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June 2011 newsletter

Retirement

 

The government has abolished the default retirement age of 65, so unless an employer has given notice of retirement before 6th April 2011, it is only in exceptional circumstances that an employer can justify compulsory retirement. An employer can only justify dismissal because the employee has reached a certain age if the employer’s contractual retirement age can be objectively justified. Objective justification has to be a proportionate response to a legitimate aim. In practice this is likely to be difficult for an employer to justify.

 

Dismissal for retirement may be justified up to 30th September 2011

If there is no normal or contractual retirement age, then an employee cannot be dismissed fairly because they have reached a certain age unless the employer has given notice of retirement before 6th April 2011 to take effect up to 30th September 2011 (or 30th September 2012 where the employee has been granted an extension) and the employee was age 65 on or before 30th September 2011.

A dismissal for retirement can be fair as long as:-

1. The employee has reached age 65 by the retirement date which must be no later than 30th September 2011; and

2. The employer gave between 6 months and 12 months notice before 6th April 2011;and

3. The employer informed the employee of their right to request an extension to their retirement date; and

4. If the employee made a request to extend their employment, the employer has considered any request, offered the employee a meeting to consider the request and offered the employee an appeal against a refusal to extend the time and a meeting to hear that appeal.

If the employer gives less than 6 months notice, or that notice was given on or after 6th April 2011 then unless the employer has a contractual retirement age which can be objectively justified, and acts reasonably in relying on that reason, the dismissal will be unfair and amount to unlawful age discrimination.

 

Is the solution to have a contractual retirement age?

The difficulty with having a contractual retirement age is it must be able to be objectively justified. If the demands of a particular job are such that older employees find it more difficult to do the job effectively, imposing a retirement age would be potentially discriminatory, because peoples faculties are likely to deteriorate at a different rate, so why should age alone be the determining  factor? It is quite possible that a contractual retirement age in such circumstances would be unlawful.

There may be circumstances where, for example, there are safety implications to the employee, other workers or the public, and that regular testing or assessment of the employee cannot sufficiently reduce that risk. If objective evidence shows that the safety risks of continuing with that employment significantly rise around a certain age, which cannot be sufficiently eliminated by testing then a contractual retirement age may be justified. The ultimate question is, “Is a contractual retirement age a proportionate means of achieving a legitimate aim?”

 

Practical aspects of dealing with anolder employee

So what can an employer do about an employee who has reached retirement age?

There is nothing wrong with an employer asking an employee about their plans when they are approaching 65. Clearly when people are approaching the age they are entitled to their pension, many will want to retire, and an employer is entitled to ask in advance so that plans can be put in place to replace the employee.

If an employer believes that an employee is less effective because of their age, then they will have to consider whether or not a capability procedure is appropriate. In other words, an older employee should be treated the same as any other employee, and if their work is not up to standard, they can be put through a capability procedure the same as any other employee.

The employer must be able to specify in what way their work is not up to standard, if they cannot be specific, they risk unfairly dismissing the employee and a claim of unlawful age discrimination.

 ACAS have a very comprehensive publication which is available online called, “Age & The Workplace: Putting the Equality Act 2010 and the removal of the default retirement age 2011 into practice.” It is available  at: http://www.acas.org.uk/CHttpHandler.ashx?id=588&p=0

 

Dismissal for Capabililty

 

If an employee is not doing their job in the way the employer requires the employer should investigate whether that is due to any lack of application (in which case disciplinary proceedings could be contemplated) or whether it is due to the employee’s lack of ability in one or more of the tasks required.

 If the employer considers it to be due to any lack of ability, the employee must be informed of:-

1. How their work does not measure up

2. The standards expected

3. A timescale to improve at the end of which the employee will be assessed

4. What support & training will be given

As long as the employee is made aware in sufficient detail to enable them to know precisely what improvement is expected of them, and as long as they have been given a reasonable amount of time and a reasonable amount of support to enable them to improve, the employer is entitled to consider dismissal at the end of the improvement period if the employee has still not reached the standards expected.

At this point the employer should:-

 

1. Invite the employee to a meeting and let them know in advance:

(a) The specific shortfalls in their work

(b) That the decision could be dismissal

(c) The evidence to show that the work is below standard

(d) The right to bring a Union rep or work colleague to the meeting

 

2. If the employee is found not to have reached the standard required either:

(a) Allow a further period to improve

(b) Dismiss the employee

 

3. Inform the employee they can appeal

 

4. If there is a vacancy which is suitable to the employee’s abilities this should be offered

 

5. If dismissal is the conclusion, give the correct contractual notice

 

Although “capability” is a separate category from “conduct,” an employer should still follow the requirements of the ACAS code of practice which is at: http://www.acas.org.uk/media/pdf/h/m/Acas_Code_of_Practice_1_on_disciplinary_and_grievance_procedures.pdf

 

John Halson Solicitors specialise in Employment Law. If you have any Employment Law issues please do not hesitate to contact one of our solicitors for assistance, either by phone (0151 524 4540), email or via our website (www.rightsatwork.co.uk)

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May 2011 Newsletter

 
 Disciplinary Procedures: The employee who goes off sick
 
A problem confronting many employers who commence a disciplinary procedure is the employee who is signed off work by their GP when a disciplinary procedure has been started.

