News Items

To read the latest news read on....

New ACAS Guide - Mental health: we need to talk (news date: 20 April 2012)

One in four of us will suffer mental health problems during our lives.

 

Acas has teamed up with the NHS's Mindful Employer initiative, a leading authority on managing mental health at work, to develop guidance designed to help employers to:

·     Tackle the stigma around mental health.

·     Focus on the practical things you can do to help

·     Develop solutions by listening.

 

 Increase in National Minimum Wage Rates (news date: 19 March 2012)

The Government has announced that the National Minimum Wage rates will only increase for adults and apprentices on 1 October 2012.

 

Adult rate will rise by 11p to £6.19 per hour

18 to 20-year-olds rate will remain at £4.98 per hour

16 to 17-year-olds rate will remain at £3.68 per hour

Apprentices’ rate will rise by 5p to £2.65 per hour.

 

Queen’s Diamond Jubilee –additional bank holiday Tuesday 5th June 2012 (news date: 19 March 2012)

 

There is no statutory right to any bank or public holiday, so an employee will not automatically receive an increase in holiday entitlement.

 

Who is entitled to an extra day off? It is dependent on the employment contract and the discretion of their employer. 

 

Employers who need advice can call the Acas National Helpline on 08457 47 47 47.

 

 

THE COURT OF APPEAL GIVES GUIDANCE ON DISMISSALS (THAT IMPACT ON CAREERS), SUSPENSION AND POLICE INVOLVEMENT (news date: 2 March 2012)

 

This is a very significant case - the Court of Appeal has considered some of the most tricky issues facing social care and health employers. The case considers

1. the level of investigation required for gross misconduct cases
2. the disciplinary procedure and how appeal hearings are conducted
3. suspension decisions
4. referring allegations to the police

 

SIGNIFICANT POINTS

If an individual’s reputation or their ability to work in their chosen career is at stake, it is 'particularly important' that an investigation and the disciplinary process is fair and it is correct that employment tribunals are allowed to look 'particularly carefully' at these. 

 

The appeal is not only an opportunity for the employee, it represents an opportunity for Employers to correct any procedural defects. In this case the investigation and the disciplinary hearing were not corrected at the appeal, which was only a review of the disciplinary hearing and not a re-hearing.
 

Suspending an employee should be considered very carefully and not be an automatic reaction as soon as a complaint of misconduct is made. 
 

Employers should only refer allegations of misconduct to the police after 'the most careful consideration'.

 

ACTION POINTS

·        Employers should ensure all those who have responsible for disciplinary matters are made aware of this.

·        Consider making amendments to your procedures

 

N.B Court of Appeal decisions are used when considering other cases

 

THE CASE IN MORE DETAIL

Crawford and another v Suffolk Mental Health Partnership NHS Trust

 

Crawford and Preston were both nurses employed by the Suffolk Mental Health Partnership NHS Trust.   They worked with patients suffering from depression, anxiety and dementia. 

 

It was reported to the Ward Manager that she had seen a patient being restrained by being tied to a chair with a sheet.  Both Crawford and Preston were suspended for "alleged assault". 

 

The Trust then referred the alleged incident to the police.  A month later, the police informed the Trust that they were not going to take any further action.

After several months of investigation, Crawford and Preston were invited to attend a disciplinary hearing. At the hearing, Crawford and Preston accepted they tied the patient's chair to the table but denied tying the patient to the chair. Crawford explained that they had wrapped the sheet around the patient's chair to make him feel like he was in bed, and not with the intention of restraining him.  To test this explanation, the Manager and a senior HR advisor experimented with wrapping the sheet around someone sat in the relevant chair and did not believe it could be wrapped in the way explained.  Importantly neither Crawford nor her representative were informed that this experiment was being undertaken.  Crawford and Preston were dismissed for assault, negligence and professional misconduct. 

 

The appeal panel reviewed the decision to determine whether it was fair and reasonable.  It was not a re-hearing and no witnesses were called.  The appeal panel upheld the decision to dismiss.

 

Crawford and Preston brought claims of unfair dismissal to an Employment Tribunal, who concluded that their dismissals were procedurally unfair. 

