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Employment Law Journal: February 2016

Christopher Mordue analyses the impact for UK employers of the ECJ’s decision in Rivera

Constructive dismissals can be ‘collective redundancies’, requiring prior consultation with union or employee representatives before the employee resigns. That is the key headline from the latest decision of the European Court of Justice (ECJ) on the scope and effect of the Collective Redundancies Directive in Rivera v Gestora Clubs [2015]. As a result, employers face the risk that constructive dismissals, when aggregated with other qualifying dismissals in the same 90-day period, could trigger an unexpected obligation to collectively consult, potentially leading to a protective award of 90 days’ pay.

Phil Allen looks at three recent cases in which the claimants argued their dismissal was unfair because they were treated more harshly than a colleague involved in the same incident

When considering the fairness of a dismissal for misconduct, one thing an employment tribunal can take into account is inconsistency. A dismissal which would otherwise be perfectly fair can be rendered unfair if the employer has treated the person dismissed differently from another employee in comparable circumstances. An argument will often arise where two employees are involved in the same incident and one is dismissed but the other is not. Three recent cases have examined this issue and also raise the question of whether there is a consistent approach by employment tribunals to inconsistent treatment.

Natasha Adom gives her top five tips for how in-house lawyers can improve their company’s chances of success in court or at the employment tribunal

When it comes to litigation, it goes without saying that it is difficult to change the fundamental merits of a case. However, there is often much more to whether companies win or lose employment cases than the purely legal aspects.


Aarti Jagpal considers the legal and practical issues faced by employers investigating allegations of internal fraud

Fraud poses a substantial threat to businesses all across the UK. Unexpectedly, some of the most serious threats are internal. Cifas, the UK’s fraud prevention service reported a rise of 18% in cases of recorded internal fraud between 2012 and 2013.

Keystone Law

Important aspects of proposed new rules for the financial sector on providing job references could be unworkable as they currently stand, warns Stephen Levinson

Regulators in the City are keen to improve standards of conduct and get rid of those who infringe them. A consultation on new rules for providing references for senior bankers and insurance executives, as well as some non-executive directors, closed in December 2015. The rules are intended to prevent individuals with a history of poor conduct being recycled from one firm to another. The proposed implementation date is 7 March 2016, when the new senior managers and certification regimes come into effect.

Charlie Rae reviews a recent case on whether an employer’s instruction to an employee not to speak her native language at work was unlawful

The UK’s labour force is highly diverse, with a wide range of cultures and nationalities now being represented. While the pros and cons of immigration to the UK continue to be something of a political hot potato, the economic reality for many employers is that they are ever more reliant on migrant workers from across the EU and beyond. Sectors such as agriculture, hospitality and manufacturing are increasingly dependent on workers whose first language is not English.

It was not reasonable to expect an employer to make adjustments to its absence management policy to remove disadvantage to a disabled employee, reports Jo Broadbent

Absence management policies often contain a so-called ‘trigger point’. This usually means that once an employee exceeds a certain number of absences over a particular period, formal action under the policy, such as a warning, will follow. Whether the duty to make reasonable adjustments applies in such circumstances has been the subject of a number of Employment Appeal Tribunal (EAT) cases over the last few years. The Court of Appeal decision in Griffiths v Secretary of State for Work and Pensions [2015] confirms that it does – but also highlights some of the factors that will be relevant to deciding whether an adjustment is reasonable.

Helen Hall examines a recent European Court of Human Rights ruling on whether it was lawful for an employer to access a worker’s personal correspondence

In this internet and social media age, it is no surprise that employers are concerned about how and when employees spend their time online. There are a host of issues to set alarm bells ringing, from underperformance during working hours to the leaking of confidential information, and from discrimination, harassment and breaches of contract to transmission of viruses. Employers can hardly be criticised therefore for wanting to have appropriate checks and balances in place, particularly for monitoring their employees’ e-mail content and traffic, social media use and web surfing.