This raises a number of problems and issues

 Do I need to continue to pay them full pay?

An employee who is suspended is normally suspended on full pay. In principle, when an employee is suspended it is because the employer chooses not to provide them with work. Where the employee remains willing and able to work they are entitled to full pay. However, if their GP certifies them as unfit for work they are no longer able to work and in principle, can be treated as off work sick rather than still suspended on full pay. This can be clarified in the employment contract or disciplinary procedure.

 Can I still insist they attend a disciplinary hearing?

Being unable to work and unable to attend a disciplinary hearing are 2 different things. If the employee is certified as unable to work, the employer can investigate further.

The employer can ask the employee to get a letter from their GP to say they are unable to attend a disciplinary hearing. However, it may be that the disciplinary hearing is what is causing the employee stress, so the result may be the same.

Do I have to rely on the employee’s GP?

No, as an alternative to contacting the GP the employer is entitled to require the employee to see an occupational health doctor chosen by the employer to determine if the employee is well enough to attend for the disciplinary hearing. If the employer has already made arrangements with an occupational health service, this can be done at short notice. If the occupational health report certifies the employee as fit to attend a disciplinary hearing the employer can insist it goes ahead.

What if the employee doesn’t turn up?

If the employee fails to attend the disciplinary, the employer can give the employee the option of either attending the appeal hearing, sending a representative or sending in something in wrting, If the employer needs to replace the employee that is a good reason for not delaying the appeal hearing while waiting for the employee to be well enough to attend.

 What if the occupational health doctor (or GP) says the employee is not well enough to attend a disciplinary hearing?

The employer will then need to weigh up the situation. If the employee’s work can be covered without any problem, and there is no urgency to conclude the disciplinary process, they may wish to wait until either the employee is well enough to return, or until the employer concludes that the length of sickness absence is such that the employee should be dismissed for long term sickness and a “capability procedure” can then be instigated.

 However, while an employee is off sick they are still entitled to accrue holiday pay, so for every month they are off sick they will accrue the right to 2.3 days paid holiday. Also if an employee is dismissed for capability they are entitled to payment in lieu of notice, whereas an employee dismissed for gross misconduct is not entitled to be paid notice.

 The employer is having to pay and administer either company sick pay or Statutory Sick Pay during the employee’s absence.

The only advantages to the employer waiting until the employee has been off sick long enough to dismiss them under the capability procedures is the time and administrative inconvenience of pursuing the disciplinary procedure, and the fact that it is usually procedurally easier to dismiss for long term sickness, and more difficult for an employee to win a claim of unfair dismissal.

Proceeding in the employee’s absence
 

 The employer does not simply have to put the disciplinary hearing on hold. An alternative is to provide for the disciplinary hearing to be dealt with differently. If the employee is unable to attend the first date set for the disciplinary hearing, they can be given a choice of other ways to deal with it. The following would be a comprehensive choice of alternatives for the employee:-

1. The disciplinary officer could telephone the employee and go over the allegations, giving the employee the opportunity to respond to the allegations without having to physically attend the meeting.

 2. The employee could send in written submissions to the disciplinary hearing.

 3. The employee could send a representative (a Union representative or a work colleague) to attend in their absence and put their case forward.

 4. The disciplinary officer can conduct the disciplinary through email exchanges with the employee on the day set for the disciplinary hearing.

 5. Any combination of the above.

 

The employer should emphasise that if they do not hear from the employee, the hearing will go ahead in their absence based on the information and documents available.

The employer should provide the employee with more notice of the hearing than normal to allow time to prepare written submissions and arrange representation in their absence.

 Following the decision, the employee should be given the right to appeal, and when an appeal date is set, they should be given the opportunity of either attending personally or using any of the alternatives previously suggested for the disciplinary.

 

 

What if the employee turns up to the appeal?

 

 Whether or not the employee turned up to the original hearing, an appeal should still amount to a full hearing of the disciplinary allegations from the start.If the employee makes no contact and the employer is satisfied that they have received notice, the hearing can proceed in their absence. The disciplinary officer should still consider all the evidence and make a finding on the evidence available, including looking at the employee’s past work and disciplinary record before deciding the sanction. The employee should also be notified in writing of the decision and given the right to appeal.

