HR advice from the Professionals

Some recent employment case law …

Disability Discrimination - Discrimination by association

An employee (able bodied), who was the primary carer of her disabled son, believed she was being discriminated against when requested for flexible working because of her association with a disabled person and has claimed constructive dismissal and disability discrimination against her employers.

The case went to the European Court of Justice who ruled that it is direct discrimination under the Equal Treatment directive (2000/78/EC) if an employee who is not disable is treated less favourably because of her association with a disabled person.

Implications

It is likely that UK legislation may have to be amended to make it unlawful as direct discrimination and harassment against an employee on the ground of their association with a disabled person will constitute disability discrimination. This will extend to association in relation to age, religious and sexual orientation discrimination as well. Employers should be sensitive to employees who are carers of disabled relatives who could have grounds for claiming disability discrimination if they are refused time off to undertake their caring responsibilities.

Grievances - Following correct procedure - extension of time limits

An employee who was made redundant did not appeal against the redundancy, but later raised a grievance. According to legislation, the 3 month limit for presenting an unfair dismissal claim can be extended by a further three months if the employee reasonably believes that the dismissal or disciplinary procedure is still in progress when the limit ends. The employee did not receive a response to her grievance until a day after the three month limit expired. The Court of Appeal, decided that the employee was right to assume the dismissal procedure was ongoing as she was still waiting for a response to her grievance when the time limit was coming to an end. It . Therefore, as her grievance was related to her dismissal, the time limit could be extended.

Implications for employers:

Employers must continue to follow the statutory grievance, dismissal and disciplinary procedures in full for all situations. Although time limits are sometimes strictly enforced in the employment tribunal, employers can never guarantee that they are safe once the initial time limit has passed. Employers must always deal with grievances promptly and thoroughly even in a redundancy situation.

Age Discrimination - Capability v Age

After two months into her role, an 18-year office administrator was dismissed following a conversation with her line manager in which she was allegedly told that she was too young for the job as she had only been doing 90% of her role. An employment tribunal ruled that the employee had been dismissed not because of her capability, but because of her age. The employer had made the ‘stereotypical assumption’ that age and experience equalled capability.

Implications for employers:

Employers must train managers to follow equal opportunities policies which encompass avoidance of age discrimination for employees and prospective employees of all ages. Employers must take into account that some individuals are more capable than others. One candidate with initiative but with little experience may in fact be more capable than another, less inspired candidate with years of repetitive experience.

Part-Time Workers - Comparators

A number of part-time workers at a city council had their hours reduced due to a series of cost cutting measures. They claimed that the council had discriminated against them under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 on the ground that their treatment had been worse than full-time workers. The Employment Appeal Tribunal upheld the claimants’ appeal. Once it is found that part-time workers are being treated less favourably than full-time comparators and being part-time is one of the reasons, that is enough to trigger the Regulations.

Implications for employers:

Employers must recognise that it is now harder for employers to defend some cases under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. Employers should always keep part-time workers’ terms and conditions under review to ensure they are equivalent pro rata to full-time workers’ terms and conditions.

Unfair Dismissal - Expired Warnings

Five employees were found guilty of misconduct for misusing company time (by watching television during working hours). Four employees were given final written warnings, but one employee was dismissed. This was because he had been given a final written warning for a similar act of misconduct thirteen months earlier. The warning had expired three weeks before the second act of misconduct. The employee brought an unfair dismissal claim which was upheld by an employment tribunal and the Employment Appeal Tribunal (EAT).
The Court of Appeal (CA) over turned the decision of the EAT, and held that the employee was not unfairly dismissed because the employer had relied on an expired warning. In this case the employee was dismissed mainly because of his misconduct and not because of the expired warning.

Implications for employers:

This is an area that must be tread carefully. Employers who take expired warnings into account before implementing a dismissal will not necessarily have unfairly dismissed the employee. However, such a practice is still very risky. As a matter of best practice employers should not rely on expired warnings, especially not as the principal reason for dismissal. If an employer does rely on an expired warning and there is also underlying misconduct, it may be reasonable to take the warning into account as well -provided that the subsequent misconduct is sufficient to warrant dismissal in its own right.

