Distinguishing unwise decision-making from lacking capacity
Dec 12 2023
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Although it may not be Christmas just yet Joanna Smart is generously treating you to a bumper edition of the news round up this month, covering a mixture of legal developments from October and November 2011.
After coming into force on 1 July 2010, the first prosecution and conviction under the Bribery Act (the ‘Act’) took place in October.
A former magistrate’s clerk was prosecuted under section 2 of the Act for accepting a bribe (£500) with the intention of improperly performing his function (in this case, this was to omit to record a traffic offence).
This individual is due to be sentenced this month, although having been convicted under section 2, he is liable to a maximum of 10 years imprisonment, a fine or both.
For more information about the Bribery Act please see our thorough run through of what the act means in practice and how it is of relevance to all those involved in HR and management generally in the private and (to a lesser extent) the public sector, published in April 2011.
In October it was announced by George Osborne that there would be changes to the qualifying period for Unfair Dismissal claims and the introduction of fees in the employment tribunals.
Except for certain special cases where there is no qualifying period at all, at present an employee can bring a claim against their former employer for Unfair Dismissal as long as they were employed for a period of at least 1 year (the ‘Qualifying Period’). It has been announced that, from 6 April 2012, the Qualifying Period will rise to 2 years. The purpose of the change is to encourage employers to take on new employees and the Department for Business, Innovation and Skills (‘BIS’) has announced that the change will save businesses £6million per year, with a reduction of 2,000 claims per year.
Despite a lack of confirmed information, it has been announced that fees to bring claims in the employment tribunal will be introduced shortly. It has been reported – albeit unconfirmed – that a consultation on fees will commence by the end of November, with implementation ultimately scheduled for April 2013. The following fees have been suggested, although again these figures have yet to be confirmed:
It is uncertain as of yet what level of impact these fees will have in reality, especially bearing in mind the potential provision excluding those without proper means to pay and the fact that many individuals who bring claims in the Employment Tribunal are unemployed at that point. We will of course keep you posted on developments in this area.
For more details on the changes that are to be introduced into the employment tribunals please see our general article for this month.
Following a public consultation on whistleblowing and the NHS Constitution it has been announced that the Constitution will be amended to ensure greater support for those employees raising concerns. The changes will come into effect in early 2012 and will introduce:
The Employment Appeals Tribunal (‘EAT’) has recently made a welcome decision in the ever-complex world of TUPE (the Transfer of Undertakings (Protection of Employment) Regulations 2006), in relation to the point that an agreed variation of an employment contract following a TUPE transfer is effective where the transfer is not the sole or principal reason for the variation.
The case of Smith and others v Trustees of Brooklands College involved 4 claimants who had, under TUPE, transferred from one college (‘College 1’) to the Respondent. They were all employed by College 1 as teaching and learning assistants, working 22 to 25 hours per week. However, in an agreement between them and College 1 they were paid as if they were employed on a full-time contract (36 hours a week). This agreement was unusual and did not correspond to any other practice in the education sector. Following the transfer to the Respondent in 2007, the claimants agreed, albeit reluctantly, to a reduction in their pay on a phased basis from January 2010.
The claimants subsequently brought a claim in the employment tribunal, arguing that the real reason for the variation was because the Respondent wished to harmonise their pay terms with those of its existing staff and so the variation was void because it was for a reason connected with the transfer.
The tribunal rejected the claim and, following an appeal from the claimants, the EAT has now endorsed this decision, agreeing that the contract variation was unconnected with the transfer and therefore was valid and effective. The EAT supported the tribunals findings that the reason for the variation was as a result of the Respondent’s realisation that the claimants had been in receipt of pay which was not in accordance with the industry standard. The reason, therefore, was not void because it was not by reason of the 2007 transfer or for a reason connected with the 2007 transfer.
Whilst this decision confirms that an employer is not prevented from making future changes to contracts of employment following a TUPE transfer it does not change the fact that an employer must be confident that the reason for any variation to terms and conditions is not connected with a transfer at all. This is still a difficult distinction for employers to prove, albeit by no means an impossible one.
By way of a brief reminder, the latest minimum wage increase took effect from 1 October. The minimum hourly rate is as follows:
The Government-commissioned review of the sickness absence system in the UK has been published this week and can be found in full here. The report makes a number of recommendations to reduce the UK benefits bill, which currently stands at £13 billion. These recommendations will be responded to in January 2012. Some of more prominent recommendations for employers include:
The EAT have held that, provided there is justification, an employer can carry out different responses to disciplinary offences. The case in question (General Mills (Berwick) Limited v Glowacki) was originally brought by Mr Glowacki, following his dismissal for gross breach of health and safety procedures. He alleged the dismissal was unfair as he had been treated differently to another employee who had been in a similar situation (gross breach of health and safety) in 2009 but who had not been dismissed for gross misconduct.
As the difference in treatment had not been explained by the employer the employment tribunal held that the dismissal was unfair, although this decision was reversed by the EAT, who accepted the employer’s explanation for the difference in treatment. This was a fact-specific decision but never-the-less the EAT’s conclusion; namely that there was a sufficient basis for the difference in treatment bearing in mind the “range of responses reasonably open to an employer faced with those facts”, – is still helpful to employers who can clearly distinguish their actions in similar situations.