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Tuesday 28 April


Shared parental leave

The shared parental leave (SPL) regulations means that anyone who is due to give birth or adopt from 5 April is entitled to split their “maternity leave” with their partner.  Except for the immediate 2 weeks that a mother has to take off, the remaining 50 weeks of leave and 37 weeks of paid statutory leave can be shared between the parents.  Unfortunately, the new regulations are infuriatingly complex and there are question marks of the likely take up for fathers.

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Dismissal for offensive, non-work-related personal tweets

The Employment Appeal Tribunal has recently decided that an employment judge failed to take full account of the public nature of Twitter when finding that an employee's dismissal for posting offensive tweets was unfair. The judge did not properly consider whether the employee's alleged private use of Twitter was truly private, given that he was followed by 65 of his employer's stores.

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Reasonable investigation

The Court of Appeal has dismissed an appeal against an employment tribunal decision, upheld by the Employment Appeal Tribunal, that an employee was fairly dismissed for gross misconduct. The tribunal had correctly applied the test and was entitled to find that the employer had carried out a reasonable investigation in the circumstances. It was not necessary for an employer to extensively investigate each line of defence advanced by an employee. What was important was the reasonableness of the investigation as a whole.

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Suitable alternative vacancy - maternity leave

The Employment Appeal Tribunal has recently decided that the duty to offer a woman on maternity leave a suitable alternative vacancy in a redundancy situation arises when the employer becomes aware that her role is redundant or potentially redundant.

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Non-payment of bonus

The Employment Appeal Tribunal has recently upheld an employment tribunal's decision that an employer discriminated against disabled employees by operating a bonus scheme, which did not pay out to employees who had received a warning for high levels of sickness absence. The employer had reasonable adjustments in place to delay the issuing of a warning to an employee who was absent due to a disability. However, the fact that receiving a warning led to an automatic disqualification from the bonus scheme was discrimination arising from disability. It was irrelevant that the HR officer who made the decision not to pay the bonus had no knowledge of the employees' disabilities; what was important was that the disability-related absences had led to the non-payment.

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Payment in lieu of holiday

The Employment Appeal Tribunal has recently allowed an appeal against a tribunal decision that, following termination, a worker was entitled to a payment in lieu of holiday that he had not taken during previous leave years, on the basis that he had been prevented from taking holiday because it was unpaid.

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Training costs

The Employment Appeal Tribunal has recently decided that a deduction made by an employer from a final salary payment to repay the cost of a training course should be ignored when calculating whether the employee had received the National Minimum Wage (NMW). Although it made the payment look as if it was below the NMW, the deduction fell within one of the exceptions in the Regulations which permits deductions in respect of the worker's conduct or other event related to conduct.

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Tribunal statistics

The Ministry of Justice (MoJ) has published employment tribunal statistics for October to December 2014, which indicate that although the number of claims remains low, there has been a small increase in the number of claims in the last quarter. The statistics also include figures on fee remissions for the first time.

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Employment tribunal fees

The High Court has dismissed UNISON's second challenge to the introduction of employment tribunal fees. It was not satisfied that there was sufficient evidence that the drop in claims since the introduction of fees was due to claimants' inability to pay. Although the statistics "demonstrate incontrovertibly" that fees have had a noticeable effect on individuals' willingness to bring claims, the statistics themselves do not prove that any of them are unable, as opposed to merely unwilling, to pay.

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