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It is well known that workers who make “protected disclosures” (i.e. “blow the whistle”) must not suffer any detrimental treatment from their employer because they have made such disclosure. If they are dismissed for doing so, this will be an automatically unfair dismissal. This is a technically complex area of law, and there are many pitfalls which employers can fall into in relation to how they respond to whistleblowing. The recent Court of Appeal decision of Royal Mail Ltd v Jhuti [2017] EWCA Civ 1632 is therefore a welcome one for employers, as it affirms the principle that the dismissal of an employee who has made a protected disclosure may  be fair if the dismissing manager is shown to be unaware of any protected disclosures.  The motivations of other employees who may seek to subject an employee to disadvantage because of their whistle-blowing  are not to be attributed to the Employer  provided that  any disciplinary or capability process is conducted in a fair way independently of colleagues with such unlawful intentions.

The ASPC have produced their figures for the Third Quarter of the year and makes interesting reading.

Compassionate leave is time taken off by an employee following a bereavement. Many employers have a policy in place for compassionate leave which states how long employees are entitled to take off and whether it will be paid or not. Even if there are no formal policies in place, in practice most employers will allow employees to take time off following a bereavement or to attend a funeral.

In August 2016, Prime Minister Theresa May announced an audit of public services to reveal racial disparities, partly in response to figures from the Equality and Human Rights Commission which showed large inequalities in areas such as education, mental health, employment and poverty. Earlier this week, as part of this Race Disparity Audit, the government launched a new “Ethnicity Facts and Figures” website to allow it to document the “different experiences of people from a variety of ethnic backgrounds”.  The facts and figures, which the government has gathered from census information, official statistics, government surveys and administrative records of government departments, show disparities in areas such as employment, education, treatment by police and courts, and health between ethnicities. It is important to note that much of the data used was not specifically gathered with this type of audit in mind and that it varies in quality and depth.

The ‘gig economy’ model was dealt another blow earlier this week after yet another tribunal ruling that the so-called “self-employed” were in fact workers.

A large proportion of people in the UK now work on a part-time basis. According to the Office for National Statistics, there were 8.55 million people working part-time at the end of 2016, an increase of 84,000 on the year before. With many people working more flexibly, employers face challenges with regard to how to manage these different working arrangements in practice.

Last year there was significant publicity about a decision of the European Court of Human Rights in the case of Barbelescu whereby the rejection of the claim was widely described as a charter for employers to snoop on their employees at work. Following an appeal however Mr Barbelescu’s claim that his right to privacy at work had been violated has just been upheld.

When there has been an allegation of serious misconduct, an employer will often wish to suspend the individual who has been implicated while it conducts an investigation. This will usually involve excluding the employee from the workplace (and usually also from the employer’s systems of communication) as well as preventing them from working for the employer for the period of suspension while continuing the contract of employment by way of paying full remuneration). Letters suspending employees in such circumstances will often state that “suspension is not a punishment” and that no outcome has yet been determined. However, employees will often see suspension as a hostile act and may assume that the outcome of the investigation is a foregone conclusion. Suspension is a serious step and employers should think carefully before taking it. If there are not reasonable grounds for the suspension, there is a risk that the employer will face an argument that they have  breached the implied term of mutual trust and confidence which exists in all contracts of employment, which can have serious repercussions.

Chambers UK 2018

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