Rogers & Norton News

Employment Law Bulletin July 2016 Part 3

Tuesday, July 12, 2016

Acas Code doesn’t apply to ill health
Holmes v Qinetiq

The Acas Code of Practice on Disciplinary and Grievance procedures applies to situations involving misconduct and poor performance. But what about ill health?

The Employment Appeal Tribunal (EAT) has confirmed that in cases of genuine ill health, employers don’t need to follow the Code.  This, in turn, means that tribunals aren’t allowed to impose a penalty of up to 25% of any tribunal award because of a failure to follow the Acas Code – since the Code doesn’t apply in the first place.

Mr Holmes was a security guard who had been dismissed for no longer being able to do his job because of his poor health. This was held to be unfair, but the tribunal didn’t award an uplift in compensation for the employer’s failure to comply with the Acas Code. Quite right, said the EAT. This wasn’t a disciplinary case. Mr Holmes wasn’t to blame for his inability to do his job. Culpable conduct is key to the Code applying and, therefore, to the possibility of increased compensation.

Things might not always be this clear-cut. What begins as genuine ill health could become misconduct or culpable poor performance, or vice versa. The real risk here for employers is in not keeping a close eye on the issues as they develop. But this case provides some helpful clarification that in genuine ill health cases where there’s no disciplinary or culpable conduct element (ie something that calls for correction or punishment), the Code won’t apply – although a fair dismissal in those circumstances is obviously preferable to arguing over compensation.
 
Immigration status and nationality distinguished
Taiwo v Olaigbe, and Onu v Akwiwu

The claimants in these cases were Nigerian nationals who had come to the UK as domestic workers. They were treated badly by their employers and went on to (individually) win various employment law claims.

Out of their cases sprang a question for the Supreme Court: does discrimination on grounds of immigration status amount to discrimination on grounds of nationality – and is it therefore race discrimination? (Nationality being an element of race.)

The reason these people were badly treated was because of their vulnerability as migrant workers, not their nationality, said the Supreme Court. It couldn’t be direct discrimination. Nor could it be indirect discrimination because the employers had not applied a provision, criterion or practice (PCP) to their employees regardless of their immigration status. (In other cases, however, there could well be a PCP that has an indirectly discriminatory effect.)

So, immigration status is not the same thing as nationality. They are linked, but they are not the same. But what was clear from this case was the fact that there is no effective remedy for non-financial loss (for humiliation and distress, for example) available to people treated as Ms Taiwo and Ms Onu were treated. Perhaps tribunals in the future will be able to use the Modern Slavery Act to put this right; the Court hinted at that possibility. We’ll have to wait and see.
 
Immigration provisions come into force

This month, some of the employment-related parts of the Immigration Act will begin to apply. The main points to be aware of are that from 12 July:
• it will be a criminal offence for a person to work when he or she reasonably believes that their immigration status prevents them from doing so
• employers of illegal workers could be convicted if they had reasonable cause to believe that the employee’s immigration status was a bar to them working. This extends the previous offence of knowingly employing an illegal migrant.  A maximum prison sentence of five years could be imposed, and a fine. In some circumstances, the business could be closed down for up to 48 hours.
So check, on an ongoing basis, that your workers have the right to work in the UK, and keep good records. Make sure, too, that those within your business who are involved in recruiting people to work for you know what’s expected of them, and that they understand the severity of getting this wrong.
 
Prosecuted for taking personal
information

The temptation for departing employees to take one or two pieces of useful information with them is sometimes too much.

One ex-employee has found out to his detriment that the Information Commissioner’s Office doesn’t take kindly to this. He was prosecuted for emailing details of 957 clients to his personal email address as he was leaving to start working for a rival company. The documents contained personal information, which included customers’ contact details, purchase history, and commercially sensitive information. A guilty plea followed, and a fine, costs and victim surcharge imposed.

While there may be little an employer can do to prevent these sorts of breaches happening (the offence, by the way, was unlawfully obtaining data), the possibility of a conviction – in addition to civil remedies – could be the deterrent that is needed.