 

The Trust appealed to the Employment Appeal Tribunal (EAT) who overturned the Tribunal's finding of unfair dismissal on the basis that the Tribunal had substituted its own view for that of the employer.  Crawford and Preston appealed.

 

The Court of Appeal upheld their appeal and restored the original Employment Tribunal's finding of unfair dismissal.  The Court stated the Tribunal had not substituted its own view for that of the employer, and given that the ability of Mrs Crawford and Mr Preston to pursue their chosen careers was at stake, the Employment Tribunal had been entitled to "look particularly carefully at the (disciplinary) procedures".

 

In the Court's view, it was open to the Tribunal to conclude that the experiment carried out by the Service Manager was an unfair procedure.  The Tribunal had been entitled to conclude that it was a key part of the evidence relied upon and it would have been very easy for Crawford and her representative to be present and demonstrate what she claimed had occurred. 

 

The Tribunal was also entitled to conclude that the failure to obtain the first witness statement by the nurse who reported the incident and make it available to Crawford and Preston was a failure which a reasonable employer would not have made. 

 

The Court of Appeal disagreed with the EAT's finding that these procedural defects were corrected at the appeal hearing and it is the employer's responsibility to ensure that a fair procedure is adopted. 

 

Although the issue of suspension was not part of the appeal, the Court went on to comment on the suspension of employees in conduct cases and the Trust's decision to refer the matter to the police.

 

In the Courts view, suspension appears to be an "almost automatic response" of employers to allegations of misconduct.  The Court referred to the case of Gogay v Hertfordshire County Council (2000) that even where there is evidence supporting an investigation that does not mean that suspension is automatically justified.  Suspension should not be a "knee-jerk reaction" and will be a breach of the duty of trust and confidence towards the employee if it is.  In this case the decision to suspend was not automatic and was given consideration by the Trust.

 

The Court was critical of the Trust's decision to refer the matter to the police, and stated it as "little short of astonishing".  Employers should not subject employees to the "heavy burden" of possible criminal proceedings without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify "criminal" being applied to the employee's conduct.  In the Court’s view "the police should never have been involved" in Crawford and Preston's case. 

 

DISMISSAL and ILL HEALTH and LENGTH OF SERVICE (news date: 3 February 2012)

 

Dundee City Council v Sharp [2011] UKEATS/0009/11

 

This Employment Appeal Tribunal decision is useful for Employers who may be considering dismissing an employee due to long term health issues.

 

Case details:

Mr Sharp worked for Dundee City Council for 35 years.

He was absent for more than 12 months suffering from depression and anxiety. He was dismissed,

He received counselling support, was assessed by an occupational health service, which reported to the council.

The council met Mr Sharp regularly to review his progress.

 

In August 2009, at a review meeting, the council gave Mr Sharp a letter which stated that if he did not return by 14 September 2009 (the date his latest GP certificate was due to expire) he would be at risk of dismissal.

 

A short time after this, the occupational health physician reported that his health was improving and stated that he should be able to return to work within the next one to three months.

 

Mr Sharp did not return by 14 September 2009 and at the next review meeting Mr Sharp said he was still unwell and not ready to return.

 

The council decided to dismiss him as it considered there was no prospect of him returning. Mr Sharp appealed (unsuccessfully) but he was still not fit to return.

 

The Employment Tribunal

A tribunal held his dismissal was procedurally unfair and said the Council had:

·        made assumptions based on Mr Sharp's understanding of his condition when it should have sought further medical advice

·        proceeded without “all the relevant facts”

·        not taken into account his length of service which meant that further investigation was required.

 

The Employment Appeal Tribunal

The EAT found in favour of the Council. Its findings were:

·        Tribunal had imposed on the council a higher duty of investigation than the law required. In order to carry out a reasonable investigation the employer should consult with the employee and inform itself about the employee's true medical position in order to reach a reasonable view as to whether it can be expected to wait longer before deciding whether to dismiss.

·        The Council could take into account what Mr Sharp said about his health. There is no requirement for an employer to seek and obtain “all relevant facts” before a dismissal can be fair. There is no higher standard of enquiry required than in a misconduct case, nor any particular procedures to be carried out, and ultimately the decision to dismiss is a management one rather than a medical one.

