Rojgar Job News

Employers are relieved! One of the most talked-about provisions of the Macron ordinances has been confirmed as valid by the French Court of Cassation (Supreme Court). The cap on compensation for unfair dismissal, which was contested by several industrial tribunals, was confirmed as consistent with international texts ratified by France. Since the ordinances reforming the Labour Code at the end of 2017, the cap has been set between one and twenty months’ gross salary, depending on seniority. Previously, judges were free to set the amounts which made tribunal litigation an uncertain business for both employers and employees. The “new” rules, now confirmed as binding, allow both sides a much greater ability to assess the commercial merits of particular causes of action and settlement offers made or received. There was also a six-month salary minimum for employees with more than two years’ service in a company with more than ten employees which has now been discontin...

Learning point 4: a disclosure does not have to be either true or in the public interest to qualify for protection, provided the worker has a reasonable belief that both are the case In part 1 of this blog series we noted that whistleblowing complaints are not always easy to identify and in part 3 we discussed the importance of being able to show why you treated an employee in a certain way. This week we have seen an EAT decision ( Okwu v Rise Community Action ) that neatly illustrates these learning points, plus a few more. Miss Okwu started work with Rise Community Action, a small charity, subject to a three-month probationary period. As the charity had a number of concerns about Miss Okwu’s performance, it notified her that it would be extending her probationary period for a further three months. So far so good. A week later, Miss Okwu wrote to RCA raising a number of matters about her employment, including concerns that it was acting in breach of the Data Protection Act by fai...

In the first two posts in this series, I looked at the law around workplace attitudes which might stem from some form of disability. But what if your employee is fit and well in all respects bar being exceptionally painful to work with? He may be relentlessly negative, make heavy weather out of every instruction, or just operate on a very short fuse, often perfectly civil but prone to detonation when colleagues overstep some clearly very important, but also absolutely invisible, line in their dealings with him. He is, in every sense, grit in the gearbox of your business. But without obvious performance or conduct concerns, what can you do? Probably the first point is to ascertain whether the employee himself recognises the problems he is causing to his colleagues. This won’t be an easy conversation but it forces him to confront the problem head-on. He may demand to know who has complained and require detailed examples of where others have been offended. By the very nature of a poo...

Just flicking idly through the ICO’s new guidance the other evening, as you do when the only alternative is Ant & Dec, and two paragraphs caught my eye. In the section relating to DSARs which are “ manifestly unfounded ” (and can therefore be batted away by the employer) appear two examples, where: “ the individual clearly has no intention to exercise their right of access. For example, an individual makes a request but then offers to withdraw it in return for some sort of benefit from the organisation” ; and “ the request is malicious in intent and is being used to harass an organisation with no real purpose other than to cause disruption” . There will be few employers on the receiving end of a DSAR from a disgruntled employee who would not consider either or both of those paragraphs to apply to it. So is this at last a means of pushing back against the weaponisation of DSARs in employment disputes, hooray? And if you add to that the refere...

When all this is over and the UK looks back to see what we learnt from the Coronavirus crisis, maybe somewhere on the list will be a point on making law by Twitter.  #askRishi on Friday evening was an extremely brave attempt on the Chancellor’s part to engage with the detailed issues arising from the Job Retention Scheme , but it does create some interesting questions for future judicial interpretation when what employers are relying on are essentially on-the-hoof announcements with the lifespan of a mayfly.  Next stop, law by Snapchat. Personally I would rather base my business decisions on, y’know, actual law , but pending that, there was some further help for employers in the revised Covid-19 Guidance issued on Saturday morning.  This contained some clarification, some further confusion and nothing at all about what the Government must surely know to be one of the key questions on all this, i.e. the interplay between furlough and holiday (but see below)....

In a previous blog, in a world before the coronavirus hit Europe, we noted the social elections that Belgian employers have to organise in 2020 [here] for the appointment of employee representatives to the Works Council and Health & Safety Committee. Being a representative of that sort (and also being a candidate for that role) gives wide-ranging protections against detriment and dismissal. As a consequence, with the social elections comes a Belgian peculiarity, the “occult period”. This is a period of 65 days, ending ultimately on 30 March, over which employees can stand as candidates in those elections but before the candidate list is communicated to the employer. It is therefore unaware who has that protection and who doesn’t. Practical consequence: all terminations are put on hold until April. Because of the Covid-19 crisis however, the social elections have been postponed, probably until the second half of November at the earliest. Mercifully the occult period...

So now that the slow movement back to workplaces has started, the next hot question will be this: “If I don’t want to go back in because I fear infection if I do, can my employer make me?” The short and absolutely definitively answer to this is no.  And yes. It cannot compel you to return but subject to certain conditions (below) you cannot then compel it either to keep paying you or to continue your employment. Some of our clients’ employees have received stark emails in shouty capitals this week telling them categorically not to return to work and that if they don’t, their employer has to keep paying them regardless.  Those emails do not appear to be claimed by any particular organisation, which is both telling and quite sensible.  Telling, because if you thought that was a valid position on behalf of the working men and women of Britain, you would surely put your name to it.  Sensible, since not doing so denies employers the ability t...

Neatly timed to coincide with the beginning of the end of lockdown, ACAS has this week has issued some new thoughts on the conduct of disciplinary and grievance proceedings during the pandemic.  Can or should you really run these things without the physical meetings referred to in generations of prior ACAS guidance? In these respects, this new advice unfortunately asks many more questions than it answers.  “ The employer needs to decide… “, it says repeatedly, or “ The employer must consider… “.  I am not sure either that much is really added to the sum of human wisdom by the cautionary note that “ In cases that might result in dismissal, the employer must always act fairly to avoid unfair dismissal”. The new ACAS advice makes it clear that the existing law remains unchanged, as does its own formal Code of Practice,  but remember that that Code is just a gloss upon The Law.  All that says is that the employer sh...

Quite a fun little case on TUPE this week, if you like that sort of thing (and on the upside, even if you don’t, at least it has nothing to do with COVID-19). Regulation 4(4) of TUPE states that TUPE-related changes to terms of employment are void in most circumstances.  This has long been read as applying primarily to changes which are detrimental to the employee, as such changes run contrary to the overarching principle that employees’ contract terms are to be safeguarded on a business transfer.  The acquirer of a business is therefore stuck with those terms as they existed at the point of transfer.  But what if pre-transfer those terms have been made more beneficial to the employees, with a specific eye to the transfer?  There may be two reasons for this – first, the “poison pill” to make taking on the staff such an expensive prospect that no-one will buy the business or be willing to take over a service it currently provides, or bus...