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LEYTON EMPLOYMENT SERVICE - APRIL NEWSLETTER
LEYTON EMPLOYMENT SERVICE
In January, we reported on the outcome of a wrongful dismissal case at Sunderland and since then the world of professional football has continued to prove fertile ground for employment lawyers.
On 13 April 2016 it was reported that Lucy Ward had won her employment tribunal claim against Leeds United.
Ms Ward, a former footballer who represented England at U21 level, worked at the club's education and welfare officer. However she was dismissed from that role, ostensibly for taking excessive time away from work to commentate on last year's Women's World Cup in Canada. However, she alleged that the real reason for the dismissal was that the club also intended to dismiss her partner (Neil Redfearn, the first team coach) and perceived that he and Ms Ward ‘came as a pair'.
The tribunal accepted that the process followed had been unfair and upheld her claim.
Although there are examples where the tribunal has found that dismissing one spouse because the other has been dismissed was fair, such circumstances are likely to be very rare. In any such case it is incumbent on the employer to ensure that the process followed is beyond reproach.
On 14 April, it was reported that Jonas Gutierrez had succeeded in his claim for disability discrimination against Newcastle United.
The midfielder claimed that, despite having returned to fitness, he had been dropped from the first team because he had suffered from testicular cancer and that, as a consequence, he had been unable to trigger an automatic contract extension based on the number of Premier League matches he was able to start.
All employers should be aware that cancer automatically qualifies as a disability under the Equality Act 2010 so employees that are suffering (or who have suffered) from cancer can rely on all the protections that are afforded to disabled employees.
The next big story in football is set to be the tribunal hearing of Eva Carneiro's claims for sex discrimination and constructive dismissal, which is scheduled to start on 6 June.
Dr Carneiro resigned from Chelsea FC having been criticised by then manager Jose Mourinho, and apparently dropped from first team duties, for having gone on to the pitch to attend to midfielder Eden Hazard, with the result that Chelsea were temporarily reduced to 9 players.
A judicial mediation hearing concluded without a settlement and some sources are reporting that the outcome of the final hearing might impact on Mourinho's chances of securing a potential role at Manchester United.
EARLY CONCILIATION CONTINUES TO BE CLARIFIED
As of 6 May 2014, it became compulsory for employees to follow the ACAS early conciliation procedure before being able to pursue a tribunal claim. In those first two years there have been a number of skirmishes between employers and employees as both sides get to grips with the rules of the scheme.
Three recent judgments have helped to clarify some of the outstanding issues.
Firstly Tanveer v East London Bus and Coach Company Ltd determined how the last date on which proceedings can be issued (following the issue of the Early Conciliation certificate) should be calculated.
If, under the ordinary rules, an employee has less than a month to issue their claim after the issue of the Early Conciliation certificate, the deadline is extended to a date ‘one month after' the issue of the certificate.
Most of those involved in employment law will be familiar with the ‘less one day' rule for calculating limitation dates. Under that regime, for example (and ignoring the early conciliation process), an employee who was dismissed on 15 June would have three months, less one day, to submit his unfair dismissal claim (i.e. it would need to be submitted by 14 September).
However, the wording of the Early Conciliation rules is slightly different and seemed to reflect the ‘corresponding date rule' used in other areas of law.
The Employment Appeal Tribunal confirmed in Tanveer that indeed it is the corresponding date rule that should apply. So if an early certificate were issued on 15 June the employee would have to issue to claim on or before 15 July.
TIC International Ltd v Ali was concerned with the situation where an employee incorrectly names his employer during the early conciliation process. Can the error be rectified by adding the correct employer as a respondent after claims have been issued, even though this means the early conciliation procedure has not been followed?
The Employment Appeal Tribunal said ‘yes'.
When starting the early conciliation procedure, and in his ET1, the claimant named his employer as ‘Islamic Relief Worldwide', however that organisation was not his employer. In fact his employer was a company called ‘TIC International' (which was a wholly owned subsidiary of Islamic Relief Worldwide).
