This is a key note summary of some of the main developments in employment law in the last month.
- 1. Negative statements in references
In the case of Hincks v Sense Network Ltd, Mr Hincks was a a financial adviser who worked as an appointed representative for Sense Network Ltd. There were a number of incidents in relation to Mr Hincks’ performance and his contract with SNL was terminated, following an investigation. Mr Hincks then looked for a new job and sought a reference from SNL. A reference was provided which referred to the findings of the investigation.
Mr Hincks claimed that the investigation had been an “inadequate sham” and that the reference provided was therefore misleading. The High Court dismissed Mr Hincks’ claim on the basis that there was no requirement to investigate the procedural fairness of an investigation when giving a reference, save for where there are clear red flags that the findings are incorrect or where the employer has acted in bad faith.
This is will serve as some comfort for employers who, in good faith, choose to provide more than simply a factual reference to former employees. In any event, we still routinely recommend that employers only provide pure factual references of the dates of employment and position(s) held.
- 2. Bumping in redundancies
‘Bumping’ occurs during a redundancy process when a role is to be made redundant and the person in that role is then assigned a new role in the business. This is usually at a slightly lower level, making the employee who was in that lesser role redundant.
In the recent case of Mirab v Mentor Graphics (UK) Ltd, the Employment Appeals Tribunal (“EAT”) held that the obligation was not on the employee to raise the issue of bumping. Companies should consider bumping and carefully record this consideration. If it is not considered at all, there is the potential that an otherwise fair redundancy process could be found to be unfair and give rise to claims from employees.
The EAT acknowledged that bumping isn’t appropriate in all circumstances. However if this is the case the decision as to why bumping is not appropriate should be recorded. Employers will need to be careful to consider this when consulting on redundancies and whether it would be appropriate for their circumstances.
- 3. Disability dismissals
The Court of Appeal held in the case of City of York Council v Grosset that Mr Grosset’s dismissal was unfavourable treatment on the basis of his disability. Mr Grosset’s employment had been terminated for gross misconduct on the basis that he had shown an inappropriate video to vulnerable adolescents. The reason for this conduct was that Mr Grosset was under a lot of pressure which exacerbated his cystic fibrosis.
The employer was not aware of the link between Mr Grosset’s disability and his misconduct. However this was not relevant as it is subject to an objective test.
This case highlights the importance of a thorough investigation into misconduct, particularly where employees have a disability.
- 4. Enforcement action in relation to Gender Pay Gap reporting
All employers with more than 250 employees are now required to publish their gender pay gap figures at the beginning of April each year. Being the first year that this was in place, the deadline this year was extended to May. However there are still hundreds of companies who have not reported their figures.
The Equality and Human Rights Commission has confirmed that it will be taking a zero tolerance approach in enforcement of this law and are currently pursuing companies who have failed to comply.