 

 

John Halson Solicitors specialise in Employment Law. If you have any Employment Law issues, please do not hesitate to contact one of our solicitors for assistance, either by phone (0151 524 4540) or email via our website (www.rightsatwork.co.uk)

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Newsletters archive

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  • The Equality Act 2010
  • Changes to Disability Discrimination

December 2010

  • Christmas Parties and their consequences

January 2011

  • 10 Resulotions for 2011

February 2011

  • Questions & Answers arising from Redundancy seminar

March 2011

  • Sex discrimination and harassment: dealing with grievance
  • Sex discrimination and harassment: claims arising from sex discrimination

April 2011

  • When an employee without one year’s qualifying service can claim unfair dismissal
  • How to calculate one year’s continuous service

May 2011

  • Disciplinary Procedures: The employee who goes off sick

June 2011

  • Retirement

August 2011

  • Holiday pay

October 2011

  • Agency Workers Regulations
Disclaimer
Please note that whilst the contents of these newsletters were up to date at the date they were published, they are not updated so you are advised to check the main topics from the home page to ensure the law is up to date

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April 2011 Newsletter

 

Dismissals in the First Year of Employment

Employees must normally have one year’s continuous period of employment to qualify for the right to make a claim for unfair dismissal.

Beware, however, of the following:

· There are exceptions to the rule requiring a one-year qualifying period in unfair dismissal claims.

· Other types of claim do not have similar qualifying periods.

· The rules relating to continuity of employment or the date a contract is brought to an end might mean the employee has one year’s continuous employment where this was not apparent.

 

Exceptions to The One-Year Qualifying Period

In some claims for unfair dismissal an employee does not need to have one year’s continuous service.   These include dismissals where the principal reason for dismissal is or relates to the employee:

· Being summoned for or being absent to attend jury service
· Being pregnant or taking maternity, paternity, adoption or parental leave
· Being a health and safety representative or making complaints or asserting certain rights in relation to health and safety
· Refusing to work Sundays (certain shop and betting workers only)
· Asserting rights under the Working Time Regulations
· Acting as a trustee of a relevant occupational pension scheme
· Being a representative for consultation relating to a TUPE transfer or collective redundancies (Where it is contemplated that 20 or more employees are at risk of redundancy)
· Making a Protected Disclosure (i.e. whistle blowing)
· Asserting a statutory right
· Enforcing a right under the National Minimum Wage Act 1998
· Enforcing a right relating to tax credits
· Asserting a right to flexible working
· Exercising a right to be accompanied (disciplinary, grievance and retirement procedure meetings)
· Asserting a right as a fixed term employee
· Being or not being a member of a trades union and exercising certain rights as a trades union member.

For example, if an employee is dismissed for a being absent due to pregnancy related illness then she can make a claim for unfair dismissal even if she is in her first year of employment as the principal reason for her dismissal related to her pregnancy.

 
Another example is an employee who is dismissed for complaining that he / she has not been paid.  The employee could claim unfair dismissal without having one year’s service because he/she was dismissed for asserting the statutory right not to suffer deductions from wages.

The exceptions to the one-year qualifying rule are all circumstances in which an employee can claim “automatic” unfair dismissal.  If a Tribunal is satisfied that the reason for dismissal was one of circumstances listed above then the dismissal is deemed to be unfair.

Note that the legislation is quite specific as to when some of the above circumstances will apply. 

Selection for redundancy based on one of the circumstances listed above would be unfair.

 

Claims Not Requiring a Qualifying Period

Claims for unlawful discrimination do not require a qualifying period of employment.  Dismissal on grounds race, sex, disability, age, sexual orientation or religion or belief can lead to a claim that the dismissal was discriminatory.

Perhaps particular caution should be given to dismissal for absenteeism or sickness. 

Dismissal for time taken off for a pregnancy related illness amounts to sex discrimination. Dismissal for time off because of a disability related illness could amount to disability discrimination. Dismissal for being absent to look after a dependent could, in some circumstances, be discrimination on grounds of sex disability or age.

Employees are still entitled to contractual or statutory notice (if not dismissed for gross misconduct).  Employees are also entitled to any accrued but untaken holiday pay.

 

Calculating One Year’s Continuous Service

In most cases this will be a straightforward exercise.

However, if the employee transfers from one employer to another under TUPE  (Transfer of Undertakings (Protection of Employment) Regulations 2006) the employee’s service with the previous employer counts towards his/her continuous period of service. 

An employee’s continuity of service may be preserved if, for example, the employee has been absent on account of:
· a “temporary cessation of work”;
· dismissal followed by re-instatement;
· certain military service;
· certain industrial action;
· sickness, injury, maternity, paternity, adoption or parental leave;
· by arrangement or custom.

An employee employed on successive fixed term contracts can, in effect, add the period of each fixed term contract together to calculate his / her continuous period of employment.

If an employee is given notice of dismissal before completing his / her first year of employment but the notice expires after the completion of the first year of employment, the employee will have the qualifying period to make a claim for unfair dismissal.

Where the employee is dismissed without notice shortly before completing his/her first year of employment, the employee may be deemed to have the qualifying period for making an unfair dismissal claim, if the employee would have completed one year’s service had the statutory minimum notice (one week) been given.

