1. under s145B, if the employer’s sole or principal purpose in making the offer is to vary terms outside of collective bargaining, that is the ‘prohibited result’. However, if collective bargaining simply breaks down, there is nothing to prevent employers making offers direct to workers, so long as the purpose is not to evade collective bargaining by ‘going over the heads of the union with direct offers to workers’. The employer must prove the purpose behind the offer. 2. s145B applies when an offer is made, it need not be accepted. Further, it is not limited to circumstances where an offer is to forego collective bargaining in the future. 3. the compensation (at the time £3,800 per ‘prohibited result’) is fixed, there is no discretion for a tribunal to reduce an award. Katsos had contended that its two offers amounted to a single course of conduct, so only one award should have been made. The tribunal found otherwise. Amending this provision would be a matter for Parliament.
With thanks to Daniel Barnett’s employment law bulletin for providing this update.
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Whistleblowing 22 December 2017
Will a disclosure be protected if the worker does not believe it is made in the public interest?
No, was the unsurprising decision of the EAT in Parson v Airplus International Ltd .
Ms Parsons, a qualified non-practising barrister, made a number of disclosures to her employer. She later sought to argue the disclosures qualified for protection and thus rendered her dismissal shortly thereafter automatically unfair for whistleblowing. The tribunal and the EAT, however, found that Ms Parsons only had her self-interest in mind when making the disclosures, rather than any belief they were being made in the public interest. While a disclosure made in the worker's self-interest may also be in the public interest and thus protected (following Chesterton Global Ltd v Nurmohamed ), on the facts these disclosures were not. The fact that Ms Parsons could hypothetically have believed the disclosures were in the public interest did not help her if, in fact, she did not hold that belief. In the course of the appeal, the EAT acknowledged that the tribunal had erred in finding a disclosure of information about which the employer was already aware could not qualify for protection; it could. However, that finding made no difference to the automatic unfair dismissal claim. The EAT accepted that it was the Claimant's conduct, rather than the making of disclosures, which was the reason for her dismissal. The "coincidence of timing"• was not enough for Ms Parsons to show the reason for her dismissal was automatically unfair.
With thanks to Daniel Barnett’s employment law bulletin for providing this update.
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Refusing to work in protest 10 January 2018
If an employee is subjected to a discriminatory demotion, can he refuse to work?
No, held the Court of Appeal in Rochford v WNS Global Services . The employee, Mr Rochford, was a Senior Vice President. He had been off work for almost a year due to a back condition. On his return, the employer unjustifiably refused to allow him to work his full role, allocating him lesser duties on full pay, with no indication of when his full role would recommence. The tribunal found this to be discrimination related to disability. The employee then refused to do any work and was subsequently dismissed for misconduct. Although the dismissal was procedurally an unfair dismissal, it was found not to be discriminatory. The Court of Appeal rejected an argument to the effect that the employer was wrong to have dismissed the employee for refusing to work when its discrimination
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