Employment Law Monthly Update February 2017


We are pleased to provide you with the Herrington Carmichael LLP employment law update for February 2017. 

This is a key note summary of some of the main developments in employment law in the last month.

1. Government response to Women and Equalities Committee's

The Women and Equalities Committee published a report in August 2016 on workplace pregnancy discrimination, which has now been considered by the Government. The committee made 21 recommendations to end the unfair treatment mothers to be are subjected to in the workplace. Some of these recommendations include:

  • Implementing a mechanism, within the work place, of individual risk assessments by doctors or midwives for new and expectant mothers.
  • Taking measures so that the existing rights are enforced, “to tackle pregnancy and maternity discrimination in the UK”. 
  • A controversial recommendation was to request from the government to adopt a system similar to Germany where pregnant women and those on maternity leave can only be made redundant only in specified circumstances. This protection would apply throughout pregnancy and maternity leave and for six months afterwards. 

Whilst most of the Committee’s recommendations have been rejected, the Government has indicated that greater protection will be afforded to mothers facing redundancy. We will keep you updated with any further developments.

2. Committee report "High heels and workplace dress codes"

The House of Commons Petitions Committee and the Women and Equalities Committee have published a joint report “High heels and workplace dress codes” after Nicola Thorpe’s story was brought to the public’s attention last year. Ms Thorpe was a receptionist who was sent home from work for not wearing high heels. She subsequently filed a petition to request that the Government makes it illegal for employers to demand an employee to wear high heels at work.

The Government's response was that it is already a prohibited practice.  Dress code policies could be directly discriminatory if the policy put one sex at a greater detriment than the other.  However, the Committee’s report recommends that greater clarity is needed to the current law to adequately protect women from discriminatory dress codes.

At this stage is unclear whether the Government will implement any changes as a result of this report or simply rely on the current law. However, this report serves as a reminder for employers review their existing policies to ensure it is not discriminatory.

3. Review of Employment Tribunal fees now published

The Government has published its long awaited “Review of the introduction of fees in the Employment Tribunal”. The report shows that the introduction of tribunal fees had met its objective (i.e. shifting some of the financial burden from the taxpayer to the tribunal’s user) but also that ACAS Conciliation services have been hugely successful, resulting in half the previous level of disputes settling before going to the Tribunal.

The review refutes arguments that fees are deterring claimants from pursuing claims and therefore impeding access to justice. Although, it is has been proposed that the fee remission scheme will be extended to address this concerns. It is also important to note the immediate exemption from fees for proceedings for recovery from the National Insurance Fund.

The consultation closes on 14 March 2017. We will of course provide you with a further update on the government’s final report once published.

4. Can Gross Negligence Constitute Gross Misconduct?

In the case Adesokan v Sainsbury’s Supermarkets Ltd, the Court of Appeal held that gross negligence could amount to a gross misconduct. In this instance, Mr Adekosan, was a senior employee of Sainsbury’s. The company had a policy designed to ensure staff motivation and engagement. A HR manager tried to manipulate the outcome of the survey carried out under this policy. When Mr Adesokan became aware of it, he failed to act on it. 

His employer dismissed him for gross misconduct on the basis that he had failed to take adequate measures to remedy the other employee’s misconduct. The judge concluded that the employee had been in serious dereliction in his duty to his employer, given his obligation to ensure that the survey procedure was properly carried out. Even a failure to act could potentially amount to gross misconduct.

For further information or to discuss the issues raised by this update, please contact Herrington Carmichael’s Employment Department on 0118 977 4045 or employment@herrington-carmichael.com

This publication reflects the law at the date of publication and is written as a general guide only - it is not intended to contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.
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