 

Practical Points

It is worth meeting with the employee before taking any decision to dismiss.  This can ensure that there is no misunderstanding as to the reasons for dismissal.  It gives an opportunity for the employee to make representations which can reduce the risk of a discriminatory dismissal. 

If there has been a transfer of the organisation (e.g. an acquisition, merger or the winning of a contract to provide services) or if there has been a gap in the employee’s employment, take care to calculate employee’s period employment is correctly.

Consider what will be the deemed date of dismissal, particularly if the employee is being dismissed close to the completion of his / her first year of employment.

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March 2011 Newsletter

March 2011 Newsletter

In January, Andy Gray was dismissed and Richard Keys resigned from their jobs as Sky Sports presenters following sexist remarks made at work.

Sex Discrimination & Sexual Harassment

 

A previous newsletter has set out the provisions of the Equality Act 2010. This newsletter looks at the practical implications.

 Dealing with a grievance

An employee may raise a grievance of sex discrimination or harassment. The employer should investigate the allegation to establish the facts. The conclusion of the grievance may lead to disciplinary action

The employer may, however, initiate disciplinary action where sexist comments have come to the employer’s attention without being the subject matter of a grievance.

If an employee raises an allegation of sex discrimination as a grievance, the employer, at any time during the investigation of the grievance, may decide that it should be dealt with under the disciplinary procedure. If this is the case, the person who raised the grievance should be informed, they may be interviewed further if more information is required, and they should be offered a meeting to conclude their grievance after the disciplinary process is concluded.

Alternatively the employer can choose to investigate the full facts in the context of a grievance, and once it has been concluded, start a disciplinary procedure. In this instance, the investigation into the facts of the case will be concluded although a disciplinary meeting will still need to be held to decide what the disciplinary sanction should be. However the employer should ensure that the employee accused was given an opportunity to fully defend themselves against the allegation during the grievance procedure, and if the employee brings up any new evidence at the disciplinary meeting that should be taken into consideration.

 Disciplinary Action

An employer should consider whether or not it could lead to dismissal (i.e. is it potentially an offence of gross misconduct), and whether or not to suspend the employee.

If it should be obvious to the employee that it could be serious enough to merit dismissal then there is no problem classifying it as “gross misconduct” but it would be better if it could be backed up in the disciplinary procedure, staff handbook or employment contract which includes that kind of conduct as an example of “gross misconduct.” It is not uncommon for “sexual harassment” to be listed as an offence of gross misconduct. The employee should then be warned in their letter inviting them to a disciplinary hearing that dismissal is a possible consequence. If the type of offence is not one which has in the past been notified as one of gross misconduct, and if it is not obvious that it would be, then an employee who is dismissed because of it (unless they are already on a final written warning) can argue “unfair dismissal.”

Most disciplinary procedures or employment contracts give the employer the right to suspend, but even without this, there is likely to be an implied right to suspend the employee as long as the employee is paid normal pay during the suspension. The normal reasons for suspension are to enable the allegation to be investigated, or to protect the accuser until disciplinary proceedings are concluded. Suspension should not imply that dismissal is the likely sanction, nor should the absence of a suspension imply that dismissal will not follow.

The allegation should be properly investigated, by interviewing any relevant witnesses and preparing written statements, preferably signed by the witnesses. The employee could be interviewed as part of the investigation, but they don’t have to be as they will have the opportunity to put their case forward at a disciplinary meeting. The employee should then be invited to a disciplinary meeting by letter in which they are told:-

1. The allegation against them in enough detail for them to defend it (preferably with copies of any statements or written evidence)

2. If it could result in dismissal

3. Their right to be accompanied by a Union rep or work colleague

There is no need for the employer to require any witnesses to attend, the employer is entitled to rely on the written statements. However, the employee who is accused should be allowed to state his case and if he brings any witnesses with him they should also be heard. The employer can then conclude whether the allegations are proven and what the appropriate sanction should be.

To justify a dismissal the employer must consider the seriousness of the actual offence and any mitigating factors in favour of the employee.

If it is gross misconduct, the dismissal can be with immediate effect. If not, but where the employee is already subject to a final written warning they are entitled to their contractual notice. If a warning is given the employee should be informed of the type of warning and how long the warning will remain on their disciplinary record.

The employee should have the result confirmed in writing (whether or not it has been communicated to them at the disciplinary meeting) and should be informed that they have the right of appeal. Normally a deadline is given for appealing.Claims arising from sexist comments

Claims arising from sex discrimination

The employee who is the victim of the comments may make a claim to an Employment Tribunal that they have been unlawfully discriminated against either on the basis that the comments amount to sexual harassment or that they have subjected the employee to a detriment.

