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Employment Law Update | August 2019
Welcome to the latest edition of our monthly employment law update. We keep track of the latest employment law changes so you don't have to!
- Can an employer be liable for an employee posting an offensive image on their personal social media?
- Are agency workers entitled to the same number of hours as a permanent employee?
- Can making covert recordings of meetings amount to misconduct?
- Does including an incorrect ACAS Early Conciliation number invalidate a claim?
- When does an employer have constructive knowledge of a disability?
- Should you have a duty to make reasonable adjustments for non-disabled employees?
- Will the protected period for women on maternity leave be extended?
In Forbes v LHR Airport Ltd, a colleague of Mr Forbes (DS) posted a picture of a golliwog to a private group on Facebook. The group included a different colleague of Forbes who showed him it. Mr Forbes then raised a grievance which was upheld and DS was disciplined. When Mr Forbes was rostered to work with DS he complained and was moved without explanation. He went on to bring claims against his employer of harassment, victimisation and discrimination on the grounds of race.
In order for an employer to be vicariously liable for an employee's actions they have to take place in the course of employment. The Employment tribunal found that DS had not acted in the course of her employment when she had made the post. It had not been posted whilst she was at work, nor on a work computer; it was shared amongst a private group and there was no reference to the employer. The Employment Appeal Tribunal (EAT) agreed with the decision but refused to set down any rules, pointing out that each case will be decided on its own facts.
The Court of Appeal (CA) found they weren't in the case of Kocur v Angard Staffing Solutions Ltd and another. The CA stated that would go against the very purpose of hiring agency staff: flexibility.
In Phoenix House v Stockman, as part of an unfair dismissal claim the Claimant disclosed a covert recording of a meeting. When considering whether that conduct should have led to a reduction in compensation the EAT stated that covert recordings could be misconduct but would not always be. The EAT also pointed out that it was rare for covert recording to appear on a list of examples of gross misconduct, the inference being that including it on a list may be helpful if you want to treat it as gross misconduct. The EAT also held it was good practice for the parties to tell one another if they intended to record a meeting.
In E.ON Control Solutions Ltd v Caspall, the EAT held it wasn't open to a claimant to amend their claim to include the correct EC number. Any such claim should be rejected. If there is still time to re-issue the claim then it can be re-issued but otherwise the claim will be out of time.
When does an employer have constructive knowledge of a disability?
In A Ltd v Z, it was accepted by the employer that the employee suffered from mental impairments which constituted a disability, but the employer denied it knew of the disability at the relevant time. The employment tribunal found that the employee's absences should have led the employer to make enquiries. The tribunal found that the employer couldn't claim not to have knowledge of disability by failing to make those enquiries.
The EAT disagreed. It stated that as the tribunal had found that the employee had concealed her condition from the employer, and that she would have continued to do so if they had made more enquiries, the employer could not have constructive knowledge of the disability.
Should you have a duty to make reasonable adjustments for non-disabled employees?
This may be a/another step too far for many of you. The Government is seeking views on how ill health-related job losses can be reduced and whether there should be a greater emphasis on employer responsibility. One of the proposals is that non-disabled employees could request adjustments to assist a return to work. More positive steps include possible subsidising of occupational health reports.
If you want to have your say on the proposals you can do here
The government has confirmed it will when they have sufficient time to bring the legislation in. The intention is that protection from pregnancy discrimination will last for six months after maternity leave ends.
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