Distinguishing unwise decision-making from lacking capacity
Dec 12 2023
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This month's selection of key employment law news is brought to you by Alec Bennett and covers: the latest developments on the 'Woolworths' decision on redundancy consultation; whistleblowing; Care Certificates and 'dates for your diary' – forthcoming changes on the horizon, this Spring.
The Advocate-General to the European Court of Justice has published his Opinion on the collective redundancy consultation cases, USDAW and another v WW Realisation 1 Ltd and others – commonly known as the 'Woolworths' cases. As you will no doubt remember, these cases related to the Employment Appeal Tribunal's decision, back in July 2013, that an 'establishment' for the purposes of the duty to collectively consult means the whole organisation, rather the local units in which employees at risk of redundancy are employed – thereby dramatically increasing the scope for collective consultation obligations to bite. Please click here to read our summary of the decision, which is currently under appeal to the Court of Appeal. The Court of Appeal has asked the European Court of Justice (ECJ) to provide guidance on the correct approach and the Advocate-General's Opinion is that the meaning of 'establishment' for the purposes of collective redundancy requirements is the local employment unit to which the workers made redundant are assigned to carry out their duties. That said, the Advocate-General noted that it is for national courts to determine what might amount to a 'local unit' and that could include a number of local units - for example, several different shops within the same shopping complex. However, the general direction of the Advocate-General's Opinion is positive for employers, and it is hoped that the ECJ will follow the Advocate-General's Opinion (although it is not obliged to do so). The ECJ's final decision in this matter is expected later this year and it remains to be seen whether the ECJ will follow the Advocate General's Opinion. In the meantime, it would be advisable for employers to continue to take a cautious approach and aggregate the numbers of redundant employees across different locations when determining whether collective redundancy obligations are triggered.
February has been a big month for whistleblowing, particularly in relation to the NHS. On 11 February 2015, the Department of Health published a new report, Culture Change in the NHS, discussing progress in the NHS since the Francis Report. The report also sets out new measures that the government states will further improve the culture of the NHS, including the following.
Sir Robert Francis has also published his review into whistleblowing in the NHS, and the government's initial response has been to accept, in principle, all of the report's recommendations. For a full summary of Sir Robert Francis' 'Freedom to Speak Up' review and its practical impact (within the health sector and beyond), please see our briefing, but some of the key recommendations are
The government intends to consult on implementing the
Finally, earlier this week, the House of Commons published a briefing note on whistleblowing. The note can be found here and provides a brief account of recent whistleblowing changes, summarises the statutory protections for staff and provides guidance on where wider disclosure of concerns may be appropriate, including raising concerns with the Care Quality Commission. The Financial Conduct Authority has also published a note on how it handles disclosures from whistleblowers.
As a result of failures identified in the Francis Report, the government commissioned the Cavendish Review into healthcare assistants and support workers in the NHS and other healthcare settings. One of the findings of the report was that there were inconsistencies in the extent to which healthcare assistants and support workers were prepared for their roles and the Review recommended the creation of a fundamental certificate of care. The new 'Care Certificate' will be introduced next March and will apply to all applicable new starters in health and social care support from next April. NHS Employers has published new guidance to support the introduction of the Care Certificate.
There are a number of changes coming into effect this Spring. Here are some dates for your diaries…
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