RCN Stewards conference – legal update (2011)

Chris Cox

Director of Legal Services

Royal College of Nursing

Govt proposals on employment law

• Unfair dismissal qualifying period 2 years• Abolish unfair dismissal legislation altogether• Budget for EHRC cut by 55%• Fee on issuing tribunal proceedings• Fee on setting down a claim for hearing• Consult on removing Equality Act provisions

imposing liability on employers for third party harassment which they do not take reasonable steps to prevent

• Review of Human Rights Act

Case law• Worker who made no holiday requests during long term

sick leave still entitled to statutory holiday pay – NHS Leeds v Larner but now see Fraser v Southwest London St George’s Mental Health Trust

• Claiming sick pay for one NHS job whilst continuing to work in another NHS job isn’t always illegitimate – Perry v Imperial College HealthCare NHS Trust

• In determining whether someone is an employee, in contrast to self-employed, ‘substance is more important than form’; take account of bargaining position of parties and how they conducted themselves – Autoclenz Ltd v Belcher

Case law• Financial inducement withdrawn after

employer’s offer rejected didn’t render subsequent dismissals unfair – Slade v TNT (UK) Ltd

• Use of competitive interview to select for redundancy – Morgan v The Welsh Rugby Union

• Obligations to former employees beyond a formal reference – McKie v Swindon College

• Changing how you deliver services post-transfer determining whether TUPE applicable – Nottinghamshire Healthcare NHS Trust v Hamshaw and others

Case law Post-transfer agreed variation of salary

unconnected with relevant TUPE transfer more than 2 years earlier, and not in order to achieve harmonisation of all employees’ salaries – Smith, Bailey, Corley, Callard v Trustees of Brooklands College

Case law Right to representation at internal disciplinary

hearing – Mattu v University Hospitals of Coventry and Warwickshire NHS Trust

Whose ‘reasonable belief’, that the circumstances of danger are serious and imminent, is relevant to protection against unfair dismissal for health and safety reasons? – Oudahar v Esporta Group Ltd

‘Protected disclosure’ of NHS Trust chief executive under whistleblowing legislation – Royal Cornwall Hospitals NHS Trust v J Watkinson

Cuts, equality and consultation Impact of cuts on ‘protected’ groups under the

Equality Act 2010 Requirement to have ‘due regard’ to equality

duty Eliminating discrimination, harassment etc;

advancing equality of opportunity; removing disadvantages; meeting needs; encouraging participation

RCN guidance EHRC ‘Making fair financial decisions’ Employment consultation requirement