Employment Law E-Bulletin

August 07

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Read this month's cases in detail

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HOW TO HANDLE EMPLOYEE BLOGS

Generally speaking, Blogs frighten bosses.  Although there are now some companies encouraging employees to “connect with their market” and write a blog (short for weblog), most employers would rather staff did not publish their diaries online. Employers worry that blogs are damaging because they could show the company in a bad light or because they’re written in work time.

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CASES

Payment in Lieu of notice not always implied in contracts

A PILON (payment in lieu of notice) clause enables employers to lawfully terminate a contract with an employee without giving notice (or vice versa). This can be achieved by paying the employee a proportion of his salary and emoluments that would be available were the period of notice observed. Whilst it can be commonplace to have an express clause for payment in lieu of notice in a contract, the question of whether such a clause can be implied was raised in the case of Morrish v NTL Group.

In this case there was held to be no implied PILON clause present because this would have directly contradicted an express clause in the employment agreement that stipulated a period of notice. Furthermore, doubt was cast on the ability for such an implied clauses to exist in the 21st century, however no express judgement on the matter was made other than the expression of strong reservations against such clauses.

Dscirimination against whistleblowers

The Employment Appeal Tribunal was keen to state that simply because the protection afforded to whistleblowers under s.103 of the Employment Rights Act 1996 is protection against a form of discrimination, it cannot be assumed that the same burden of proof which applied to discrimination cases can be applied to the provisions regarding protected disclosures.

The key differences are that in a discrimination case all that must be shown to place the burden of proof on the employer is that, for instance, religion was contributory to the detriment which was suffered. In a whistleblower case it must be shown that the protected disclosure was the reason (or at least one of the main reasons) for the detriment. Furthermore, whereas the statutory protection afforded to a whistleblower is tiered depending on the extent of the detriment (i.e. harassment or dismissal), the protection for discrimination is not. Finally, damages for injury to feeling are available for discrimination cases.

The "final straw" in unfair constructive dismissals

Two issues were raised concerning the treatment of an unfair constructive dismissal claim where the employee took action after a ‘final straw’ incident in the case of Gab Robins (UK) Ltd v Triggs.

The practical significance of the first issue for employers is that an acceptable ‘final straw’ reason for an employee claiming unfair constructive dismissal may be different to the original grievance lodged. However this case did also show that the act must in some way contribute to the breach of the implied term of trust and confidence.

Secondly, where sick leave is taken before a constructive dismissal of this nature, an award for damages may still be for full loss of earnings. This because a constructive dismissal is repudiatory conduct by the employer, followed by acceptance of this by the employee. The original (‘final straw’) act may have taken place before the sick leave and it is therefore the significant date when considering an award for loss of earnings from constructive dismissal is from the instant of the breach, not the date of dismissal.

Read this month's cases in full.

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LEGISLATION UPDATE

Following the Gibbons review and various consultations works the Government has drafted the Employment Simplification Bill. If successful and it achieves its aims it will deliver simpler and fairer enforcement of the national minimum wage and aims to simplify build a stronger enforcement regime for key aspects of employment law. To reach this vast goal attempts will be made to condense and simplify at least some of the pieces of employment legislation brought in by this government.

Core elements of the bill include moving away from statutory dispute resolution to an earlier and more informal approach. There will also be tougher penalties for employers who do not observe the minimum wage, at the same time this will provide greater protection for more vulnerable workers. There will also be consideration given to the European Convention on Human Rights, particularly after the case of Aslef v UK concerning the expulsion of members of trade unions due to the fact that they were members of a political party. 

If successfully enacted, the bill would provide greater clarity for employers, trade unions and employees and also provide time and cost savings across both the public and private sectors. It will also promote fairness and protection for those who are vulnerable in these sectors. More detail will follow on this when the legislation comes into force.

For further information on the issues featured here or any other employment law issue contact Burnetts employment law solicitors on 01228 552222.

August 2007