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29 April 2014 0 Comments Posted in Employment, Opinion

What is gross misconduct?

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In Eastland Homes Partnership Limited v Cunningham, the EAT has overturned a Tribunal finding of unfair dismissal where the employee of a residential care home was dismissed for failing to tell the employer that he and his wife were named beneficiaries in the will of one of the residents. Although the code of conduct was not available to the EAT, it appeared from the Tribunal judgment that it prohibited staff from accepting gifts in excess of £50 and suggesting that any benefits received should be declared and approved by management. The Tribunal judgement contained no analysis as to why it considered the employee’s actions did not amount to gross misconduct in circumstances where they were a breach of the care home’s code of conduct.

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Covert recordings deemed admissible

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In Punjab National Bank (International Limited) and others v Gosain, the EAT has upheld a Tribunal decision that undercover recordings made by an employee of the public and private discussions of the panel at her grievance and disciplinary hearings could be admitted as evidence at a final hearing. The EAT held that the private comments made by the panel were not part of their deliberations on the matters in questions and this case could be distinguished from its decision in Amwell v School Govenors v Dogherty. This case held that the recording of the private deliberations of the disciplinary panel would not be admissible on the grounds of public policy. However in the instant case, the EAT held that the Tribunal was entitled to decide that the recordings were admissible in evidence and their relevance could be ascertained by the Tribunal at the final hearing.

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Calculation of protective award under TUPE

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In London Borough of Barnet v Unison and another, the EAT has held that the Tribunal was wrong in the approach it took to calculating protective awards arising from an employer’s failure to provide union representatives with comprehensive information about its agency workers during redundancy and a TUPE consultation. The Tribunal had wrongly identified the starting point as being the top end of the protective award, namely 13 weeks. The EAT, following the decision in Suzie Radin Limited v GMB and others, set aside the awards of 60, 50, and 40 days for different groups of affected employees and remitted the question of the level of the award back to the original Tribunal. The Suzie Radin case stated that the starting point should be the maximum only in circumstances where the employer has done absolutely nothing to comply with the obligations under TUPE, and not automatically applied where employers have carried out some form of consultation.

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Tasks of short term duration under TUPE

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In Robert Sage Limited (t/a Prestige Nursing Care Limited) v O’Connell and others, the EAT has upheld a Tribunal decision on the meaning of “intends” in the “task of short term duration” exception to the TUPE service provision change rules.

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TUPE – Identifying activities in SPC

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In Qlog Limited v O’Brien and others, the EAT had upheld an Employment Tribunal decision that the activities carried out by the incoming service provider were fundamentally or essentially the same as those carried out by the outgoing service provide for the purposes of the service provision change under TUPE. The EAT held that, in coming to its decision, the Tribunal was entitled to take account of the description of the activities in the contractual documentation, which confirmed that, under the contract, the incoming provider was required to provide the same services as the outgoing provider. However there is slightly more to this case than meets the eye in terms of the facts.

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Drafting error does not prevent enforceability of non-compete restriction

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In Prophet Plc v Huggett, the High Court has granted an injunction to an employer to enforce a 12 month non-competition restriction which, if read literally, offered the employer no protection at all. The restriction only operated to prevent the employee from joining a competing business in circumstances where it would be engaged or employed in connection with any products (of the employer) in which he was involved during his employment. The clause was of no use at all, because no company would ever be involved in selling a competitor’s products! However the Court was content to treat this as a drafting error and read the clause in the way in which it was reasonable to consider it should have been drafted by its use of language. The Court decided to read into the covenant a meaning which would produce a commercially sensible result and went on to uphold the reworded covenant on the basis that there was a legitimate interest to protect and that the non-solicitation and non-dealing covenants would not provide sufficient protection on their own. Given that the employee concerned was a sales manager engaged in selling the employer’s product, it was not unreasonable to prevent him from being involved in competitor products from a 12 month period.

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Associated Employers for equal pay purposes

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In Glasgow City Council and others v Unison Claimants and another, the Court of Session in Scotland has upheld an EAT decision that a LLP is a company under the definition of “associated employer” for the purposes of domestic equal pay legislation.

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Driving in snow can be qualifying disclosure

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In Norbrook Laborotaries (GB) Limited v Sure, the EAT has upheld a Tribunal decision that individual communications could together amount to a qualifying disclosure for the purposes of whistle blowing protection, even if individually they would not do so. Additionally the employee drawing the employer’s attention to a dangerous state of affairs was also capable of constituting a disclosure of information.

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British sailor lacked jurisdiction to bring Tribunal claims

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In Hasan v Shell International Shipping Services (PTE) Limited and others the EAT has upheld a Tribunal decision that it did not have jurisdiction to hear claims of discrimination, unfair dismissal and breach of contract brought by a British National who worked abroad.

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Is the term “gollywog” racist?

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This was a question which was posed to the Court of Appeal in Lindsay v London School of Economics and Political Science the decision for which gained a lot of publicity in the press on the basis that the press understood the Court of Appeal to have ruled that the term amounted to harassment as it is “obviously racist and offensive”.

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Team Moves

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The High Court case of Thomson Ecology Limited v APEM Limited and Others has held that an employee found to be orchestrating a team move whilst still employed may well in breach of contract. In this case, the Operations Manager was accused of acting as a recruiting operator for the First Defendant whilst still in employment. The employer applied for summary judgement on the grounds that the employee was in breach of the implied contractual duty of good faith and fidelity, in attempting to orchestrate a team move and recruiting individuals whilst remaining employed.

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25 April 2014 0 Comments Posted in Employment, Opinion

Changes to flexible working requests coming in June 2014

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Changes to various flexible working arrangements are due to come into force in June this year.

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