HR Bulletin - August 201914 Aug 2019
Case Law Update
Kocur v Angard Staffing Solutions Limited – Agency Worker Regs do not give agency workers entitlement to same hours as permanent employees
The Agency Workers Regulations 2010 entitles an agency worker to the same conditions of work as a permanent employee. Mr Kocur was an agency worker providing temporary services to the Royal Mail. He brought a claim arguing that he should also be entitled to be allocated the same number of hours as permanent Royal Mail employees.
His claim was dismissed by the Court of Appeal who said that the purpose of the 2010 regulations is to ensure the equal treatment of agency workers whilst they are at work. They do not extend to regulating the amount of work given to agency workers or entitle them to be allocated the same number of hours as permanent employees.
Bilsbrough v Berry Media Limited – Whistleblowing protection for employees who are considering making a disclosure
Mr Bilsbrough raised concerns about an alleged data security breach with his employer’s technical director. This was in line with the company’s Whistleblowing Policy, which said that employees should raise issue with their line manager or, if they manager is not available, a director. At the time he reported his concerns, Mr Bilsbrough’s manager was not on site. The company appeared grateful that Mr Bilsbrough had highlighted the issue and took steps to address the problem. When Mr Bilsborough’s manager heard about the matter she told him off for not reporting his concerns directly to her. In response, Mr Bilsbrough told a colleague that he was going to “take the company down” and started to research how to make disclosures to the Information Commissioner’s Office. Subsequently, Mr Bilsbrough was suspended for researching whistleblowing disclosures and then dismissed for his comments about taking the company down.
Mr Bilsbrough’s claim for unfair dismissal was rejected, but the Employment Tribunal did find that suspending him for researching whistleblowing claims was a detriment connected with a protected disclosure and he was awarded £2,500.
Forbes v LHR Airport Limited – Social media and employer responsibility
Was an employer vicariously liable for the actions of an employee who posted a racially offensive image on Facebook? The image was of a golliwog and shared with Facebook friends, including a work colleague, who showed it to another employee, who then complained. The Employment Appeal Tribunal held that the employer was NOT liable based on the following facts:
– The image was posted on the employee’s personal social media account
– It was posted outside of working hours
– It was posted on the employee’s personal device rather than a work computer
– The post made no reference to the employer
Had the Facebook page been used for the purposes of communicating with work colleagues or raising work-related matters, the outcome may have been different.
Health is everyone’s business: Proposals to reduce ill health related job loss. Closing date 2nd October. The paper consults on how ill health related job losses can be avoided. It considers the following:
1. Whether employees who suffer from ill health but who do not meet the legal definition of having a ‘disability’ should have the right to request workplace adjustments. Crucially, employers will be able to refuse the request in certain circumstances (yet to be defined).
2. Whether employees should still be entitled to statutory sick pay when they are completing a phased return to work.
3. Whether access to occupational health can be improved by increasing the number of occupational health professionals and introducing a rebate for employers who engage an occupational health provider.
Good Work Plan: Measures to address one-sided flexibility. Closing date 11th October. Following concern about the number of employees on zero-hours contracts, views are sought through this consultation on measures to introduce rights for employees to be given reasonable notice of their work schedules and compensation for shifts that are cancelled at short notice.
Our employment team in July
• Delivered a client training session. We provided a half-day client training session on employment law updates, with a specific focus on transgender employees in the workplace.
• Advising a client on how to protect their business through the use of post-termination restrictions. We have worked closely with a client in a fast-growing and highly competitive sector to understand what specific trade relationships and sensitive information needs protecting in their business, in order that robust and enforceable post-termination restrictions are drafted into their contracts of employment and to improve the prospect of the restrictions being upheld if breached.
• Advising a client on the transfer of their employees on the sale of their business. The incoming employer/buyer intended to introduce a number of changes to the employees’ terms of employment following completion of the sale. We advised our client throughout the duration of the TUPE transfer process to ensure an effective consultation process, given the extent of the intended changes. Speak to us if you are beginning this process.
• Advising two senior executives on six-figure termination packages, incorporating rights under Long Term Incentive Plans.