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Farrer & Co | Half term is over. What did I miss?

If you were away over half term, or just enjoying the (blink and you miss it) sunshine we had, you may not have noticed the employment stories of the week. So here is a quick update to get you back on track.


Gross misconduct

There have been two interesting cases on conduct dismissals recently:

1. A series of acts

In Mbubaegbu v Homerton University Hospital NHS Foundation Trust, an orthopaedic surgeon was dismissed for a series of misconduct issues, even though no single act in itself amounted to gross misconduct. The consultant had 15 years’ service, a previously unblemished record and had received no prior warnings. The General Medical Council also decided to take no action against him.

The EAT upheld the dismissal as fair and confirmed that it is “quite possible for a series of acts which demonstrate a pattern of conduct to be of sufficient seriousness to undermine the relationship of trust and confidence between employer and employee”. In this case, it was relevant that the EAT accepted the employee’s behaviour would not change and that patient safety could be compromised as a result. It was not relevant that the GMC had not taken action – the legal tests it considers are different to those considered by an employer.

This is a potentially helpful case for employers, in giving clarity on when a series of acts which individually fall short of gross misconduct, might when taken together, still justify dismissal.

2. Does misconduct need to be “gross”?

Along similar lines, the EAT in Quintiles Commercial v Barongo considered whether a single act of misconduct needed to be “gross” in order to make a dismissal fair, when no prior warnings had been given.

In this case, the employee was dismissed for “serious” misconduct, falling short of “gross”. While the ET held that for “serious” misconduct cases, prior warnings were always necessary for a dismissal to be fair, the EAT disagreed. Although in most cases that would be the case, the law itself does not in fact make a distinction between gross and serious misconduct. The question is whether a dismissal is within the band of reasonable responses, taking into account the entire circumstances of the case, including the Acas Code and the employer’s disciplinary procedure. 

The EAT has now sent the case back to a new ET for reconsideration and so the dismissal may well still be (and personally, I think is likely to be) found to be unfair. Therefore, while this case shows there is potentially scope for employers to dismiss for a single act which falls short of gross misconduct, in my view, this is a much riskier scenario. Warnings form a fundamental part of procedural fairness in cases where gross misconduct is absent, with Acas emphasising the importance of a “staged” process in such cases. Particularly with the new ET’s decision pending, the safest approach remains to give at least one warning in such circumstances.

Dress codes and discrimination

You would be forgiven if you didn’t remember the report by the Parliamentary Women and Equalities Select Committee on High Heels and Workplace Dress Codes, published nearly 18 months ago, following the story of a receptionist sent home from work without pay for wearing flat shoes into the office (but if you want to read about it further, see here). On the back of that report, the government has now finally published its guidance for employers who set dress codes – Dress codes and sex discrimination: what you need to know. It’s a brief six pages and in that space manages to cover transgender staff, reasonable adjustments and health and safety, as well as sex discrimination. What it says is sensible enough, but in reality the guidance doesn’t particularly add anything new or insightful to what was already out there. Still, if like me you are caught up in the Thameslink / Great Northern trains fiasco, it’s a good way of whiling away a few minutes.

The GDPR

OK, so the chances are you didn’t miss that this came into force on 25 May, what with the number of privacy notices clogging up your inbox. The Data Protection Bill also received Royal Assent on 23 May to become the Data Protection Act 2018. The message from the Information Commissioner’s Office (ICO) was very much “don’t panic” – the focus is going to be on large companies who “deliberately, persistently or negligently misuse data”, rather than small businesses which do not make extensive use of customer data.

That’s not to say that you should now just rest on your laurels and assume the GDPR is already old news – this GDPR briefing by Henry Sainty sets out the sorts of things you should be doing (and should keep doing), if you haven’t done so already. It’s also worth keeping an eye on ICO guidance, which continues to be expanded and developed on a regular basis. For example, in May, the ICO updated its Guide to the GDPR to include more information on recognising and responding to subject access requests and on an individual’s new right to object. 

Off-payroll working in the private sector

In 2000, the government introduced a set of rules called IR35 (often called intermediaries legislation or “off-payroll rules”), to try to ensure that people working through personal service companies who would have been employees had they been engaged directly, would still pay roughly the same tax as if they were employed. In other words, HMRC wanted to close a tax loophole in order to get in more revenue – something which IR35 didn’t particularly achieve. Last year, therefore, the government reformed the rules for engagements in the public sector to try to force greater compliance – for more on which see here.

The government is now consulting on how to best to tackle non-compliance with off-payroll working in the private sector and is asking for comments on the best way to do this. For more information, or to participate in the consultation, see here. The consultation closes at 11.45pm on 10 August 2018.

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