News 2 - 7 February 2019
Published 08 February 2019
This week we have no underlying theme to bring to the news, but we have located a series of stories which address issues for employers. We will also look at some changes to existing legislation which are likely to impact on existing practices in the workplace.
Generally, Employment Case Law is viewed through the lens of the employee since Employment Tribunals exist to address their disgruntled concerns. Case Law decisions which favour employers come exclusively as a consequence of failed employee applications (1). So when there are cases which will impact specifically on the day-to-day routines of employers, they deserve the column space. This week we look at three stories which have employers in mind.
Firstly, in the case of Lamb v Gerard Academy, the EAT decision highlighted the need for employers to ensure ‘reasonable adjustments’ are put into place based on the available information they have at hand and not just rely on the guidance of their Occupational Health Department.(2) In this case, the employers failure to do so cost them the case. When does an employer have to advertise a job vacancy? Anecdotally, employers decisions to advertise and nepotism in the workplace are known to have a near symbiotic relationship. So it is worth noting that whilst there is no legal obligation to advertise, the failure to do so may lead to discrimination claims.(3) The case mentioned also highlights the need for employers to be aware of quite how wide the notion of ‘advertisement’ can stretch. Finally, employers have been handed guidelines this week which will help to define their obligations when it comes to record-keeping in relation to ‘Working Time’.(4) ‘The Advocate General has recently given his opinion in a Spanish working time case called Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE. If this opinion is followed by the European Court of Justice it will cast doubt on whether the Regulations go far enough to comply with the requirements of the Working Time Directive.’ Of course, whether the European Court Of Justice’s opinion reaches the UK before the government sails off into the icebergs of Brexit, is another story entirely.
This week, there have been two updates to existing legislation which will have an immediate impact on existing industrial relations. Firstly, in a highly publicised case, the Supreme Court has ruled that ‘minor’ and ‘old’ convictions should not be allowed to ‘disproportionately’ impact on people as a consequence of the sophistication of the Dis-Barring Service, on the grounds its constitutes a breach of their Human Rights.(5) The case in question drew attention to an individual whose previous conviction for shoplifting goods with a value of 99p, had impacted negatively on their ability to obtain employment. This in turn had affected their entitlement to benefits. Whilst the ruling itself was welcomed, it is unlikely to alter the ‘trigger happy’ culture of career Civil Servants in the DWP who’ve historically utilised every tool at their disposal to refuse making payments to claimants. Secondly, ACAS have released new guidance on the issue of age discrimination which particularly affects young workers and those over 50.(6) The guidance covers recruitment, to retention and redundancy amongst other things and can be found at the ACAS website.
To finish on a slightly lighter note (rather than delve into the philosophical implications of the recent works of Jem Bendell and Rupert Read and the future relevance of contemporary employment law); changes in technology, new working practices and the continuing uncertainty of Brexit are leading more organisations to seriously consider ‘the 4 day week’ for the first time since the 1970’s.(7) As if to underscore that very conversation, February 4th has given us all a little taster of how that might feel since recent research has identified that very day as ‘National Sickie Day’.(8) It’s nice to know that the viral infection of ‘presenteeism’ hasn’t managed to get a hold of everyone in these pressing times.
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