Devonshires Employment Law Brief Autumn 2017

Welcome to our latest round up of employment law and cases.

In this edition we consider the dangers of getting suspension wrong, what every employer needs to know prior to the GDPR coming into force, and an overview of right to work checks. We also consider the case of Chestertons which gives employers guidance on whether a protected disclosure is made in the public interest.

If you have any questions on the matters raised in this briefing, please speak to your usual contact in the Employment and Pensions team.

Click here to read our full pdf briefing.

Featured articles listed below.

The Employment Round-Up

A busy summer in the Employment appellate courts has led to some notable decisions which impact upon the payments due to employees during their employment, on termination and if they bring a Tribunal claim – and the likelihood of such claims being brought.

The headline issue from the summer was the abolition of Employment Tribunal fees which had been introduced in 2013. No fee is now payable for lodging or pursuing an Employment Tribunal claim. Whilst the Government works on arrangements for the refund of all fees paid to date by claimants, we expect to see at least a small spike in new claims from those recently dismissed and those seeking to persuade a Tribunal that the fees regime prevented them from bringing a claim before and therefore, whilst outside of the limitation period (in some cases significantly so), this is the earliest opportunity they have had to bring a claim. However, claims should not go back to their pre-2013 level because of the ACAS Early Conciliation process which will still apply.

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Is Suspension a Neutral Act?

Disciplinary policies refer to suspension as a neutral act as employers often consider that it is not a disciplinary sanction nor does it imply guilt. However, there is already case law that states suspension is not a neutral act and can be regarded as a detrimental one.

In the case of Agoreyo v London Borough of Lambeth [2017] Ms Agoreyo was a primary school teacher and taught classes for five and six year olds. Two of the children Ms Agoreyo taught exhibited challenging behaviour. Ms Agoreyo asked the school for assistance with these two children as she had never dealt with this type of behaviour before. After a few weeks the school put some supportive measures in place but had not fully implemented those measures.

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GDPR: Guidance for Employers

The General Data Protection Regulations (GDPR) will come into force on 25 May 2018 and will be directly applicable to all EU member states.

The Data Protection Bill is also making its way through Parliament and will replace the Data Protection Act 1998. The UK Government has decided to introduce the Bill to ensure that UK and EU data protection laws are aligned post Brexit.

HR departments will need to make sure that they are familiar with the new obligations placed on businesses under the GDPR to ensure compliance. We have set out below answers to some of the most common questions raised by employers in the lead up to the implementation of the GDPR.

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Right to Work – Employers fined £10M in the first quarter of 2017

UK Visas and Immigration have published a quarterly report showing the total number of fines for illegal working given to employers in the United Kingdom. The report shows that 902 illegal workers were found across the UK between 1 January and 31 March 2017 and employers were fined £10 Million for this period.

Although this is a reduction in the number of fines issued in 2016 for the same period it is still concerning that employers are either ignoring the laws regarding illegal working or just failing to carry out the appropriate checks prior to recruitment.

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Whistleblowing Protection: When is a disclosure in the Public Interest?

The Public Interest Disclosure Act 1998 gives protection to employees who blow the whistle on malpractice by their employer. The dismissal of an employee will be automatically unfair when the sole or principal reason for their dismissal is that they have made a “protected disclosure”. To qualify for protection the employee must satisfy a number of tests. One of these is whether the disclosure is made in the public interest, a requirement which was introduced to try to limit the number of claims for whistleblowing protection based on grievances relating to a worker’s personal contract.

In the case of Chesterton v Nurmohamed the Court of Appeal considered the meaning of “public interest” in the context of whistleblowing legislation, and its decision may widen the number of people seeking to gain protection.

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Authors: Ronnie Tong, Kirsty Thompson, Katie Maguire, Jane Bowen & Amy Ling

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