself reason for disciplinary action”. 

However, the ACAS Guide goes on to state that “consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers”, indicating that there may be occasions when disciplinary action because of / linked to criminal conduct outside of work will be justified and lawful. 

And it is not only criminal conduct that may be relevant to the ongoing employment relationship. As noted by the Employment Appeal Tribunal in Singh v London Country Bus Services Ltd 1976 IRLR 176, EAT, conduct outside of work can support a dismissal “so long as in some respect or other it affects the employee, or could be thought to affect the employee, when he is doing his work”. 

It is fair to say that certain conduct outside of the workplace is more likely to affect the employment relationship, such as sexual conduct, violence and dishonesty.  However, if faced with a situation such as Flack’s, employers need to ensure that consideration is given to all of the circumstances before disciplinary action is taken. A thorough and fair investigation at the outset will be critical. This will include considering the nature of the workplace, the employee’s role and their individual circumstances. Dismissing for fighting outside of the workplace was held to be fair in the case of Eggleton v Kerry Foods Ltd UKEAT/938/95 for example, whereas dismissal for a domestic altercation, which resulted in an employee being charged for assault and breach of the peace was held to be unfair in CJD v Royal Bank of Scotland IRLR 25, Ct Sess.

Flack’s situation is a useful reminder to employees and employers that, at a time when there is an increasing overlap between being “at work” and not, the employment relationship does not necessarily end on leaving the office for the day.

 2.        Let’s Play Darts!

What? On Tuesday, Fallon Sherrock booked her place in the second round at the darts PDC World Championships. This made her only the fifth woman to play at the championships and the first to win a match in its 25 year history.

So what? This is not the “first” for women in sport this year….for example in August Stephanie Frappart stepped out as referee when Chelsea took on Liverpool in the UEFA Super Cup; the first time a female had taken on the role of referee in a major men’s European match.

But do these “firsts” in sport represent a significant step towards gender equality, or is the fact that these events are newsworthy indicate we still have some way to go?

Sherrock’s view is that female darts players need “more opportunities” and believes that giving guaranteed entry to 4 female players rather than 2 would help (last year’s championship was the first at which 2 women were guaranteed entry).

And in other sport, the Diversity in Racing Steering Group reported that equality of opportunity for female jockeys may be 100 years away

In a week when the World Economic Forum has published a report on the international gender pay gap, with its data suggesting that it will take 99.5 years for the gender pay gap (measured in terms of political influence, economic gain and health and education) to close, Sherrock’s “first” is another reminder that gender equality needs to stay firmly on the agenda as we head into 2020.

4.        Olympic cyclist wins right to appeal employment status

What? Sticking with sport, on Tuesday, former GB cyclist Jess Varnish won the right to appeal an employment tribunal decision regarding her employment status. In January 2019, it was determined that she was neither an employee nor a worker of British Cycling and UK Sport and whilst she was initially denied the right to appeal, this has now been overturned.

So what? Varnish is arguing that she should have been considered an employee of British Cycling or UK Sport when she was controversially dropped from the Team GB programme for the 2016 Rio Olympics.

The issue of worker status has been a hot topic in 2019 and this will continue into 2020. We await the final Supreme Court hearing in the high profile case concerning the status of Uber drivers’ (in July) and IR35 changes are (currently) due to be introduced in April 2020. 

And at Varnish’s appeal, it could be ordered that a new tribunal hearing should take place or that the original decision is overturned, which could have significant consequences for athletes’ employment status.

4.        Championing good work

What? On Thursday, the CIPD published it “Manifesto for Work 2020”, outlining four key areas it plans to work with government on to champion good work.

So what? The CIPD comments that “while ‘getting Brexit done’ may be the new Government’s top priority, just as important to its success will be how it tackles some of the other major challenges central to the UK’s future prosperity” noting that progress will require the Government to focus on “how to ensure people can develop the skills they need, as well as create more inclusive, fairer and productive workplaces across the country”.

Employers should therefore take note, as we may see relevant developments / reform in the coming year. The four critical areas for action are:

·        Prioritising efforts to champion responsible and ethical business practices, ensuring organisations fully meet their obligations under the UK Corporate Governance Code. Within this, the CIPD are calling for reform of the role of remuneration committees to ensure that senior executive rewards are more fairly aligned with those of the wider workforce.

·        Supporting the development of more inclusive and diverse workplaces, boosting the uptake of flexible working across the economy.

·        Working with the Government on the key issue of skills, both in terms of development and utilisation.

·        Improving employment relations and well-being, with the CIPD advocating the need to further raise awareness of employment rights and to reform how these are enforced.

5.        Rise in employment tribunal claims continues

What? According to the Ministry of Justice’s quarterly statistics for the period 1 July to 30 September 2019 single claim receipts, disposals and caseload outstanding all increased (by 38%, 4% and 40% respectively), compared to the same period last year.

So what? Employers facing tribunal claims not only have to worry about defending the allegations being made against them. Delay and uncertainty should also be expected. Claims have been on the rise since 2017 (when the fees required to lodge a claim were abolished) and the tribunal services continue to struggle with the challenges brought by funding cuts and increasing caseloads.

If you would like to speak to a member of the Knights plc Employment Team, please contact [email protected]

20 December 2019

? Knights plc 2019. All rights reserved.