Employment Bulletin - October 2018

Welcome to the October 2018 edition of our Employment Bulletin newsletter

Stone King news for the employment sector

This month’s bulletin includes the following articles​:

  • Balancing an employer’s duty to protect their employees against preventing disability discrimination claims from excluded children.
  • An employer can be vicariously liable for sexual harassment by an independent contractor
  • Does giving an ambiguous notice amount to an act of resignation?
  • An outline of the main proposals of the Migration Advisory Committee Report on EEA migration in the UK post-Brexit
  • What amounts to constructive knowledge of disability
  • What should an employer do when a grievance is been received
Balancing an employer’s duty to protect their employees against preventing disability discrimination claims from excluded children

The recent case of C&C v The Governing Body of a School means that disabled children are entitled to make a claim of disability discrimination arising from their exclusion by a school if their behaviour that caused the exclusion demonstrates a ‘tendency to physically abuse.’ If such a claim arises, the school will have to show that the exclusion was proportionate, justified and that reasonable adjustments for the child were made.

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An employer can be vicariously liable for sexual harassment by an independent contractor

Vicarious Liability arises where one party (whether that is a company, organisation or an individual person) is responsible for the negligent actions of another. The Court of Appeal (CA) has rejected an appeal from Barclays Bank against a decision of the High Court (HC)] to uphold the Claimants’ complaints against Barclays, holding Barclays vicariously liable for the actions of the Doctor whom the bank appointed to examine the Claimants as part of their application for employment at Barclays. Barclays Bank v Various Claimants [2018] EWCA Civ 1670.

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Does giving an ambiguous notice amount to an act of resignation?

The Employment Appeal Tribunal [EAT] has decided an ambiguous notice did not amount to an act of resignation, agreeing with the Employment Tribunal [ET] Judge and dismissing the Respondent’s appeal of the ET decision, holding that ‘the ET was entitled to find that the reference to giving notice was related to the Claimant’s particular position in the Records Department and not a resignation from the Respondent’s employment..’ East Kent Hospitals University NHS Foundation Trust v Levy UKEAT/0232/17/LA.

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An outline of the main proposals of the Migration Advisory Committee Report on EEA migration in the UK post-Brexit

The recent report from the Migration Advisory Committee is the most comprehensive analysis of immigration in the UK. The report solely focuses on migrants entering the UK through the ‘work’ route rather than the ‘study’ or ‘family’ route. In the analysis of the report it finds that European migrants pay £5bn a year more in taxes than they receive from benefits and public services, there is little evidence of EEA migrants limiting employment opportunities for UK-born workers and no evidence EEA migration has reduced wages for UK-born workers. The report gives their recommendations of a proposed immigration policy for post-Brexit Britain and this has proved controversial and unpopular for employers in many sectors. We briefly outline the main findings of the report that would affect employers if the recommendations became the UK’s immigration policy. This is not a full detailed analysis of the report and the document can be found in full on the link provided below.

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What amounts to constructive knowledge of disability

The Employment Appeal Tribunal (EAT) has rejected an appeal from the Employee against a decision of the Employment Tribunal (ET) not to uphold the Employee’s complaint under the Equality Act for discrimination regarding the Employee’s alleged disability. The EAT argued that the Claimant had not fulfilled the evidential burden of proving that his condition had impacted on normal day to day activities in relation to his duties at work. Francis Mutombo-Mpania v Angard Staffing Solutions Ltd: UKEATS/0002/18/JW

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What should an employer do when a grievance is received

A grievance can be raised if an employee has any concerns, problems or complaints relating to the workplace. It can relate to any aspect of working life from working conditions, concerns regarding discrimination or harassment, employment contract terms, salary, pay or any other issues.

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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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