The Practical Lawyer


Injured feelings – level of compensation

A useful article considers the impact of recent case law on the level of compensation an employer will be liable to pay for injured feelings in discrimination cases. A victim of discrimination based on any protected characteristic can be awarded compensation for injury to feelings under the Equality Act 2010. An injury to feelings award aims to compensate an individual for the hurt caused by unlawful discrimination, rather than punishing the wrongdoer, but should not amount to a windfall nor diminish respect for the law. Compensation for this non-financial loss is awarded separately to any compensation for financial loss and is potentially unlimited.
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Workplace relationships – policy

It is reported that some firms propose outlawing relationships between work colleagues completely. Such relationships can give rise to employment law issues, particularly if the relationship goes wrong. In addition, for solicitors, difficult conduct issues could arise. A useful article highlights the key steps that employers should consider when drafting a policy to deal with this sensitive issue. It suggests that the following steps could provide some protection for the employer:
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Procedural failing – unfair dismissal

The ERA 1996 confers a right not to be unfairly dismissed. By s98(4), the question of whether the dismissal is fair or unfair having regard to the reasons shown by the employer for the dismissal:
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Parental bereavement – in force?

The Parental Bereavement (Leave and Pay) Act 2018 should come into force in April 2020. Regulations as to the detailed operation of the Act are awaited but the government’s consultation response provides a good idea of how it will work.
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Employment law changes – timetable

A useful article considers some of the challenges facing employers relating to those on flexible working contracts. Further legislative changes may be in the pipeline in this regard. Practitioners are reminded of the following changes which are being introduced from 6 April 2020:
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IR35 – introduction

New rules on off-payroll working have applied to the public sector since April 2017. From 6 April 2020 HMRC will require private businesses to take responsibility for determining the tax status of contractors working through personal service companies (PSCs) and for taxing them accordingly. HMRC has indicated that support will be available to firms to assist businesses in this regard but much of the detail has still not been provided.
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Forced retirement – discrimination

A distinguished Oxford physics professor brought a claim for unfair dismissal and age discrimination when his fixed-term contract was not renewed. He was forced to retire before his 70th birthday. The claimant was subject to Oxford’s Employer Justified Retirement Age (EJRA) procedure. It was accepted that the professor was dismissed because of his age. The university argued that its actions were justified as being a proportionate means of meeting a legitimate aim. If this aim is met, it is not unlawful discrimination. 
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WhatsApp – a grey area

It is often assumed that because WhatsApp is an external app and end-to-end encrypted, messages are not capable of being disclosed as part of a response to a subject access request. This area is not yet fully developed in relation to data protection law and thus is unclear. As a general rule, it is arguable that if employers specifically encourage or endorse the use of WhatsApp as a means of business communication, the content of such conversations will be disclosable as part of a subject access request response.
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Drugs, alcohol and smoking policy – key content

We reported in our October 2019 edition (p12) on managing drugs and alcohol in the workplace. A useful article considers these issues in more detail and reminds employers that they have a legal duty to look after the health, safety and well-being of all of their employees. When faced with an employee who may be using drink or drugs, it can be difficult to decide whether to follow the disciplinary policy or capability policy. A separate alcohol and drug policy can help managers navigate this difficult issue.
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Dismissal for frequent absence – can be fair

The claimant worked as a postman. He had a poor attendance record generally and had triggered Royal Mail’s attendance policy on several occasions due to repeated episodes of planned and unplanned absence.
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