Weekly Review of Developments 29/11/2019Posted in : Weekly Review of Developments on 29 November 2019 Issues covered:
Applications for NI Equality and Diversity Gala & Awards 2020 closing soon...
Maybe Channel 4 was sending out a subliminal ad for Frozen 2? That's a whistleblowing investigation just waiting to happen. Some people won't let it go.
This week's big news includes:
- The Countdown is on...The deadline to enter the Northern Ireland Equality and Diversity Gala & Awards 2020 is next Friday 6th December at noon!
- Domestic abuse is a risk for every employer
- Swearing in the workplace is rife
- We have 2 free webinars next week - Diversity and Inclusion (Tues) and Christmas Party Special (Fri)
- One in five HR professionals 'Do not feel valued by their business'
- Galgorm Spa and Golf Resort is inviting applications for the role of HR Officer
And here's this week's contents list in full...
- Case Law Reviews
- Northern Ireland Equality and Diversity Gala & Awards 2020
- Data Protection Update
- Recruitment Update
- Domestic Abuse and Employment
- Just in Case You Missed It...
- HR Developments
- Employment News in the Media
- GB Developments
- Health and Safety Developments
- South of the Border
- Friends of Legal Island
- Free Webinars This Month
- Weekend Weather and Thought-Provoking Video
Case law essentials this week: In GB, a Trade Union Official fails to meet the bar for a successful claim of Interim Relief; and locally time limits were not extended for an unfair dismissal claim lodged outside the time limits where a legal representative was on record.
Remember: Our case law reviews are now held in our case law section on our fully-searchable employment law hub website:
1. Case Law Reviews
NASUWT v Harris  UKEAT/0061/19/BA
Issues Covered: Unfair Dismissal; Protected Disclosure; Interim Relief
The claimant was employed by NASUWT, the teaching union, as a branch officer. The issue arose when the General Secretary of NASUWT issued a letter to the claimant regarding his alleged conduct at a meeting. It was alleged that he had drunk four pints of Guinness before driving off in his company car. A police report was made on foot of this as well as an attempt to remove the claimant’s company car. The claimant responded stating that the allegation was a lie, a report made to the police about his conduct amounted to wasting police time and that his car could not be taken under this contract of employment.
Following a series of meetings held all on one day, a decision was made to dismiss the claimant with immediate effect stating that there was no mutual trust and confidence any longer. The claimant sought interim relief on the basis that this was an automatic unfair dismissal as a result of making a protected disclosure as well as the dismissal taking place due to his trade union activities. The issue with the trade union activities was dismissed at first instance as his union, the GMB, did not produce a certificate as required under Section 161(3) of the Trade Union and Labour Relations (Consolidation) Act 1992.
The EAT held that the test for awarding interim relief was outlined in Taplin v C Shippam Ltd  ICR 1068 and it must be shown that there is ‘a pretty good chance of success’ which had been used by the ET in awarding interim relief which allowed the claimant’s contract of employment to continue.
In making a determination, the EAT examined whether there had been a protected disclosure and whether such disclosure was in the public interest. It referred to Chesterton Global Ltd v Nurmohamed  ICR 731 in which Underhill LJ stated that the question of whether a disclosure is in the public interest depends on its character of the interest served. As a result, the EAT agreed that the claimant’s email outlining the allegation of wasting police time does fit into the initial requirement for a protected disclosure. However, on the issue of public interest it was held that the Tribunal erred in stating that a private interest of an employee could be a matter of public interest and was a ‘matter of scale’. As a result, it was held that the ‘pretty good chance of success’ is not found when determining if there was a public interest in the disclosures. The decision on interim relief was overturned.
This case demonstrates the test that is employed by the Tribunal when a claimant is seeking interim relief. There is a need to provide interim relief, especially in cases of unfair dismissal as the claimant may not have any sustainable income as a result. The protection is given by the need for a ‘pretty good chance of success’ to be shown. This was seen not to be ‘beyond reasonable doubt’ but a threshold that sat between the balance of probabilities and beyond reasonable doubt. In this case, the EAT shows how all elements of the claim would have to be examined with the view of pretty good chance of success and when one fails, then the claim for interim relief would fail also.