·        The tribunal had also been wrongly influenced by the employee's length of service, which was not relevant to the assessment of his state of health.

 

This case will now be considered by a new tribunal.

 

Action Points for Employers

·        Medical advice should always be sought but ultimately the decision to dismiss is a management decision which should be shaped by the medical advice.

·        Investigation is necessary but length of service is not a relevant consideration when carrying out an investigation into the state of an employee's health. You are not obliged to carry out a more detailed investigation for a long-serving employee or, conversely, carry out an inferior investigation for an employee whose length of service is short.

·        However, length of service is relevant to the reasonableness of an employer's decision to dismiss.

·        Always write to employee’s warning them their continue employment is at risk and comply with your procedures (e.g. right to representation etc)

·        Remember if the reason for absence is related to a disability, there may be disability discrimination considerations.

 

DISMISSAL and REINSTATEMENT (News date: 2 February 2012)

 

Barlow v Ranc Care Homes Ltd (2011) Employment Tribunal Case

 

Barlow was a healthcare assistant and she also had another job working for an agency.

 

Barlow was accused of failing to take care of a resident (December 2009), and was suspended pending an investigation into potential gross misconduct. Ranc Care Homes undertook two investigatory meetings in January and February 2010, after which there was no communication.

 

Then in April 2010, Barlow was required to attend a further meeting to discuss “further issues of concern”. The company alleged that she had undertaken paid work elsewhere during the course of her suspension with the company, and this was in breach of her contract and care standards, and was a “further gross breach of trust”.

 

Barlow was dismissed for reason of the further allegation alone.

 

Barlow made a claim to the Employment Tribunal of unfair dismissal and asked for reinstatement as a remedy.

 

The Employment Tribunal found the dismissal to have been fundamentally flawed and unfair.

 

They found there was no contractual provision preventing the claimant from having other employment. The employee handbook did impose a requirement that employees considering additional employment “must notify us so that we can discuss any implications arising from the current Working Time legislation”. Barlow stated that this document had never been supplied to her at any time and the Employer could not produce any evidence to counter this. The Employer had not made any investigation into this issue as part of the disciplinary process. In addition, the employee handbook suggested that a breach of the obligation to notify the respondent would be dealt with under the rules covering unsatisfactory conduct and misconduct, NOT gross misconduct.

The Employer was found liable for unfair dismissal.

 

The Employer then tried to argue against reinstatement on the basis that earlier conduct on the part of the claimant, including conduct for which an informal warning had been given in 2009, showed that she had contributed to her dismissal. The tribunal held that this was irrelevant. There was no evidence of any repeat of the conduct, so the advisory letter which had referred to the informal warning would appear to have addressed any concerns that the respondent might have had at that time.

 

The Employment Tribunal noted its surprise that the respondent had not sought to rely on the “failing to take care of residents” allegations that Barlow had originally been suspended, and so the tribunal concludes that these allegations had absolutely no foundation and were not being proceeded with as conduct issues. More importantly, the tribunal noted that these matters had not been escalated to any regulatory or professional body.

 

The tribunal concluded that there was no consistent evidence before it of conduct which could be viewed as contributory fault. And as the Employer had shown no reason why it was impracticable, the Tribunal stated that it believed that reinstatement was the appropriate remedy.  The tribunal also noted the damage done to the claimant’s career and credibility by having unsubstantiated allegations hanging over her without resolution, and suggested that the only way that this could be corrected was by her having her job reinstated to her, which made reinstatement appropriate in this case.

 

ACTION POINTS FOR EMPLOYERS

This case raises a number of important points that Employers may wish to consider.

 

Disciplinary Procedures

·        Follow Your Procedures and make sure you communicate when a matter has been concluded

·        Investigate concerns thoroughly – required explicitly by the ACAS code which will be taken into account by Employment Tribunals

·        Referral to the Independent Safeguarding Authority (ISA) should be an integral part of your policy to make sure it is automatically considered. Example wording “Referral to Independent Safeguarding Authority and Local Safeguarding Arrangements. XXX will follow local safeguarding arrangements and also make referrals to the Independent Safeguarding Authority as required by the current guidance.  This may include a referral where it has not been possible to take disciplinary action because of resignation.”

