Weekly top five for employers: 1 April 2019

1. What do employers need to know and do this April?

Please see our insight on the changes coming into force for employers this April and also a reminder of the key issues for employers to tackle.  Indeed, with only three days until the next gender pay reporting deadline, the BBC has reported that employers are still 'dragging their feet' on getting their reports in.  We also wait this week to see if the Brexit situation becomes any clearer – you can follow our latest insights and commentary in our Brexit briefing.  If you would like to discuss this or any of the other issues raised in our insight, please do contact your usual Osborne Clarke Contact.

2. Immigration update

Each year, UK Visas and Immigration (UKVI) make changes and updates to the UK’s Immigration Rules. The UKVI announced the latest changes in the Statement of Changes released on 7 March 2019. Please see the latest insight on these changes from our immigration team.

The most significant changes relate to Tier 1, Tier 2 and the EU Settlement Scheme. In light of Brexit, there will be more significant changes to Tier 2 in the future. Should the UK enter into a withdrawal agreement as it currently stands, this would be at the end of December 2020, when the transitional period is due to end (subject to any extension), or shortly thereafter – however, whilst we await the ongoing parliamentary process, whether or not we end up with an agreed exit on the terms of the withdrawal agreement, remains up in the air.

3. No need to postpone a disciplinary hearing to protect trust and confidence pending the outcome of a police investigation

The relationship between internal disciplinary proceedings and related police investigations is always a difficult area for employers to manage. The Court of Appeal (CA) has now provided helpful reassurance for employers seeking to deal with a matter internally.

The High Court (HC) had granted an injunction preventing an employer from continuing internal disciplinary proceedings pending the end of criminal and regulatory enquiries.  The HC had determined that by conducting the disciplinary proceedings in parallel with the ongoing criminal investigation, the employer would be in breach of the implied term of trust and confidence.

However, overturning the injunction, the CA emphasised that the 'severe test' for establishing a breach of this implied term involved conduct by the employer calculated to destroy or seriously damage the relationship and for which there was no reasonable and proper cause. Here, this test was not met - the employer was simply following its own contractually-binding disciplinary procedure, the focus of which was likely to be very different and with different evidential standards from the police investigation.

The CA recognised that there may be circumstances where internal disciplinary proceedings should be delayed but declined to draw up a list of relevant factors, instead warning courts against 'micro-managing', stressing that there must be a real danger of injustice for an injunction to be granted.  The CA also warned against suspending an employee without pay where there was no contractual right to do so and the employee was 'ready, able and willing' to work, unless there were exceptional circumstances justifying otherwise.

North West Anglia NHS Foundation Trust v Gregg

4. Employer discriminated in dismissing a mentally ill employee for failing to attend meetings

With employers playing a key role in supporting mental health issues, an Employment Tribunal (ET) decision has provided a helpful warning for employers to ensure that their internal processes deal appropriately with any such concerns and that managers receive training enabling them to do so.  Here, an employee had mixed anxiety depression disorder. He suffered a heart attack which led to mental health problems and then remained on long term sick leave.  He was ultimately dismissed for gross misconduct for failing to attend sickness absence review meetings and occupational health appointments.

In upholding the employee's claims for unfair dismissal and disability discrimination, the ET recognised that the employee was 'very difficult to manage, had difficulty in following management instructions and on occasion simply would not co-operate in what at times, had been genuine efforts to resolve his employment difficulties'. However, whilst fact specific, employers in similarly tricky scenarios should note the ET's criticisms of the employer that it:

• had a tendency to review issues according to a particular policy, for example grievance or ill health management, rather than taking a holistic view of the employee's workplace difficulties and had a 'mechanistic approach' to the employee's issues;
• failed to deal adequately with the contents or recommendations of nine occupational health reports and indeed, insisted on a further occupational health report despite clear advice that a clinical intervention was unlikely to impact on the employee's case and a return to work in the near or foreseeable future was unlikely;
• failed to refer matters to external mediation; and
• failed to assist the employee in any application for ill-health retirement, having suggested previously that this was a 'potential solution' to the employee's employment relationship and its termination.

It also described an email from an interim director of HR to the employee in which she stated that he must only correspond with her and if he did otherwise she would direct his correspondence to the employer's solicitors as an 'appalling response', demonstrating 'no insight at all into the likely impact on a person contemplating suicide'.  The ET noted that whilst 'it is a perfectly legitimate aim to maintain high standards' (here a safe and effective ambulance service), 'to do so without regard to fairness or reasonableness cannot be a proportionate means to achieve that aim'. Further the dismissal officer's 'language betrayed a complete inability to recognise that the claimant's behaviour was in some way linked to his disability' and meant there was no realistic prospect of a fair dismissal.

This case has already been the subject of an EAT hearing due to the employee's covert recording of the disciplinary hearing, including the private conversations of the panel during breaks in the proceedings. The EAT held that these recordings could be disclosed in evidence, unless they were legally privileged. Whilst employers should build in provisions regarding the use of recording equipment into their policies and procedures to clarify appropriate behaviours in that regard, all those involved in disciplinary and similar deliberations should be reminded that their discussions should focus on the allegations in hand and not turn to personal comment or opinion.

Flemming v East of England Ambulance Services NHS Trust (ET)

5. Collective bargaining rights for outsourced workers denied

We reported in an earlier Top Five on an application brought by the Independent Workers' Union of Great Britain (IWGB) for outsourced workers (security staff and post room workers) providing services to a University to have collective bargaining rights with the end-user University, albeit that the University was not the employer. With an estimated 3.3 million outsourced workers providing services in the UK, this application had potentially significant ramifications for end-user clients.

The CAC rejected the application and the High Court has now agreed on its judicial review of that decision – the right to freedom of association under the European Convention on Human Rights does not require the IWGB to have a right of compulsory collective bargaining with the University.  The University was not the employer and did not have any contractual relationship with the workers.  Indeed, the High Court stated that it was within the University's rights to outsource work to companies 'in the most efficient and beneficial manner and to permit otherwise would undermine the way it had chosen to conduct its operations and its economic rights and freedoms'.