RCN Stewards conference – legal update (2011)

1. RCN Stewards conference – legal update (2011) Chris Cox Director of Legal Services Royal College of Nursing

2. Govt proposals on employment law • Unfair dismissal qualifying period 2 years • Abolish unfair dismissal legislation altogether • Budget for EHRC cut by 55% • Fee on issuing tribunal proceedings • Fee on setting down a claim for hearing • Consult on removing Equality Act provisions imposing liability on employers for third party harassment which they do not take reasonable steps to prevent • Review of Human Rights Act

3. Case law • Worker who made no holiday requests during long term sick leave still entitled to statutory holiday pay – NHS Leeds v Larner but now see Fraser v Southwest London St George’s Mental Health Trust • Claiming sick pay for one NHS job whilst continuing to work in another NHS job isn’t always illegitimate – Perry v Imperial College HealthCare NHS Trust • In determining whether someone is an employee, in contrast to self-employed, ‘substance is more important than form’; take account of bargaining position of parties and how they conducted themselves – Autoclenz Ltd v Belcher

4. Case law • Financial inducement withdrawn after employer’s offer rejected didn’t render subsequent dismissals unfair – Slade v TNT (UK) Ltd • Use of competitive interview to select for redundancy – Morgan v The Welsh Rugby Union • Obligations to former employees beyond a formal reference – McKie v Swindon College • Changing how you deliver services post-transfer determining whether TUPE applicable – Nottinghamshire Healthcare NHS Trust v Hamshaw and others

5. Case law • Post-transfer agreed variation of salary unconnected with relevant TUPE transfer more than 2 years earlier, and not in order to achieve harmonisation of all employees’ salaries – Smith, Bailey, Corley, Callard v Trustees of Brooklands College

6. Case law • Right to representation at internal disciplinary hearing – Mattu v University Hospitals of Coventry and Warwickshire NHS Trust • Whose ‘reasonable belief’, that the circumstances of danger are serious and imminent, is relevant to protection against unfair dismissal for health and safety reasons? – Oudahar v Esporta Group Ltd • ‘Protected disclosure’ of NHS Trust chief executive under whistleblowing legislation – Royal Cornwall Hospitals NHS Trust v J Watkinson

7. Cuts, equality and consultation • Impact of cuts on ‘protected’ groups under the Equality Act 2010 • Requirement to have ‘due regard’ to equality duty • Eliminating discrimination, harassment etc; advancing equality of opportunity; removing disadvantages; meeting needs; encouraging participation • RCN guidance • EHRC ‘Making fair financial decisions’ • Employment consultation requirement