HPC Law Update: Brexit & Suspending Employees

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HPC Law Update: Brexit & Suspending Employees

 

Litigants in person

Following the abolition in payment of fees for Employment Tribunals, lawyers acting for the employer often find themselves on the opposite side to a litigant in person. When dealing with litigants in person, it can sometimes be a difficult situation to manage.

 

When there are lawyers acting for both sides, you are both aware of your duties to the Tribunal and to know the boundaries. Litigants in person are often (whether rightly or wrongly) aggrieved by the situation they find themselves and whether they have a legitimate claim or not, they use every communication as another reason to state their case.

 

It is sometimes difficult to navigate through correspondence deciding what is relevant and what is peripheral to the actual case. There is also the issue of the Claimant often not knowing what they may be claiming for. For example, a recent case I dealt with concerned someone who was pursuing a claim for unfair dismissal but had only worked for the company for a month or so. As such, the Tribunal in the preliminary Hearing rejected that claim on the grounds of the Claimant not having the requisite service.

 

It is also interesting that the Tribunal will allow litigants in person more ‘leeway’ on the basis that they are lay people who have little or no knowledge of employment law, or the Tribunal process itself. This can make the process all that more difficult.

 

It is important to remember that you are dealing with someone who is upset and may feel angry and betrayed and irrespective of their own knowledge you must try to make sure you communicate at an appropriate level for their understanding.

 

The ‘B’ word

 

With the Brexit deadline looming, employers and employees are concerned with the effects of it on employee rights. We must remember that a large amount of employee rights are derived from European Legislation and when we leave the European Union, there has been rumblings that employee rights will be diminished or removed completely.

 

At present, employee rights are now enshrined in UK law so there will be no change to employee’s rights irrespective of whether we have a deal or not. That said, if there was a new prime minister, there could be a change to UK employment law and employee rights. However, any legislation to be changed would need to be repealed which would need the approval of parliament. The Government would have to think hard about whether they wished to amend the current legislation. They would have to consider the effect that it could have on workforces around the country, particularly if it is a law which would significantly affect the employee’s rights.

 

Watch this space to see what happens after we leave the EU.


Suspending employees

 

This has been the subject of case law earlier this year in London Borough Of Lambeth -v- Agoreyo (https://www.bailii.org/ew/cases/EWCA/Civ/2019/322.html).

 

It is important when considering whether to suspend an employee to undertake an investigation whether that is the right decision. It is a drastic step to suspend an employee pending an investigation for several reasons. Firstly, the employee will automatically feel that they have done something wrong if they are excluded from work for a defined period. Suspension can only be justified in serious circumstances where there is a need to protect the business or where to not suspend could impede an investigation.

 

If an employee is suspended without good cause, this could lead them to claim constructive dismissal on the basis of a breach of trust and confidence. If that decision is made, it is important to act quickly and not allow the process to drag on. Remember the decision to suspend is serious and must only be taken in (arguably) very limited circumstances.

 

If you have any questions regarding any HR law updates please feel free to contact the office today!

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