Harassment is defined in section 26 of the Equality Act as

  • Engaging in unwanted conduct that has the purpose or effect of violating her dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, or
  • Engaging  in any form of unwanted conduct of a sexual nature, that has the purpose or effect of violating her dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, or
  • On the ground of her rejection of or submission to unwanted conduct of a sexual nature, he treats her less favourable than he would treat her had she not rejected, or submitted to, the conduct.

When deciding whether particular conduct amounts to harassment, a Tribunal must consider the perception of the person making the complaint, the circumstances of the case and whether it is reasonable for the conduct in question to have the effect alleged.

If an employee cannot show the conduct amounted to sexual harassment, they may still be able to prove unlawful discrimination if they can show that they were subjected to a detriment because of their gender.Liability for sex discrimination

Liability for sex discrimination

An employee who claims sex discrimination can bring claims against either or both the employer and the individual whose conduct they complain about.They might do this if they want the perpetrator to have some personal liability, especially if there is a possibility that the employer could avoid liability or go into liquidation.Normally, under section 109 Equality Act, the employer is “vicariously liable” for the actions of their employees, so it is not a defence for an employer to say they knew nothing about it, even if the employee who complained never brought it to their attention.

However, there is a defence available to an employer to show that it took all reasonable steps to prevent that type of discrimination taking place. It is not easy for an employer to defend a claim on this basis, as Employment Tribunals do not want to make it too easy for employers to escape liability.

Normally a “Diversity” or “Equal Opportunities” Policy, which has been properly implemented, publicised to all employees and upon which management and supervisory staff are regularly trained would be needed for an employer to avoid liability for the discriminatory actions of its employees. Whilst this may be expensive and time consuming to adopt and implement, it could potentially save an employer from significant and expensive future claims.

Even when an employer cannot escape liability, the way an employer deals with a grievance will hopefully satisfy an employee who alleges discrimination to the extent that they do not pursue a claim. Even if they do, the award for “injury to feelings” is likely to be less for an employer who deals with the grievance properly.

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February 2011 newsletter

Newsletter: February 2011

Our first free seminar dealing with issues of redundancy, lay off and changes to employment contracts took place on 28th  January and was well received.

We are planning to run the seminar again on Friday 8th April at Liverpool Cornerstone (next to our office).

Below are summaries of questions which arose in the seminar and our answers.

   1. Can we change how we pay a member of staff for extra work he undertakes? 

A: If the way in which the staff member is paid is set out in the employment contract, you will need to change the contract. If not, suggest that it will be changed and update the contract. If the employee objects on the basis that it is a binding verbal contract, changing it unilaterally risks the employee resigning and claiming constructive dismissal. However, if they accept the change and continue to work without objecting to the change to the overtime payment, then the contract will have been changed even if nothing is put in writing. It is better to put it in writing as evidence of agreement to new terms and conditions.

  If you don’t want to risk a resignation and constructive dismissal claim, or if existing arrangements are incorporated in a written contract, you will need to meet the employee and explain the changes you propose and the reasons for those proposals. Allow a short consultation period (1 week should suffice) and then meet again. If the employee agrees give him a new contract to sign which takes effect after the required notice period.

 If the employee still refuses to sign, you need to decide whether to give notice and offer a new contract on new terms and conditions. Take advice at this stage, as this risks a potential unfair dismissal, so you will need to discuss with a solicitor whether or not the change can be justified and assess whether the change is important enough to impose on the employee.

  2. What if  an employee who is made redundant claims they were unfairly dismissed becasue they were replace, when in fact the replacment was a freelancer?

 A: A redundancy situation is defined as a reduced need for employees, not that the work does not need to be done. So an employer is entitled to decide to reduce the number of employees of a particular kind and instead use a self employed freelancer(s) to carry out the work. As long as the proposal is put to the employee facing redundancy at a consultation meeting and they are given an opportunity to ask questions, respond, and make alternative suggestions which are then considered before a final decision takes place, the redundancy can still be fair. Before dismissal takes place the employee must be invited to a final meeting at which the decision to dismiss will be taken and offered the opportunity to appeal the decision afterwards.

  3. Is it lawful for an employer to give the option of short time or redundancy? 

A: An employer cannot put an employee on short time unless the contract allows it (expressly or by custom and practice). However, in the course of a redundancy consultation an employee can be offered the alternative of short time. Many employees would agree to this seeing it as the lesser of 2 evils and if the employee agrees, it can be implemented.

  The arrangement should be confirmed in writing, making it clear how long the arrangement is to last. “Short time” is only supposed to be for a short period and the employee can still claim redundancy. However, if the change is intended to be for a longer period, the agreement should say this and may be either a temporary or permanent change to the contract.

 If shorter hours are offered as an alternative to redundancies, then you may need all employees of that type to agree to accept a cut in hours. It is not as easy to impose changes in hours on reluctant employees, as it is to make staff redundant. It is still possible to push through a contractual change of hours even with staff who won’t agree, but proper procedures need to be followed. These include consultation and then terminating contracts on notice and immediately offering new contracts on shorter hours to start when the old ones end.

