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Hewett Legal Corner - March 2015 Update #32

In this weeks Hewett Legal Corner #32, Sally Morris, partner and Head of Employment Law at mfg Solicitors has provided us with an update on recent legislation changes.

Drug-driving Laws
Since 02nd March 2015, it has been and is now illegal to drive when over specified limits for specified controlled drugs. Illegal drugs (cocaine and cannabis) have very low specified limits while certain medicines have limits set higher than those expected for normal therapeutic doses.

It is a defence for someone over the limit but who has been taking drugs in accordance with medical or dental direction and whose driving has not been impaired as a result.

Roadside testing will be used to establish whether any of the listed drugs are present and the offence will carry a mandatory disqualification and a maximum of 6 months imprisonment.

Employers should check that driving policies and substance misuse policies reflect the current positon i.e. apply equally to drug-driving laws as they do drink-driving laws. We can assist you with the preparation or updating of these policies on your behalf.

Fit for Work service
The Fit for Work service (FFW) was rolled out nationwide on 09th March 2015 and the phased roll-out should be completed by the end of 2015.

FFW will provide free occupational health assessments and return to work plans in addition to an online and telephone advice service to assist employees who have been on sickness absence for four weeks or more to return to work. Referrals to FFW may be made by GPs and employers; however this is not mandatory and is just recommended by guidance that a referral is the ‘default position’. FFW will contact an employee to undertake an assessment with a view to creating a return to work plan once an employee is referred. A plan will cover a specified period of time and will state whether an employee is fit for work or whether they may be fit for work subject to certain conditions.  

Resignation amounting to Constructive Dismissal is not Harassment
In the case Timothy James Consulting v Wilton, the EAT held that an act of constructive dismissal in itself was not an act of harassment for the purposes of the Equality Act 2010.

The Claimant had a successful career in the recruitment industry. There were several incidents that had occurred and tension involving a Director, Mr O’Connell with whom the Claimant had previously had a personal relationship. The Claimant was described as a ‘green eyed monster’ and was subject to criticism in addition to various other things. This was with reference to an alleged jealousy of another female colleague with whom MR O’Connell had a relationship with. The Employment Tribunal concluded that the treatment afforded to the Claimant was because she had previously had relations with Mr O’Connell and it was therefore related to the protected characteristic of sex and found 3 incidents of sexual harassment.

The Claimant subsequently resigned and claimed constructive dismissal and the Employment Tribunal held that the constructive dismissal was in itself, an act of harassment under the Equality Act 2010. However, the EAT disagreed and held that an act of constructive dismissal does not, in itself, fall within the meaning of harassment when correctly interpreting the Equality Act 2010.

The Employment Tribunal awarded injury to feelings in the sum of £10,000 for the harassment that did occur and grossed up this amount to take into account income tax. The Respondent appealed on the grossing up point and the EAT upheld the appeal on the basis that an award for injury to feelings under the Equality Act 2010 is no liable to income tax.

ACAS – Early Conciliation Statistics
ACAS has published a further set of statistics on early conciliation since it became mandatory for most types of employment tribunal claims.

Between 06th April 2014 and 31st December 2014, ACAS received 60,855 notifications from employees and employers. Between April and September 2014, only 23.2% progressed to a tribunal claim and by the end of January 2015, a further 2,530 cases had been settled by ACAS. 16.3% resulted in a COT3 settlement and the remaining 60.5% of cases were not taken any further.

Further guidance on this issue will be provided in due course. If you require any information on this issue in the interim, please do not hesitate to contact Sally Morris at or on 01905 73403201905 734032 to discuss.

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