Keep up to date with some of the key employment updates for May 2016 with Jordan’s Solicitors.

Law

  • The Immigration Act 2016 comes into force on 12 July 2016. It extends the current criminal offence of knowingly employing an illegal migrant. It now also covers the situation where an employer has a reasonable cause to believe that a person is an illegal worker. This indictable offence which will increase from two to five years. Comment: employers will need to ensure that it carries out the appropriate checks to ensure that the worker has the right to work in the UK.

Cases

  • In Carreras v United First Partnership Research UKEAT/0266/15 the Employment Appeal Tribunal found in favour of the employee. It concluded that an expectation to have a disabled employee work longer hours amounted to a provision, criteria or practice (“PCP”) for the purposes of a failure to make reasonable adjustments claim. The case also confirmed that in a claim for constructive dismissal the breach of contract does not need to be the only cause of the employees resignation but must be an effect one. Comment: this case demonstrates that the courts are willing to interpret PCPs widely.
  • In Arthur J. Gallagher Services (UK) Limited and others v Skriptchencko and others [2016] EWHC 603, the High Court granted an injunction in favour of the employer for the inspection and imaging of electronic devices (including phones and computers) of an ex-employee and his new employer and the destruction of confidential information belonging to the employer on such devices. Comment: this is a helpful decision for employers, although on the facts of this case the employee admitted to the wrongdoing and there was evidence to show that the new employer was also misusing the confidential information.
  • In Risby v London Borough of Waltham Forest UKEAT/0318/15, the EAT had to decide whether a tribunal was correct to not uphold claims for unfair dismissal and disability discrimination because of something arising out of a disability. The employer dismissed its employee for misconduct after he lost his temper with his employer. The employer failed to accommodate his needs as a disabled person. The EAT found in favour of the employee. It found that although the loss of temper was unrelated to his disability of paraplegia, there only had to be a loose causal link between the employee’s conduct and his disability. Comment: although this case is helpful to employees, an employer should not take this decision as being unable to discipline its employees in circumstances such as these. However, any disciplinary action taken in similar circumstances will need to be justified as a proportionate means of achieving a legitimate aim.
  • In Pendleton v Derbyshire County Council and The Governing Body of Glebe Junior School UKEAT/0238/15, the EAT found that a teacher had been indirectly discriminated against on the grounds of religion and belief. She was dismissed by her school for not separating from her husband. Her husband had been convicted of possessing indecent images of children and voyeurism. Comment: this is an interesting case were the employer tried to argue that there was no provision, criteria, or practice in requiring the employee to leave her husband, as it was a one-off rare occurrence. The tribunal disagreed and held that it was a PCP and as such needed to be justified by the employer. As the employer failed to produce any evidence to demonstrate that the decision to dismiss was a proportionate means of achieving a legitimate aim, the EAT upheld the claim.

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