Elliott v JD Sports Fashion Plc  NIIT 08722/19
Issues Covered: Unfair Dismissal; Statutory Time Limit; Extension of Time
The claimant had been employed by the respondent retailer. He was orally dismissed from his position on 14th January 2019 which was followed by written confirmation dated 18th January 2019. The claimant followed the internal appeals process and the decision on appeal was to uphold the decision to dismiss. This decision came on 12th March 2019. The ET1 was presented on 3rd May 2019 when the claimant had been legally assisted. The solicitor for the claimant had come off record between presenting the ET1 and the hearing which took place in the absence of the claimant.
The Tribunal held that the effective date of dismissal, as set out in the case of Savage v Sainsbury  IRLR 1089 is the date of the original dismissal and not any date of the appeal. As a result, the claim was out of time as it should have been presented within three months of the 14th January 2019. Interestingly, the Tribunal President noted that the respondent legal team had failed to take into account the effect of Article 39(2) of the Interpretation Act (NI) 1954 which gives an extra day compared to Great Britain, as the day of the action is not taken into account. Therefore, the claim should have been presented by 14th April 2019 but was actually presented three weeks late.
The next issue was whether time should be extended, which can only be done when it was not reasonably practicable for the Claimant to have presented it by the 14th April and if it wasn’t, then was it presented within a reasonable time thereafter. One of the issues was the fact that the claimant had been legally advised from 15th January (the day after dismissal) to a point after the presentation of the ET1. The respondent asserted the position in Dedman v British Building & Engineering Appliances Ltd  IRLR 379 which stated that when the claimant engages skilled advisers to act for him and they make a mistake regarding the time, then he is out of time. He would only have a remedy against his legal advisers. This point has been reiterated more recently in Marks & Spencer Plc v Williams-Ryan  IRLR 562. As a result, the Tribunal struck out the claim for unfair dismissal as being out of time and with no recourse to extending time as it could not be shown that it was not reasonably practicable to present the claim within the correct time.
This case demonstrates two very important practical lessons. The first is the date of dismissal that is to be used for the purposes of time beginning to run. It is the date of the original dismissal and not any date of decision in an appeal.
The second point is that legal advisers must be aware that they are presenting claims within the correct time as any argument for submitting it after when there has been a mistake has been met with short shrift by both the Tribunal and the Court of Appeal. This will also protect legal advisers from potential negligence claims.
These case review were written by Jason Elliott BL. NI Tribunal decisions are available on the OITFET website:
If you have any queries or wish to comment on the reports please feel free to contact Jason at: firstname.lastname@example.org.
Jason Elliott was called to the Bar of Northern Ireland in 2013. He has developed a civil practice representing individuals, companies and public bodies in litigation. This covers a range of areas of law such as personal injuries, wills and estates and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. Alongside his practice at the Bar, he is also a part-time lecturer in law at Ulster University where he takes the Employment Tribunal Representation module for Masters students.
2. Northern Ireland Equality and Diversity Gala & Awards 2020
There is just one week to the deadline (noon on Friday 6th December) to enter the Northern Ireland Equality & Diversity Gala & Awards 2020.
Sponsored by Jones Cassidy Brett Solicitors and Allied Irish Banks (AIB), the Diversity Gala & Awards evening is a unique event providing the opportunity for employers in Northern Ireland to celebrate equality and diversity in the workplace, and recognise those who advocate and drive diversity within their organisations.
The evening will showcase the advantages of equality and diversity to employers and the wider community, celebrating success stories of individuals, groups and employers. For full details on how to enter go to:
3. Data Protection Update
The Government included provisions in the Data Protection Act 2018 to create standards that provide proper safeguards for children when they are online. As part of that, the ICO was required to produce a statutory age appropriate design code of practice which has been dubbed the Kids Code. The code is rooted in existing data protection laws (the General Data Protection Regulation and Data Protection Act 2018), that are regulated and enforced by the ICO.
