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March 2010 Updates

Evidence gathered as part of an informal process cannot subsequently be used to support formal disciplinary action

In Sakar v West London Mental Health Trust, the Court of Appeal held that, dismissing an employee for gross misconduct based on the same, or much of the same, evidence that was gathered as part of an informal investigation was outside the range of reasonable responses. As a consequence, the dismissal in this case was held to be unfair.

Discrimination and injury to feelings awards

In Taylor v XLN Telecom, the Employment Appeal Tribunal held that, in a discrimination claim, a claimant is entitled to an award for injury to feelings caused by a discriminatory act without having to prove that the injury to feelings resulted from actual knowledge of the discrimination in question. This decision is likely to have a significant impact on the assessment of injury to feelings in indirect discrimination cases.

Redundancy and collective consultation

In Shanahan Engineering v UNITE, the Employment Appeal Tribunal held that, even where there are special circumstances which render not reasonably practicable for an employer to comply with its normal collective consultation obligations, this will not relieve the employer of its individual consultation obligations (which can be carried out in a shorter period of time). An employer's normal collective consultation obligations mean, amongst other things, that it has to consult with employee representatives (or in their absence, directly with the potentially affected employees), over a 30 or a 90 day period, depending on the number of roles potentially affected by the redundancy situation.

Reducing the gender pay gap

The European Commission has confirmed that, as part of its five year strategy, it will aim to reduce the gender pay gap in the European Union, which currently stands at 18 per cent across the European Union as a whole. If necessary, legislative and non-legislative methods will be used to achieve this. Any methods adopted will supplement a raising of awareness of the gender pay gap and an improvement in the supply and quality of statistics available. There will be various options for how this aim is achieved, and the European Commission will be analysing the economic and social impact of these options including:

  • Reporting the gender pay gap and ensuring transparency on pay at company and individual level, or collectively through information and consultation with workers.
  • Reinforcing the obligation to ensure gender neutral job classifications and pay scales.
  • Improving sanctions where the right to equal pay is breached to ensure that they are dissuasive and proportional.

On 5 May 2010, the European Commission will publish a report on initiatives promoting gender equality in the workplace.

Blacklisting of union members outlawed

The Employment Relations Act 1999 (Blacklists) Regulations came into force on 2 March 2010. They signify the prevention of the use of "blacklists" for denying employment or dismissing employees as a result of their trade union membership or activities. The new Regulations provide for the prohibition of the use, sale, supply and compilation of a "list" containing information regarding persons who are, or were, trade union members or are, or were, involved in trade union activities.


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SRA number 404293