Policies and Procedures

• Make sure employees have access to key policies and procedures and that you can document that they have seen and understood them.

 

 

CONSULTATION: Introduction of Fees for Employment Tribunals (news date:23 January 2012)

 

The Ministry of Justice has information on its website about the Government’s plans to lower the £84 million cost to the taxpayer, and relieve pressure on businesses, through the introduction of fees for employment tribunals.

 

The consultation will put forward two options for consideration:

 

Option 1: an initial fee of between £150-£250 for a claimant to begin a claim, with an additional fee of between £250-£1250 if the claim goes to a hearing, with no limit to the maximum award; or

Option 2: a single fee of between £200-£600 – but this would limit the maximum award to £30,000 – with the option of an additional fee of £1,750 for those who seek awards above this amount.

 

In both options the tribunal would be given the power to order the unsuccessful party to reimburse fees paid by the successful party.

 

If you want to contribute to the consultation then please visit the Ministry of Justice website as it is only by small Employers taking the time to comment that valid points can be considered.

 

The consultation will close in March 2012.

 

http://www.justice.gov.uk/news/press-releases/moj/newsrelease141211a.htm

GOVERNMENT ANNOUNCES FURTHER EMPLOYMENT LAW REFORMS (News Date: 5 December 2011)

Further reforms to employment law have been announced, these are set below:

 

FINANCIAL PENALTIES FOR EMPLOYERS WHO LOSE AN EMPLOYMENT TRIBUNAL CLAIM
Originally the Government proposed that Employment Tribunals would automatically order employers who had lost an Employment Tribunal claim to pay a financial penalty to the Exchequer (not the employee/claimant). 

 

This payment would be in addition to the payment of compensation to the employee/claimant. 

 

The Government in its response to the Resolving Workplace Disputes consultation has confirmed its intention to implement this proposal. 

 

However the penalty will now not be automatic but instead Employment Tribunal Judges will be given discretionary powers to impose the penalty where an employer has acted unreasonably.  The amount of the financial penalty will be half the amount of total compensation awarded to the employee/claimant, with a minimum threshold of £100 and an upper ceiling of £5,000 with a reduction for prompt payment!

 

Implications – It will be important for Employers to act and to be able to demonstrate they have acted reasonably.  Ensure you keep records of any conversations; meetings etc so you have the evidence to demonstrate you have acted reasonably in the circumstances.

 

MEDIATION

A 'long term reform programme' to encourage the use of mediation to resolve workplace disputes, including a major pilot mediation scheme and funding for a training scheme for mediators who will be able to provide a low cost mediation service through local mediation networks.

 

REFORM OF EMPLOYMENT TRIBUNALS
This involves a number of changes to the current system including:

 - Increase in the limit for deposit orders from £500 to £1,000.
 - Increase in the limit for costs awards from £10,000 to £20,000.
- Witness statements to be taken as read (i.e. witnesses will not read them out at the Tribunal hearing) unless an Employment Judge directs otherwise.
- Employment Judges allowed to hear unfair dismissal cases alone (unless they direct otherwise) and Employment Appeal Tribunal Judges to always sit alone unless they direct lay members should be involved.

 

GOVERNMENT ANNOUNCES THE MOST RADICAL REFORMS TO EMPLOYMENT LAW FOR DECADES (News Date: 24 November 2011)

The Business Secretary Vince Cable has announced a number of radical changes to employment law and the current Employment Tribunal system. Vince Cable said:

“Our labour market is already one of the most flexible in the world. This flexibility benefits businesses, staff and the wider economy. But many employers still feel that employment law is a barrier to growing their business.

“We’re knocking down that barrier today - getting the state out of the way, making it easier for businesses to take on staff and improving the process for when staff have to be let go."

Implications for Employers

 

The main proposed changes are set out below; however Employers should be aware that at this stage many of the changes are still at a formative stage and subject to consultation. Some of these changes will require the Government to introduce primary legislation which will be subject to the Parliamentary timetable

 

UNFAIR DISMISSAL (April 2012)

Increase the qualification period for employees to claim unfair dismissal from 1 year to 2 years.

