Employment Law E-Bulletin Issue 40
- The Basildon Academies v Amadi  UKEAT/0343/14/RN – Can an employer rely on an employee’s implied duty to disclose allegations of misconduct?
- McElroy v Cambridge Community Services NHS Trust  ET/3400622/2014 – Can an employer dismiss an employee fairly for smelling of alcohol at work?
- ACAS has launched a new guide for small firms on how to handle staff pay
- Increase in penalties for failure to pay National Minimum Wage
- Government launches consultation on gender pay reporting
The Basildon Academies v Amadi  UKEAT/0343/14/RN. Can an employer rely on an employee’s implied duty to disclose allegations of misconduct?
The employee worked as a cover supervisor at the Basildon Academies and breached his contract by not obtaining his employer’s permission to work for another college.
At the other college, the employee was accused of sexually assaulting a pupil and suspended, but no criminal action was taken. The Basildon Academies subsequently heard about the police investigation and dismissed the employee for not reporting the allegation and for working elsewhere without permission.
The EAT held that there was no implied term that the employee had a duty to disclose allegations of ill-founded impropriety against him. As such, the employee’s unfair dismissal claim succeeded as the employer could not dismiss the employee on the grounds of a breach of contract or of their policies.
This is a useful reminder to employers that their employees are not under an implied duty to disclose their misconduct, or allegations of such, in the absence of clearly drafted express terms in their employment contracts. If employers want the duty of disclosure to extend to misconduct in other employment, contractual clauses will be needed, particularly to cover circumstances like this where employees have second jobs.
McElroy v Cambridge Community Services NHS Trust  ET/3400622/2014 – Can an employer dismiss an employee fairly for smelling of alcohol at work?
The employee was employed as a healthcare assistant and was summarily dismissed for gross misconduct after arriving at work smelling of alcohol.
The ET decided that no reasonable employer would have summarily dismissed an employee who arrived at work smelling of alcohol in the absence of other evidence of an adverse effect on the employer’s ability to carry out his job, or in the absence of a previous warning given under the employer’s disciplinary policy not to do so.
The employer, in taking the decision to dismiss, had taken account of the employee’s refusal, once disciplinary proceedings had started, to attend an occupational health appointment. The employer had not notified the employee that this was also being considered as a disciplinary issue prior to the disciplinary hearing. The allegations had therefore not fully been put to the employee before the disciplinary hearing and before the decision to dismiss (such as any refusal to take a confirmatory breath test for example).
The ET held that no reasonable employer would have taken the refusal to attend the appointment as an act of gross misconduct, misconduct justifying dismissal or a contributory factor to such a conclusion.
Employers should be aware that a decision to dismiss an employee for gross misconduct should not be taken lightly. Any factors which may influence the decision to dismiss should be explained to the employee (such as the refusal to attend the occupational health appointment in this case) and the employee should be given the opportunity to respond to ensure there is both a fair reason and fair process before a decision is made.
ACAS has launched a new guide for small firms on how to handle staff pay
ACAS have launched a new guide for small firms that covers the basics of employment law in relation to basic pay. This comes off the back of the organisation dealing with over 11,000 pay related employment tribunal claims in 2014.
The guide entitled ‘Help for Small Firms: Handling Pay and Wages’ covers everything from paying new staff through to making deductions and overpayments and can be found on the ACAS website.
Increase in penalties for failure to pay National Minimum Wage
The maximum financial penalty for a failure to pay the National Minimum Wage has increased. Previously, the maximum penalty was £20,000 per notice of underpayment, irrespective of the number of employees who have been underpaid by the employer. The maximum penalty of £20,000 can now be calculated on a per underpaid worker basis rather than on a per employer notice basis.
Employers should ensure they are aware of, and paying, the correct National Minimum Wage rates to avoid this hefty penalty.
Government launches consultation on gender pay reporting
In its election manifesto the Conservative party pledged to require larger employers to publish gender pay gap information. The government has therefore commenced a consultation to seek views on this manifesto pledge.
This proposal is for the reporting requirement to apply to employers in the private and voluntary sector with at least 250 employers. The consultation’s key questions cover the type of information that ought to be required, how frequently the information should be updated and whether the size threshold of 250 employees is appropriate.
We will update you when the results of the consultation are published.