The final version of the code reflects a detailed consultation carried out by the ICO. The ICO received around 450 responses to the draft code sent out for consultation in April 2019 and has conducted dozens of meetings with trade bodies, industry representatives, campaigners and individual organisations. The views it gathered have helped inform the final version of the code. Code available here:
4. Recruitment Update
NIJobs.com was a sponsor at our recent Annual Reviews and apart from some great freebies they have a lot to offer employers.
Available for the first time in the Northern Irish market the Employer Branding Academy will teach you and your colleagues the science and techniques behind becoming an attractive employer, reveal how to build and execute an effective employer brand, and how to demonstrate the clear ROI and advantages Employer Branding will bring to your organisation.
The Employer Branding Academy is run by Universum, the global leader in employer branding. With the course scheduled to get underway in early 2020, as a sister company of Universum, NIJobs.com is delighted to offer Legal Island customers a special Early Bird ‘Launch’ rate for a limited time only.
Enjoy £180 off the Academy online (Standard price £1,345) or £900 off the Academy in-class (Standard price £2,245). To find out more about the programme and to register click here:
5. Domestic Abuse and Employment
According to the CIPD, Domestic abuse ‘is a risk for every employer'. Business groups and charities have called for domestic abuse to be recognised as a workplace issue, as official statistics show an increase in the crime across England and Wales. Business in the Community (BITC) has called for what it described as “the last workplace taboo” to be broken, as figures from the Office for National Statistics (ONS) showed a 24 per cent rise in the number of domestic abuse-related crimes reported to the police in the year ending March 2019.
The ONS study also found the total number of incidents of domestic abuse had remained unchanged since 2009. Louise Aston, wellbeing director at BITC, said businesses needed to acknowledge that both victims and perpetrators of domestic abuse could be employees in their workplace. “The silence must be broken, and the misunderstanding that domestic abuse is not a workplace issue [owing to] the myth that it only happens at home needs to be dispelled,” she said.
Citing earlier ONS data, Aston said one in four women, and one in six men, suffered domestic abuse in their lifetime, making it a “risk for every employer”.
Lucy Hadley, campaigns and public affairs officer at Women’s Aid, also emphasised how important employment can be for domestic abuse victims. “For those survivors who are in the workplace, it can be one of the only places that they're safe to speak out and get the help they need,” she said. More from the CIPD:
6. Just in Case You Missed It...
Restrictive Covenants and Transfers – do they still apply?
In a TUPE situation an employee's terms and conditions are protected and transfer with them to the new employer. This includes terms and conditions relating to restrictive covenants, salary, holiday, bonus entitlement, etc. This article by Kiera Lee, Director of the Employment Department at Mills Selig, focuses on what happens to restrictive covenants following a TUPE transfer.
Suspension; Whistleblowing and Covert Recordings and Agency Workers – Lessons from Key Cases
2019 has been a year of all things Brexit – it feels as though it has consumed everything, however employment cases are continuing to be heard and interesting decisions delivered – decisions which Employers should take note of and learn from. In this article from Think People Ruth Curran explores a few of these cases and examines how they can impact the decisions we make on matters such as protected disclosures to suspensions.
Covert Monitoring - Guidance from the ECtHR
While it may be a controversial issue among staff members, workplace monitoring is a legitimate and legal method that employers can implement to protect their staff and business. Permitted methods of surveillance include maintaining CCTV systems, monitoring internet browsing history, inspecting email traffic, listening in on telephone calls or conducting employee bag searches. This case review by Mary Paula Guinness BL, a barrister in Ireland, concerns the ECtHR decision in the case of Ribalda And Others V. Spain, in which the ECtHR provides guidance on the appropriate use of CCTV monitoring by employers in the workplace.
7. HR Developments
The CIPD/People Management has been busy this week.