In response to the suggestion that dismissal laws are too onerous for small businesses in particular, the Government will launch a call for evidence on two proposals.

1. Introduce compensated no fault dismissal for micro firms, with fewer than 10 employees.

2. Look at ways to slim down existing dismissal processes, how they might be simplified, including potentially working with the Advisory, Conciliation and Arbitration Service (ACAS) to make changes to their Code, or supplementary guidance for small businesses.

Vince Cable said:
“We know that disputes at work cost time and money, reduce productivity and can distract employers from the day-to-day running of their business. Tribunals should be a last resort for workplace problems which is why we want disputes to be solved in other ways.”

 

CRB CHECKS
From 2013 CRB checks will be universally portable and available and accessible on-line for employers to view – this is excellent news for the social care sector.

PROTECTED CONVERSATIONS

In 2012 the Government will consult on their proposals for introducing a system of 'protected conversations' which will enable employers to raise issues such as poor performance or retirement plans without the worry that it will be used as evidence in a subsequent Tribunal claim.

TUPE

(Transfer of Undertakings (Protection of Employment)  The government will be seeking views on simplifying the  TUPE  rules, which many businesses state are too complex and bureaucratic, whilst at the same time ensuring workers rights are protected.

 

REDUNDANCY CONSULTATION

The government will be seeking views on whether the current 90 day minimum period of consultation for 100 or more redundancies can be reduced to 60, 45 or possibly even 30 days.

 

EMPLOYMENT TRIBUNALS

 

FEES - The Ministry of Justice is to commence a consultation on the introduction of fees for anyone who wishes to bring a claim to an Employment Tribunal.

 

PRE CONCILIATION

This will require all employment disputes to go to ACAS for pre-claim conciliation before going to an Employment Tribunal.

 

REVIEW OF ET RULES

The outgoing president of the Employment Appeal Tribunal Mr Justice Underhill has been appointed to undertake a 'root and branch' review of the rules governing Employment Tribunals. This review will look to address concerns that they have become increasingly complex and inefficient over time and are no longer fit for purpose.

 

RAPID RESOLUTION ALTERNATIVE?

Consider how and whether to develop a 'rapid resolution' scheme to provide a quicker and cheaper alternative to an Employment Tribunal hearing.  Any proposals drawn up will then be the subject of public consultation.

 

COMPROMISE > SETTLEMENT AGREEMENTS

A further consultation on measures to simplify compromise agreements, which will be renamed ‘settlement agreements’. A compromise agreement is a type of employment contract, which means when the working relationship has broken down to an irretrievable status, employees receive a negotiated financial sum to end their contract, and agree to not bring further claims against their employer.

 

NATIONAL MINIMUM WAGE
Simplifying the National Minimum Wage by merging 17 different regulations into a single consolidated set.

 

AGENCY WORKER DIRECTIVE
Review the implementation of the Agency Workers Directive in 2013

 

RECRUITMENT SECTOR

Consult in 2012 on streamlining and simplifying the current regulatory regime for the recruitment sector.

WHISTLEBLOWING
Close a 'loop hole' in the Public Interest Disclosure Act so employees are no longer able to blow the whistle about breaches to their own employment contracts.

 

HOLIDAYS AND SICKNESS: A NEW TWIST (news date: 11 November 2011)

An Employment Appeal Tribunal (EAT) has held that employees absent due to sickness must request holiday in accordance with Regulation 15 of the Working Time Regulations 1998 (WTR) in order to be entitled to receive holiday pay on termination of employment.

Case Ref: Mrs Fraser v Southwest London St George's Mental Health Trust

This is a new twist in the area of sickness and holidays, and is unexpected given that another EAT held in July that employees who are off sick do not need to formally request holiday under Regulation 15 in order to be entitled to a payment for that accrued holiday on termination of employment.

 

Implications for Employers

There are now two conflicting decisions by the EAT.

It will now require a ruling from the Court of Appeal to conclude this issue.

 

Option 1 (“Safe” but more costly)

Follow the July EAT decision

1. Allow all employees who are on long-term sickness absence to accrue and carry over their statutory holiday from one holiday year to the next, irrespective of whether they formally request to take their statutory holiday during their sickness absence
2. Pay that accrued carried over holiday, on termination of employment.

