In Brief: Important Updates from April 2018

Employment Law is a complex area that is continually changing. It can be difficult to keep up to date with the latest developments, but don’t fret, the Legal-Island Northern Ireland Employment Law Hub is the best way to stay informed. The Hub offers in-depth articles written by expert employment lawyers and leading HR professionals, case law analysis and materials tailored specifically to how the law applies in Northern Ireland. It is fully searchable, available 24/7 and has a useful browse by topic function.

In case you missed it…here’s a quick recap of some of the topics that featured in April 2018, including:

• a UKSC case ruling that in the absence of an express contractual provision; a written notice of termination served by an employer does not take effect until the employee has read it or had a reasonable opportunity of doing so;
• a EWCA case concerning the variation of contractual terms and whether, by continuing to work, the claimants accepted the changes imposed, namely a two-year freeze on their pay;
• a discrimination claim on grounds of gender resulting in compensation of £18,000 for injury to feelings owing to the 'vindictive and callous' treatment of the claimant;
• a case regarding the unauthorised deduction of wages whereby a new format of payslips ‘masked’ the wrong calculation and was ‘deliberately designed to short-change the claimant.’

Moreover, issues such as gender inequality and sexual harassment have dominated many media outlets in recent months as a result of the #MeToo movement. Given the sharpening focus on harassment it is essential for employers to take the appropriate steps to address the behaviour if and when an allegation is presented.

In our new ‘Back to Basics’ video series, Jill Gracey, solicitor at A&L Goodbody Belfast, offers advice to employers on how to address allegations of sexual harassment in the workplace; Jack Balmer, Associate Solicitor in the Employment Department at Tughans provides guidance on how to deal with swearing at work; and Louise McAloon, Partner in Worthingtons Solicitors Belfast, reviews the tribunal decision of Carrabyne v Secretary of State for Work and Pensions 2401990/2016, providing insight and advice on absence management and the duty to make reasonable adjustments ahead of our ‘Out of Office: Absence Management in the Public Sector’ event on the 24th May 2018.

Case Law Round-Up

In the Newcastle upon Tyne Hospitals NHS Foundation Trust (Appellant) v Haywood (Respondent) [2018] UKSC 22 case, the Supreme Court held by a majority that in the absence of an express contractual provision, a written notice of termination served by an employer does not take effect until the employee has read it or had a reasonable opportunity of doing so.

The Abrahall & Ors v Nottingham City Council & Anor [2018] EWCA Civ 796 case concerns the variation of contractual terms and whether, by continuing to work, the claimants accepted the changes imposed, namely a two-year freeze on their pay.

In the case of Finvola McMullan v Kian Lee T/A China Garden & Others [2018], the respondents treated the claimant less favourably because she was pregnant. The tribunal unanimously agreed that the timing of the respondent’s change of attitude towards her; his aggression; the severe reduction of her hours; and the failure to pay her sickness benefit and maternity pay gave rise to a clear and compelling inference that she was being punished for causing inconvenience by being pregnant.

In the McGavigan v Western Urgent Care [2018] case before the Northern Ireland Industrial Tribunal, it was held that a new format of payslips ‘masked’ the fact that the wrong calculation had been used and there was a ‘compelling inference’ that the employer’s method of calculation was ‘deliberately designed to short-change the claimant’.

How Should an Employer Address Allegations of Sexual Harassment in the Workplace?

Jill Gracey, Solicitor at A&L Goodbody Belfast, offers advice to employers on how to address allegations of sexual harassment in the workplace. She outlines recognised forms and behaviour that can amount to sexual harassment, for example, jokes or comments of a sexual nature, lewd photographs or drawings, sending e-mails or uploading social media posts with material of a sexual overtone. Jill emphasises the importance of having adequate policies in place, the onus on the employer to conduct a thorough investigation into any allegations and the need to deal with these sensitively and in a confidential manner. 

Swearing in the Workplace: How Do I Handle It?

In many industries swearing forms part of the language of the workplace; swear words are normalised and are seldom noticed, let alone complained about. However, when a complaint is made, language which seemed innocuous can give rise to a number of real legal risks. Jack Balmer, Associate Solicitor in the Employment Department at Tughans, offers advice on how to deal with the issue when it crosses the line from impolite to abusive and derogatory.

Absence Management and the Cost of Failing to Make Reasonable Adjustments

The duty to make reasonable adjustments is central to the legal protection afforded to a disabled employee who is at risk of being warned or dismissed due to an untenable level of sickness absence which includes disability-related absences. In this article Louise McAloon, Partner in Worthingtons Solicitors Belfast, reviews the tribunal decision of Carrabyne v Secretary of State for Work and Pensions 2401990/2016 and reiterates the importance of factoring in further adjustments between the final written warning and dismissal stages in an absence management policy and setting out clearly the adverse impact of an employee’s absence on other staff members within the department. Louise will deliver a session at our ‘Out of Office: Absence Management in the Public Sector’ event outlining the legal principles surrounding absence management and highlighting some of the difficulties.

And finally, lead facilitator of our 'Mock Employment Tribunal' event (held on 14^th June) Lisa Bryson of Eversheds Sutherland, discusses menopause in the workplace on BBC News NI.