Recent employment case law
Some recent employment case law affecting various areas of the employment relationship:
Garden Leave : no contractual right to do so
Two employees resigned giving the required notice period, they were both leaving to join competitors. The employer had strong evidence to prove that they had taken confidential information, tools and know-how, of which their new employer was paying them a substantial amount of money for.
The employer insisted that they were put on Garden Leave, however there was no clause in the contract providing a basis for this. The court upheld that the employer was allowed to do this, despite no contractual right to do so, as it was “rendered impossible and reasonably impracticable for the employer to provide work,” as there was a breach of contract on the employees part.
Implications :
For the avoidance of doubt, ensure there is such a clause in the contract, as without this is may be difficult to insist on this provision. It may be possible where there is a clear proof of wrongdoing equating to breach of contract, but you need evidence for this!
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Accruing annual leave when signed off sick – European Case Law
If your employee is signed off sick, they are still entitled to take accrued annual leave at a later date. The recent opinion of the Advocate General suggests that this may become law, even when the employee has been signed off sick for the whole of the calendar year. He said that statutory holiday entitlement was a social right. It is suggested that this may also apply when the employment relationship comes to an end, therefore paid in lieu of any outstanding holidays.
This case may also affect the right to carry holiday leave forward into the proceeding holiday year, although it is thought that the decision will not open this up indefinitely.
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Spent disciplinary warnings:
An employee had been issued with a final written warning which would stay on his file for a period of 12 months. Around three weeks after the expiration of the final written warning, the employee was caught with three other staff watching TV on his nightshift. He was dismissed, but the others were given warnings.
He claimed that the dismissal was unfair, however the appeal heard that dismissal was within the reasonable range of response, and they held that the employee did NOT have a clean disciplinary record.
This case is good news for employers, however the courts have stressed not to rely on expired warnings. If you feel it necessary you can keep the warning on file for longer than advised by ACAS.
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Alternative employment?
The employee was a manager for the Commission and was told that her role was redundant following re-structuring, she lodged a grievance. The employer offered her a total of three new posts, all of which she rejected. She finally claimed she was entitled to redundancy payments. The employers argued that as she had turned down three alternative employment opportunities, she had waived her right to redundancy payment.
The employment tribunal held that her refusal of the alternatives was reasonable, not because of the status of the job, but because of the relationship and lack of communication at the time, the redundancy process had become blurred.
All cases of redundancy and alternative employment must be judged on merit, and employers should remember that perception of the role and the whole process may reasonably affect the refusal. It is important to communicate and be open with employees at all times.
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All text above is for information only, and not to be interpreted as legal advice.