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Employers Update - May 2012

As the relentless April showers continue, welcome to the May edition of Employ!

In this edition we have case law decisions on discrimination and social media, together with an interesting and frequently raised query about fixed term employees in our question and answer section. We also have an exciting update about our next HR Exchange event which will be held on Wednesday 13th June 2011. Make sure you get that date in your diary!

As ever, please keep submitting you HR related queries so that these can be addressed in a future edition.

Kind regards

Will Clayton
Head of Employment

Key Employment Team Contacts:

Will Clayton Elaine Hurn Emma Swan Leanne Eddleston
Will Clayton
Head of Employment
Email Will
0844 8000 263
  Elaine Hurn

Email Elaine
0844 8000 263
  Emma Swan
Senior Associate

Email Emma
0844 8000 263
  Leanne Eddleston

Email Leanne
0844 8000 263



In This Edition:

Employ! Email Updates

Employ! is Taylors FREE monthly employment law newsletter which keeps busy HR professionals up to date with developments in the fast-moving world of work. Sign up now to have Employ! sent to you via email each month.


Unsuccessful Job Applicants and Discrimination

The Court of Justice of the European Union has held that unsuccessful job applicants are not entitled to have access to information regarding the successful candidate.

In this German case, the applicant made claims for race, sex and age discrimination following her being rejected twice for a post without interview, and without any explanation. She sought disclosure of information about the individual eventually appointed on the basis that she believed it would show that she was more qualified and suitable for the role than the eventual appointee.

The Court held that prospective employers were not under a positive obligation to disclose information about the appointment process, nor about the successful candidate to those rejected. However, the Court went on to say that a national court (such as the Employment Tribunal in England), may take an employer’s refusal to disclose such information, and the fact that the Employer had failed to offer any explanation for the decision, into account when deciding whether the employee has grounds for a discrimination claim.

What do I need to know?
Although this case confirms that employers are not obliged to provide information about the recruitment process to candidates who are not successfully appointed, employers should be aware that not providing this information may infer potential discrimination. If a prima facie case of discrimination is established, it will then be for the employer to disprove that claim. Employers should consider providing an explanation for rejection wherever possible to avoid allegations that a candidate has been rejected on a discriminatory basis.

Effective Date of Termination – the Importance of Clarity

Where an employee is dismissed (whether by way of redundancy, under disciplinary actions or otherwise) it is important for the parties to establish and be clear about the effective date of termination (“EDT”).

In a recent case, the Employment Appeal Tribunal needed to establish the correct EDT in circumstances where the employee had resigned and sent a letter clearly stating her immediate resignation. Subsequently, the employer wrote to the employee, referring to a different date as being the termination date. The employee relied on the second date, given by the employer, for the purposes of calculating the deadline for submitting her claim for constructive unfair dismissal.

The EAT held that the correct EDT was the date on which the employee’s letter of resignation had been opened and date stamped by the employer; it did not matter that the letter was not necessarily read by the employer at that time. The second date given by the employer was therefore incorrect and, in relying on that date, the employee had brought her claim out of time.

What do I need to know?
Although in this particular case the EAT decision resulted in a favourable outcome for the employer (in that the decision meant that the employee was out of time to bring her claim), it still reiterates the importance of ensuring that the date of termination is correctly calculated and clearly communicated. As seen here, minor mistakes can have a profound impact (here the employee was one day outside of the time limit).

Employers should be particularly aware that, in contrast to the position in this case, where the employer is giving notice to terminate (as opposed to the employee resigning), the correct EDT will be the date on which the employee actually reads the letter, not the date on which the letter is sent by the employer or received by the employee. This can lead to uncertainty as to when an employee has actually been told of their dismissal. Employers would therefore be best advised to inform employees of their dismissal in person, and then follow this up in writing so that there is no argument as to the date on which the dismissal is communicated.

Employees and Facebook – Northern Irish Tribunal Decision

Social media in the workplace has been a hot topic for some time and a recent decision in the Northern Irish Tribunal has continued to provide guidance on when it may be fair to dismiss an employee for the misuse of sites such as Facebook.

The employee was dismissed after making vulgar comments on Facebook about a female colleague. The employer dismissed the employee on the basis that those comments amounted to harassment of the colleague in question, in breach of the company’s Dignity at Work policy, and because they brought the employer into serious disrepute.

The Tribunal held that the employee had been fairly dismissed. Although the Tribunal did not agree that there was evidence that the employee’s comments had brought the company into disrepute, the comments were unwanted, violated his colleague’s dignity and created a degrading and humiliating environment and did, therefore, amount to harassment of the colleague in breach of the employer’s relevant policy. This alone was sufficient to justify the employee’s dismissal.

