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That was the year that was!

That was the year that was!

And what a year it was! We had a general election with a shock victory for the conservatives and the word “Corbynista” became part of the English language. We said goodbye to Christopher Lee (Oh, horror!), Denis Healey and Cilla Black (not necessarily in order of importance). 75% of the world now uses mobile banking (compared with 42% IN 2011) and the worlds of football and athletics were shaken by scandal. Oh, and there was a lot of talk about whether Britain is going to leave the European Union, otherwise known as BREXIT, ahead of the referendum, whenever that will be!

As the year draws to an end we thought it might be appropriate to take a little look at some of the key events, statutory changes and other employment related issues from 2015.

A lot has happened this year, but of particular note is the fact that in April shared parental leave became available to parents of children born or placed for adoption on or after the 5 April 2015. We are starting to see companies receiving requests where employees are taking up the opportunity to use this and what will be really interesting in 2016 and the following years will be whether or not this this will equalise the balance of power between men and women in the work place as more men take up the possibility of using up some of their wife’s or partner’s unused maternity leave?

The month of May saw a general election with a surprise result! After the election Sajid Javid became Secretary of State for Business, Innovation and Skills, Priti Patel because Minister of State for Employment and Michael Gove became Lord Chancellor and Secretary of State for Justice.

One of the first things that the new conservative government announced was changes to existing strike laws, including the introduction of a minimum turnout requirement for strike balance in essential services, and a requirement that strike action cannot be called on the basis of historical ballots and allowing the use of agency workers to cover striking employees. The conservatives have also promised to introduce a new British Bill of Rights to replace the Human Rights Act 1998. This is with the aim of breaking the formal link between British Courts and the European Court of Human Rights making the Supreme Court the ultimate decision maker of human rights matters in the UK. We will wait to see whether and how this will be implemented.

In his first budget the Chancellor, George Osborne surprised everybody by announcing the implementation of a relatively high living wage, to effectively replace the national minimum wage set currently at £7.20 per hour but to rise to £9.00 per hour by 2020.

In April 2015 we had a decision from the Court of Justice of the European Union which was significant in the long-running Woolworths saga. The decision basically said that the word “establishment” means a local employment unit under the European Directive. In other words when determining whether or not the threshold for collective consultation for redundancy is met you can look at local units rather than the company or institution as a whole, which is particularly important for organisations that have numerous sites and locations of employees. The European Court sent the case back to the local court to determine whether or not on the facts of this particular case a branch of Woolworths was a separate establishment. There were also two further cases decided by the Court of Justice 2015 which confirmed the position that establishment means the local unit of the business as a whole. This is good news for large companies with lots of “establishments”.

In March 2015 we had an important decision from the Supreme Court in the case of Braganza v BP Shipping Limited. Mr Braganza was employed as a Chief Engineer by BP and back in 2009 he joined one of its oil tankers which needed work on its main engine. At some point whilst at work Mr Braganza disappeared. An investigation was carried out and a report concluded that Mr Braganza had either fallen or jumped overboard. The first draft of the report did not mention suicide. However after exchanges with BP’s legal department the final version concluded that suicide was most likely the reason for Mr Braganza’s disappearance. This conclusion (which meant that Mr Braganza dies through his “wilful default) deprived Mr Braganza’s widow a death in service benefit worth about US$230,265.00. She brought a claim for breach of contract. The case followed many twists and turns. The High Court originally upheld Mrs Braganza’s claim, but this was overturned by the Court of Appeal unanimously. It ultimately went to the Supreme Court and there was a split decision between the five judges of the court. A majority of three of the judges in the Supreme Court agreed with the High Court and upheld the appeal and BP was ordered to pay the death in service benefit to Mrs Braganza. The reason that this was a significant case was that it effectively confirmed that elements which are more common in public law relating to the reasonableness of the decision maker should also be applied to decisions made in private contracts. In particular the Supreme Court stressed the different character of employment and commercial contracts. Any decision making function entrusted to an employer has to be exercised in accordance with the implied duty of trust and confidence. The Supreme Court said that the personal nature of the employment relationship may justify a more intense scrutiny of the employer’s decision making process than would be appropriate in some commercial contracts. We wait to see the consequences of this case, but potentially it does open avenues for employees to hold their employers to account on a slightly more rigorous basis. HR people running decision making processes take note.

In September earlier this year there was an interesting decision by the Employment Appeal Tribunal which found that an employee had been off work for six years and had no prospect of returning to work was not “assigned” to an organised grouping for TUPE purposes. The employee’s only connection with the group was administrative. He remained “on the books” so that he could receive permanent health insurance. This case may afford employers more flexibility in transfer situations.

In the same month the EAT reminded HR professionals that advice given by HR to decision makers when dismissing or investigating the business should be limited to questions of law and procedure and not stray into areas of culpability. This is a reminder therefore that care should be taken as to the input that HR professionals should have in disciplinary procedures. Rather interestingly a firm of solicitors also managed to persuade the EAT that a limited company could bring a claim of direct discrimination under the Equality Act. Discrimination protection is not just for individuals!

This was also the year that Unison brought claims in the High Court trying to challenge the introduction of fees by the Government in the Employment Tribunal. These were ultimately heard by the Court of Appeal which, whilst “troubled” by the sharp decline in Employment Tribunal claims dismissed the appeals by Unison for judicial review. The Court did however say there was a need for a very full and careful analysis of the causes of the decline. Whether this happens will remain to be seen.

Social media continued to be important in 2015 and the case of Game Retail Limited v Laws shows how employers may well take account of careless tweets or posts on social media by employees in their decision making processes. In that case the EAT sent the case back to the tribunal because it felt that the tribunal had not taken into full account the public nature of Twitter when deciding if dismissal for posting offensive tweets was unfair.

Finally 2015 was the 40th birthday of the original Sex Discrimination Act 1975 now been subsumed into the Equality Act 2010. It was also the 20th birthday of the Disability Discrimination Act 1995. Next year will be the 40th birthday of the Race Relations Act 1976. You only have to watch some of the popular review programmes which take a nostalgic look at comedy and TV in the seventies to see what an impact this discrimination legislation has made!

It was thus an eventful year in the employment law world as well as generally.  It was a year which demonstrated the struggles the courts have dealing with the modern world of tweets, social media and a global workplace. Roll on 2016!