Employment Matters Bite Size June 2010

Your monthly guide to all the recent changes in the world of employment law

Legislation

Safeguarding Vulnerable Groups Act 2006
From 26 July 2010, workers and volunteers wishing to take on work involving children or vulnerable adults may begin applying for registration with the Independent Safeguard Authority (“ISA”). 
From 1 November 2010, an employee will not be able to recruit a person for working or volunteering in such activities unless that person is ISA registered. 

Extension of statutory maternity pay
The government has announced that it will not go ahead with the planned extension of statutory maternity pay from 39 to 52 weeks which was due to be implemented last month.  This has been postponed indefinitely. 

Cases

Compromise agreements – the content of independent legal advice
An employment judge has held that independent advice in respect of a compromise agreement need go as far as to advise what the terms are and explain what they mean, but need go no further.  The complainant does not have to be given an evaluation of the agreement or a recommendation as to whether it represents a fair arrangement.

Whilst this case was heard in the tribunal and therefore does not strictly set a precedent, the judge in the matter is the vice-president of the Scottish employment tribunals and his decision is of significance.
McWilliam & Others v Glasgow City Council

Issues to consider when dismissing on the grounds of conduct
A Filippino nurse, Ms Roldan, was employed by Salford NHS Trust having been recruited from Singapore.  Following an allegation of mistreating a patient, Ms Roldan was dismissed for misconduct.  The case made its way to the Court of Appeal where the following propositions were outlined:

• Investigating an allegation against an employee requires a greater level of care if the outcome of the investigation could have more serious consequences for the employee.  In this instance, it is likely that Ms Roldan would have been deported if the investigation resulted in her dismissal.
• If evidence offered by witnesses is inconsistent or contradictory, the employer need not choose a side to believe.  It is acceptable to give the offender the benefit of the doubt without taking sides if it is simply not possible to choose between them.
• The test to be applied in such situations was outlined in the case of Burchell v British Home Stores and asks the following question: Was there a genuine belief, based on reasonable grounds after a reasonable investigation, of the guilt of the employee of the misconduct at the time? 

In this instance, the NHS Trust sought to overturn the Tribunal’s application of the test but the Court of Appeal found that this would only be possible if there was no evidence to support the tribunal’s finding or it was deemed to be perverse.

Salford NHS Trust v Roldan

Awaiting outcome of police investigation was not unreasonable
A prison officer, Mr Mansfield, was accused of planting drugs on inmates and was therefore the subject of an internal investigation.  Once a police investigation began, the internal investigation was suspended and did not resume until the completion of the criminal prosecution.  Mr Mansfield was then the subject of an in-depth investigation following which he was dismissed.

The Employment Appeal Tribunal found that there is a wide discretion available to form a view on whether a disciplinary process should continue along side a criminal investigation.  In this instance, Mr Mansfield was suspended on full pay and there was nothing to suggest that the criminal investigation impacted on the disciplinary process either positively or negatively.  In the event, although several of the criminal charges were dropped against Mr Mansfield and a not guilty verdict was returned on the remainder, he was dismissed at a disciplinary hearing.

Secretary of State for Justice v Mansfield