Following its earlier decision in Drake International Systems Ltd & Others v Blue Arrow Ltd, the EAT held that the tribunal retained its discretion to add respondents to existing proceedings and that the early conciliation rules did not exclude that discretion.
Although the exercise of that discretion is not automatic, the cases seem to suggest that the tribunals are taking a permissive approach, so that minor or trivial failures at the early conciliation stage will not necessarily mean the end of a potential claim.
A similarly permissive approach seems to have been adopted in Adams v British Telecommunications Plc. In that case the Claimant had missed the last two digits of the early conciliation certificate number when she filled in her ET1 and by the time the tribunal had notified her of the mistake her limitation period had expired.
Although the EAT confirmed (following Sterling v United Learning Trust) that an ET1 submitted with an incorrect early conciliation number must be rejected; it held that it had not been reasonably practicable for the claimant to have submitted her claim in time and, accordingly, it extended the limitation period.
NO NEED TO HAVE ‘THRONE' A SICKIE
On 24 April, season six of the hit drama Game of Thrones premiered in the US. For those UK viewers who simply could not wait to find out Jon Snow's fate, the episode was also simultaneously broadcast here… at 2am on Monday 25 April.
That meant some viewers had a difficult decision to make, would they yawn their way through their Monday morning meetings, use up some of their precious annual leave or (obviously against our advice) call in sick?
Fortunately for employees at +rehabstudio that was not a decision they had to grapple with, as their employer has generously elected to give all of them an extra half day's annual leave on the morning following the broadcast of each episode.
Offering imaginative incentives can be a great way to boost staff morale and even, judging by the coverage this particular arrangement received, to boost the profile of a company.
However employers should always take care to ensure that they are not inadvertently discriminating against some of their employees, especially by offering benefits that tend to benefit one group of employees more than another, e.g. men and women, or employees of different nationalities, without proper justification.
Employees who are not lucky enough to work for such a generous employer have their own warning to heed. Last month, in the case of Ajaj v Metroline West Ltd the Employment Appeal Tribunal confirmed that ‘throwing a sickie' is an act of dishonesty that undermines the relationship of trust and confidence between the employer and employee. So employees who are caught out could expect to face dismissal.
SHARED PARENTAL (AND GRANDPARENTAL) LEAVE UPDATE
Earlier this month it was widely reported that the take-up of shared parental leave among men was just 1%.
However, it transpired that statistic was extremely misleading since it was expressed as a proportion of all men and not just those who were eligible (i.e. those who had recently had a child). In fact other data tends to suggest that among eligible new fathers the take-up rate could be as high as 30%, although at this stage the real picture on the ground remains unclear.
In related news, while many employers (and employees) are still coming to terms with the complex provisions of shared parental leave, the government has confirmed that its consultation on extending the scheme to grandparents will launch in May.
Those who fear a further raft of complex rules and regulations can take at least some comfort from the fact that the government is also proposing, as part of the same consultation, to consider the streamlining of the existing shared parental leave arrangements.
The precise details of the consultation are still to be confirmed.
NON-COMPETE CLAUSES IN THE SPOTLIGHT
Business Secretary Sajid Javid has announced that the government is launching a call for evidence about the impact of ‘non-compete' clauses which limit the ability of employees to work for companies that are competitors of their former employer.
The consultation forms part of a wider ‘Innovation Plan' through which the government aims to make the UK the best place in Europe to innovate and start up a new business.
The outcome is likely to be of interest for employers, employees and employment lawyers alike.
Please note that this Newsletter has been prepared for information purposes only and does not constitute advice or legal advice for the purposes of any individual case, and it cannot be a substitute for specific advice based on the circumstances of any such case. Whilst every care has been taken in the preparation of this document, Leyton UK Partners LLP cannot accept any liability for any loss or damage, whether caused by negligence or otherwise, to any person or organisation using this document.
Leyton UK Partners LLP (registered number OC388386) is an Alternative Business Structure (ABS) authorised and regulated by the Solicitors Regulation Authority (SRA) under licence number 619453 in respect of legal work. Leyton UK Partners LLP also carries out R&D funding related consultancy services and these R&D funding services are not regulated by the SRA.