 

Option 2 ( Less costly but some risk)

Follow this recent decision

1. Require employees to request holiday whilst off sick to be entitled to carry it over to the next holiday year
2. If an employee fails to request, they will lose their statutory holiday entitlement at the end of that holiday year (and as a consequence cannot be paid for it on termination of their employment). 

This option does carry the risk that an employee may still be able to successfully argue at an Employment Tribunal that this breaches the Working Time Regulations.

  

 

 

 

Government announces increase in qualifying period to claim unfair dismissal (news date: 5 October 2011)

 

The Chancellor George Osborne has announced in a speech at the Conservative Party conference that the qualifying period for the right to claim unfair dismissal will be increased from 1 year to 2 years on 6 April 2012.  Claimants will also have to pay a fee for lodging a claim at an Employment Tribunal.

 

IMPLICATIONS FOR EMPLOYERS

 

Qualifying Service

Currently the qualifying period of employment for employees to be able to bring an unfair dismissal claim is one year.

However for discrimination claims, there is no service requirement and this will remain unchanged.

So whilst some Employers will welcome this change, Employers must be aware of the importance of following good practice to avoid the need for employees to make a claim.

 

Fees to Lodge a Claim (anticipated change date 2013)

The fees to be charged for lodging an Employment Tribunal claim will apply to all types of claims including discrimination.

 

It is anticipated that fees for lodging an Employment Tribunal claim will be introduced in 2013. It is expected that the level of fees for claimants (which is expected to be the subject of consultation) could be as follows:

• between £100 and £250 to lodge a claim
• further fee of £1,000 when the case is listed for a hearing. 
• higher fees could apply if the claim is for more than £30,000. 
• fees will be refunded to the claimant if they win. 
• suggestion fees could be waived or reduced for those on a low income or without an income.

 

This website will be updated when further information becomes available.

 

 

 Dismissal: Range of Reasonable Responses (News date: 23 September 2011)

 

Whilst this case involves HGV drivers, it is relevant for all Employers.

 

Wincanton plc v Atkinson and another [2011] UKEAT/0040/11

 

Case Facts:

The two claimants who had 19 and 9 years’ service were both drivers of heavy goods vehicles.  As well as their HGV licences, they also needed a dangerous loads licence. HGV drivers aged 45 and over need to apply for renewal of their licences and undergo a medical every five years, or the licence will automatically expire.

 

The Employer checked licences every 6 months but employees were responsible for renewing licences. A routine check found that the employee’s licences had expired.

 

The Employer dismissed both claimants summarily for gross misconduct because of the potential consequences (i.e. put insurance cover in jeopardy and action from regulator).

 

The drivers both appealed which were rejected.

 

Tribunal Decision:

The tribunal found that the dismissals were unfair on the basis that no reasonable employer could reach the decision that this employer had reached. The Tribunal described the potential consequences as stated by the Employer as “almost entirely hypothetical” as none of the consequences came to light.

 

The tribunal found the dismissals unfair, but reduced awards by 60% for contributory fault.

 

Employment Appeal Tribunal Decision:

The EAT found that the tribunal had erred in law by stating that as none of the potential adverse consequences happened, the employees should not have been dismissed. If you followed this rationale, nobody who acted negligently could be fairly dismissed if the illegal act had no repercussions for the employer.

 

The EAT therefore found the dismissals to be within the range of reasonable responses the employer could make, and, consequently, fair.

 

Relevance for Employers

·        Employers are entitled to take account of serious adverse consequences that might arise from their employees’ actions.

·        Employers are not prevented from fairly dismissing an employee just because those consequences do not materialise.

 

Action Points for Employers

1. Ensure Managers who are responsible for dismissal decisions are aware of this case.
2.  On a practical level, ensure employees who drive company cars or use their own cars for business use (especially if they drive other employees or clients) have a current valid driving licence and supporting documents (i.e. appropriate level of insurance cover and that vehicle is taxed.) You should make regular checks and ideally every travelling expenses form that an employee submits should include a reminder of employee’s responsibilities. An Example is given below.

