Redundancy

Redundancy

by

A dismissal for redundancy is likely to be unfair unless the employer has considered whether there is suitable alternative employment within the business (or group). If suitable alternative employment is offered, it might be subject to a statutory 4 week trial period if the role, place of work or other terms and conditions are different from the previous job. A statutory trial period starts at the end of the employee’s employment under their old contract or within 4 weeks of it ending. What happens if a role is deleted in a reorganisation and an employee works in another suitable role for more than four weeks – do they lose the right to a redundancy payment?

In East London NHS Trust v O’Connor, the employee was a PSI Worker who had been employed for nearly 20 years. He was told his post was going to be deleted in July 2017 and he was at risk of redundancy. He was also told that formal notice of dismissal for redundancy would follow at some point. He started a trial period as a Care Coordinator in July 2017. He did not agree with the employer that it was suitable alternative employment. He raised a grievance which was rejected. He went off sick and continued to refuse the Care Coordinator role. He was eventually dismissed with notice in December 2017. The employer refused to pay him a redundancy payment. They said he had undertaken a statutory trial period for the Care Coordinator role which had expired in August 2017. The role had been suitable alternative employment which he had refused and so he was not entitled to a redundancy payment.

The employment appeal tribunal agreed that the employee had not been given formal notice of termination in July 2017 despite his role being deleted. Deletion of a role does not necessarily amount to notice of dismissal. As a result, a statutory trial period could not have begun (because it can only start at the end of the original contract) in the Care Coordinator role. The EAT sent the case back to the employment tribunal to decide whether the employee’s dismissal in December 2017 was for redundancy and whether a redundancy payment was due.

This case highlights the complexity of the rules about suitable alternative employment and trial periods. Statutory trial periods for suitable alternative roles can only start at the end of original contract. That means that the employee must have been given notice and the notice period must have expired. Employers who fail to get their processes right might find themselves having to defend unfair dismissal claims on more grounds than just redundancy.

Astons Solicitors
22nd January 2020

 

Philosophical belief discrimination – copyrights

by

The Court of Appeal has considered whether it was discriminatory on the grounds of belief to dismiss an employee for asserting her right to own the copyright in her own creative works. In Gray v Mulberry, the employee refused to sign a standard contract assigning copyright in the work she produced whilst employed to Mulberry. She was scared that it would give them ownership of other written work she produced in her spare time. The contract was changed to exclude the written work, but she still refused to sign it and was dismissed.

The employee claimed that her belief in ‘the statutory human or moral right to own the copyright and moral rights of her own creative works and output [unless made for the employer’s benefit]’ was a philosophical belief and protected under the Equality Act 2010. She said her dismissal for this belief was discriminatory.

What qualifies as a philosophical belief?

To qualify as a philosophical belief, a belief must attain a certain level of cogency, seriousness and importance. The belief must be similar in status to a religious belief. The employment tribunal said the belief in this case lacked the cogency needed to qualify as a belief. The Employment Appeal Tribunal confirmed that the tribunal had not set the bar too high when making its decision. The Court of Appeal came to the same decision, on slightly different grounds. They said there was no connection between the employee’s stated belief and her dismissal. She had refused to sign the contract, and was dismissed, because she felt the wording did not properly protect her own interests. The Court of Appeal said a debate or dispute about the wording of a contract could not be a philosophical belief.

It is comforting to employers that businesses can legitimately take steps to protect their business interests. This case is another example of an employee without enough continuous service to claim unfair dismissal having to be ‘creative’ in seeking redress. Unfortunately for her, her ‘belief’ was not creative enough. Employers should always respect and try to accommodate employees whose religion or similar beliefs do genuinely impact on work.

Collective redundancies may not justify dismissal of pregnant worker according to Advocate General

by

Normally there is little justification for the dismissal of a pregnant employee. However, under EU law would a collective redundancy be considered an ‘exceptional case’ and therefore allow the dismissal of a pregnant worker?

In Guisado v Bankia SA – Advocate-General Sharpton decided that this would not necessarily be the case. The Advocate General said that there must be no reasonable possibility of reassignment. Under the EU’s Maternity and Collective Redundancies directives, collective redundancies, including dismissal for ‘one or more reasons not related to the individual workers concerned’ would not automatically be an ‘exceptional case’ allowing the dismissal of pregnant workers. Rather, ‘there must be no plausible possibility of reassigning the pregnant worker to another suitable post’. This opinion is not legally binding but the issues of this particular case are to be decided at a later date and will have possible ramifications for the application of regulation 10 MAPLE 1999.

Written by

Lorraine Emery
2nd October 2017