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July 2016 Review
With apologies for the slight delay, welcome to our review of employment law news in July.

Although there were all manner of political developments, it was a fairly quiet month as far as employment law is concerned. One of the earliest announcements from Theresa May's new Government was that it does not intend to withdraw from the European Convention on Human Rights (which is separate from the European Union) because "it is not the will of Parliament to do so" (i.e. because she would lose the vote). That means that Convention rights such as a fair trial (Article 6), respect for family and private life (Article 8), freedom of thought, conscience and religion (Article 9), freedom of expression (Article 10) and prohibition of discrimination (Article 14) will still underpin British law. What happens beyond that is, to a large extent, anyone's guess.

This month Katharine Kelly has followed up her initial article about Brexit with specific consideration of the position of non-British EU nationals working in the United Kingdom. Katharine's other article discusses a case concerning agency workers and whether they have the right to protection for whistleblowing against an end user.

Meanwhile, Susan Stafford discusses the decision of the Employment Appeal Tribunal in Royal Mail Group Limited -v- Jhuti which concerned whether or not it was fair to dismiss an employee for poor performance when that employee had raised unresolved whistleblowing concerns.

Susan's other article concerns the frequently problematic issue of what constitutes subconscious discrimination. This can arise where an individual genuinely believes that he or she has not discriminated against another, but in circumstances in which surrounding factors and evidence might call this into question. If this is established then the burden of proof passes to the respondent (generally the employer) to establish that there has not been discrimination. These issues were considered in the recent Employment Appeal Tribunal case of Geller -v- Yeshurun Hebrew Congregation.

As usual, taking into acount that most appeal courts are not sitting, we will provide you with a brief summary of any employment law news of interest in early September before returning to our full service with a review of September's employment law news in early October.

If you are away on holiday, I hope that you have a thoroughly enjoyable break. If, like me, you are still sitting at your desk working, think of the holiday credits you are stacking up while others use theirs!

Kind regards,
Martin Malone
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Special Offer
OFFER EXTENDED: Until 31 October 2016 we are offering you the opportunity of an on-site audit of your employment documents and procedures from one of our experienced employment lawyers completely free of charge and with no obligation. Who says that lawyers always cost you money? We will conduct a detailed check to ensure that your employment procedures are fully up to date and, if they are not, we will let you know what needs to be dealt with. Surely it's worthwhile, if for nothing else other than the peace of mind in knowing that an independent expert review has been carried out. If you would like to make an appointment please contact Katharine Kelly (0151 239 1079 / katharinekelly@canter-law.co.uk) or Susan Stafford (0151 239 1009 / susanstafford@canter-law.co.uk).
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If you would like hard copies of the brochure for you and your colleagues please email me at martinmalone@canter-law.co.uk with your name and address and I will be pleased to send them to you.
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This month's news
Definition of a 'worker' in whistleblowing cases
by Katharine Kelly
Further to Susan Stafford's article earlier this month in respect of whistleblowing, in the recent case of McTigue v University Hospital Bristol NHS Foundation Trust, the Employment Appeal Tribunal (EAT) has provided clarification regarding when an agency worker can claim protection for whistleblowing against an end user using the extended definition of a workers under section 43K of the Employment Rights Act 1996.

The claimant in this matter is a nurse who was employed by an agency and placed to work at the respondent NHS Trust. She brought a claim for protected disclosure detriments against the respondent under the Employment Rights Act 1996 (ERA). Under the ERA , only employees and workers are eligible to bring such claims against their employers. At first instance, the Employment Tribunal found that the claimant could not be categorised as such an employee/worker and her claim failed. The claimant therefore appealed to the EAT.

The claimant argued that she was employed by the Trust for the purposes of bringing a whistleblowing claim because she fell within the extended definition of "worker" at s.43K(1)(a) ERA, which states as follows:

"...an individual who is not a worker as defined by section 230(3) who-

(a) works or worked for a person in circumstances in which-

(i) he is or was introduced or supplied to do that work by a third person, and

(ii) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them

The respondent however presented the counter-argument that the Tribunal had been correct to find that it had not "substantially determined" the terms of the claimant's engagement, as her terms were largely determined by her supplying agency work. The respondent further stated that as the claimant was undoubtedly a worker in relation to the agency, she could not also be a worker of the Trust for the purposes of s43K(1)(a) ERA as that extension only applies to "an individual who is not a worker as defined by section 230(3)".

The EAT held:


Brexit 2
Brexit - what does this mean for EU Nationals currently residing in the UK?
by Katharine Kelly
Following on from my article last month covering the potential impact of Brexit on UK Employment Law, the debate goes on as to the possible implications for workers. So - what happens to the roughly 3.6 million EU Nationals living and working in the UK going forwards?

Prior to the Referendum, the Vote Leave campaign assured us that any new immigration system would have no effect on EU citizens already living in the UK and that these individuals would "automatically be granted indefinite leave to remain in the UK and will be treated no less favourably than they are at present". The Remain campaign however warned of a different outcome, stating that "all current EU citizens here would lose their automatic right to come and work in the UK. This means that living and working in the UK would be significantly more difficult after a leave vote for EU citizens, and is likely to involve restrictions and barriers in the form of permits, visas or other costs and bureaucracy".

A recent study by think tank the Social Market Foundation, found that on the basis Article 50 is triggered next year and the process takes two years to complete (i.e. until 2019), more than 80¢ of the 3.6 million EU citizens living in the UK would meet the 5 year requirement to remain. This would mean that the vast majority of all EU citizens who arrived in the UK prior to 2014 and continuing to live here, would have the right to permanent residency by the time Britain leaves the EU.