   4. Is it illegal to take away Bank Holiday pay from employees? If so what is the procedure for doing this? 

A: All employees are entitled to 5.6 weeks holiday per year. There is no right to have particular days off, including bank holidays. If bank holidays are included in compulsory holiday then the employee should be paid their normal pay for weeks which include bank holidays.

  If there are arrangements to pay employees enhanced rates of pay for working on a bank holiday, and the employer wishes to change this to standard pay, then a procedure should be followed as summarised in the second and third paragraphs to the answer to question 1 (above).

 5. In the event of death – is redundancy still payable to an employee? If so who should fund this?

 A: If an employer is an individual and dies then if the business closes as a result, the deceased employer’s estate will be liable for the redundancy payments. If the estate has insufficient funds to pay the redundancy, the employees can apply for payment from the Government redundancy fund. The redundancy fund can then seek reimbursement from the deceased employer’s estate.

 If the business is continued or transferred then TUPE will apply and the new owners will become the employers without there being any termination of employment contracts or redundancies.

  6. What are the issues in relation to making older emploees redundant?

A: Employers should follow the same principles for older people as anyone else. However, an employee can be retired at or above the normal retirement age fairly by an employer provided the right procedure is followed.

 An employer when choosing criteria for redundancy selection should take care in using criteria that could have a discriminatory impact, unless the criteria themselves can be justified. “Last in first out” may discriminate against younger employees but might be justified on the basis of the wish to retain experienced employees or save on redundancy costs. Criteria such as “flexibility” and “future potential” could be operated in such a way as to discriminate against older employees, but may be justified as long as those who carry out the assessments guard against making any assumptions about older employees and if possible use verifiable evidence to justify the assessments of employees. 

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January 2011 Newsletter

10 Resolutions for 2011

Here are 10 suggestions of ways to navigate through any potential difficult HR issues which may arise in 2011.

1.    Identify “pressure points” and be ready to deal with them.
What are your plans for your organisation during the coming year? What will you have to do to get to where you want your organisation to be in January 2012? Will this involve recruitment? Acquiring another business? Redundancies? Relocating staff? Changing peoples jobs or contracts?

Do you have employees with sickness absence problems? Problems with punctuality? Are any employees struggling with new demands being made on them? Are there personality clashes between 2 employees who work together? Do you have someone who is perceived as “difficult” by other employees?

If these problems can be identified and tackled before they cause real problems, you will be better equipped for the future. You will either solve them, or if they are insoluble, you will at least be able to make some progress in removing them.

You don’t need to wait until something serious happens to take legal advice, a chat with your solicitor now will enable you to develop a strategy to deal with problems before they become a crisis.

2.    Have a contingency plan in place to cope with a downturn in business
VAT increase and cuts in public spending will mean some employers will be struggling to maintain their income. A contingency plan will enable you to survive a downturn by cutting your costs quickly if and when necessary. Now is the time to find out how long a redundancy process will take, how much notice you need to give and what it will cost you in terms of redundancy payments. Forward planning and early advice will also reduce the risk of an expensive Employment Tribunal claim.

3.    Introduce or extend systems to objectively monitor employees performance
Do you monitor timekeeping? Absences? Productivity? Do you carry out regular appraisals, and if so do you score your employees under various categories according to their performance?

This will assist in your ongoing management of your employees’ performance and provide you with objective information if you have to make redundancies in the future. The more objective the criteria you use the less chance there is of unfairly dismissing an employee.

4.    Ensure you have an absence management procedure
Properly implemented absence management procedures enable you to tackle problems in this area promptly and identify reasons for absences, which may have to be taken into
consideration if they are linked to an employee’s disability or care responsibilities

5.    Have a plan for “problem” employees
You may be aware of difficulties with certain staff, and the ideal time to think about how to deal with them is before they cause a crisis for your organisation.

If you find out now the HR implications for the steps you plan to take, you will be better prepared to tackle problems effectively and minimise the risk of future problems.

6.    Review your employment contracts
Do your staff have written contracts? Are they up to date? Do they truly reflect the reality of their status?

For employees, it is a legal requirement for them to have certain particulars confirmed in writing and for changes in these particulars to be confirmed in writing.

If any of your staff are not “employees” you may have difficulty in proving their “self employed status” without a written contract.

7.    Try to avoid losing important employees
Monitoring staff satisfaction is no easy task, but being sensitive to issues of conflict, lack of motivation, staff feeling taken for granted etc will help avoid loss of important staff, and the cost of replacing them.

8.    Identify what threats there may be to your business if key employees leave
What if a key member of staff leaves and joins a competitor? Will they be able to make use of sensitive information to help your competitors and harm you? It is possible to prevent or minimise abuse of sensitive information and damaging or unfair competition through incorporating restrictive covenants in their contracts. However, if these are too ambitious they will have no effect.

