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October 2013 Employment Law Newsletter

07-10-2013

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

1.    Grievances & Constructive unfair dismissal

The Employment Appeal Tribunal has ruled that a failure to provide an impartial grievance appeal procedure may amount to a breach of the implied term of trust and confidence and remitted a case back to the original employment tribunal to consider the matter further.

This case involved a grievance and a subsequent appeal that was heard by the same regional managing director at both stages.

The EAT stated that the failure to allow the appeal of a grievance decision to be heard by a different manager may itself amount to breach of the implied term of trust and confidence.

It was noted that the right to an impartial appeal is an important feature of the ACAS Code of Practice and that, in this case, it was not easy to see why the large employer was not able to provide an impartial hearing by a manager not previously involved.

The employment tribunal will now have to decide whether, on the facts of this particular case, the failure to provide an impartial grievance appeal procedure amounted to a breach of the implied term of trust and confidence entitling the employee to resign and bring the constructive unfair dismissal claim.

This case is a reminder that, where possible, employers should always ensure that appeals against grievance or disciplinary decisions are heard by a person who was not previously involved.

2.    EMPLOYMENT LAW CHANGES: Immigration

A number of changes to the Immigration Rules came into effect on 1 October 2013. The changes include:

  1. the removal of the English language requirement for intra-company transferees;
  2. changes to make it easier for graduate entrepreneurs to switch into Tier 2;
  3. waiving share ownership restrictions for some senior staff; and
  4. allowing some students to work as interns under the Tier 5 Government Authorised Exchange scheme.

Further details here.

3.    MORE EMPLOYMENT LAW CHANGES: third-party harassment REPEALED

On 1 October 2013 the provisions in section 40 of the Equality Act 2010 that governed third-party harassment were repealed.

This means that there is no longer be a separate head of liability for employers where their employees are harassed by third parties (unless there was a contravention before 1 October 2013).

However, employees may still be able to cover this issue under other claims, for example, under the general harassment provisions of the Equality Act, by claiming constructive dismissal, negligence or under the Protection from Harassment Act 1997.

4.    LOCATION, LOCATION, LOCATION!

The European Court of Justice has ruled that, in the absence of a governing law clause in an employment contract, it is open to a national court to decide that the contract was governed by the laws of a country other than the one in which the employee worked.

This means that the fact that one country’s laws may be more favourable to an employee does not mean that the laws of that country should automatically be applied and the courts can decide whether the applicable law is that of another country (other than the one in which the employee works) if the contract is more closely associated with that other country.

This highlights the importance for employers who carry out business in more than one country ensuring that their contracts of employment specify the governing law. Specific legal advice should be sought for employees who work across borders.

5.    GUIDANCE: criminal records checks

The Disclosure and Barring Service has published guidance following the introduction of a filtering system in May this year under which, some old and minor cautions and convictions are no longer subject to disclosure.

See the guide here.

6.    MORE GUIDANCE: Illegal working

The Home Office has published an updated guide for employers on preventing illegal working in the UK. The changes include information on the Home Office’s fast payment option for paying a civil penalty. See the information here.

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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