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Employment law for schoolsJune 2017
Darren Newman
Tribunal reasons
• Withdrawal will show up as a decision – but with no details of the case
• Decisions given on the day will be explained orally – written reasons will not go into any detail
• Full written reasons will be given if the decision is reserved
• Full reasons also given if either party requests them within 14 days
• Full reasons needed if decision is to be appealed
Redundancy
• The genuine reason?
• Fair selection criteria
• Method of applying criteria to individuals
• Consideration of alternative work
• Consultation – individual and collective (if more
than 20 employees at one establishment)
Mental Health Care (UK) Ltd v Biluan
& anor (EAT 2013)
• Employer uses ‘competency assessments’ in
selection for redundancy – same tests as used
in recruitment
• No opportunity to review actual performance
(other than sickness and disciplinary record) –
all based on assessment centre results
• Held to be unfair – employees should have been
given a chance to rely on their record
"In some cases I was very surprised at the results. There were several employees who had been selected who I felt, from my experience as Hospital Manager, were very good workers. Nevertheless, because the process had been so robust, they were selected via the agreed processes and made redundant even though they were good employees. Given that we adopted such a fair and transparent process, the decision to make them redundant could not be overturned. I therefore had to accept the situation even if I disagreed with the results."
Green v LB Barking & Dagenham (EAT May 2017)
• Employee dismissed based on selection
interview – three roles reduced to two
• ET held fair dismissal – no need to show
objective selection criteria when ‘recruitment’
kind of redundancy
• EAT say interview is not a short cut – still have to
show fair selection criteria, properly applied
Consultation
• ‘with a view to reaching an agreement’
• Carried out while proposal is at a formative
stage
• Adequate information to enable a response
• Time to formulate a response
• Genuine consideration of the response ‘in good
faith’
TUPE – things to remember
• TUPE is automatic – everyone in the ‘organised
grouping’ transfers
• Where TUPE involves redundancies, they
should be carried out after the transfer not
before
• Need to distinguish between contractual terms
and non-contractual policies – both ‘transfer’ but
only contractual terms are entrenched
Trade Union Act
• Key provisions came into force March 1st!
• 50 per cent industrial action balloting threshold
• 40 per cent ‘yes’ vote requirement in important public
services
• 2 weeks’ notice of industrial action
• 6 month limit on industrial action ballots (9 months
with employer’s agreement)
• Union supervision of pickets
• Date for Check-off rules not yet set
Important Public Services
• Transport: Passenger railway services (including
trams) – both drivers and operational staff. London
buses. Air traffic control, airport security, ports,
• Health: Emergency hospital and ambulance
services – NOT general health care provision
• Education: Teachers and headteachers / principals
in schools and academies
• Fire: Firefighters and those handling emergency
calls
• Border force: Officers of all grades
Transition
• Balloting thresholds and mandate:• Will not apply ‘to any ballot opened before the day on
which this section comes into force’
• A ballot is ‘opened’ on the first day when a voting paper is sent to any person entitled to vote in the ballot
• That is the ‘opening day of the ballot’ that the union must already notify to the employer under s.226A TULR(C) Act 1992
• Two weeks’ notice applies to any notice given from 1st March onwards
Deducting a day’s pay
• Apportionment Act 1870 says salary accrues
‘day by day’
• In Hartley and others v King Edward VI
College Supreme Court held that meant one
day was 1/365 salary
• Overturned Court of Appeal which said 1/260
based on five day week
• Parties are free to agree a different rate of
accrual
Trade Union Activities
• Automatically unfair to dismiss for taking part in union activities ‘at an appropriate time’
• But gross misconduct not protected just because it is committed in course of union activities
• Metrolink Ratpdev Ltd v Morris – employee rep received photo of private page of manager’s desk diary – tried to use that in grievance case
• Held: Not automatically unfair. Employee had breached trust by retaining unlawfully obtained information
Unlawful inducements
• Unlawful to make an ‘offer’ to a member of a recognised
trade union if• Accepting the offer will mean worker no longer covered by collective
bargaining – or terms covered by collective bargaining will be reduced
and
• The employer’s ‘sole or main purpose’ is to achieve that result
• Remedies are extraordinary:• Automatic compensation £3,907
• Also
• entitled to the value of the offer made by the employer
• Be VERY cautious about any changes to terms which
impact on scope of collective bargaining
Beatt v Croydon Health Services
NHS Trust
• Heart surgeon in department with poor working relationships
• Objects when a nurse is suspended during working day – claims it led to death of a patient
• Dismissed for making false and unsubstantiated claims
• Tribunal finds he acted in good faith
• Dismissal automatically unfair – doesn’t matter that employer thought disclosures were not protected
Dealing with employee ‘pushback’
• Employee has an implied duty of faithful service – undermining employer online may be a breach of that
• But - do not overreact to online comments about change
• Distinguish between legitimate concern (forcefully expressed) and comments that are actually improper
• Intervening may cause more harm than ‘letting it go’
A v B & C Governing body of school
• Headteacher has relationship with individual convicted of making indecent images of children
• Dismissed because she failed to disclose that to the school (and LADO subsequently found out)
• ET finds procedurally unfair – but dismissal would be justified, so no compensation
• Court of Appeal upholds decision (by majority)
• Employer entitled to require disclosure to ensure it is meeting its safeguarding duty
• Permission given to take case to Supreme Court
Discrimination ‘arising’ (s.15)
• Dismissal for sickness absence will be disability discrimination unless ‘a proportionate means of achieving a legitimate aim’
• In O’Brien v Bolton St Catherine’s School (CofA15 March) employee off for a year with PTSD
• No prospect of return at hearing – but fit note at appeal saying employee now fit
• Appeal ignores evidence – only reviews original decision
• ET finds unfair dismissal and discrimination
• Court of Appeal upholds (by a majority)
City of York Council v Grosset
• Teacher dismissed for showing ‘Halloween’ to
vulnerable 15 and 16 year olds
• Held to be a fair dismissal
• But unjustifiable discrimination – evidence
showed that misjudgment arose as a result of
stress arising from his Cystic Fibrosis
Charlesworth v Dransfields
Engineering Services Ltd
• Employee absent for cancer treatment
• While he is away, employer works around his
absence
• Finds that they can reorganise and delete his job
– make him redundant
• Held no s.15 discrimination – dismissal was not
‘because of’ absence even though absence
gave opportunity for dismissal
Essop v Home Office; Naeem v
Ministry of Justice
• Supreme Court ‘sorts out’ indirect discrimination
• Essop: CA held you need to know the ‘reason’
for the disadvantage
• Naeem: CA said no indirect discrimination if
there is a non-discriminatory explanation
• Supreme Court said CA wrong in both cases
• Key issue is justification: nothing to be ashamed
of
Darrennewmanpodcasts.com
Rangeofreasonableresponses.com
Darren Newman
@DazNewman