The online register of employment tribunal judgments announced last summer is now live. The online service covers judgments in both England and Wales and Scotland and will include all new decisions in addition to some transcripts going back to 2015.
The House of Commons Petitions Committee and the Women and Equalities Committee have published a joint report calling for more effective remedies against employers who require female staff to wear high heels at work, and for Acas guidance on dress codes to be improved. Parliament is due to debate the issue in March, and the Government is expected to publish its response to the report within two months.
The Government has rejected the idea that pregnancy and maternity cases should have more favourable fee treatment, on the basis that the drop off in those claims was much lower than in other types of discrimination. It has also rejected the idea of increasing the limitation period for such claims. However, although it has not adopted the majority of the recommendations made by the Women and Equalities Committee's report of August 2016, the Government has confirmed that it will strengthen the position of women facing redundancy during pregnancy or on return from maternity leave. Meanwhile, the All Party Parliamentary Group on Women and Work has recommended that more needs to be done to help women enter and re-enter the workforce, including equalising statutory pay for maternity and shared parental leave.
The Ministry of Justice has finally published its post-implementation review of the introduction of fees in the employment tribunals and EAT. The review concludes that the fees regime is working well and that some individuals may have been discouraged but not prevented from bringing claims. It will be interesting to see whether the Supreme Court agrees when it hears the UNISON judicial review case at the end of March 2017. The only changes proposed by the Ministry are minor changes to the regime for remission of fees (for consultation until 14 March 2017), and the exemption from fees for certain claims under the national insurance fund (with immediate effect).
The majority of the Trade Union Act 2016 is to come into force on 1 March 2017, including the new ballot requirements, changes to the required notice for industrial action and expiry of the mandate for industrial action. Further details of the Act can be found in our May 2016 briefing. Regulations have also been approved defining the "important public services" which are subject to the requirement for 40% support in ballots.
There is still no decision from the Government as to whether it intends to go ahead with the last government's proposal to remove the restriction on hiring agency staff during industrial action. A review into the possibility of electronic balloting is due by the end of the year.
UK: Jurisdiction – claims for EU-derived rights may only be brought in the UK if working within the EU
In Wittenberg v Sunset Personnel Services the EAT has reiterated its view, originally given in Hasan v Shell International (see our blog post), that EU-derived rights such as working time or discrimination protections can be enforced in the UK, despite not satisfying the usual jurisdictional test, only if the individual was working within the EU.
UK: Discipline – gross negligence can be gross misconduct justifying dismissal without notice in some circumstances
Employers may be entitled to summarily dismiss an employee for a grossly negligent failure to act, for example where the employee is senior and fails to uphold a key policy of the employer.
Employers may wish to review their disciplinary and capability policies, in particular whether and when warnings are stated to expire and in what circumstances expired warnings can be taken into account. In Stratford v Auto Trail VR Ltd, the EAT ruled that a dismissal for misconduct, which the employer had decided was not gross misconduct and merited only a final written warning, was fair given that the employer had taken into account the history of 17 expired warnings leading it to believe that there would be further misconduct.
UK: Relocation on redundancy – mobility clause dismissal will be unfair if clause is too wide or operated unreasonably
The recent case of Kellogg Brown & Root v Fitton and Ewer serves as a reminder to employers relocating jobs on a redundancy: if they choose to operate a mobility clause (rather than make redundancies with the offer of alternative work), they must ensure that the mobility clause is narrowly drafted and covers the proposed move, and that they operate it reasonably taking into account the employees' individual circumstances. It is important to choose early on whether to adopt the mobility clause option or go down the redundancy route.
Employers should take extra care when disciplining a disabled employee for conduct which could be connected with the disability. In City of York Council v Grosset, the employer found itself guilty of discrimination arising from disability even though it had reasonably concluded, in light of medical evidence available at the time, that the misconduct was not connected with the disability. Unfortunately for the employer, the evidence available at the tribunal established a connection between the misconduct and the disability and, on the facts, dismissal was not justified.