Employment Bulletin - May 2018

In this issue:

  • GDPR: Obtaining an Employee’s Medical Report 
  • At what point does written notice take effect?
  • Indirect discrimination claim relating to shared parental pay remitted for rehearing
  • Time limit to bring a claim for unfair dismissal extended where erroneous advice was given
  • Constructive dismissal – the last straw
  • Does silence constitute acceptance to a contractual variation?
  • Penalty notice issued for late auto-enrolment compliance
GDPR: Obtaining an Employee’s Medical Report

There are numerous reasons as to why an employer may wish to obtain a medical report about an employee, or indeed a prospective employee. A medical report may be required before employment commences if health or physical ability is a relevant factor for the job; during the employment to determine whether reasonable adjustments may aid a disabled person in their job role; or during the course of litigation where a claim of disability discrimination or personal injury is made against the employer.

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At what point does written notice take effect?

The Supreme Court has confirmed in Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood that where an employee’s contract of employment is silent on the issue, an employee’s written notice of termination will take effect when the employee has read or has had a reasonable opportunity to read the notice.

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Indirect discrimination claim relating to shared parental pay remitted for rehearing

In our April bulletin we covered the case Capita v Ali. In this case the EAT held that there was no direct discrimination against a father where an employer did not enhance its shared parental pay in line with its enhanced maternity pay. The EAT has recently considered whether this failure to enhance amounts to indirect discrimination in Hextall v Chief Constable.

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Time limit to bring a claim for unfair dismissal extended where erroneous advice was given

The EAT recently extended the deadline for an individual to bring a claim for unfair dismissal in DHL Supply Chain Limited v Fazackerley. The individual had relied on erroneous advice given by an advisory helpline. It was found not to be reasonably practicable for the individual to bring a claim within the statutory period as they had been advised to first exhaust the internal appeal procedures and were not informed of the relevant time limit to bring the claim.

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Constructive dismissal – the last straw

In some circumstances an employee may be able to resign and successfully claim constructive dismissal where a series of acts by their employer amounts to a repudiatory breach of the employee’s contract of employment. A repudiatory breach is a breach of contract which gives an innocent party the right to end the contract without giving notice. When the contract ends in these circumstances the innocent party is entitled to refuse to be bound by the contract’s terms.

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Does silence constitute acceptance to a contractual variation?

The Court of Appeal has recently confirmed in Abrahall and others v Nottingham City Council that a group of employees’ silence did not constitute acceptance to a contractual variation unilaterally imposed by their employer.

The employer advised it would impose a pay freeze across its business for a two-year period in response to the austerity in the public sector that followed on from the 2010 General Election. The trade unions disagreed with this decision and consulted with their members about taking industrial action prior to its implementation.

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Penalty notice issued for late auto-enrolment compliance

Employers are obliged to automatically enrol eligible workers into a pension scheme and to pay in mandatory minimum contributions. In addition to this duty, employers are legally required to provide the Pensions Regulator with a declaration of compliance to demonstrate it is fulfilling its automatic enrolment duties. The employer must complete this within five months of the employer’s staging date.

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The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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