Swearing In The Workplace Is Rife, Finds New Survey
Swearing in the workplace is so pervasive the average UK employee hears 11 swear words a day, new research has found – but experts said foul language was not necessarily always a bad thing for morale or teambuilding. The poll of 1,800 workers found that 11 per cent heard more than 25 swear words a day, while 12 per cent admitted they never held back on their language at work. A quarter (25 per cent) said they rarely restrained themselves from swearing, only occasionally self-censoring for fear of offending a colleague. Just 19 per cent said they tried never to swear in front of workmates.
The survey, conducted by The Leadership Factor for 4com, also found supervisors and line managers were rated by their colleagues as having the foulest language, followed by receptionists and admin staff. Commenting on the findings, Yehuda Baruch, professor of management at the University of Southampton’s Business School, said that although swearing in the office was pervasive, it was more nuanced a topic than many believed. Baruch, who has undertaken his own research on the subject, said swearing could lead to positive outcomes for individuals and teams including stress relief, better communication and stronger social bonds. More on this from the CIPD:
One In Five HR Professionals ‘Do Not Feel Valued By Their Business’
More than a fifth of HR professionals do not feel their function is valued in their organisation, a new survey has shown. The poll found 22 per cent did not think their function was valued, with many of them saying it was not considered part of senior leadership or that it was still viewed as a 'back office' function. However, the vast majority of respondents said they were appreciated by their business. And experts said previous data suggested HR was overwhelmingly viewed as a meaningful function.
Responses from those surveyed revealed that some HR staff felt they were seen as "a department that provides eye test vouchers or to sit and moan to”, rather than a key part of the company, while one respondent noted: “HR isn’t involved in some high level HR issues, never mind general business issues. We are seen as a back office function.” Respondents also said they “would like to think HR would have greater involvement in strategic business decisions.” The survey was conducted by Natural HR and polled 219 HR professionals. More from the CIPD:
Carers should be given a week’s paid leave, says charity
Employees with caring responsibilities should be given paid care leave, a leading charity has said, as a new study found that almost two-thirds of people have cared for an elderly, ill or disabled relative.
The report from Carers UK found that 65 per cent of adults in the UK had been a carer at some point in their adult life, and that, between 2016 and 2018, between 15 and 18 per cent of people in work were carers. The charity, which analysed data from the Economic Social and Research Council, also cited a ‘gender care gap’, noting that women were disproportionately more likely to hold more demanding caring responsibilities.
Women made up 57 per cent of carers providing up to 19 hours of care per week, and 63 per cent of those providing more than 50 hours of care per week. Helen Walker, chief executive of Carers UK, called on the next government to give carers a right to five to 10 days of paid care leave, adding that such a policy could also help address the gender imbalance in care.
“Women are disproportionately affected, facing difficult decisions about their loved ones’ health, family finances and how best to combine paid work and care more than a decade earlier than men,” she said. More on this from the CIPD:
8. Employment News in the Media
A former Qatari Embassy secretary who was subjected to a lengthy campaign of sexual harassment and “spiteful” conduct by senior staff has been awarded almost £400,000 in compensation by an employment tribunal. Deanne Kingson brought a claim for sex and religion or belief discrimination against the Qatari government after she was exposed to repeated discrimination and harassment for the entirety of her employment at the country’s embassy in London. She claimed executive ambassador Fahed Al-Mushairi made persistent sexual advances against her and, when they were refused, he told her that he wished to propose to her 19-year-old daughter so that he could have sex with her daughter without breaching Islamic rules that prevent sex outside marriage. More on this from Personnel Today:
Supermarket giants Morrisons have been forced to pay more than £5,000 to a former employee who “had lost her cool” at a customer. The 60-year-old woman, who worked in the Dundee store, was also alleged to have sworn at the customer over an incident involving a can of spilled juice. The woman denied swearing but she was subsequently dismissed by the company for gross misconduct. The tribunal stated that the company had ignored its own policy when carrying out an investigation in the case surrounding the woman’s dismissal. More from the Evening Telegraph:
A dissident republican gunman is back working for a charity after winning an NI employment tribunal against his dismissal. The tribunal heard how the claimant had secured a job as a social care worker with a local charity, only to be sacked when the Northern Ireland Social Care Council (NISCC) raised concerns about his fitness to practise. This was based on the leading dissident's conviction and 30-month jail sentence for involvement in a botched 2010 kneecapping of a west Belfast teen. More from the Belfast Telegraph:
9. GB Developments
Employment law is a devolved power in Northern Ireland. The items in this section apply throughout GB only (Scotland and England & Wales) unless we specify they apply to NI.