Properly drafted restrictive covenants for employees who have access to key information or develop good working relationships with your key customers and suppliers could become crucial for preserving your business in the future.

9.    Review your recruitment procedures
An employer can be liable for unlawful discrimination towards a potential employee who fails to obtain a job because of some “protected characteristic.” If your recruitment procedures can show that you select objectively and fairly, you reduce the risk of such a claim being made against you or being successful.

10.    Carry out a “diversity audit”

The extension of the scope of discrimination legislation in the Equality Act 2010 to cover “associative discrimination” and “perceived characteristics” mean that issues involving discrimination are more likely to emerge.

Knowing your workforce will ensure you are sensitive to issues which may arise with implications on management of staff.

For example, do any staff have disabilities which may require adjustments in their working environment or arrangements now or in the future? Do any of them have care responsibilities towards young, elderly or disabled relatives?

A fully developed set of policies and procedures may enable you to avoid liability for an employees unlawful discrimination towards another employee in the future.

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December 2010 Newsletter

Christmas Parties and their consequences!
As the Christmas season approaches many employees look forward to the works “Christmas do.” It is an opportunity for staff to let their hair down, but it comes with the risk that if things get out of hand there can be consequences that impact on the employment relationship.

Consider this letter from a few years ago

Dear Colleague,

I am writing to let you know that because of the disgusting actions of a small minority of those who attended the Pontins’ dance on 31 October. NGSSA have been banned from using the Pontins’ facilities for any future social occasions.

The tally of destruction included:- One double-decker bus taken off the road at 7.30 p.m.  because of its condition due to abuse en route to Pontins; damage to doors, fruit machines and other equipment; several people taken to hospital (2 detained overnight); fighting in the small ballroom; general misbehaviour, use of foul and abusive language (by males and females); drunkenness; abuse, jeering, hurling of missiles etc during the Miss Girobank contest; theft.

All in all we certainly made an impression on the staff at Pontins and on the large number of Police who were called out to restore law and order…the reputation of Girobank employees must be at an all time low.”

Trouble at the Christmas do
Trouble which occurs on a Christmas do can affect the employer’s reputation. A hotel or restaurant is not going to expect the same decorum from an employer who uses the premises for a business meeting, but when there is trouble or damage caused, the employer could face a bill for the damage, be barred from using the venue and suffer damage to its reputation.  The employer is going to want to investigate who was to blame and take appropriate disciplinary action.

Employers are entitled to take action if there is a clear link between the business interests of the employer and the misconduct in question.

Where misconduct has occurred at a Christmas do, the normal requirements to carry out a fair investigation still apply. The employer should investigate properly by interviewing relevant witnesses and preserving CCTV recordings if available. The employee should be informed in writing of the allegations, invited to a disciplinary hearing and if dismissal is being contemplated, should be warned that dismissal is a possible outcome, be given details of the evidence against them, and be invited to a disciplinary hearing and informed of their right to be accompanied by a work colleague or Union representative.

Dismissal is a permissible option if the misconduct was of a serious enough nature to merit dismissal for a first offence (gross misconduct) or if the employee is already on a final written warning.

The Christmas do may have gone well and without any problems, but if the next day is a workday, the employer should consider how he will deal with absenteeism as a result of employees who overdid it the night before!

Where the employer depends on employees turning up to work the next day, a failure to come to work or come to work on time may be grounds for disciplinary action.

It would be unusual to be able to justify dismissal for this, unless the employer has made it clear in advance that attendance at work the day after the Christmas do is so important that failure to attend could lead to dismissal. By doing this, it is far easier for an employer to justify a dismissal, the employee having been given fair advance notice of how seriously the employer will take absence the following day.

When contemplating dismissal employers should always pay close attention to the guidelines contained in the ACAS Code of Practice

A grievance by an employee
The risks of an employee complaining about sexual harassment or violent conduct is heightened in an alcohol fuelled environment. Not only might the employer face the need to investigate a grievance, but might have to deal with resulting sickness absence and possibly even a claim of sex discrimination or constructive dismissal.

Absenteeism the following day
Whether the employee has attended the works Christmas do or another seasonal celebration, an employer with a number of staff off with a day’s absence due to overindulging the previous night may face difficulties which they are anxious to avoid.

Disciplinary Action
Employees may assume that their conduct outside of work hours is nothing to do with their employer, but there are situations in which misconduct out of work can lead to disciplinary action by the employer.

Grievances
Misbehaviour at a Christmas do might prompt a grievance by one employee against another. Unless an employer investigates a grievance properly the employee will start the new year unhappy and if the incident was serious may go off sick or even resign. The employer could then face a possible claim of unfair constructive dismissal. Even though the incident happens outside work, the employer still has an obligation to investigate a grievance if its subject matter impacts on working relationships.

