Distinguishing unwise decision-making from lacking capacity
Dec 12 2023
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Jaspal Basra reports on April’s employment law developments which impact on HR: new collective redundancy arrangements; the latest developments on vetting and barring employees; doctors and social media; TCS and pay protection arrangements; the latest on whistleblowing and simplification of auto-enrolment; quarterly employment tribunal statistics are in and we set out the new minimum wage rates, effective from October. Finally, we provide an update on where we are with the ‘ping pong’ of the ‘employee-shareholder’ scheme, which has been flying back and forth between the House of Lords and the House of Commons and has finally become law.
Don’t forget that the new 45 day consultation period for collective redundancies of 100+ employees came into effect this month - on 6 April 2013 (note that the 30 day consultation period still applies for redundancies of between 20 and 99 employees over a 90 day period).
Acas has now finally published its new non-statutory guidance on How to Manage to Collective Redundancies. This is intended to complement the new reduced consultation period. Please note also that the new arrangements exclude the expiration of fixed term workers from headcount for the purposes of triggering the collective consultation requirement - but include any fixed term workers whose contracts are terminated early and for reasons of redundancy.
Transitional provisions provide that the new rules apply where the proposal to dismiss is made after 6 April 2013 – and stand by your beds for satellite litigation over the definition of 'proposal'. There is no guidance in the booklet on what 'proposed' means, but it seems likely that existing case law on the definition of 'proposing' to dismiss, in the context of collective consultation, will apply - ie. a proposal is less than a 'decision' but more than mere 'contemplation'.
Some interesting points to note in the guidance are
You may remember that, back in January, the Court of Appeal decided that disclosure of all convictions and cautions in a Disclosure and Barring certificate (formerly known as a CRB check) contravened Article 8 of the European Convention on Human Rights - the Right to Respect for Private and Family Life. The Home Office is currently looking at proposals for new filtering rules for Disclosure and Barring Service (DBS) checks, so that historic and minor convictions and cautions are excluded from DBS checks. The proposals will be subject to Parliamentary approval, which could take some months. In any event, the Home Office has requested leave to appeal against the Court of Appeal’s decision.
Pending any decision on permissions for the Home Office’s appeal, the Court's judgment has been temporarily suspended; the Disclosure and Barring Service will, therefore, continue to issue standard and enhanced certificates and these will show all convictions and cautions, as is the current practice, until further notice.
The DBS has also announced that its new 'Update Service' will be launched this summer. This will enable individuals to register once for a DBS check which will then be automatically updated and available for organisations to check.
We are now regularly seeing Employment Tribunal cases coming through where there is a ‘social media’ dimension to the claim – e.g. where employees have posted inappropriate comments or material on Facebook, Twitter and the like. Given this, please note that the General Medical Council published new guidance, effective from 22 April 2013, on Doctors’ Use of Social Media. The main focus is on maintaining patient confidentiality and treating colleagues fairly and with respect – and the guidance includes a warning about ‘jigsaw’ identification – i.e. where discrete pieces of information, sourced from different social media sites, are pieced together to reveal the identity of an individual.
Please see also our most recent update on social media and the workplace.
In more health sector news, medical resourcing teams may wish to take note of the Supreme Court’s decision in Verma v Barts and the London NHS Trust, in relation to which Bevan Brittan LLP acted as advisors to NHS Employers (interveners in the case). In this ruling, it was held that, under the old pay protection provisions in the NHS Terms and Conditions of Service (TCS), a doctor moving from a highly paid part time role into a lower paid full time training role was entitled to receive her higher rate of pay for her full time training hours; notwithstanding that this would result in her income from the training role far outstripping what she had actually earned in her original part time role. This overturned the Court of Appeal’s decision that the pay protection scheme should only operate to protect pay up to the amount that the employee actually received in their previous role, prior to re-entering training.
The version of TCS on which this judgment was based (pre Aug 2007) has been revised and the grade of the doctor involved (Hospital Practitioner) was relatively rare and is now a closed grade. This being the case, the decision may well be of limited general application. However, if you have any concerns about the potential implications of this case in respect of your organisation, then please do get in touch and we will be happy to assist (contact details below).
The Whistleblowing Commission has opened a public consultation on the law relating to whistleblowing in the workplace. Proposals include making whistleblowing policies mandatory, introducing rewards, extending protection to a wider category of workers, and an exemption from tribunal fees for whistleblowing claims. The consultation closes 21 June 2013.
The Government has also provisionally announced that from 25 June 2013, changes to whistleblowing law will come into force. There will be a new requirement that disclosures must be in the 'public interest', the requirement for disclosures to be in 'good faith' will be removed and employers will be liable for detriments to which whistleblowers are subjected by their colleagues.
The Department for Work and Pensions has published a consultation paper on draft regulations and other proposed amendments making technical changes to simplify the auto-enrolment process. This development is likely to be welcomed by employers as the proposals should make the scheme easier to operate - in particular, the government is proposing to introduce a new method of determining a ‘pay reference period’ and to allow employers to exclude certain categories of worker from the auto-enrolment duty. The consultation closes on 7 May 2013, and the Government intends to lay draft legislation before July 2013, with new regulations in force by April 2014.
The Ministry of Justice has published statistics in relation to employment tribunal claims for 1 October to 31 December 2012. The figures show, compared to the same quarter in 2011, a 24% decrease in overall claims to the employment tribunals, with a 4% decrease in the number of single claims and a 16% decrease in multiple claims.
The Government has announced the national minimum wage rates which will take effect on 1 October 2013. The new rates are set out below.
The legislation enacting the proposal for a new category of employee – ‘Employee Shareholder’ under which key employment rights are exchanged for shares in the employing company – has finally become law, having been sent back and forth between the House of Lords and the Commons under the ‘ping pong’ procedure. It is intended that the new arrangements under the Growth and Infrastructure Act will be implemented this autumn. Various concessions to the original proposals have been agreed.
Please see the October 2012 edition of Employment Eye for a summary of the ‘employee-shareholder’ scheme.