How not to warn an Employee
A picture is said to be able to say a thousand words – how many does a video say then? I’ve been trawling through YouTube for videos on employment law to illuminate, educate or, hopefully, just to amuse. This video – produced by students at the University of the West of England (UWE) – deals with the issue of how to warn an employee for misbehaviour. It’s good at bringing a difficult subject to life. However, when I first watched it I thought it might not have had education as its main purpose …
As Annabel Kaye of Irenicom points out in her very useful article on the subject on the The Grapevine online magazine the concept of reasonable belief crops up throughout employment law – particularly in dismissals. In the case of Taylor v Alidair CA 1978 ICR 445, CA Lord Denning got to the nub of the matter with his customary succinctness;
“Whenever a man is dismissed for incapacity or incompetence it is sufficient that the employer honestly believes on reasonable grounds that the man is incapable and incompetent. It is not necessary for the employer to prove that he is in fact incapable or incompetent”
Take a look at this article from The Daily Telegraph. A good idea in principle but I’m wondering about the Data Protection issues involved, as well as the subsequent satellite litigation that would undoubtedly result. Does anyone remember the blacklist of “difficult” employees compiled by The Consulting Association (see my previous post on the subject here)? Or the National Staff Dismissal Register (see here) ?
A couple of weeks ago I was “twitterviewed” * by Lance Godard of 22Twts fame. It covered both professional and personal stuff and, if you haven’t got any paint drying and don’t feel the need for root canal surgery, why not read the interview by clicking here?
* A Twitterview is a live interview on Twitter in 22 questions. It’s a great thing to do – thanks for inviting me Lance.
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This blog has been missing high culture, art and music for too long. It’s time for a change, but not quite yet. Instead have a look at this video from Manpower, via YouTube, on how to approach employment law in song – it’s very good.
The Employment Law Sing-a-Long Song
The lyrics are great – “sing along or you could end up in jail” - probably only in the US of course. “Get all the facts or you might get the axe” – brilliant!
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Just two this time. An upsurge in work has meant I haven’t been blogging as assiduously as usual. There also haven’t been very many interesting cases around – apart from these two below.
Diggins v Condor Marine Crewing Services [2009] EWCA Civ 1133
The Court of Appeal has ruled that an seaman employed by a company operating from and registered in Guernsey, on board a ship registered in Nassau, but which spent its time sailing between Portsmouth and the Channel Islands could bring a claim for unfair dismissal. The Claimant lived in Suffolk. The Court held that the important factor was where his duty began and ended – which was Portsmouth. He can proceed with his claim for unfair dismissal.
I said 'TUPE, not toupee'
This can be a real headache for employers where they have “inherited” employees following a transfer of an undertaking under the TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006. It is quite well known that if TUPE applies to a transfer then if the Transferor (let’s call it NewCo for ease if not originality) dismisses an employee from the transferee (OldCo) for a reason connected with the transfer, the dismissal will be automatically unfair, unless NewCo can show that an “economic, technical or organisational” reason applied entailing changes in the workforce. TUPE has the effect of transferring all employment contracts and rights from OldCo to NewCo.
There have been some noteworthy cases over the last couple of weeks, such as;
Grainger plc v Nicholson UKEAT/0219/09/ZT
Climate change can be a philosophical belief and thus capable of protection within the terms of the Employment Equality (Religion or Belief) Regulations 2003. Please see my previous post on this high profile case.
Autoclenz Ltd v Belcher & ors [2009] EWCA Civ 1046
A case on the distinction between employee, worker or self-employed. The Respondents were car valeters. All the factors usually considered in determining whether a person was employed or self-employed suggested they were employees. The “contract” they signed said they were “sub-contractors” but that did not reflect the reality of the situation. The CA held they were employees.
For those of you on Twitter I am being twitterviewed tonight by 22Twts. If you haven’t come across one yet, a Twitterview is a series of (22) questions posed by Lance Godard and my responses, in real time, on Twitter. Lance asks some really interesting and high-profile people to do his Twitterviews so I’m delighted to be asked to take part and be in such august company.
It starts at 20.00 GMT and please take a look when I will be revealing my deepest darkest secrets, or something, as well as talking about Dale Langley & Co and employment law. I don’t think Hello or Ok magazines will be terribly interested though.
The case of Grainger PLC v Nicholson UKEAT/0219/09/ZT gained lots of media coverage, including the front page of today’s The Independent (“Green beliefs win legal protection”). I covered the case when it was before the Employment Tribunal and Mr Nicholson initially won. The Employment Appeal Tribunal (EAT) has rejected the company’s appeal and held that Mr Nicholson’s belief in climate change is capable of qualifying as a philosophical belief within the meaning of the Employment Equality (Religion or Belief) Regulations 2003. These regulations protect workers with religious or philosophical beliefs from being discriminated against because of their religion or belief. This was a preliminary hearing on whether belief in climate change could qualify within the meaning of those Regulations. Mr Nicholson still needs to return to the ET for the case on its facts to be decided. That will include cross-examination of his beliefs to establish to what extent they govern his life.
This is a preview of
Climate change can be a philosophical belief
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