 

Example Wording for Expenses Forms

I certify that the details on this expenses form are correct and that the expenses I have claimed were necessarily incurred whilst on (Name of Company) business.  Where mileage is claimed, I also confirm that the vehicle used by me had a current tax disc and MOT certificate (where appropriate) and that I am in possession of a valid driving licence, and was covered by an insurance policy for use on company business that indemnifies (Name of Company) against any third party claims.  (Note documentation will be checked on a periodic basis.)

   

Case Law - Imposing Pay Cuts (news date:19 September 2011)

 

A recent Employment Appeal Tribunal case (Garside and Laycock Ltd v Booth [2011] UKEAT/0003/11) has found that it was reasonable for an employer who was experiencing trading difficulties (albeit not at a critical point), to impose a 5% pay cut.

 

This decision is a helpful case for Employers given the current economic climate, with many needing to reduce costs to keep trading.

What this case confirms:

·        an Employer does not need to be in a desperate financial situation before it can lawfully make a change to terms and conditions

·        the focus is whether the employer’s decision is reasonable in all the circumstances and not whether an employee’s refusal to agree is reasonable.

 

Employers should still remember to consult fully with staff regarding any changes and ideally to try and obtain their written consent.

 

 

Carrying Over Holiday After Sickness (news date: 8 September 2011)

 

An Employment Appeal Tribunal (EAT) case has found that where an employee is off work due to sickness for the whole of the holiday year, that they do not need to request to take their holiday (in the normal way) in order for the holiday to be carried over to the next holiday or to be paid that accrued holiday on termination of employment. That is because they are presumed not to be well enough to exercise their statutory right to take their holiday.

 

This decision applies to the 28 days statutory holiday under the Working Time Regulations (WTR).

 

Implications for Employers

This decision in favour of employees who are off sick for long periods has financial and management implications for Employers.

1. Employers will have to keep a copy of statutory holiday entitlements for staff who are off sick so that it can be carried forward, or be paid to them on termination of employment.
2. Where staff return to work, Employers will need to carefully manage their time off to ensure they take all their holiday.
3. Staff whose  statutory or contractual sickness pay have expired and who are “left” and not managed, will continue to accrue statutory holiday until the contract if formally ended. Employers should however ensure that any dismissal is fair to avoid unfair dismissal claims (i.e. don’t terminate someone’s employment just to avoid paying holiday entitlement).

 

Case reference: NHS Leeds V Larner

   

NEW CODE OF PRACTICE for Employment (news date: 1 July 2011)

The Equality and Human Rights Commission (EHRC) has produced a new Code of Practice on Employment.

The Code of Practice explains the key employment issues that are contained in the Equality Act 2010 and how the legal concepts might be applied in practice.

The Codes help Employers and Tribunals/Courts to interpret the law and Managers who are responsible for employment issues would be well advised to read the Code.

DISCIPLINE and INTERNET USAGE (news date: 1 July 2011)

A recent Employment Tribunal decision (Birchall v Royal Birkdale Golf Club (2010) is typical of a growing number of number of disciplinary situations that involve the internet.

In this case an employee who was already on a final warning (which was for an different matter) was fairly dismissed for just over three hours of personal internet use at work over a five-day period.

Action for Employers

1. Update Your Computer/ Internet and associated policies and communicate this to all employees, including the right to monitor usage.

2. Update your disciplinary policy to reflect the seriousness with which you will regard offences.

 

ISA Update

On February 11 2011 the Coalition Government published the findings of its Review into the Vetting and Barring Scheme.

Key recommendations from the VBS Review include:

- the merging of the Criminal Records Bureau (CRB) and Independent Safeguarding Authority (ISA) to form a streamlined new body providing a proportionate barring and criminal records checking service;

- a large reduction of the number of positions requiring checks to just those working most closely and regularly with children and vulnerable adults;

- portability of criminal records checks between jobs to cut down on needless bureaucracy;

- an end to a requirement for those working or volunteering with vulnerable groups to register with the VBS; and

- stopping employers who knowingly request criminal records checks on individuals who are not entitled to them.

This website will be updated when further information becomes available. You can also sign up to an email alert service.

