Gordons Legal Employment Update – 16 May
Wednesday 16th May 2018
When is a Notice of Termination Effective?
The Supreme Court recently decided on a case which challenged fundamental legal principles of both contract and employment law.
On 1 April 2011, the Claimant in the case of Newcastle Upon Tyne Hospitals NHS Foundation Trust v Haywood received a letter from the Trust which stated that she was at risk of being made redundant from her job.
Her employment contract stated that her notice period to terminate her contract was 12 weeks but the contract did not specify how the notice should be given or when it would be effective.
At a consultation meeting in April 2011, the Claimant informed the Trust that she had booked annual leave from 19 April 2011 to 3 May 2011.
The Claimant went away on holiday and the Trust wrote to her on 20 April 2011 to say that her employment was being terminated on the grounds of redundancy. Being away, the Claimant did not know about the letter and did not have the opportunity to see it prior to returning home, which meant that she did not read the letter until she arrived home in the early hours of the morning on 27 April 2011.
The most interesting part of the case, and the reason why it was brought, was that both parties were aware, if the Claimant’s employment was terminated on or after her 50th birthday on 20 July 2011, she would be entitled to claim a generous (early retirement) pension. However, if it terminated before her birthday, she would not receive the same entitlement. The Claimant argued that the the 12 week notice did not begin until 27 April 2011, and therefore the notice would expire on 20 July 2011.
Comment
The Supreme Court found in favour of the Claimant (upholding the Court of Appeal decision) and ruled that, in the absence of an express contractual clause, written notice of termination served by an employer does not take effect until the employee has read it, or had a reasonable opportunity to read it.
The outcome of this case is a reminder to review employment contracts to ensure that such a term is included, to make it clear as to when service is effective, to avoid these problems.
General Data Protection Regulations (GDPR)
The date for the new GDPR coming into force is only two weeks away! Are you ready?
Last week, the ICO published their guidance on consent, and it is clear that, whilst the basic concept and definition of consent is not new, the GDPR sets a high standard. Generally, the changes require businesses to have a clear opt-in method, good records of consent and simple ways for people to withdraw their consent. This is reflective of the shift towards businesses being required to demonstrate how they are compliant, not just simply showing that they comply.
We have been working hard to advise our clients on the forthcoming changes and we have been providing a wide range of documents to ensure their GDPR compliance in the UK.
Please do not hesitate to get in touch with us if you need any assistance with GDPR or you would like us to review what you have done.
Gender Pay Gap
Companies with 250 or more employees were required to submit their gender pay gap reporting / analysis on their website by 4 April 2018, but the Equality and Human Rights Commission (“EHRC”) has warned that hundreds of companies face legal action after they have failed to meet an extended deadline to report their gender pay gap.
The EHRC has adopted a ‘zero tolerance’ approach to the enforcement of the reporting, indicating that it will investigate every company that has failed to comply with the requirement. The EHRC states that those employers who do not report their data within 28 days of receiving a notification from the EHRC will face further action which could include unlawful notices, written agreements, and unlimited fines.
Cabinet ministers have also been given six months to collect action plans from sectors in their remit on how those sectors intend to reduce their respective gender pay gaps since reports have been produced stating that the gender pay gap will not be eliminated for some 34 years.
Comment
We’re sure that you have already complied with this obligation, but if you haven’t it is crucial that you publish your data without any further delay.
Teacher Dismissed for Failing to Disclose a Relationship
In the case of Reilly v Sandwell Metropolitan Borough Council, a head teacher at a primary school was summarily dismissed because she did not inform the school’s governing body that she had a close relationship with someone who had been convicted of making indecent images of children.
The local authority summarily dismissed her for gross misconduct and was particularly concerned by her refusal to accept that her relationship with the man in question might pose a threat to pupils.
The head teacher claimed that she had been unfairly dismissed. The case went to the Supreme Court which held that an employment tribunal had been entitled to conclude that the dismissal was reasonable and they upheld it.
The Supreme Court took into account that the relationship created a potential risk to the children and held that her failure to disclose amounted to a breach of her contractual duty to advise, assist and inform the school’s governing body in fulfilling its responsibility under section 175(2) of the Education Act 2002 to safeguard the pupils. In addition, her refusal to accept that she had been in breach of duty suggested a continuing lack of insight which rendered her continuing as head teacher inappropriate.
Comment
The case is arguably helpful for employers because it makes it clear that staff who are responsible for children or vulnerable adults are under a very broad obligation to make disclosures with respect to any safeguarding concerns. In light of this case, organisations should revisit existing safeguarding processes and take steps to ensure appropriate safeguarding procedures are in place. It is also important that staff are aware of the potential consequences for failing to disclose such relationships (or indeed other safeguarding concerns) by expressly including these as examples of misconduct in disciplinary procedures and contractual terms.
Worker Status
There are many cases working their way through the courts at the moment whereby the claimants are disputing their employment status, arguing that they are ‘workers’ rather than ‘self-employed contractors’ and therefore they are entitled to benefits such as holiday pay.
The reserved judgment from the Employment Appeal Tribunal (EAT) in the case of Addison Lee LTD v Gascoigne has been handed down and the EAT upheld the decision of the Employment Tribunal and found that the cycle courier working for the respondent’s small courier business was a worker.
This judgment is another example of a decision favouring the individual in the ‘gig economy’ cases.
Comment
It seems that the courts are readily prepared to make findings that people who are held out as being self-employed are in fact workers. Although each case of course turns on its facts, this is another case offering an insight into the direction of the legal and political landscape in this area. Therefore, it is important to look carefully at practice and expectations of working relationships; businesses should recognise that the contract between the parties does not always reflect the reality of the relationship.
