Employment Law Monthly Update November 2017


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

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

1. Risk assessments for breastfeeding workers

In the case of Otero Ramos v Servicio Galego de Saude, the European Court of Justice held that employers must conduct appropriate risk assessments for breastfeeding workers.

The Claimant claimed sex discrimination as her employer’s risk assessment concluded that her work was without risk, with little explanation given. Her employer had refused a request for an adjustment in her working pattern because of her breastfeeding. The Court held that this constituted direct sex discrimination.

Employers have an ongoing duty to a worker both during her pregnancy and after she has returned from maternity leave when she may be breastfeeding. Employers should also bear in mind that risks associated with pregnancy are likely to be different to those for breastfeeding workers, who have returned to work. The individual situation must be examined to establish whether the health and safety of the worker or her child is at risk. It is recommended that the risk assessment for a worker is updated throughout the course of a pregnancy and following a return to work, where breastfeeding is taking place. 

2. Unfair dismissals should be judged on what the decision-maker knew

If the main reason for a worker’s dismissal is the fact that they have made a protected disclosure, and the worker has suffered detriment by their employer because of it, that dismissal will be automatically unfair.

In Royal Mail Ltd v Jhuti, the Court of Appeal had to decide if the employee had been fairly dismissed by a manager who was unaware of the disclosures made by the employee to a different manager. The Claimant raised a grievance in respect of bullying and harassment which she had been subjected to as a result of her disclosures. The grievance was investigated by a manager unaware of the background history and who terminated the Claimant’s employment for poor performance.

It was held that the dismissal had been fair. What the employer reasonably believed when dismissing the employee had to be determined by reference to what the decision-making manager actually knew, not what they ought to have known. In spite of this decision, employers should be careful to ensure a dismissal is fair in both substance and procedure.  This is a case that is likely to be further appealed. 

3. Can disciplinary investigations be too thorough?

Where an employer is looking to dismiss an individual in relation to misconduct they should be able to show that they have undertaken a reasonable investigation, to give reasonable grounds for holding a genuine belief that the employee was guilty of misconduct.

The question of what a reasonable disciplinary investigation looks like was recently considered in the Employment Appeal Tribunal case of NHS 24 v Pillar. It was alleged that the employee’s dismissal was unfair because the disciplinary investigatory report included details of two previous incidents of misconduct which had not led to disciplinary action.

It was concluded that the dismissal was fair, and an investigation report will not normally be considered to have failed the test of reasonableness on the basis that it contains too much information. Nonetheless, the information in the report must still be relevant to the issues related to the dismissal.

This case illustrates that employers should take care when referring to past misconduct which is not subject to a warning.

4. Reimbursement of Employment Tribunal fees

On 26 July 2017, the Supreme Court declared that fees in the Employment Tribunal were unlawful. The Government subsequently stated its intention to reimburse parties who had been required to pay a fee. However, further details as to how reimbursement would actually work have not been publicised until now.

The key details of the reimbursement scheme are:

  • It will cover fees for both Claimants and Respondents in the Employment Tribunal and the Employment Appeal Tribunal
  • It will be open to Respondents who had to pay a Claimant a costs order.
  • It will not be open to Respondents who compensated a Claimant for their tribunal fees under a settlement agreement.
  • Applicants under the scheme will need to sign a declaration confirming they did not receive a costs award covering their tribunal fees.
  • Applicants will receive interest on the fee paid at the rate of 0.5%.

    Full roll-out of the scheme is expected within the next four weeks.

    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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