Frontline: UK Employment Law Update - December 2016
Written By
Welcome to the December edition of Frontline. This month, Associate David Samuels teaches us how to get the competitive edge for the New Year with top tips on how you can protect your organisation's business secrets.
As the party season is upon us, our top case update looks at vicarious liability and when an employer could be liable for its staff's drunken antics! We also look at dismissal sanctions, the Working Time Regulations and provide you with a round-up of the latest legal news.
Beyond the UK, we bring you a webinar looking at Uberization of the Workforce and the 'gig' economy across Asia-Pacific.
And lastly, from all of us in the employment team at Bird & Bird, we wish you a Merry Christmas and a very Happy New Year.
Business Secrets
In one way or another, every business lives and dies by the quality of the information it holds. That information could be anything from its plans to build a faster engine, a generations' old recipe for a tastier chicken seasoning to a simple list of business contacts. A business is able to maintain its edge by ensuring that this knowhow remains secret and does not fall into the wrong hands.
Case Summary
Christmas parties: When is an employer liable for drunken antics?
Bellman v Northampton Recruitment Ltd [2016] EWHC 3104 (QB) (01 December 2016)
The High Court has ruled that a company was not vicariously liable for the assault on a manager, by a director, after the Christmas party.
Following the company Christmas party half of the guests went on to a hotel and continued drinking. A heated discussion ensued resulting in one of the directors punching the manager twice and knocking him out. He sustained brain damage and brought a claim for damages against the company on the basis that they were vicariously liable for the acts of their employees.
Disciplinary sanctions and dismissal: When can employers rely on earlier warnings?
Bandara v British Broadcasting Corporation ("BBC")
In this case, the Employment Appeal Tribunal ("EAT") confirmed that an employer cannot rely on a manifestly inappropriate final warning when dismissing an employee.
The claimant worked as a senior producer for the BBC and had an unblemished disciplinary record going back 18 years. However, in 2013 the claimant was charged with abusive behaviour and failing to follow editorial guidelines. The BBC considered that both incidents potentially constituted gross misconduct and a final written warning was imposed. Shortly after, the claimant was subject to further disciplinary proceedings regarding allegations of bullying and intimidation. At the conclusion of the disciplinary process, the claimant was dismissed. The claimant pursued claims of unfair dismissal.
Employers must give workers the opportunity to take breaks
Grange v Abellio London Ltd
The Working Time Regulations 1998 ("WTR") provide that if a worker's daily working time exceeds six hours he is entitled to a rest break. In this case, the EAT held that an employer has an obligation to allow workers to take a break, however if the workers choose not to take a break, the employer's obligations are satisfied.
Disciplinary investigations and handling serious allegations
Tykocki v Royal Bournemouth & Christchurch Hospitals NHS Foundation Trust UKEAT/0081/16/JOJ
The seriousness of the allegation will impact the duty of investigation to be imposed on the employer.
The Claimant was employed by the Respondent as a Healthcare Assistant. Allegations were made by a patient that the Claimant had been abusive and effectively assaulted the patient when she had asked for a morphine top-up for her pain. An investigation was launched, which lead to a disciplinary hearing and an appeal against the decision to dismiss the Claimant. There were flaws with the initial investigation, for example, evidence was not obtained from the nurses on duty at the time of the incident.
Legal Updates
Government starts review on 'gig-economy'
The Prime Minister has commissioned James Taylor, Chief Executive of the Royal Society of Arts, to look at how employment practices need to change in order to keep up with modern business models. Along with James Taylor, three panel members will travel the country talking to employees and employers about the UK labour market. There has been a rise in new business models with new technology, leading to an increase in short-term, casual work. As highlighted by the recent Uber case, it is important to establish what are the worker's rights and responsibilities in these new business models and what are the employer's obligations. The Department for Business, Energy and Industrial Strategy is also set to launch a research project into the scale of the gig economy, which will examine the motivations of those engaging in "gig" work.
Autumn Statement - Employment developments
As a result of the Autumn Statement tax reliefs have been removed relating to employee shareholder status.. Previously an employee could become an employee shareholder by giving up some of their statutory employment rights in return for the issue of shares worth at least £2,000. Income tax relief applied to the acquisition of £2,000 worth of employee shareholder shares and capital gains tax relief applied so that the first £100,000 of lifetime gains realised on the disposal of employee shareholder shares was tax free. These reliefs have now been removed in relation to shares issued to an employee under an employee shareholder agreement made on or after 1 December 2016
Statutory Employment Payments to Increase
The government has announced the new rates of statutory payments for parents and sick pay which will apply from April 2017. The current weekly rate of statutory adoption, maternity, paternity and shared parental pay will rise from £139.58 to £140.98. Statutory sick pay will also rise from £88.45 a week to £89.35.
Beyond the United Kingdom
Asia-Pacific
Members of our Asia-Pacific team recently delivered a webinar focusing on the laws in Australia, China, Hong Kong and Singapore and the extent to which they accommodate or hinder the implementation of less traditional working patterns and arrangements. You can watch the full webinar here >
Our webinar programme for 2017 – we are always keen to hear what it is that you want us to be talking about. If you have any ideas or suggestions for future webinars please let us know here >
China
The latest edition of our monthly China Employment Law Update is online and available to read here >
