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Butcher Andrews Employment News – January 2017

Eagle eyed readers will have noticed that we did not issue a bulletin in December, which would have been our usual practice. We apologise for that, but hope that the Christmas and New Year celebrations will have been a happy distraction.


We apologise for starting off with this yet again. However,  in view of the Supreme Court’sImage result for hard brexit ruling on Article 50, the Prime Minister’s confirmation that a White Paper will be introduced and her promise that this will be a ‘hard Brexit’, the future for employers and employees alike may be a little clearer, but only a little.

The discussions in the press and in social media, together with the inauguration of President Trump, have pushed news on employment matters well into the background. However, we have the following judgments to report:-


Can Gross Negligence amount to Gross Misconduct?
In short, yes. A Regional Manager employed by Sainsbury’s became aware of an email sent by an HR Manager attempting to subvert and interfere with an important management consultation exercise.  The Regional Manager took no action and he was dismissed on the grounds of ‘breach of trust and confidence’.  The matter went to the High Court, which was asked to decide whether, on the facts, his inaction amounted to gross negligence, tantamount to gross misconduct, entitling Sainsbury’s to dismiss.  The High Court found in Sainsbury’s favour and the Regional Manager appealed to the Court of Appeal.  It upheld the High Court’s decision, but said that any decision on what amounts to gross misconduct turns on its facts.  In this case, one of the crucial facts was the seniority of the Regional Manager, which requires a higher duty of trust and confidence.

Most readers will be aware that a person is deemed to be disabled if he/she suffers from a physical or mental impairment that has a substantial adverse effect on their day to day activities. It is advisable for an employer to obtain a medical report if there is an argument about whether an employee satisfies this definition.  In a recent case a Claimant claimed that he had suffered from type 2 diabetes for more than a year before his dismissal.  Two medical reports were available to the employer and the Employment Tribunal decided that he was not disabled.  However, the Claimant appealed on the basis that the Tribunal had used the incorrect test.  It decided that Type 2 diabetes is a progressive condition which would amount to a disability if it was likely that it would have an adverse effect in the future, even if not at the time of dismissal.  The EAT has returned the decision to the Tribunal so that it can make the decision on the facts, using the correct test.

Employment Status
This is a complex area and one which has pitfalls for many an employer. Generally, a person will be an employee if he/she is subject to a considerable degree of control by the employer and not in business on their own account.  Following a recent dispute between a haulage company and HMRC, the First Tier Tax Tribunal reminds us all that there is a need to step back and look at the whole picture rather than use a checklist approach.  Unfortunately, current tax legislation does not allow for a third category of ‘workers’ as identified in employment legislation.  Again, this decision is fact sensitive.

Other news
The government has published The Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017, which extends the duty to publish annual gender pay gap reports to public sector employers with more than 250 employees. They largely reflect the earlier gender pay gap Regulations which apply to most private sector employers.  The date on which the pay information will focus is 31st March and 5th April respectively for the two sets of Regulations.

Employment Tribunal penalties falling short
The government had expected to generate income from rogue bosses who face sanctions imposed by the Employment Tribunal.  The latest government figures show that, since 2014 when this this scheme began, only £17,704 has been paid against an expectation by the government of £2.8m per year.  Tribunals can impose penalties raining from £100 to £5,000.  However, since the marked decline in claims following the introduction of tribunal fees, this potential source of revenue has fallen away.  Commentators suggest that a further consequence of this decline is that some employers are getting away with poor practices and evading justice.

Dress codes
This subject had occupied the media for a week or so at the time of writing. Nicola Thorp, employed as a Receptionist by PWC’s outsourced reception firm Portico, was sent home on her first day because she turned up in flat shoes and Image result for high heelrefused to wear high heels.  She started a petition calling on the government to introduce a change to the Equality Act 2010 making it illegal for an employer to require a female employee to wear high heels.  A debate has emerged over not just the sex discrimination aspect but on health and safety grounds.

It is not unlawful for an employer to have different rules on dress codes for men and women.  However, dress codes should not be more onerous to one section of the workforce than to another and there must be a legitimate, and identifiable, aim behind them.

If you have any queries about the contents of this bulletin, or any other matter, please contact Jennie Borgnis on 01328 852830 or


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