Employment Update - 23 April 2010

Employment law training new programme   Our employment law training programme for 2010/2011 is now available! Aimed specifically at HR professionals and senior managers, our informative and interactive training programme offers a range of sessions designed to bring you up to speed with the rapid changes in employment law. Alongside our seminars and workshops, our programme also includes training sessions led by specialist barristers, which will be of particular interest to in house legal teams, as well as a range of soft skills training which we are offering to both HR professionals and in house lawyers. Our first workshop covers the topical issue of union activity and will be held on 18 May 2010 (in our London office) and 19 May 2010 (in our Manchester office). With industrial disputes and strike action continuing to hit the headlines, this interactive workshop, based on practical case studies and scenarios, will be invaluable for all those who deal with recognised unions or unions which are becoming active in the workplace. If you would like to register for this workshop, or any of our forthcoming events, please email seminars@ffw.com, specifying whether you would like to attend the London or Manchester event.

Election special – employment issues   The impending election has given rise to much debate over recent weeks, but what impact will the manifesto pledges of the three main parties have on employment law? Click here to read our "Election Special" article, due to be published in the Employment Law Journal, providing a full analysis of the employment law implications of the manifestos.

Whistleblowing – expressing an opinion   The Employment Appeal Tribunal (EAT) has confirmed that expressing an opinion about an employer's proposal to alter a discretionary redundancy scheme does not amount to a qualifying or protected disclosure under the Public Interest Disclosure Act 1998 (PIDA). In Goode v Marks and Spencer PLC, M&S sent a document to its staff representative body setting out its proposals to reduce the multiplier and the cap used to calculate payments under its discretionary enhanced redundancy terms. When Mr Goode received a copy of the document, he told his line manager that the proposals were "disgusting". He was told to raise his concerns with the staff representative body. Mr Goode subsequently sent an email to the Times, entitled "M&S deal another blow to staff" and attached a copy of the proposal. He claimed in the email that compulsory redundancies would follow as a result of the proposal. Mr Goode was identified as the source of the email and, after disciplinary proceedings, was summarily dismissed by M&S. He brought a claim for automatically unfair dismissal because he made a protected disclosure.   In brief, a dismissal will be automatically unfair if the reason, or principal reason, for the dismissal is that a worker made a protected disclosure. To be protected, the worker must make a "qualifying disclosure". This means the disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of six categories of wrongdoing. The relevant category in this case was that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject. A qualifying disclosure must be made in accordance with the requirements inserted into the Employment Rights Act 1996 by PIDA. These requirements can differ, depending on to whom the disclosure is made. In this case, the EAT confirmed that the Employment Tribunal had been entitled to conclude that what Mr Goode said to his line manager was an expression of opinion about the proposed changes to the discretionary redundancy scheme. Even in the context of the content of the proposal, it did not amount to a qualifying disclosure and there was nothing which would lead anyone to reasonably believe that it tended to show that M&S would fail to comply with any legal obligation in respect of the redundancy scheme. In relation to the disclosure to the Times, a disclosure made to a third party must itself be a qualifying disclosure and the employee must also fulfil one of three criteria, which include that the employee must have previously made a disclosure of substantially the same information to his employer. As Mr Goode did not disclose substantially the same information, it was not a protected disclosure. Whilst this conclusion was sufficient to dispose of the appeal, the EAT also confirmed that the information disclosed to the Times did not amount to a qualifying disclosure. Nothing was disclosed which could reasonably be believed to have a tendency to show that M&S was likely to fail to comply with any legal obligation to which it was subject.

ACAS guidance – volcanic ash disruption   ACAS has issued guidance for businesses which continue to be affected by the travel disruptions caused by the volcanic ash. It recommends that employers consider staffing levels and how to cope with extra staff absences; take a flexible approach and deal with issues fairly and plan ahead for the long term, where emergency steps may need to be taken in the future.

Presenteeism more problematic than sickness absence   Coming to work when sick may cause lower performance levels and greater sickness absences, according to research by the Work Foundation and AXA PPP. The report, Why do employees come to work when ill?, is one of the first studies to investigate links between sickness presence (i.e. when a person attends work when their perception of their health justifies them taking time off) and individual performance. The report found that sickness presence was significantly related to performance levels and to levels of sickness absence. It found that: sickness presence was more prevalent than sickness absence: 45 per cent of employees reported one or more days of sickness presence compared with 18 per cent reporting sickness absence over the same period. three factors, two of which were work related, were significantly linked with higher levels of sickness presence, including: personal financial difficulties; work-related stress and perceived workplace pressure (from senior managers, line managers and colleagues) to attend work when unwell. employees with lower levels of perceived workplace pressure, lower work-related stress and fewer personal financial difficulties reported fewer days of sickness presence compared to those with higher levels of workplace pressure, work-related stress and greater financial difficulties. employees who were unable to adjust their work around their health problem were also more likely to report that their performance was adversely affected by working unwell.

Employment rights – burden on business   The British Chambers of Commerce have published a report on employment regulation, presenting a number of ways that employment legislation and the Tribunal system can be rebalanced, resulting in reduced costs, less bureaucracy and improving the competitiveness of the UK economy. The report makes a number of recommendations as to how to achieve this balance. These include the following: New employment legislation should not impose process requirements on SMEs. The report states that, in many cases, it is the process obligations rather than the substantive rights which cause the most issues and recommends that Parliament should legislate with this group of businesses in mind. Employers should not have the same health and safety responsibilities towards remote workers and lone workers as they do towards office based staff. The report states that it is unreasonable to expect employers to be liable for equipment they did not purchase at a location where they are not present.  There should be a fast track conciliation system for employees claiming less than £3,000. This 'fast track system' would ensure all claims are dealt with within a three month period which, the report states, would be an attractive proposition for both the employee and the employer.  Tribunal reporting should be restricted in the same way as reporting in criminal courts. The report states that many organisations fear that salacious reporting means that, win or lose, the employer will suffer reputational damage. The report argues that this encourages good employers to settle unmeritorious claims.