The study also found however that up to 590,000 EU Citizens living in the UK may not have the right to remain once Brexit is complete.

New Prime Minister Theresa May has been under intense pressure from many Eurosceptics to impose a hard line Brexit that would mean EU citizens would lose their right to automatically come to the UK, however she recently told nearly 800,000 Poles living in the UK that she "wants and expects" them to remain in the UK after Brexit.


Royal Mail
Dismissing a whistleblower for an ostensibly unconnected reason
by Susan Stafford
Is it unlawful to dismiss for poor performance when the employer has raised whistleblowing concerns?

Ordinarily an employee who brings information about a wrongdoing to the attention of their employer (makes a protected disclosure) will be protected under the Public Interest Disclosure Act 1998. It is unlawful for an employee to suffer a detriment as a result of making a protected disclosure and those who do suffer a detriment have recourse by way of an unfair dismissal claim if they are dismissed as a result, irrespective what period of continuous service they might have.

The facts

In the case of Royal Mail Group Limited -v- Mrs K Jhuti , Mrs Jhuti raised concerns about the allocation of accounts to her. She raised what she believed was wrongdoing and was subsequently put on a performance management plan. The targets that she was given were unobtainable and she believed that this was as a direct result of making the protected disclosure.

She was required to attend weekly performance meetings with her line manager. Her probationary period was extended and she was later offered a severance payment of three months' pay to terminate her employment. Mrs Jhuti went off on sick leave and raised a formal grievance about the way that she was being treated.

Whilst absent from work her line manager involved another member of the management team to review Mrs Jhuti's position. Mrs Vickers, the manager who held the investigations was unaware of the grievance and the concerns that had been raised and was led to believe that that there was genuine performance related issue. Subsequently she made the decision to dismiss Mrs Jhuti on the basis of poor performance.

Mr Jhuti complained on the basis that she had been dismissed for whilsteblowing.

The Employment Tribunal

The Employment Tribunal held that Mrs Jhuti had suffered a detriment as a result of the performance plan and the severance offer, on the basis that she wanted to be retained within in the business. However it found against her in connection with the claim that she had been unfairly dismissed on the basis that the person responsible for the dismissal did not have knowledge that she was dealing with anything other than performance related issues.

The appeal:


Subconscious motive for discrimination
by Susan Stafford
The Equality Act 2010 states that it is against the law to discriminate against an employee on the grounds of their race, sex, age, marital status, religion, sexual orientation, disability, age or pregnancy (protected characteristics).

The discriminatory act is straightforward to establish where there is an obvious or direct act of discrimination however what is not so clear is the approach to take in the event that no direct intent can be established.

It has long been accepted that proof of intent is not required to prove an unlawful act of discrimination. However the application of these rules has proven to be problematic in practice. This issue again arose in the recent case of Geller v Yeshurun Hebrew Congregation in which the Employment Tribunal failed to explore the possibility of subconscious discrimination despite, on the facts, there being good cause to do so.

The facts

Mr and Mrs Geller both worked for the Yeshurun Company. Mr Gellar was an employee and Mrs Gellar worked on an ad hoc basis for which she submitted time sheets. In 2013 the couple began to receive a joint salary. Mrs Gellar was not paid for the work that she had done previously.

Mr Gellar was provisionally selected for redundancy and Mrs Gellar argued that she too should have been involved in this process as an employee. They were subsequently both made redundant. Mrs Gellar brought a claim for sex discrimination on the basis that both the unlawful deduction of wages and the fact that the company had failed to recognise her as an employee were both acts of discrimination which related to her sex.

The Employment Tribunal

The Employment Tribunal dismissed the claim. They found no evidence that she had been treated unfavourably on either ground, commenting that she had actually been treated more favourably as a result of being married to Mr Gellar and that the deductions of wages were as a result of an administrative oversight not as a result of her sex.

The appeal:


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Designed from the ground up and provided only by Canter Levin & Berg Solicitors, we act for organisations nationwide. Our unique proposition has always been to deliver a prompt, efficient, and personal service to our subscribers through the provision of direct access to our specialist employment solicitors.

Our team is made up of qualified legal professionals who ensure that your business is being guided and supported by the latest and most efficient employment law resources at all times.
Katharine Kelly
Katharine Kelly
Katharine specialises in making sure that employers have all their employment law and HR requirements in place and up to date. Her pleasant manner is combined with her knowledge of employment law issues from a legal perspective so that she makes sure that employers have maximum protection and immediate support in connection with all problems which they may encounter on a day to day basis. Katharine is "on call" to deal with her clients in a way which her clients really appreciate. She will always take the next step to make sure that problems are solved quickly, efficiently and professionally.
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Sean Carty
Sean Carty
Sean joined the Employment Department of Canter Levin & Berg in December 2007. He has experience in all areas of employment law though specialises in Employment Tribunal litigation. Sean has particular expertise in dealing with complex discrimination matters, business reorganisation and redundancy, and unfair dismissal. He also deals with company disputes, breach of contract claims and injunctions, including claims relating to breaches of restrictive covenants.
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Susan Stafford
Susan qualified as an Associate Solicitor in January 2016 and works within the Employment Law Department. She deals in all aspects of employment law but particularly specialises in advising employers from a variety of industry sectors on all aspects of employment law and human resources issues, ranging from drafting company documentation through to dismissal
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