Employment update - July 2014

14 minute read
02 July 2014

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Our employment experts bring you the latest employment law issues and provide action points to help you and your organisation.

Disclosure of spent convictions

The Supreme Court has confirmed that the government's changes to the criminal records disclosure regime last year were necessary. It held that the previous requirement of the blanket disclosure of spent convictions or cautions for minor offences in criminal records checks was a breach of the right to respect for private life.

Background

The Rehabilitation of Offenders Act 1974 provides that, subject to certain exceptions, the convictions of those who have not re-offended during a specified period are “spent”. Spent convictions do not need to be disclosed to potential employers, and employees cannot be held liable for a failure to disclose them.

There are exemptions where convictions are never spent and must be disclosed. This includes where they relate to specified professions (such as solicitors) and to working with children and vulnerable adults.

Enhanced criminal record certificates (ECRCs) are issued by the Disclosure and Barring Service (formerly known as the Criminal Records Bureau) when an "exempted question" is asked (including by a prospective employer). Prior to the government's changes, disclosure would then be made of every "relevant matter" recorded on the Police National Computer, including any spent conviction or cautions.

The 2013 changes

In May 2013 the government introduced "protected" convictions/cautions, which are not required to be disclosed. Employers are not legally entitled to ask questions about such cautions/convictions or to rely on them to dismiss an employee (although there are a small number of positions (including national security and police vetting) where details of all convictions and cautions may still be disclosed).

A caution is protected if:

  • it was given otherwise than for any of 14 listed categories of offence and if at least six years have passed since the date of the caution (or two years if the person was under 18)
  • it was imposed otherwise than for any of the listed categories
  • it did not result in a custodial sentence; the person has not been convicted of any other offence
  • if at least 11 years have passed since the date of the conviction (or five and a half years if the person was under 18)

The "old " law

These changes were introduced in response to the Court of Appeal's decision in the case of R (on the application of T and another) v Secretary of State for the Home Department and another, which considered whether or not blanket disclosure was a breach of the right to respect for private life under article 8 of the European Convention of Human Rights.

In T, the individual received two police warnings for stealing bikes when he was 11. The warnings were disclosed in 2008 when he applied for a part-time job with a football club. They were disclosed again in 2010 when he applied for a place on a sports studies course. T has no other criminal record.

In JB, the individual was cautioned in 2001 at the age of 41 for stealing a packet of false fingernails from a shop. In 2009 she applied for a training course for employment in the care sector. She was required to obtain an ECRC, which disclosed the caution. The training organisation told JB that it felt unable to put her forward for employment in the care sector. JB has no other criminal record

Court of Appeal

T and JB succeeded in the Court of Appeal, which held that the blanket disclosure of all convictions and cautions was a disproportionate means of achieving a legitimate aim and incompatible with article 8. It recommended that a number of factors should be considered prior to disclosure, including the seriousness of the offence, the age of the offender, and whether the individual had subsequently reoffended. The government consequently introduced the concept of "protected" convictions/cautions in response to this decision.

Supreme Court

Although the government had already introduced the 2013 changes at the time of the Supreme Court hearing, the Supreme Court still looked at the "old" law. It agreed that legislation requiring the blanket disclosure of previous convictions or cautions to a potential employer was an interference with the right to respect for private life. The disclosures in the ECRCs were also article 8 interferences, and significantly jeopardised the individuals' entry into their chosen fields of endeavor.

In the case of T, Lord Reed stated that the disclosure of the warnings for dishonesty "bore no rational relationship to the aim of protecting the safety of children with whom, as an adult, he might come into contact".

The court unanimously held that the article 8 interferences did not meet the requirement of being "necessary in a democratic society".

Impact of the decision

The Supreme Court's decision deals with the law prior to the 2013 amendments, and as a result of the changes already introduced by government, it won't result in significant legislative change. However, with the Carlile Inquiry report into the youth justice system recommending that the filtering rules should be further extended to offences that incurred a prison sentence of six months or less for offenders under 18, it remains to be seen if further amendments will be made.


Constructive unfair dismissal: How much notice can an employee give?

When an employee resigns in circumstances where he is entitled to terminate his contract of employment by reason of the employer's conduct, this is known as a "constructive dismissal". Although the employee resigns, it is the employer's conduct which terminates (repudiates) the contract.

In many constructive dismissal cases, the employee resigns and leaves his employment immediately. Since he is, in effect, accepting a termination which has occurred as a result of the employer's action and is not himself giving notice. It is crucial therefore that, the employee does not delay in resigning. If the employee continues to report to work he is likely to be deemed to have waived the alleged breach of contract affirming the continuation of the contract.

However, section 95 of the Employment Rights Act 1996 modifies the common law position by allowing an employee to claim constructive dismissal even if notice is given. This statutory exception was added as otherwise, "a man who was considerate enough to give notice was worse off than one who left without notice".

But are there limits on the length of notice an employee can give?

