PSIRF and the Duty of Candour
Dec 5 2023
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Gemma Hill reports on the latest employment news: the Government response to the ‘right to train’ consultation; a recent case clarifying the position on dismissals following a refusal to accept a pay cut; and a further development on the ongoing issue of legal representation at internal Disciplinary Hearings.
The Government has recently published its response to the consultation in relation to the right to request 'time to train'. The regulations providing a right to request time to train were introduced on 6 April 2011 to all organisations employing over 250 people. It was originally anticipated that the right would be extended to all organisations in April 2011. However, in August 2010, a consultation paper was released across the UK to gauge the public view of the regulations and to ascertain whether the right was improving training opportunities for employees. It was intended that the consultation would confirm whether the right should be repealed, retained, or reshaped.
The results of the consultation and the Government response have now been published, reporting a polarised position between:
In a welcome decision for employers faced with having to make cost reductions, the Employment Appeal Tribunal has overturned the Employment Tribunal’s decision in Garside and Laycock Ltd v Booth.
The EAT confirmed that the relevant question to ask in ascertaining whether it was fair to dismiss an employee for refusing to accept a pay reduction for ‘some other substantial reason’ was whether it was reasonable in the circumstances for the employer to dismiss, rather than whether it was reasonable for the employee in question to refuse to agree to the change in terms offered. Whilst this was acknowledged as being a factor to be weighed in the balance, it should not be the main focus of the Tribunal’s enquiry. Rather, the primary focus should be on the reasonableness of the employer’s decision when considered in the round.
Following this decision it is likely that in situations where the vast majority of the workforce accepts a change in pay, which in turn demonstrates the legitimacy and arguably, the reasonableness of the employer’s decision, an individual employee is more likely to find it difficult to successfully argue that his dismissal for refusing to accept the reduction was unfair.
In August 2010, we reported that the welcome confirmation from the Court of Appeal that Article 6 of the European Convention on Human Rights (the right to a fair trial) would apply to internal disciplinary hearings only in very limited circumstances. The Supreme Court has, this month, handed down its decision in R (on the application of G) v the Governors of School X in relation to the application of Article 6 to school disciplinary proceedings.
The Supreme Court have confirmed that there is no right to legal representation at an internal disciplinary where an employee’s dismissal could lead to a process capable of barring them from a profession, where this decision is ‘sufficiently independent’ of the decision to dismiss.
In this case, a teacher was dismissed as a result of allegations of indecent conduct with a 15 year old. He was denied legal representation at the school’s disciplinary hearing, which resulted in his dismissal. The teacher was referred to the Independent Safeguarding Authority (ISA). ISA’s role was to consider whether to include the teacher on its list of those barred from working with children. In making this decision, the ISA would carry out its own fact finding exercise under a statutory scheme, have access to wider evidence and use its own independent judgment.
As a result, it was held that there was no reason to think that the ISA’s decision would be unduly influenced by the school’s previous dismissal decision. The ISA was answering a different question to that of the school’s disciplinary panel - whether the teacher should be included on the barred list. As a result, it was held that the two decision making processes were sufficiently independent, separate and distinct. They were not inextricably linked and because of this, Article 6 was not engaged at the disciplinary hearing (but was engaged at the ISA hearing).