All text above is for information only, and not to be interpreted as legal advice.

According to Croner, the UK’s leading workplace information and consultancy providers, have highlighted the potential cost of mismanagement of redundancies. Employers who are looking to cut costs by making redundancies run the risk of facing further costs as a result of employees raising tribunal claims against them. They recommend that businesses seek professional help to put the right plans in place and be able to implement those fairly and minimise the risk of claims. You can read the full article at Redundancy Not the end to employers’ problems.

Recently we have been advising clients on managing redundancy in their businesses. Our advice has been centred around the following principles:

1. Have a defined policy and procedure to follow that meets the current and future needs of your business.
2. Take every step to follow statutory process and best practice.
3. Consider the implications for those who are chosen for redundancy and for those who remain.
4. Offer support for all involved in the process - it can be very emotional especially in a small business where team members are close and have an emotional involvement with each other and the business.
5. Communicate clearly at every step and stick to the stated communication plan - be careful of casual asides.

It is not an easy process to manage and the emotional cost can be high, but it is really important to ensure that you do not add to the cost by incurring further financial exposure by getting it wrong and open yourself up to an employment tribunal claim. Seek independent advice early and follow the advice.

And this is not going away, over 50% of organisations are planning to make job cuts according to the KPMG National Business Confidence Survey - which you can read at KPMG - quarterly national survey.

Some recent employment case law affecting various areas of the employment relationship:

Garden Leave : no contractual right to do so

Two employees resigned giving the required notice period, they were both leaving to join competitors. The employer had strong evidence to prove that they had taken confidential information, tools and know-how, of which their new employer was paying them a substantial amount of money for.

The employer insisted that they were put on Garden Leave, however there was no clause in the contract providing a basis for this. The court upheld that the employer was allowed to do this, despite no contractual right to do so, as it was “rendered impossible and reasonably impracticable for the employer to provide work,” as there was a breach of contract on the employees part.

Implications :

For the avoidance of doubt, ensure there is such a clause in the contract, as without this is may be difficult to insist on this provision. It may be possible where there is a clear proof of wrongdoing equating to breach of contract, but you need evidence for this!

Click here to see full article

Accruing annual leave when signed off sick – European Case Law

If your employee is signed off sick, they are still entitled to take accrued annual leave at a later date. The recent opinion of the Advocate General suggests that this may become law, even when the employee has been signed off sick for the whole of the calendar year. He said that statutory holiday entitlement was a social right. It is suggested that this may also apply when the employment relationship comes to an end, therefore paid in lieu of any outstanding holidays.

This case may also affect the right to carry holiday leave forward into the proceeding holiday year, although it is thought that the decision will not open this up indefinitely.

Click here to see full article

Spent disciplinary warnings:

An employee had been issued with a final written warning which would stay on his file for a period of 12 months. Around three weeks after the expiration of the final written warning, the employee was caught with three other staff watching TV on his nightshift. He was dismissed, but the others were given warnings.

He claimed that the dismissal was unfair, however the appeal heard that dismissal was within the reasonable range of response, and they held that the employee did NOT have a clean disciplinary record.

This case is good news for employers, however the courts have stressed not to rely on expired warnings. If you feel it necessary you can keep the warning on file for longer than advised by ACAS.

Click here to see full article

Alternative employment?

The employee was a manager for the Commission and was told that her role was redundant following re-structuring, she lodged a grievance. The employer offered her a total of three new posts, all of which she rejected. She finally claimed she was entitled to redundancy payments. The employers argued that as she had turned down three alternative employment opportunities, she had waived her right to redundancy payment.

The employment tribunal held that her refusal of the alternatives was reasonable, not because of the status of the job, but because of the relationship and lack of communication at the time, the redundancy process had become blurred.

