The Practical Lawyer


Lay-off – reasonable period?

In deciding whether an employer has the right to lay off staff, it is the contract of employment that prevails. If there is no contractual right to lay off then an employee can resign and claim constructive dismissal (and may also be able to claim redundancy payment). On the other hand, if the contract authorised laying off, without pay, during a short-term temporary downturn in work then that will be valid.

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Dismissals – consistency?

To what extent can an employee argue that dismissal is unfair because the employee has been treated more harshly than other colleagues involved in the same incident?
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Collective redundancy – constructive dismissals?

There is a 90-day period for assessing the number of dismissals for collective redundancy consultation purposes. A recent EU case shows that this can include constructive dismissals (ie employees who regard themselves as dismissed and so resign).

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Unfair dismissal – totting up misconduct

There will be occasions when an employee is accused of lots of minor issues of misconduct, none of which by itself is sufficiently serious to justify dismissal. 
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Termination – income tax

The Upper Tribunal has clarified the taxation of termination payments made when employment comes to an end. The rule now is that all payments made are fully taxable if they are made ‘in connection’ with the termination of employment (save for the first £30,000 being tax-free).
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Private e-mails – monitoring

 A recent ECHR decision supports existing UK legislation which permits an employer to access an employee’s communications relating to the business, for the purposes of ascertaining compliance with the employer’s rules, practices and policies. But, this should not be misinterpreted as meaning that employers have complete free reign to spy on employees’ private messages.

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Disability – ‘reasonable adjustments’

The duty to make ‘reasonable adjustments’ can extend to adjusting the normal trigger points for absence management.

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Disability – adverse impact ‘obvious’

 A recent disability case is interesting because the EAT focused on the fact that the consequences of the disability were ‘obvious’ to the employer (and not just to the employee).

The case involved a director of learning at a large school. She had been assaulted, which resulted in stress and an absence of 14 months (as a ‘disability’). Because there was no prospect of an immediate return to work, she was sacked. The ET said this was disability discrimination because the employer had not shown objective justification (ie that dismissal was a proportionate means of achieving the legitimate aim of running the school efficiently).

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Social media – policy

Making derogatory or inappropriate comments on social media can have important disciplinary consequences for employees. This is so even if the comments were made some years ago.

This is well illustrated by a recent case in which an employee was fairly dismissed for offensive and disparaging comments on Facebook about (a) his supervisor and (b) the fact that he did not like his job (which on its own was relatively minor), and (c) an admission that he had been drinking while on stand-by – which was an express breach of company rules. The company policy on social media prohibited ‘any action on the internet which might embarrass or discredit British Waterways… including by posting comments on bulletin boards or chat rooms’. Note that some of these comments dated back four years but they made his dismissal for gross misconduct ‘fair’.

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Choice of companion – implied trust?

The implied duty of trust and confidence that exists between employer and employee may extend to the employee’s choice of companion to accompany the employee to a disciplinary hearing.

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