HR and Employment Law Monthly Report – May

In this article, Andrew Wilson, THSP’s Employment Law Consultant Director, discusses the latest trends in HR and Employment Law cases for May.

Updates to Border Agency checks

Like most Government driven checks on our legal status the UK Border authorities encourage employers to conduct checks ‘on-line’.

From the 4th April this year some of the regulatory checks on employee working status have changed, with automated on-line checks being encouraged. That said, manual steps can still take place and essentially eligibility checks should be conducted on every worker who is not a citizen of a either England, Scotland, Wales or Northern Ireland.

Right to work checks can be made via the GOV.UK portal – https://www.gov.uk/view-right-to-work when the job applicant gives you their share code.

Suspicions of misconduct, will the ‘Wagatha Christie’ case change the way in which suspicions are investigated?

So, what does the Collen Rooney and Rebekah Vardy liable case have to do with HR and employment law, you may ask? Well, Ms Vardy believes Ms Rooney set her up to prove she was leaking information to the Sun newspaper. Allegedly, fake information and the tracking of these ‘secrets’ were put in place by Ms Rooney to prove Ms Vardy was the ‘snitch’.

It can be tempting for employers to consider ways of enticing certain employees into an act, to catch them out. This is known as ‘entrapment’, which will be a consideration in the ‘Wagatha Christie’ case this month. This is an abuse of the process and will be frowned up by any Court where such evidence is put before them.

In employment law, like most walks of life, people hold very powerful human rights not to have their privacy violated by unfounded acts in an attempt to gain evidence. That said, employers can engage some means of covert surveillance if they are almost certain that a violation of their Human Rights is taking effect within their workplace.

Continuing employment and length of service should be easy to calculate…shouldn’t it? There are some common questions that need to be considered.

The continuity of any employment relationship is an important consideration as a number of statutory rights become available to the employee as their length of service builds. Service accrues from the very first day the employee works for the employer.

There are certain times where employers wish to end the employment and re-engage, say on new terms, in a business transfer or to curtail increasing employment liabilities. Service can only be broken if there is a legal break in the employment relationship. This is currently expected to be at least one calendar week, but we would recommend a long break if possible. There is a Parliamentary Employment Bill proposing this increases to one calendar month, but still has to be ratified. Without a break in service rights against unfair dismissal, notice pay and compensation for loss of work, such as redundancy, continue to build at certain times.

Was it automatically unfair to dismiss an employee who refused to attend work over concerns about the risk of Covid-19 to his vulnerable children?

No, held the Employment Appeal Tribunal in Rodgers v Leeds Laser Cutting Ltd.

Mr Rodgers refused to attend work during the first national lockdown because he had vulnerable children who could become very ill if they caught Covid-19. He was dismissed and claimed that he had been automatically unfairly dismissed because he had exercised his right not to return to the workplace to protect himself from circumstances of danger, which he had reasonably believed were serious and imminent and which he could not reasonably have been expected to avoid.

A tribunal dismissed the claim. Mr Rodgers had general concerns about Covid-19, but these were not directly attributable to the workplace. Mr Rodgers appealed. However, on the facts of this case, the tribunal had found that Mr Rodgers did not reasonably believe that there were circumstances of danger which were serious and imminent, either at work or at large.

This is a really important case, the first addressing Covid related dismissals, that will set a precedence for any future claims made by employees pursuing redress for their dismissal during the pandemic.