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January 2013 Employment Law Newsletter

15-01-2013

If you would like to discuss any employment issues please contact Julie Taylor on 01635 508181

1.   Honesty, integrity and misconduct investigations: Employers take note!

The Employment Appeal Tribunal has upheld an employee’s appeal against the rejection of his unfair dismissal claim on the basis that the investigation carried out was inadequate. The case concerned an allegation of dishonesty against an employee with a previously unblemished record. He was accused of stealing, crucially by concealing the items under his jacket. The allegation that the items were concealed was made by a shop assistant and relied on by the manager without any further investigation, despite the availability of CCTV which could have clarified events. The disciplinary hearing was conducted on the basis of evidence from these individuals, without considering any further evidence that may have supported the employee. Therefore the EAT found that, in the absence of a thorough investigation, the tribunal’s decision the employer had dismissed fairly because they had a reasonable belief of the employee’s dishonesty was unsustainable.

This case highlights the importance of a full and wide investigation into allegations of misconduct, especially where the employee’s honesty is being questioned, and emphasises that evidence that may support the employee should also be covered by the investigation.

Employers should ensure that their disciplinary procedures are clear and that a thorough investigation is always the first stage.

2.    Employment Status revisited!

So back in the warm and sunny(!) days of June 2012 we brought you news of the lap dancer who was found to be an employee of Stringfellows by the Employment appeal tribunal, overturning the previous decision that there was insufficient mutuality of obligations to provide an employment relationship.  (June update: Employment status is never dull!)
Well, that was not the end of the story: Stringfellows appealed against the decision to the Court of Appeal, who upheld the decision of the original tribunal that there was no employment relationship and therefore the claim for unfair dismissal failed. The key factors in the decision were that the dancer was not paid directly by the company, but by third parties and therefore took on a degree of financial risk and there was not a sufficient degree of control.

The decision serves as a reminder of the complex nature of employment status, the need to ensure that the contractual documents reflect reality and the importance of taking legal advice in cases of uncertainty.

3.    Employee misses out on compromise agreement benefits for breaching his obligations

The High Court has determined that an employer was entitled to withdraw a benefit agreed as part of a compromise agreement where the employee was in breach of undertakings given by him.

In this case, the employer had agreed to pay a bonus to the employee (which he would not otherwise have been entitled to) conditional on the employee’s agreement not to compete with the employer or solicit the employer’s employees. However, when the employee did not keep to his side of the deal by assisting a competing business and poaching the employer’s staff, the employer was able to withhold the additional bonus promised and the employee’s claim for this failed.

Employers should ensure they take legal advice when dealing with compromise agreements or considering withdrawing any terms promised to an employee, but the case does highlight that employees will be expected to comply with their side of an agreed bargain.

4.    February means skiing – oh and tribunal award increases!

In keeping with employment law tradition, on 1 February 2013 some tribunal awards limits are set to increase:-

In dismissal cases, the new figures will only apply where the effective date of termination falls on or after 1 February 2013.

4.    Fuel benefit figures are also going to change

With effect from the tax year 2013-14 the fuel benefit figures used when calculating cash equivalent payments where an employer pays an employee’s fuel for private motoring or provides an employee with a van for private use, are to increase. Further details here.

6.    Discrimination and the Volunteer: Volunteers without a contract will not generally be protected

The Supreme Court has found that a volunteer who did not have a contract was not protected by discrimination law, highlighting that, in the context of employment law, only employees and workers who have a contract will be covered by discrimination law. However, this may not be the case for unpaid interns, for example, as they could be considered differently where their work is linked to an offer of employment or if it might amount to vocational training or practical work experience.

As always, employers should ensure that they treat employees fairly and where volunteers are engaged they should be treated in the same way to avoid such disputes and to retain and attract other volunteers.

7.    WARNING: be careful with written job offers

The Employment Appeal Tribunal has determined that an employee was entitled to be paid compensation based on the higher and incorrect salary mistakenly set out in a job offer letter even though she had previously been told that it would be a lower amount.

The case emphasises that if an employer tells a prospective employee the salary will be a certain amount but the subsequent job offer letter states a higher amount the employer may be bound by the figure confirmed in the later job offer letter. This means that the employee may have a claim for unlawful deduction of wages for the difference. However, if the employee accepts a written offer knowing or believing the employer has made a mistake, this is unlikely to be the case.

Please note that these comments are intended to summarise some of the employment issues of the moment, not to provide detailed legal advice, so if you need assistance with any employment issues you may have please contact Julie Taylor on: 01635 508181 or  [email protected]
Follow Julie on Twitter: @JulieT_GL


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