What do I need to know?
In this case, the offending comments had been made in the employee’s own time and outside of work. This case therefore continues the recent trend in case law to show that comments posted by an employee need not be in working hours to justify dismissal. Further, the victim in question had not seen the comments herself; it was sufficient that the post mentioned the employer company and had been seen by other employees of the company. The Tribunal concluded that offending comments do not need to be made direct to the victim to amount to harassment.

This case, like others on this topic, highlights how important it is to have well drafted and implemented policies in force in respect of social media use, internet use and Equal Opportunities (prohibiting harassment and the like). Employers who have such policies are more likely to be able to show that the decision to dismiss an employee for abuse of social networking is a reasonable one. If your policies aren’t up to date, get in touch now to see how we can help!

Mental Health at Work: ACAS Guidance Published

Recent surveys have estimated that mental illness in the workplace, including stress, anxiety and depression, costs Britain’s businesses more than £30 billion every year in lost productivity.

With this in mind, ACAS have released their most recent guide; “Promoting positive mental health in the workplace”.

It can be accessed via this link: http://www.acas.org.uk/index.aspx?articleid=1900.

The guide very usefully provides guidance for managers and employers on how to manage mental illness in the workplace and, importantly, what not to do, as well as providing practical examples and links to further resources.

This guide is comprehensive and definitely worth a look. You might be shocked by some of the statistics that it has to offer and, if nothing else, it will reinforce the need to be alive and proactive in relation to these issues.

Next HR Exchange Announced! – Wednesday 13th June 2012

The details of our next action packed HR Exchange event, ‘NLP: Engaging Staff, Busting Stress & Getting The Most from your Team and Yourself” are now available on the website:

Neuro-linguistic programming (“NLP”) is the practice of understanding how people organise their thinking, feelings, language and behaviour and provides a method of developing outstanding performers. HR professionals and those in business are recognising the benefits that NLP can bring by helping them to motivate and get the best from their staff, as well as aiding their own personal development.

The HR Exchange is delighted to welcome the NLP Centre of Excellence to deliver an exciting jam-packed interactive workshop session to explore how powerful NLP techniques can be used by you in the workplace to keep you and your employees motivated, to reduce stress and achieve both business and personal success.

This will be coupled with the usual comprehensive Employment Law update to keep you bang up to date with the most important HR legal developments.

Make sure you register today for this HR session which promises something a little bit different.

Your Questions Answered

Q: Following a tough period, our business does look to be picking up again. We have an employee who was engaged on a fixed-term 6 month contract, because the business outlook was so uncertain at the time. With the way things are, we are thinking of extending this for a further 6 months. We still don’t know where we are going to be in 6 months time, and therefore we are wary of making her permanent and still need the flexibility of a fixed-term contract. Is there anything we need to be aware of?

Employers often mistakenly believe that employees engaged on fixed-term contracts have less protection, or have fewer rights than other permanent employees. This is a misconception. To the contrary, fixed-term employees not only have specific legal protections, they also qualify for protection from unfair dismissal (subject to the relevant qualifying period) and therefore may not represent any less risk than those employees engaged on a permanent basis.

In this instance, you appear to be plumping for a further fixed term arrangement on the basis that you need the flexibility to end the contract after a further 6 months. However, you should be aware that, if you extend this employee’s employment for a further 6 months, she will accrue one years’ service* giving her protection from unfair dismissal. Further, the non-renewal of a fixed-term contract constitutes a “dismissal” for these purposes. In short, this means that it will be much riskier to “dismiss” this employee (i.e. allow her contract to expire) after she has been with the company for 12 months.

Of course, this does not mean that it is not possible to do so, and indeed the company may very well have sound business reasons for allowing her contract to expire at the end of 12 months and be able to defend any claim which may be brought. For example, if after 12 months there is genuinely insufficient demand for the company to retain the employee in question, then the company may be able to establish that the employee was dismissed fairly by reason of redundancy. If you do decide to extend this contract beyond 12 months, and then let her go at the end of this extended period, you should certainly take steps to ensure that the process of terminating her contract is handled very carefully indeed and seek legal advice beforehand to ensure a fair dismissal takes place.

*Note: the position changed from 6 April 2012, so that employees engaged on or after that date, need to be employed for 2 years before they are eligible for protection from unfair dismissal. Be aware that those employees engaged before 6 April 2012 will still only need to accrue one years’ service before they have those rights.

Copyright 2006 - 2012 Taylors Solicitors

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