Where the complaint has a discriminatory undercurrent, for example sexual harassment, the employer, may risk facing a discrimination claim in the Employment Tribunal. The employee would have to establish that the discriminatory act occurred “in the course of employment” to make the employer liable. Whilst in many cases employees will have difficulty persuading an employment tribunal that a social event is in the course of employment, some social events can be seen as an extension of their employment, and in one reported case a police officer’s leaving party in a pub was found to be within the course of employment.

If an employee submits a grievance, the ACAS code of practice (see above) provides guidelines of how to investigate a grievance.

On receipt of a grievance, the employer may conclude that a disciplinary investigation should be instituted.

Christmas wishes
So now you’re ready for anything that might happen, here’s hoping that your Christmas celebrations go off without incident and you have a happy and relaxing festive season.

With best wishes from John Halson Solicitors.

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November 2010 Newsletter

The Equality Act 2010

On 1st October this year the Equality Act 2010 came into force. The Act:-

  1. Consolidates the anti discrimination legislation
  2. Widens the protection against discrimination to cover discrimination on the grounds of “association” and “perception.”
  3. Makes some changes to the law in relation to disability
  4. Introduces rules on pre employment health checks
  5. Introduces a new definition of harassment
  6. Restricts the effect of  “pay secrecy clauses” in employment contracts

The Act refers to 9 “protected characteristics.” It is unlawful to treat an employee less favourably because of a protected characteristic. These are:-

  • Age
  • Disability
  • Gender reassignment
  • Marriage and Civil Partnership
  • Pregnancy and Maternity
  • Race
  • Religion or Belief
  • Sex (including gender reassignment)
  • Sexual orientation

Discrimination is not only unlawful on the basis of an employee’s own “protected characteristic,” but also if it is based on the employee’s association with someone with a protected characteristic or the employer’s perception that the employee has a protected characteristic.

So for example, it would be unlawful to discriminate against an employee on the basis that they are looking after a disabled relative (association), and unlawful to discriminate against someone perceived to be gay, even if that was not the case (perception).

Pre Employment Health Questionnaires

It is now unlawful for employers to ask questions about a job applicant’s health before an offer of employment is made.

This does not prevent a prospective employer

  1. Asking whether any adjustments need to be made to the interview or assessment process because of the applicant’s disability,
  2. Asking whether an applicant will be able to carry out a function which is intrinsic to the role in question.
  3. Asking whether a candidate has a disability if it is to monitor diversity
  4. Where having a particular disability is an occupational requirement

Harassment

Harassment is defined in the Act as unwanted conduct related to a relevant protected characteristic or of a sexual nature, which has

the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

An employer will be liable for “Third Party harassment,” i.e. harassment of an employee by for example a visitor or member of the public, if the employer failed to take such steps as would have been reasonably practicable to prevent the third party from doing so, if the employer knows that person has been harassed in the course of their employment on at least 2 other occasions (not necessarily by the same third party).

Pay Secrecy clauses and Equal Pay

Any provision in an employment contract, which prevents disclosure of a pay differential, is unenforceable if the disclosure is made for the purpose of finding out whether a pay difference is connected to a particular characteristic

Changes to Disability Discrimination

The definition of disability has been simplified to cover someone who has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Whereas previous case law meant that a person who complained of discrimination because of their disability had to compare themselves with a non disabled employee in the same situation, that is no longer required. It is unlawful to discriminate against a person for a reason which arises from their disability.

For example a disabled employee who is dismissed for having been off sick, does not have to show that a non disabled employee who has a similar sickness record would have been treated differently. It is enough for the employee to show the treatment was for a reason connected to their disability, to establish that the discrimination may be unlawful if the employer cannot justify it.

To defend a claim of disability discrimination an employer must show that the treatment complained of was “a proportionate means of achieving a legitimate aim.”

It is now possible to “indirectly discriminate” against a disabled person.

Points for action

We can help you with any of the following suggestions for further action

  • Revise and update your Equal Opportunities Policy
  • Review any questions you ask about a job candidate’s health as part of your recruitment procedure
  • Pay careful attention to any complaints your staff might raise about treatment they receive from customers, or other members of the public they encounter in the course of their employment, and take action to deal with any problems to avoid a potential claim for “third party harassment” by one of your staff.
  • The widening scope for discrimination claims underlines the importance of following correct procedures when taking any action (including disciplinary and dismissal) in relation to a member of staff. Even when dealing with employees with under a year’s employment, following correct procedures will help you demonstrate the real reason for your action to defend against any unwarranted accusation of unlawful discrimination
  • When dealing with any problems with staff in relation to lateness or attendance issues, or any problems between staff, ensure you are alert to any potential “discrimination” issues which might be connected to staff’s family or friends as well as the individuals themselves.
  • Consider introducing comprehensive Diversity Policies and procedures, with  training for staff to ensure you do everything you can reasonably be expected to do to prevent unlawful discrimination. This provides a defence to a claim that the employer should be liable for the discriminatory act of one of its employees.
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