April is a busy month in employment law. A number of new rates and limits have come into force and the shared parental leave regime is now up and running. As well as keeping an eye on the various employment law issues creeping into the general election debate (see here and here) and the ongoing holiday pay saga (see here), cases to watch out for this month include the European Court of Justice (“ECJ”) decision in the “Woolworths” case on collective redundancy consultation expected on 30 April 2015.
What new laws have come in this April?
The main changes this April are to the statutory rates of pay on statutory family friendly leave and sick leave and also an increase in the maximum unfair dismissal compensation award and the week’s pay for calculating statutory redundancy pay and the unfair dismissal basic award. More details can be found here.
Future employment law reforms
Whilst the outcome of the general election on 7 May 2015 will dictate the shape of new employment laws over the coming year, developments already in the pipeline include a requirement for large companies with 250 or more employees to report on their gender pay gap (see here), the removal of the power of an Employment Tribunal to make wider recommendation in discrimination cases and the continued roll out of the Government’s Fit for Work scheme (see here). Further details on future changes can be found here and employment issues on the political agenda here.
ECJ set to hand down decision on collective redundancies this month
In February the Advocate General (“AG”) handed down its opinion in the “Woolworths” case on the issue of when the obligation to collectively consult on proposed redundancies is triggered in accordance with the European Collective Redundancies Directive (see our alert here). The AG held that when determining whether collective consultation obligations were triggered, the reference to “establishments” in the Directive should not be read to mean the whole of an undertaking. The key question is what is the establishment in question and which in light of case law is essentially “the unit to which the workers made redundant are assigned to carry out their duties”.
The ECJ’s decision is being handed down on 30 April 2015. Unfortunately there is no obligation on the ECJ to agree with the AG. Once we have the ECJ decision it will then need to be considered by the Court of Appeal. We will provide an update on this decision.
When will a disclosure satisfy the public interest test?
Back in 2013 the Government introduced a legal requirement that to benefit from the statutory whistleblowing protection an individual must reasonably believe that their disclosure is in the “public interest”. This was to close a loophole whereby individuals had been able to take advantage of the attractive protection afforded to whistleblowers albeit that their disclosure related only to their individual circumstances. However, employers were left with uncertainty as to what in the public interest meant. We now have some clarity on this via an Employment Tribunal Decision (“EAT”) decision which has essentially set the public interest bar low – finding an employee’s disclosure motivated by his own commission entitlement was in the public interest as it also impacted on a large group of managers and, in any event, the employee reasonably believed it was in the public interest. See our alert here.
New code and guidance
Last month saw the Government issue a new code of practice and guidance for employers on whistleblowing. These do not set out any legal obligations on employers and the code is not statutory so is not one which an Employment Tribunal must have regard to in a relevant claim. However, employers would be sensible to familiarise themselves with the guidance and code and as appropriate amend their practices accordingly. Further details are here.
Employers should take care when considering what is or is not a disability?
The EAT has recently held that an employee’s condition controlled by minor alterations to his diet was not a long-term condition restricting ordinary day-to-day tasks.
Here the claimant had Type 2 diabetes and followed a diet designed to reduce his blood sugar levels. For example, he avoided sugary drinks. The EAT however, commented that this would mean that any person who suffers from Type 2 diabetes controlled by diet would be treated as disabled under the Act. Further, other conditions such as nut allergies or intolerance to lactose would also be regarded as a disability. The EAT ruled that abstaining from sugary drinks is insufficient to amount to a particular diet which amounts to treatment or correction of the condition and there was nothing to suggest that there was any substantial interference with his normal day-to-day activities.
However, employers should not take this case as excluding all employees with Type 2 diabetes or other dietary controlled food intolerances from our disability discrimination protection. Each case must be considered on its own facts. (Metroline Travel v Stoute (EAT))
Liability for stress-related illness
The High Court has handed down a helpful decision confirming the existing case law on liability for a psychiatric illness caused by work-related stress. Here, the claimant had been diagnosed with depression in 2010. He was subsequently signed off sick and following an unsuccessful attempt to return to work he left his employer in January 2012 and subsequently brought a claim for damages for psychiatric illness and consequential loss caused by work-related stress. He argued that his illness was due to the negligence and/or a breach of statutory duty on his employer’s part. However, for his employer to be liable, his illness must have been foreseeable i.e. what did the employer know or ought reasonably to have known about the individual employee. Relying on the leading authority Hatton v Sutherland, the High Court held this was not so here. With respect to his initial illness there was “nothing about” the claimant that would have given “anyone any clue that he might succumb to a psychiatric illness”. He had been a manager with 10 years’ experience with no prior history of psychiatric illness or psychological problems indicating he would be vulnerable. The employer was also unaware of any other store managers developing work related stress. Further, on his subsequent attempt to return to work, although his employer was on notice that he was vulnerable, it was the claimant who on his own account had stated that he was ready to return to work. The employer was entitled to accept this as an indication that he was fit to do so unless he told them otherwise and was not under an obligation to make searching enquiries of the employee.
However, with stress and its potentially damaging consequences a continuing potential problem in many workplaces, employers should not take this decision as a green light not to continue raising the bar on preventing and managing stress related issues. Ultimately issues of liability will be determined by the courts on the facts of the particular case and another court may interpret the evidence more favourably for the claimant. Indeed, from a practical perspective it is worth noting that the High Court looked favourably on the section entitled “Stress Management” in the employer’s staff handbook that invited employees to identify and notify their employer of any stress related symptoms that may affect their work. Such a provision can only be helpful for both employers and employees in seeking to tackle and resolve stress related issues. (Easton v B&Q (High Court))