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Employment Law Update

This is an update in relation to forthcoming changes in Employment legislation and also the outcome of one particular case in the Employment Tribunal concerning Age Discrimination.  It does not create new law but is an interesting case nonetheless.


The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) 2018.

These are a bit of a mouthful but come into force on the 6th April 2020.  They provide that the written statement of Employment Particulars must be provided to an employee either before or on the first day of their employment. Currently, the written statement only needs to be supplied within two months of the commencement of employment.  The Regulations also change the rules for the calculation of a week’s pay for holiday pay purposes.  The reference period for calculating pay when it varies from different day to day or week to week is currently twelve weeks.  The Regulations will change this reference period for calculations to fifty two weeks.


The Employment Rights (Miscellaneous Amendments) Regulations 2019

These Regulations will extend the rights to a written statement of particulars of engagement to workers as well as employees and increase the penalties for aggravated breaches of Employment Law.  The former will come into effect on the 6th April 2020 and the latter on the 6th April 2019. 


The Agency Workers (Amendment) Regulations 2018 

This comes into force on the 6th April 2020 and is relevant for those who employ agency workers and for companies that supply agency workers.

The Agency Workers Regulations entitle agency workers to get the same basic pay and conditions as comparable employees after a twelve weeks’ qualifying period.  The Swedish Derogation, which is so called because it was introduced into the Regulations at the request of the Swedish Government provides an exemption from this in relation to pay.  Agency workers’ entitlements to other provisions under the regulations, for example in relation to annual leave after twelve weeks, are not affected.  On the 6th April 2020 the Swedish Derogation will be abolished for agency workers and therefore after the twelve weeks’ qualifying period all the workers’ conditions including pay will have to be the same as comparable employees.


Parental Bereavement Act 2018

In April 2020 this Act will provide that employees whose child dies below the age of eighteen, or whose child is stillborn, are to be given the right to two weeks bereavement leave and pay.


Age Discrimination Case

An 88 year old Medical Secretary has won a claim against her former employer The Royal Berkshire NHS Foundation Trust (she was employed by the East Berkshire College of Nursing and Midwifery which later became part of the Trust) for Unfair Dismissal and Age Discrimination. 

Eileen Jolly was employed by the College of Nursing and Midwifery in 1991 at the age of 61 and received a Long Service Award in 2016 albeit that she was ultimately dismissed on the 22nd January 2017.  Ms Jolly had planned to work until she was 90. 

Her work for a Consultant, Mr Smith, had been described as reliable and meticulous between 2005 and 2017.

In 2015, her role changed from Medical Secretary to Patient Pathway Co-ordinator and as part of this change, she was required to attend waiting list training which was supposed to have been given to her by a colleague.  Unfortunately, the trainer could not tell trainees how patients were to go from one part of the system to another and therefore the training was due to be re-scheduled but in fact never took place. 

In September 2016, Ms Jolly was told by the Trust’s Director of Operations that she was being suspended and that she was to collect her things and she was escorted off the premises.  She was subsequently dismissed.  There had apparently been three serious incidents in two years where the fifty two week deadline for a patient waiting from the initial referral had been missed.  Despite this, at the tribunal, Ms Jolly did not have any knowledge of the first two incidents which were not identified to the tribunal by the Trust’s witnesses and it was agreed by all that the third incident was not her fault!   There had been however an insinuation during the subsequent internal investigation that she had been involved in the third incident.  The wording used by the Patient Pathway Manager when Ms Jolly was dismissed was that there had been a “catastrophic failure in performance, where damage had been caused to patients as well as potentially the Trust’s reputation.”   He did however accept that she had not been given the chance to improve her performance.  Ms Jolly had appealed the decision but the Trust ruled it had been submitted too late and this to was incorrect because the appeal had been submitted in time.

The Employment Judge ruled that the separate grievances raised by Ms Jolly in the disciplinary process had not been addressed by the Trust and that she had been discriminated against on the grounds of her age and her dismissal was tainted by discrimination.  She had been treated differently to other staff in the lack of training provided to her and one Manager had referred to her as being stuck in “old secretarial ways”.  Further inappropriate and hurtful comments had been made about her age and health conditions and it was deemed that her dignity had been violated.  Ultimately, the Judge felt that there was a suspicion that she was a scapegoat.  It does not appear that an appeal has been lodged by the Trust.

Whilst no new law is made by this case and it is only a decision by an Employment Tribunal rather than an Appeal Court and therefore does not set a precedent, it is a useful reminder of there not being any age limit to an employee’s statutory employment rights following the abolition of the default retirement age.

Added: 20 Feb 2019 12:30

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