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Main provisions of Trade Union Act 2016 in force on 1 March 2017

February 28, 2017 at 9:00 AM

The Trade Union Act 2016 (Commencement No. 3 and Transitional) Regulations 2017 have been made which confirms the major provisions of the Trade Union Act 2016 will come into force on 1 March 2017.

Among the provisions coming into force on 1 March are:

  • 50% turnout requirement for all ballots (S.2 of the 2016 Act);

  • A requirement that 40% of those entitled to vote support industrial action in important public service ballots (S.3);

  • New rules governing the information that must be included on the ballot paper (S.5); and

  • Restrictions on ‘check-off’ arrangements, requiring unions to make a reasonable contribution to the cost of administration (S.15).


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

Can you dismiss someone for gross misconduct if they have been grossly negligent?

February 27, 2017 at 9:00 AM

Yes...depending on the facts of the case.

Sainsburys Store Front

The Claimant in Adesokan v Sainsbury's Supermarkets Ltd was a Regional Manager who became aware that a HR Manager had sent an email which attempted to interfere in and undermine an important management consultation exercise. The Claimant did nothing to get it withdrawn or to remedy the situation. At a disciplinary hearing it was decided that his failure to act demonstrated gross negligence which was "tantamount to Gross Misconduct" and he was dismissed without notice. He sued for breach of contract.

The High Court held that even though the inaction of the Claimant was not deliberate his negligence was so serious that it resulted in sufficient a "loss of trust and confidence" to justify his dismissal. The Court of Appeal agreed. Even though courts should not easily find that a mere failure to act amounted to gross misconduct, on the facts of this case the senior position the Claimant had in the Company justified the dismissal.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

Responding to a Subject Access Request

February 27, 2017 at 9:00 AM

The reaction of most employers when faced with a Subject Access Request from a current or former employee is one of dread. It can be time consuming and a real administrative burden and the consequences of getting it wrong can add to the disruption.

File / Folders

In a prominent judgment, the High Court refused an application to order a business comply with a subject access request (SAR) on the basis that searches had been reasonable and proportionate and refusal to provide some documents through protected legal professional privilege was properly claimed.

The claimant in the case of Holyoake v Candy challenged the adequacy of the data controllers’ searches and, in particular, felt that the searches were flawed as the company directors’ involved had not been asked to search their private email accounts.

The Judge felt that such a search would be an “intrusion requiring justification”. Whilst he accepted that a director who used a private email account for work may owe the company a duty to allow access to this, the company was not bound to ask for access unless there was a “sufficient reason to do so”.

The claimant also argued legal professional privilege (discussions between a client and their lawyer) could not be relied on as there was a suspicion that some of the activities were tainted by criminal conduct. However the Judge confirmed that there would need to be strong evidence of wrongdoing to justify an inspection of privileged documents not just a speculative case.

This decision is useful as it restates the position that searches need only be “reasonable and proportionate” and gives further guidance on the searching of private email accounts. However, the court’s view is difficult to reconcile with that of the ICO which has stated that the ‘disproportionate effort’ exemption found in the Data Protection Act relates to the production of a copy of the data and not the search itself.

How we can help

Responding to a Subject Access Request isn’t as simple as it sounds. There can be very good reasons not to comply fully with the request – particularly if there is the threat or actual litigation in process.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

Gender Pay Reporting - How to comply

February 23, 2017 at 9:00 AM

Acas and the Government Equalities Office have published guidance on how businesses can calculate and report their gender pay gap.

Gender Pay Reporting - How to Comply

The guide has been launched in the run-up to new gender pay gap reporting Regulations, which come into force for private-sector businesses employing 250 or more people from 5 April.

The legislation requires employers with 250 or more staff to publish figures every year showing how large the pay gap is between their male and female employees. For example, it may show that on average men earn 15% more pay per hour than women, that men earn 10% more in bonuses per year than women, or that the lowest paid quarter of the workforce is mostly female.

These results must be published on the employer’s own website and a government site and means that the gender pay gap will be publicly available, including customers, employees and potential recruits. As a result, employers should consider taking new or faster actions to reduce or eliminate their gender pay gaps.

Employers will have up to 12 months to publish this information. Public sector regulations are subject to the approval of Parliament but are expected to follow the same timescale.

How we can help

Our in-house seminar – "Gender Pay Reporting: How to comply" – will take you step by step through the new legal requirements. We will tell you what you need to do, when, and how best to do it. We will help ensure that your organisation is not only compliant but also shown in the best possible light.

In addition to our seminars, we will also be offering Bespoke gender pay consultancy services, which could include comprehensive assistance with data gathering and calculations, drafting the gender pay report and accompanying narrative, preparing an action plan to improve gender pay equality, communications advice and strategy, and assistance where your calculations bring to light a possible equal pay issue.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

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Getting those “off the record” conversations right

February 22, 2017 at 9:00 AM

It is all too common for managers to confuse 'without prejudice' and 'protected conversations'. Here's how employers can get the distinction right.

Many employers are familiar with the concepts of 'without prejudice' and 'protected conversations' as a method of starting exit negotiations with an employee. However, both terms are frequently used incorrectly. Without a full appreciation of their advantages and their limitations, employers can use the wrong terms and leave themselves exposed.

Getting those 'off the record' conversations right

Without prejudice

Put simply, anything written or said ‘without prejudice’ in a genuine attempt to settle an existing dispute cannot being used as evidence in subsequent litigation.

The main limitation is that there needs to be an existing dispute - so a manager having an ‘off the record’ conversation with an underperforming employee would not be covered. The employer could face a resignation and claim of constructive unfair dismissal or an argument that any subsequent dismissal was pre-determined and therefore unfair.

The dispute doesn’t have to constitute a formal claim, but the parties do need to have at least thought of litigation if they cannot reach an agreement.

Some employers assume that a grievance amounts to a dispute. It doesn’t. The employer could uphold the grievance. The individual circumstances are very relevant, and therefore it can sometimes be difficult to say with certainty whether the without prejudice rule applies.

Protected conversations

Protected conversations were introduced to enable parties to have ‘off the record’ discussions even where there is no dispute. In addition to the content, even their existence cannot be disclosed in litigation. What’s more, the protected nature of such conversations cannot be waived, even if both parties agree.

There are limitations too. They are only inadmissible in ordinary unfair dismissal proceedings. Claims of discrimination, automatic unfair dismissal, detriment, or breach of contract are not protected. Employers will not always know what claims an employee might later present. “Off the record” protected conversations are usually unwise when discussing a potential exit with an employee on long-term sickness absence, in light of the possibility of a disability discrimination claim. This is where the without prejudice rule has an advantage over protected conversations: if something is ‘without prejudice’ it is inadmissible in all legal claims, not just unfair dismissal.

Any 'improper behaviour' from the employer will lead to the protection being lost. Improper behaviour is not defined, but ACAS suggests that putting undue pressure on the employee would be an example. It goes so far as to recommend employers allow employees 10 days to consider any proposal.

Labels

A common misconception is that labelling a document 'without prejudice' will prevent it from being revealed in litigation. But it is the substance of the document, not its label, that is important. If the document doesn’t fit within the rules it will not be protected – whatever its label.

How we can help

We can explain your options and the best way for you to approach those ‘difficult conversations’ to put you in the best position possible to achieve your objective with the minimum of fuss, inconvenience and expense.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

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