Employment Law 2020: All The Changes Set To Come Into Place Next Year
With 2020 just around the corner, there are certain changes set to come into place in regards to employment laws in GB - and you may need to know about them. Although numerous employment law changes have been placed on hold due to the Government being involved in the complications and delays of Brexit, numerous laws, including sick pay and payslips, are set to come into place in April 2020. This article outlines everything you need to know.
10. Health and Safety Developments
Co. Antrim firm and sub-contractor Fined after Serious Incident
A Co. Antrim firm and a sub-contractor have been fined after an electrical contractor had his foot trapped in a hydraulic powered compactor known as a Briquetter. Following an incident where a self-employed electrical contractor sustained serious injuries at its premises, Enva Toomebridge Limited (formerly known as Clearcircle Environmental (NI) Ltd) was fined £1,500 after pleading guilty at Magherafelt Magistrates Court to Article 5(1) of the Health and Safety at Work (Northern Ireland) Order 1978. Arising out of the same incident Mr Declan Quinn, a self-employed Maintenance Contractor, was fined £500 after pleading guilty to Article 5(2) of the Health and Safety at Work (Northern Ireland) Order 1978.
The guard on the hydraulic ram had been removed by Mr Quinn when he was investigating a potential fault. During a period when Mr Quinn was not present the injured person returned to complete other work. The unguarded ram of the Briquetter machine started automatically and began to crush his left foot causing severe injuries. He was trapped for approximately 45 minutes.
More from HSENI:
11. South of the Border
This section is brought to you by Ciara Fulton, Senior Partner at Jones Cassidy Brett. Ciara is dual-qualified and practices law throughout the island of Ireland. Contact Ciara on email@example.com.
ICTU Survey reveals Shockingly High Levels of Under-Reporting of Sexual Harassment at Work
Four out of five workers experiencing sexual harassment at work do not report the incident to their employer according to a new survey from the Irish Congress of Trade Unions. Ahead of the International Day for the Elimination of Violence against Women which was on November 25, Congress surveyed more than 1,300 union members with experience of sexual harassment and sexual assault in the workplace.
Sexual harassment is defined in the Employment Equality Acts 1998-2015 as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. It is prohibited under the Acts. Commenting on the survey Congress General Secretary, Patricia King said: “Sexual harassment can happen to anyone, anywhere, at any time. Yet all too often, it happens in the workplace.
81 per cent of respondents did not report the unwanted sexual behaviour to their employer, while only one in four of the minority who did report such incidents felt it was taken seriously and dealt with satisfactorily.
The national opinion poll of 1,347 union members with experience of sexual harassment at work was conducted online between 1 and 14 November 2019. Around 7 out of 10 (72 per cent) of the responses were from women (971). The survey focuses exclusively on people’s experience of sexual harassment in the workplace, rather than measuring the scale of the problem. More on this from ICTU:
Registrar Position - Workplace Relations Commission
The role of the Registrar is to lead and manage the WRC Legal Service so that it provides high quality and timely legal services and advice to the Director General, Adjudication Officers and staff of the WRC.
The successful candidate will:
- Be a be a practising barrister or a practising solicitor with at least 5 years’ experience
- Have excellent knowledge and experience of employment and equality law;
- Have the capacity to develop and maintain effective working relationships and an ability to engage with a diverse range of stakeholders.