POSSIBLE CHANGES TO MATERNITY LEAVE (news date: 31 January 2011)

The EU Parliament has agreed to amend the Pregnant Worker s Directive and two of the key areas that Employers should be aware of are

1. 20 Weeks Maternity Leave on Full Pay

2. Two weeks paid Paternity Leave

It still need to be approved by the EU Council and the UK government is opposing the amendments.

 

NEW SHARED PARENTAL LEAVE ARRANGEMENTS (Effective April 2011) (news date: 24 January 2011)

On 17 January 2011, the government announced its plans for a new system of flexible parental leave to help parents balance their work and family commitments, including the promotion of a system of shared maternity leave..

Consultation – in the next few weeks the government is expected to launch a consultation to explore proposals and to consider how to extend the right to request flexible working to all employees. The aim is to introduce changes in 2015.

Current Arrangements

· Employed mothers currently receive a long period of maternity leave and pay (52 weeks leave, 39 weeks pay).

· Employed fathers receive much less (2 paid weeks).

(subject to meeting conditions)

April 2011 – Additional Paternity Leave

As an interim measure, the Additional Paternity Leave regulations agreed by the last Government will remain in force. The regulations cover parents of children due on or after 3 April 2011.

Additional Paternity leave will give employed fathers a right to up to six months extra leave which can be taken once the mother has returned to work after 20 weeks.

Some of the leave may be paid if taken during the mother’s maternity pay period. This is paid at 90% of earnings up to the same standard rate as Statutory Maternity Pay (SMP) which is currently £124.88 per week (rising to £128.73 from April).

For more detailed information for Employers refer to the business link website, a brief summary is also given below:

For more information for Employees refer to the Direct Gov website.

Summary or Additional Paternity Leave April 2011

· Employees can start their additional paternity leave any time from 20 weeks after the child is born.

· The leave must have finished by the child's first birthday.

· A minimum of two weeks and a maximum of 26 continuous weeks' leave can be taken.

To qualify

For an employee to qualify for additional paternity leave they must:

· be the father of the baby and/or the husband or partner (including same-sex partner or civil partner) of a woman who is due to give birth on or after 3 April 2011 - a partner is someone who lives with the mother of the baby in an enduring family relationship but not an immediate relative

· have, or expect to have, the main responsibility for the baby's upbringing, apart from any responsibility of the mother

· have at least 26 weeks' continuous employment with you ending with the qualifying week - the 15th week before the expected week of childbirth

· continue to work for you from the qualifying week into the week before they wish to take additional paternity leave - weeks run Sunday to Saturday

· be taking the time off to care for the baby

· If their contract ends before leave starts they do not qualify for leave or pay - unless they go on to work for an associated employer.

· If a baby is due on or after 3 April 2011 but is born earlier, the employee is still entitled to additional paternity leave.

The baby's mother must also:

· be entitled to statutory maternity leave, statutory maternity pay or maternity allowance

· return to work at least two weeks after the child's birth, but with at least two weeks of unexpired statutory maternity leave entitlement remaining

· A return to work means the mother has resumed working. A period of annual, sick or parental leave directly after the maternity leave but during the mother's statutory maternity pay or maternity allowance period is not a return to work. However, once the mother has returned to work any subsequent period of leave does not affect entitlement to additional paternity leave or pay.

· You should treat the employee as having the necessary length of service if both the baby is born earlier than the qualifying week, and if the birth hadn't occurred early, the employee would have been employed continuously for the 26 weeks ending with the qualifying week

· Note: Multiple births - an employee can only get one period of additional paternity leave regardless of the number of children resulting from a single pregnancy.

 VETTING & BARRING SCHEME - UPDATE (news date: 3 November 2010)

The terms of reference for the review of the scheme have been agreed and recommendations are expected early next year. The review will also take account of the criminal records regime.

Question: Do Employers still have to make referrals to the ISA whilst the review is underway?

Answer: Yes. Existing duties to make referrals to the ISA remain in force.

Question: What is happening to ISA Adult First while all this is happening?

Answer: Access to the ISA Adult First service will continue. The ISA will maintain this service until the ultimate scope of the Scheme is finalised and alternative arrangements are in place.

 

Page last edited: 14 May 2012