Employment Bulletin 8th June 2015

Posted on 5 June, 2015 in Employment Law for Employers

European Court rules against employees in Woolworths case

The European Court of Justice (ECJ) has ruled against the employees and the union involved in the Woolworths redundancy case.

It's good news for employers because it could reduce the time they have to spend negotiating collective redundancies in the future.

The case brought into focus the issue of when do employers need to negotiate with trade unions when making redundancies across multiple sites. The law says that if an employer wishes to lay off more than 20 staff within a 90-day period, then it must consult the relevant trade union representatives at least 30 days before theThe European Court of Justice (ECJ) has ruled against the employees and the union involved in the Woolworths redundancy case.

It's good news for employers because it could reduce the time they have to spend negotiating collective redundancies in the future.

The requirement refers to staff being made redundant at one "establishment". The question the ECJ was required to answer was what constitutes an establishment? Is it the company as a whole or is it each individual site owned by the company.

The question became important because when Woolworths made its workers redundant in 2009, it interpreted an establishment as meaning each individual store. It therefore didn't consult unions in stores where less than 20 staff were involved.

Staff and their union USDAW argued that establishment should refer to the company as a whole. They took legal action to seek a total of £5m in compensation for the workers affected. Woolworths ceased trading in 2009 so if the claim had succeeded, the compensation bill would have fallen on the taxpayer.

However, the ECJ ruled against the employees. It held that establishment referred to individual sites, not the whole organisation.

The CBI welcomed the decision, saying that it would it reduce the administrative burden on employers making redundancies across different sites.

Nearly 50% of SMEs 'unsure about shared parental leave'

Many small businesses are unsure about how to deal with shared parental leave (SPL) according to a survey reported in The Times newspaper.

Half of the 400 firms polled said they didn't understand the legislation and how it would work.

A further 17% said they were worried about the effect the new rights would have on their business.

The new system of SPL came into effect on 5 April and allows parents to share 52 weeks' leave. It also applies to couples who adopt a child.

Mothers are still required to take two weeks' compulsory leave immediately after the birth, but the other 50 weeks can be shared between both parents. They can choose whether to take their leave simultaneously or take turns, or a mixture of the two, but the leave must be taken in complete weeks.

Parents can take their leave in a continuous period but would have to negotiate with their employer if they wish to take leave in discontinuous periods. The employer doesn't have to agree to a discontinuous leave period.

To qualify for SPL, a parent must have worked for their employer for at least 26 weeks at the end of the 15th week before the Expected Week of Childbirth (EWC). They must also give sufficient notice to their employer.

The other parent must have worked for 26 of the 66 weeks prior to EWC and earned a minimum of £30 in at least 13 of those weeks.

An estimated 285,000 couples a year are expected to benefit from the new system so the impact on businesses is likely to be substantial. Employers may wish to review their employment policies to ensure they don't breach the new regulations.

Don't get a criminal record by asking about criminal records

It has always been a delicate issue trying to check whether potential employees have criminal records and now it has become even trickier, leaving employers in danger of acquiring a criminal record of their own if they don't follow the correct procedures.

The official way to check is to use the Disclosure and Barring Service, which was formerly known as the Criminal Records Bureau. However, that doesn't reveal spent convictions.

In the past, employers wishing to get the full picture of a potential employee have been able to get round the problem by asking job applicants to provide a copy of their criminal record by way of a Data Protection Subject Access Request.

However, in March changes to the Data Protection Act made it a criminal offence to require applicants or existing employees to reveal their records in this way. It means businesses will now have to rely on information provided by the Disclosure and Barring Service.

Whistleblower acting in 'public interest' was unfairly dismissed

A whistleblower who was sacked after revealing what he regarded as unfair practices by his employers has won his claim of unfair dismissal.

The Employment Tribunal held that the disclosure was in the public interest.

The case involved a manager who worked at a branch of a large estate agency chain. He told his area manager that he had come across information that showed that the agency was manipulating profit and loss accounts. He claimed this affected both his earnings and the earnings of 100 other senior managers.

He later made similar allegations to the agency's Director of Human Resources.

The manager was later sacked on the grounds that he had made the disclosures.

The Employment Tribunal held that he had been unfairly dismissed. It accepted that he could be said to have breached his legal obligation to his employers. However, he would have a defence if the disclosures were in the public interest.

The manager had believed that the disclosures were in the interest of the 100 other managers. This was a big enough group to constitute a matter of 'public interest' as opposed to something only of importance to the manager himself.

The agency appealed on the grounds that 100 senior managers was not a large enough group to invoke a public interest defence.

However, the Employment Appeal Tribunal upheld the decision. It held that the managers represented a section of the public who would be affected by the manipulation of the accounts and so the public interest test was therefore satisfied.

Employee loses damages claim because 'illness not foreseeable'

An employee has lost his damages claim for psychiatric illness because his employer could not have been expected to foresee his condition.

The case involved a manager of a store. He started to suffer from depression and took five months off work. He then made a phased return but within a few days, he was re-certified as unfit for work due to his depression. He claimed this was because he felt under pressure to accept the company's offer of a temporary post at another branch.

He claimed his depression was due to occupational stress caused by the employer's negligence or breach of duty.

The tribunal rejected the claim on the grounds that his illness had not been foreseeable.

The manager had been in charge of large retail outlets for 10 years and had had no history at all of any psychiatric or psychological problems. Nothing about him gave anyone any clue that he might succumb to a psychiatric illness.

His work colleagues who knew him had no idea that he might do so. Furthermore, not only was there nothing about the employee which put his employer on notice that he might suffer psychiatric illness, there was also nothing about store managers in general giving rise to such concerns.

As to his relapse, it was true that the employer by then knew that he had suffered a psychiatric illness and so was on notice that he was vulnerable. However, he was by his own account, ready to return to work. He was an experienced manager and the employer had been entitled to act on the basis that he would be able to assess whether he wished to take up a particular opportunity.

His return to work did not amount to a breach of duty. Nor could the employer have foreseen that offering him a temporary post at another store would cause a recurrence of the psychiatric illness.