All cases of redundancy and alternative employment must be judged on merit, and employers should remember that perception of the role and the whole process may reasonably affect the refusal. It is important to communicate and be open with employees at all times.

Click here to see full article

All text above is for information only, and not to be interpreted as legal advice.

In light of the recent fuel price increases, HM Revenue & Customs have announced of increase fuel rates for Company Cars. It is the intention that these will be reviewed each year in January and July.

The rates will apply when employers:

• reimburse staff for business travel in company cars, or
• require employees to repay the cost of fuel used for private travel.

The rates will not apply where employees driving company cars are not entitled to use them to calculate a deduction if employers reimburse them at lower rates.

Please see

http://www.hmrc.gov.uk/cars/advisory_fuel_current.html for more information

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Corr V IBC Vehicles - Employer Negligence

A recent House of Lords Case has held that employer’s negligence, which subsequently led to the suicide of a member of staff, was reasonably foreseeable. The Widow of a man seriously injured in an industrial accident, which led to post traumatic stress disorder and ultimately his suicide, successfully brought a claim against the employer under the Fatal Accidents Act 1976. It was held that the outcome of suicide was foreseeable, and the admittance of negligence on the employer’s part clearly established that there was no other cause for his depression that drove him to suicide.

Levenes Solicitors V Dalley - Unfair dismissal

It was argued in this case that disciplinary action and ultimately dismissal against one employee for a reason that had not been actioned with another employee was FAIR.

This is a good outcome, as it looks at the merit and capabilities of individual employees.

James V London Borough of Greenwich - Agency Workers

This case is looking at the rights of agency workers, and is questioning whether there is an implied contract between the Company and the agency worker.

This issue has been through the tribunals before, and there has not been any clear decision on this. Depending on which way this goes, it could spell increased rights for agency workers.

As an employer you need to communicate with your employees to exchange views and ideas, and to issue and receive instructions and delegation. All this information sharing is critical to the success of your business, employee morale and engagement. However legal obligations to inform and consult formally have now been extended to include smaller organisations.

From 6th April 2008, the regulations, which came into force initially in 2005, for organisations with more than 150 employees, have now been extended to include organisations with 50 or more employees.

The definition of your obligation to inform and consult is that you should tell staff of what is planned (inform) and to listen and take into account their views when deciding what to do going forward in the business (consult).

The regulations give employees, of organisations with 50 or more employees, the right to request that their employer sets up new arrangements to inform and consult them about issues within the organisation. Additionally, if 40% of the workforce ask, to change the existing arrangements, then they must be changed.

For you as an employer, it now means that employees can request formally in writing an information and consultation agreement if at least 10% of employees, (with a minimum 15) agree. The onus is then on the employer to allow the employees to elect a representative for negotiations, which can take up to 6 months.

Upon receiving a request from the workforce, employers must make necessary provisions for the appointment of an employee representative within 3 months. The regulations allow for employers to agree arrangements to be tailored to the companies individual circumstances.

The agreement must:

• • set out the circumstances in which you will inform and consult your staff
  • provide for direct consultation with employees or with their appointed representatives
  • include all your employees in negotiations
  • be approved by your employees and their representatives
  • be in writing, dated and signed by or on behalf of the employer

The following details areas of information consultation:

(i) the recent and probable development of the undertaking’s activities and economic situation of the organisation The purpose of this information is to help representatives understand the context in which decisions affecting employment, work organisation and employees’ contractual relations are made;

Information and consultation is based on:

(ii) the situation, structure and probable development of employment within the organisation and, in particular, on any anticipatory measures envisaged where there is a threat to employment within the business.

Information and consultation with a view to reaching agreement on:

(iii) decisions likely to lead to substantial changes in work organisation or in contractual relations. This will include decisions on collective redundancies/business transfers - areas that are already covered by existing legal obligations to consult

For more information see

http://www.berr.gov.uk/employment/employment-legislation/ice/page37924.html

http://www.direct.gov.uk/en/Employment/Employees/ResolvingWorkplaceDisputes/DG_10028095