the latest briefs.....

Check here for the very latest news on all employment issues…

Latest Brief - Week Ending 27 January 2017

Gross negligence and gross misconduct

The Court of Appeal has confirmed in a recent case that gross negligence can constitute gross misconduct.  The Claimant in this case was a Regional Manager who became aware that another manager had issued an email which attempted to interfere in an important management consultation exercise.  The Claimant did nothing to get the email withdrawn or to remedy the situation.  In a disciplinary hearing, it was decided that he would be dismissed on the basis that his inaction demonstrated gross negligence that was "tantamount to gross misconduct."

The Court of Appeal found that even though the inaction of the Claimant was not deliberate, his negligence was so serious that it resulted in a loss of trust and confidence sufficient to justify dismissal.  It is clear that every decision about what amounts to gross misconduct will need to be considered on the facts, but in this case, the fact that the employee held a senior position in the organisation justified his dismissal.  

Gender pay reporting

The government has published The Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017, which extend the duty to publish annual gender pay gap reports to public sector employers with over 250 employees. These largely reflect the Regulations which will apply to private sector employers with over 250 employees.  One of the key differences is that the date on which employers are required to take a 'snapshot' of pay is 5th April for private sector employers, but 31st March for public sector employers.Cummins are hosting a breakfast seminar on 9th March at which we will talk employers through their obligations under the Regulations, including what information needs to be published, where, when and how.For more information, or to book your place, please contact Louise on 0116 2391717 or email lhill@cummins-solicitors.com

Living to 100.. does this mean we will have to work forever?!

Current trends suggests that most babies born in developed countries since 2000 are likely to live to be at least 100.  But what does this mean for retirement?  The reality is that if we are living longer, we will need to save significantly more during our working lives.  For most people, that is going to mean working for much longer!  

Experts say that this in itself might have an impact on the way that we view work.  One suggestion is that instead of staying in a single career for their entire working life, people are more likely to shift careers and re-train a number of times as their focus in life changes.  Further, there is a possibility that a longer career might actually mean a better work-life balance, as it might have less impact on a career to take a couple of years off work to look after children or elderly relatives.  It will be interesting to see how things develop as a longer working life becomes the norm.

Latest Brief - Week Ending 20 January 2017

Can type 2 diabetes be a disability?

The EAT has decided that type 2 diabetes can amount to a disability. The Claimant in the case of Taylor v Ladbrokes Betting and Gaming appealed a decision taken at a Preliminary Hearing that he was not disabled. The EAT upheld the appeal, and held that the Tribunal has misconstrued the proper test for disability. As a progressive condition, type 2 diabetes would amount to a disability even if it did not have a substantial adverse effect on normal day-to-day activities for the employee at that time, as long as it was likely that it would result in such a condition.  In this case, the Claimant's diabetes was controlled by a combination of medication and lifestyle changes. The medical evidence provided concentrated on the effect of the diabetes in the past, rather than looking to the future prognosis. The relevant question was whether the condition was likely to result in an impairment to the particular employee concerned in the future. The Tribunal judge took the view that there was only a small possibility of the condition progressing, but the EAT held that this was incorrect.  It was not clear from the medical evidence in this case what the likely progression would be, and therefore the matter was remitted to the Tribunal to make a decision.  

Reliance on mobility clause in a redundancy situation

A recent case has come before the EAT involving two employees who had mobility clause in their contracts of employment.  The office at which they were employed closed, and the employer tried to exercise the mobility clause to require the employees to move to another office.  The employees refused, and were dismissed. 

The question arose regarding whether or not their dismissals were by reason of redundancy, or for alleged misconduct, on the basis that they had been dismissed for refusing to comply with a reasonable instruction under their contracts. The EAT found that the reason for the dismissals was in fact misconduct rather than redundancy.  However, the EAT upheld the Tribunal's decision that the dismissals were unfair.  The Tribunal found that in the circumstances, the employer had not been entitled to rely on the mobility clause, the requirement to move to another office had not been reasonable, and the employees had reasonable grounds on which to refuse this request.  

Wheelchair v buggy?

This week, the Supreme Court has given its decision in the case of Mr Paulley, a wheelchair user, who was unable to board a bus due to the fact that the wheelchair space was occupied by a sleeping child in a pushchair. The driver had asked the child's mother to vacate the space, but she had refused, and the driver took no further action.  The Supreme Court found that the bus driver's failure to take any further action was a breach of the duty to make reasonable adjustments under the Equality Act.  It was not enough to instruct drivers simply to request non-wheelchair users to vacate the space if it was required by a wheelchair user, and do nothing further if the request was rejected.  Instead, some further step to pressurise the non-wheelchair user to vacate the space should have been considered.  The duty to make reasonable adjustments meant that drivers must go as far as they feel reasonable in the circumstances to insist that the space is vacated.  It is worth noting that an employer generally has a much greater degree of control over employees than a service provider has over service users.  In light of this, there are differences in reality relation to what can reasonably be expected of an employer and a provider of public services as far as the duty to make reasonable adjustments is concerned.