What's new this month?
As we head into the festive period and countdown to the end of another busy year, we were delighted to team up with The One Group for one final time for 2017 to present on the very topical issue of Sexual Harassment in the Workplace. Thank you to all of those that attended.
We are also really pleased to confirm that the next round of HR Breakfast Club sessions in January 2018 on the GDPR are now fully booked for all three sessions!! For those who were quick off the mark and managed to secure a place we look forward to seeing you in the New Year. For those who didn't we are operating a waiting list so, if you do still wish to attend, please let us know. In the meantime, if you have any HR related GDPR queries then please feel free to get in touch with a member of the team.
Finally, we wish you all a Merry Christmas and a Happy New Year from all of the team here at Buckles!
Anything in the news?
It has been announced that Toys R Us have proposed a company voluntary arrangement requiring 75% of its creditors to vote in favour of closing stores across the UK in an attempt to reduce its costs. Creditors are due to vote on 21 December 2017 and, if agreed, it is reported that around 800 jobs will be at risk of redundancy. If it is not agreed then there is a risk that the company could become insolvent.
It is also worth noting that Uber’s application to appeal the Employment Appeal Tribunal’s decision to the Supreme Court, effectively leapfrogging the Court of Appeal, has been refused. As such, an appeal will be heard by the Court of Appeal next year. Watch this space as this saga continues to unfold…
Any new cases to be aware of?
In the case of King v The Sash Window Workshop Limited the Court of Justice of the European Union held that where an employer won’t grant paid annual leave, which therefore prevents a worker from taking paid annual leave, the worker does not lose their right to pursue a claim the following holiday year. Under UK legislation paid annual leave cannot be carried over from one holiday year to another, however, this has been found to be incompatible with EU legislation.
The facts of this case involved Mr King who worked for Sash Windows on a “self-employed commission-only contract” for 13 years. Under the terms of this contract he was paid only on a commission basis and did not receive pay when he took annual leave. Upon his employment terminating Mr King sought payment for annual leave for the past 13 years. Sash Windows rejected the claim on the grounds of his self-employed status. It was held that Mr King was a worker and was therefore entitled to paid annual leave.
In addition, the CJEU concluded that Mr King could claim backpay to the date his employment commenced in 1999. Where an employer refuses to grant paid holiday the normal limits will disapply.
Potentially this has huge repercussions for employers. Firstly, there is the issue as to whether an individual is self-employed or not in light of the recent flow of cases involving Uber/Pimlico Plumbers/CitySprint etc. which could in itself be unexpected. Secondly, if an individual is found to be a worker rather than self-employed, the employer will inadvertently have refused paid annual leave which, given the decision in this case, could expose employers to claims for unpaid holiday which can be backdated.
The second case of interest this month is that of Mr Graham v Agilitas IT Solutions Limited which considered whether parts of a protected conversation could form the basis of disciplinary proceedings whilst other parts remained privileged.
Mr Graham was employed as a Sales Director with the company and he was also a shareholder. On 12 August 2015 he met with the company’s Chief Executive Officer on a without prejudice basis to discuss concerns with regard to his performance and sales. A number of subsequent meetings took place over the following ten months. He was suspended on 21 June 2016 pending an investigation into allegations of gross misconduct. It was alleged that Mr Graham had spoken to colleagues informing them that he felt there was a conspiracy to get rid of him, he felt he had a claim for constructive unfair dismissal and could damage the company. The company concluded that his actions amounted to gross misconduct, or alternatively his actions amounted to a breakdown of trust and confidence, and he was dismissed. He brought claims for unfair dismissal, wrongful dismissal and unlawful deduction from wages. He sought to rely on the protected conversations citing improper conduct in a bid to waive privilege.
The Employment Appeal Tribunal concluded that the company could not seek to rely on some parts of the conversations and waive privilege on other parts. The case was referred back to the Tribunal to consider the issue of improper conduct as alleged by Mr Graham which the Tribunal failed to consider.
This is an interesting case and serves as a reminder that protected conversations must be conducted in a proper manner with appropriate content. This is important to ensure that privilege is not waived but it is also important to ensure that any conversations that may need to be relied upon later are conducted as open correspondence.
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