Closing Date for Applications is the 12th December 2019. For more information and to apply click here:
12. Friends of Legal Island
Galgorm Spa and Golf Resort are seeking a HR Officer
Galgorm Spa and Golf Resort is inviting applications for the role of HR Officer. This is an excellent opportunity offering unrivalled exposure in a diverse workplace with an outstanding reputation for staff development. The HR Department is comprised of a core team of five passionate professionals who work collaboratively whilst assigned to key areas of responsibility. We’re looking for someone with an innovative approach to staff development and engagement. If you have a desire to place yourself at the very centre of change and are committed to creating and sustaining a progressive working environment where your efforts will be recognised, this could be the job for you.
For further information please visit https://www.galgorm.com/careers.html or phone +44 (0)28 2588 2598.
This is a full time position based at the Resort in Ballymena. The closing date for applications is Friday 6th December 2019 at 12 noon.
Irish Congress of Trade Unions (ICTU) Employment Relations Programme
The ICTU Education Programme offers to design and deliver bespoke, accredited courses to meet the needs of workplaces on:
- Industrial Relations
- Health & Safety
The Department for the Economy provides grant funding to the Irish Congress of Trade Unions (ICTU) in Northern Ireland to run their Employment Relations Programme. More here:
13. Free Webinars This Month
Achieving Compliance - The Power of Embracing Diversity and Inclusion
2.00-2.45pm on Tuesday 3rd December 2019
We live in a diverse society and successful organisations are increasingly recognising the benefits it can bring. Embracing and supporting diversity, including neurodiversity, can help organisations reach out to and attract staff from a wider talent pool, with new ways of thinking and problem solving emerging as a result. A diverse workforce is also better equipped to engage more effectively with a diverse customer base seeking solutions.
Organisations that fail to embrace diversity within inclusive workplaces risk litigation, reputational damage and finding themselves unable to attract and retain the kinds of customers, employees, and business partners that will flourish in our changing world of work in Northern Ireland the next 5 to 10 years.
This webinar presents the opportunity to discuss ideas to attract, support and retain a diverse workforce. We’ll look at examples of organisations which are successfully making diversity - and neurodiversity in particular - work for them to deliver tangible business benefits.
Paul Gillen, Partner, Pinsent Masons
Louise McQuillan, Workplace Solutions Manager, Texthelp
Scott Alexander, Head of Learning and Development, Legal Island
Employment Law at 11 - With O'Reilly Stewart Solicitors - Christmas Party Special
Friday 6th December 2019 (11:00am - 11:45am)
The CIPD has reported this week that employers are taking an increasingly conservative approach to the Christmas party season, as fear over the reputational and legal fallout from poor behaviour at festive get-togethers causes them to scale back their plans or take measures to safeguard staff.
Initiatives such as chaperones, alcohol-free events and strict guidelines on conduct are increasingly in force as employers and their HR departments respond to the fallout from notable party-related legal cases and a growing intolerance for potentially offensive or discriminatory conduct. More from People Management:
Scott Alexander from Legal Island and Seamus McGranaghan from O’Reilly Stewart solicitors will be discussing all things workplace Christmas party-related on Friday 6th December 2019 (11:00am - 11:45am) in our free webinar. Register now:
Remember – send questions in live during the webinars or drop a line in advance to firstname.lastname@example.org. Anonymity assured.
Check out previous discussions:
14. Weekend Weather and Thought-Provoking Video
Friday will feel noticeably colder, but it looks like being a largely dry day with plenty of lengthy spells of sunshine. High pressure looks to remain dominant on Saturday and Sunday, allowing for a largely dry and cold weekend with plenty of sunshine and clear spells overnight with some patchy mist or fog developing by morning. Maximum daytime temperatures of 7°C.
Go to the BBCNI for local information:
This week's thought-provoking video is "The power of introverts", by Susan Cain. In a culture where being social and outgoing are prized above all else, it can be difficult, even shameful, to be an introvert. But, as Susan Cain argues in this passionate talk, introverts bring extraordinary talents and abilities to the world, and should be encouraged and celebrated. Listen here:
And don't forget the A&L Goodbody 'Back to Basics' series of videos on the Legal-Island website if you want a quick check of NI employment rights. As well as a short video from the team, there's a transcript for reference purposes.
Enjoy the weekend.
Legal-IslandThis article is correct at 29/11/2019
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.