This decision confirms that a finding of gross misconduct will not inevitably make dismissal a reasonable response and therefore fair - mitigating factors personal to the individual employee would still be relevant when deciding on an appropriate sanction. However, the lay members of the EAT did emphasise that claiming sick pay whilst working elsewhere would, in general, be regarded very seriously by employers and that any substantiated case would almost inevitably lead to dismissal. What this decision makes clear is that this will not be an inevitable conclusion.
CJEU – Maternity and Paternity Leave
23 September 2013
Can a member state make provision to exclude an employed father of a child from entitlement to maternity leave and maternity benefit where the mother is not employed?
Yes, says the CJEU in Montull v INSS .
Daniel Barnett’s employment law bulletin reports:
The Spanish national court referred a question to the European Court to ascertain whether Mr Montull was entitled to maternity leave and to receive maternity benefit in respect of the birth of his son. Spanish law provides for the suspension of the mother's contract of employment for a period of 16 weeks which includes a compulsory period of maternity leave of 6 weeks. The mother can return to work after this period and choose to allocate the remaining 10 weeks' leave to the father. Where both parents work the father is entitled to the leave. In this case the father was employed but the mother was not employed. On the basis that the mother was not employed she did not enjoy any primary right to maternity leave and, therefore, there was no right to leave that could be transferred to the father of the child.
Redundancy and suitable alternative employment
25 September 2013
The Court of Appeal addressed the test for whether an employee was being reasonable in refusing what would appear to be a suitable alternative to redundancy and, in doing so, whether they forfeited the right to redundancy pay.
Daniel Barnett’s employment law bulletin reports:
The Court of Appeal in the case of Devon Primary Care Trust v Redman addressed the test for whether an employee was being reasonable in refusing what would appear to be a suitable alternative to redundancy and, in doing so, whether they forfeited the right to redundancy pay. It stated the test is not to "import" the band of reasonable responses test applied in unfair dismissal cases, but is instead consider "whether this particular employee in this particular situation acted reasonably in refusing the offer of employment". Although this case reinforced a test that has been around a while, it will be of concern to employers where there is an incentive to redundancy over redeployment, such as NHS, local government, or where there is long service.
CIPP Policy News Journal
16/04/2014, Page 114 of 519
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