Welcome to the June edition of the Employment Up to Date. Read on for a roundup of the latest news and developments in relation to employment and immigration.


Employment status: Supreme Court decides plumbers are workers

The Supreme Court has dismissed an appeal against an Employment Tribunal decision that plumbers engaged by Pimlico Plumbers were workers under the Employment Rights Act 1996 and the Working Time Regulations 1998 and also employees under the extended definition of employment in the Equality Act 2010. This means that the plumbers acquire various employment rights such as the right to the national minimum wage, paid holiday, rest breaks and pension contributions, as well as whistleblowing and discrimination protections.

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You can go your own way - the EAT explores serious misconduct dismissals

Two recent EAT cases have considered the fairness of dismissals of employees who had clean disciplinary records and in the absence of a single gross misconduct event. In Mbubaegbu v Homerton University Hospital, the employer relied on a pattern of conduct, coupled with a belief that the employee was incapable of change, to justify summary dismissal. In Quintiles Commercial UK Ltd v Barongo, the employer dismissed on grounds of serious misconduct where the employee had failed to complete two pieces of compulsory training.  Both employers considered that trust and confidence had been destroyed, notwithstanding the absence of a single misconduct event.

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Whistleblowing: information and allegations – the truth lies somewhere in between

In Kilraine v London Borough of Wandsworth the Court of Appeal was asked to examine the requirement for a disclosure of information to be made as part of the test to qualify for protection as a whistleblower. The Court emphasised that the disclosure needs to be conveyed with sufficient specificity and factual context to show the wrongdoing that is being alleged.  However, it would be incorrect to suggest that a rigid distinction should be drawn between allegations and information as one disclosure might combine both types of statement.

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Disability discrimination: was it discriminatory to discipline a disabled employee for taking 60 days' sickness absence in a 12-month period?

In D&L Insurance Services Ltd v O'Connor, the EAT considered whether an employer's decision to discipline a disabled employee for taking 60 days’ sickness absence over a 12-month period was discrimination arising from disability. The EAT concluded that the employer had discriminated against the employee by issuing her with a written warning which had the effect of withdrawing her sick pay and they had failed to establish that their actions were a proportionate response to the absence.

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Disability discrimination: dismissal of a menopausal employee was discrimination arising from a disability

The recent case of Davies v Scottish Courts and Tribunal Service serves as a useful reminder to employers that they must full consider the effects of any symptoms of health conditions before making decisions regarding employee conduct to avoid giving way to unfair dismissal and discrimination claims. In this case, the dismissal of an employee suffering from severe menopausal symptoms resulted in a finding of unfair dismissal and disability discrimination.

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Fathers and the workplace: has the Government embraced proposals for reform?

In November 2017 the Women and Equalities Committee (WEC) opened an inquiry into the subject of fathers and the workplace. On 20 March 2018 the WEC published a report setting out their findings and making recommendations to Government on where further action could be taken. On 14 June 2018 the Government published its response to the Report (the Response). In this briefing we consider the Government's responses to the recommendations.

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Immigration update: just what the doctor ordered

This month's Immigration update looks at some welcome medicine for employers in relation to the Tier 2 visa cap and a reminder of the need for a fair process in right to work dismissals.

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Corporate Governance Reform – BEIS publishes draft secondary legislation on CEO pay ratio reporting

As part of its corporate governance reform agenda, the government confirmed its intention to drive greater transparency in reporting by introducing secondary legislation to, amongst other things, (i) require companies of a "significant" size to explain how their directors comply with the requirements of section 172 of the Companies Act 2006 (2006 Act) to have regard to stakeholders; and (ii) to require quoted companies to report annually the ratio of CEO pay to the average pay of their UK workforce. Our Corporate Governance team considers the proposals for reform in this briefing.

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Amanda Steadman

Amanda Steadman

Principal Knowledge Lawyer, Employment
London

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