ABG Employment Newsletter – October 2016

Protecting disabled employee’s pay can be a reasonable adjustment

The Employment Appeal Tribunal (EAT) has held that an employment tribunal was entitled to find that an employer was required, as a reasonable adjustment, to continue employing a disabled employee in a more junior role involving less physical activity, preserving his existing rate of pay on an indefinite basis. While it will not be an “everyday event”, the EAT held that there was no reason in principle why pay protection, in conjunction with other measures, could not be a reasonable adjustment as part of a package of measures to get an employee back to work. Whether it was reasonable for the employer to have to take that step was a separate question, to be determined in the particular circumstances.

The EAT held that the tribunal’s conclusion that there had been no agreed variation to the employee’s contract when he started the more junior role had been based on an error of law, that an employer seeking to fulfil the statutory duty to make reasonable adjustments can impose a particular adjustment without the employee’s consent, differentiating it from a variation of contract, which requires consent. In the EAT’s view, if an employer proposes an adjustment which is incompatible with the terms of the contract, the employee is entitled to decline it: the adjustment will not be effective without agreement. In this case, it was clear that there had been a variation of the contract when the employee returned from sickness absence to a changed role.

No service provision change where new contractor takes over service for own commercial purposes

The Employment Appeal Tribunal (EAT) has held that a tribunal correctly approached the question of whether there had been a service provision change in circumstances where a service continued to be provided, but not on behalf of the original client. In this case, a local council subsidised a community interest company to provide a bus service from a council-owned car park to the city centre. Another company started up a similar bus service for the same route but for its own commercial purposes without any subsidy from the council. This led to the council terminating its contract with the community interest company.

The EAT held that in order for a service provision change to exist, it is essential that the client before the service change remains the same afterwards. In this case, the council was not the client when the new service was set up, but rather an “interested bystander”. Therefore when the council terminated its contract with the community interest company, there was no service provision change for the purposes of section 3(1)(b)(ii) and TUPE did not apply to the employment contracts of the bus drivers

Early conciliation certificate extends to a claim of constructive dismissal where resignation occurred after certificate was issued

The Employment Appeal Tribunal (EAT) has confirmed that a complaint of unfair constructive dismissal was validly accepted where the employee’s resignation post-dated the early conciliation certificate but was connected with the facts and allegations which prompted the claimant to first register a potential claim with Acas.

The EAT held that the employment tribunal had correctly concluded that the employee’s resignation, triggered by breach of the implied duty of trust and confidence and a failure to consider her grievance properly, was connected with the facts and allegations which led to the referral to Acas under the early conciliation procedure. The mandatory obligation on a prospective claimant with regard to early conciliation was not limited to referring individual causes of action or specific claims to Acas.

ICO fines a nursing home £15,000 for failing to keep personal information secure

The Information Commissioner’s Office (ICO) fined Whitehead Nursing Home in County Antrim, Northern Ireland, £15,000 for failing to keep the personal information they hold secure.

The breach occurred when a member of staff took an unencrypted work laptop home, which was stolen during a burglary overnight. The laptop contained sensitive personal details relating to 46 staff and about 29 residents.

An ICO investigation found that the nursing home failed to implement any policies regarding the use of encryption, homeworking and the storage of mobile devices or provide enough data security training.

The ICO decided that the appropriate penalty was £15,000 because of the size of the nursing home business. A bigger organisation experiencing a similarly serious breach would expect to receive a much larger fine.

The comments in this note are of a general nature only. Full advice should be sought on any specific problems or issues.

Christopher Gigg cgigg@abg-law.com +44 (0)115 934 3310

Kathryn Meir kmeir@abg-law.com +44 (0)115 934 3308