This week saw the issue of what will probably be the final version of the Government’s statutory Code of Practice on dismissal and re-engagement. This follows the consultation on an earlier version which we covered here.
The new Code comes accompanied by some Guidance which is an unusually, in fact disconcertingly, helpful summary of the changes which have been made (and not) and the reason for them. In no particular order:-
Two recent cases on how Employment Tribunals should handle the inappropriate conduct of proceedings by claimants have shed some useful light on their more punitive powers. Both decisions made clear that the ET is far more interested in getting to a fair trial of the issue despite such conduct than in thumping claimants because of it, but equally, that there are limits.
If there was ever any doubt that Trade Unions target their dates for industrial action to cause maximum inconvenience (think train drivers striking on the day of major sporting events, or binmen striking at Christmas), then Deliveroo and other food delivery company drivers striking on Valentines Day surely put that to bed. Scant consolation for couples forced to head to the kitchen and do it themselves instead of reaching for the take-away menu for their romantic diner a deux.
Hollywood studios, the Big Three automakers and Starbucks were just some of the employers impacted by a remarkable surge in labor strikes called by unions in 2023. Nearly 350 strikes took place in 2023 – the most in two decades.
According to data released by Bloomberg Law, 345 strikes were called in 2023, along with two employer-initiated lockouts, for a total of 347 work stoppages impacting more than a half-million workers. The last time there were that many strikes in a year was 2003, though neither year topped strike activity between 1990 and 1994, when there were more than 500 strikes each year.
Faced with the inconvenient truth that we’ll all need to work longer to keep state pensions affordable, the Belgian government is focusing more intensely on employee training to ensure that the country’s workforce remains up-to-date and equipped with employable professional skill sets throughout their career.
On February 8, 2024, the U.S. Supreme Court unanimously decided in Murray v. UBS Securities, LLC, et al. that employees bringing whistleblower claims against their employer under the Sarbanes-Oxley Act (SOX) need not prove that, in taking adverse action against them, their employer intended to retaliate against them due to their protected whistleblowing activity. The case is No. 22-660.
Congress enacted SOX in the wake of the Enron scandal to prevent corporate fraud and encourage reporting of corporate misconduct. Under SOX, covered employers are prohibited from retaliating against employees—e.g., discharging, demoting, harassing—who report what they reasonably believe to be instances of criminal fraud or securities law violations. In making a SOX whistleblower claim, a plaintiff must first show that their protected activity was a “contributing factor” in the adverse employment action. The burden then shifts to the employer to prove that it would have taken the same action in the absence of the employee’s protected conduct.
The ancient art of fiddling while Rome burns is obviously still flourishing in government, as witness the release last week of a new consultation paper on fees for Employment Tribunal claimants. My colleague Alexander Bradbury has the official line here.
We have been this way before. The ET started charging claim and hearing fees in 2013, to a very mixed press. Employers were broadly unmoved on the grounds that claimants having some financial skin in the game would discourage what they saw as trivial or vexatious claims, i.e. almost all of them. Employees and unions were unimpressed, not for that reason but because there is no means of deterring spurious claims through a fee which does not also deter good-faith applications for small but (for the employee) potentially still very important sums of money. Claim numbers did drop significantly (over 50%) when fees were introduced, but it would take an extraordinarily unreconstructed employer to say that these were only the claims which should never have been brought in the first place. The serious adverse impact on access to justice for the less well-off or in relation to smaller or non-monetary claims could not be seriously disputed, though the government still took the opportunity to try. That fees regime ran until 2017 when the Supreme Court delivered the resounding humiliation of declaring it unlawful and requiring them all to be repaid.
Not surprisingly, California is once again passing employment laws that impact companies beyond the state. Specifically, the Golden State is continuing its war against noncompete clauses to conform to case law stating that such clauses are void for any employee working in California — even if the employment contract containing the noncompete was signed in another state. Moreover, there is a February 14, 2024 deadline to inform employees with void clauses that their noncompete clauses are unenforceable. Our colleagues at the Global IP & Technology Law Blog have addressed the laws in question in more detail. Please give it a read.
In 2013, the Government introduced fees for bringing claims to the Employment Tribunal and the Employment Appeal Tribunal. Although they were then abolished following a Supreme Court ruling in 2017, the issue is back in the spotlight and the subject of fee-rocious debate once more following the publication of a Government consultation into their re-introduction.