This is the question the Employment Appeals Tribunal (EAT) recently considered.

In the case of Cockram v Air Products plc, a highly paid senior employee raised a grievance following a dispute with his line manager. Unhappy with the grievance outcome, he sent a letter of resignation stating that he considered his employer to be in fundamental breach of contract by the handling of his grievance.

Instead of resigning immediately or in accordance with his three months contractual notice, he gave seven months' notice as "I have no other work secured to enable me to leave immediately and I need to work for a reasonable period of time".

The EAT held that where an employee gives notice in excess of contractual notice, the reason for giving the additional notice will be relevant.

On the facts of this case, the EAT found that it was clear that Mr Cockram had given seven months' notice when his contract only required three months' notice for his own financial reasons. He had therefore affirmed the contract by continuing to work for a period longer than his contractual notice.

As always, whether an employee is deemed to have affirmed the contract will be a question of fact to be determined by reference to the specific circumstances of the case.

However, employers should not assume that a disgruntled employee who elects to work beyond the notice period will always affirm the contract. In Buckland v Bournemouth University Corp, a university professor gave long notice to expire at the end of the academic year to "avoid disruption to his students' studies". In that case, the EAT suggested that the employee would not be deemed to have affirmed his contract in light of his altruistic reason for giving long notice.

It remains the case that if an employee fails to act quickly to resign (with or without notice) in response to an employer's fundamental breach, they can lose the ability to claim constructive unfair dismissal and employers will certainly seek such a conclusion from the Employment Tribunal.


A reminder from the EAT: appealing against a well-reasoned tribunal decision is unlikely to be successful

The Employment Appeal Tribunal (EAT) has reviewed the approach to be taken by Tribunals in determining employment status.

The case concerned a football referee who officiated at matches under the aegis of the Scottish Football Association. He was engaged under a contract which expressed itself to be one of self-employment and the Tribunal Judge concluded that this was correct, after carefully review of the key terms.

She concluded that individual items which might be indicative of employment relationship, such as provision of private medical insurance, did not necessarily weigh heavily on identifying the true status of the relationship.

The EAT found that the judge was entitled to take a view as to the bigger picture once she had taken account of all of the facts. Although the contract was precise and directive in a number of perspectives, for example:, prohibiting the referee from holding a season ticket in any club for which he might be required to referee, requiring him to make himself available to attend not less than three-quarters of regular training and monthly meetings and to wear any kit provided.

The terms of the appointment were standard and non-negotiable at an individual level, having been negotiated with the Football Referees Association.

Crucially, the judge found, that the referee was under no obligation to accept work and the Scottish FA was under no obligation to offer him work as a referee. The judge did not consider that the requirement to attend training and monthly meetings was itself indicative of employment, noting that no payment was made for attendance.

Overall, she concluded that the FA did not have a sufficient level of control over the performance of the services of the referee so as to amount to a contract of employment. Any disciplinary role in relation to referee conduct was undertaken by a body entirely separate from the Respondent and the principles governing performance in the role were contained in the rules of the sport (the so called "Laws of the game") which were set down by international governing bodies and not the Scottish FA.

This case serves as a useful reminder that employment status will always be a fact specific matter and that appealing against a well-reasoned tribunal decision is unlikely to be successful.

For employers who are subject to external regulation, it is interesting that the tribunal accepted that a level of control which was required for reasons of regulation, and which was determined by an external regulator and not the alleged employer, would not amount to the degree of control amounting to a relationship of employer and employee.

While in some employment status cases, the fact that the individual is required to attend unpaid at team or training meetings has been linked to employment, in this case, the EAT agreed with the judge that it was not an indicator of employment status.

The critical factor was that neither party was under an obligation to enter into working arrangements, so that the Football Association did not have to offer work and the referee did not have to accept it. Where organisations wish to ensure that their structures will bear scrutiny in terms of self-employed status, this is the crucial factor to keep in mind. It must be borne out in reality as well as on the face of the contractual paperwork.


Flexible Working rights extended from 30 June 2014

On 30 June the right to request flexible working will be extended to all employees with 26 weeks' qualifying service, whereas previously it was only available to employed parents of children under 17 (or under 18 where the child is disabled) and carers of dependant adults.

The current statutory procedure is being revoked, but an ACAS code of practice and guidance will be in place, which recommend a number of steps or processes that will operate as part of 'best practice'.

The extension of this right will bring new opportunities and challenges for employers seeking to manage their workforce, so what can you do to prepare? Be... FLEXIBLE and consider the following key points:

  • Follow the ACAS code and guidance
  • Line managers will be key - training needed
  • Engage with your staff and communicate the changes
  • X-amine (we cheated) your current flexible working policy against the needs of your business
  • Insurance - do your policies need review?
  • Benefits - are they fit for purpose with an increased flexible workforce?
  • Lateral - think around the wider issues in addressing the request
  • Exits and succession planning - how will you handle them?

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