Thursday 16 June 2011

Employment Law Update

DRA disappears after 1 Oct 2011 Last notice to retire – 5 Apr 2011 People in receipt of notice to retire – 3 months prior

to IRD to request working beyond IRD Max extension allowed under transitional

arrangement – 6 months Ahead – either EJRA or scrap retirement EJRA – proportionality the difficulty! [cont…]

1. Retirement

Capability and performance management – take care not to treat older workers differently to other workers – line managers key!

Appraisals/voluntary retirement plans

2. Retirement (cont)

Best Practice: Review/introduce robust capability and performance policies and procedures ensuring performance issues raised can be supported and is consistently applied across all workers

Carve out from age discrimination for insurance benefits New schedule 9, paragraph 14 Equality Act 2010 Applies to all insurance benefits but Breach of contract? Top ups not allowed Not apply to self-insuring employers (public sector)

3. Group Insurance Benefits and Age Discrimination

Best Practice: Review contractual position and amend where necessary, adopt strict approach that insurance benefits cease at 65 or review how you offer access to benefits, ie. flex-scheme

1 October 2011 37% unfamiliar AWR Employers guidance –

www.bis.gov.uk/assets/.../11-905-agency-workers-regulations-guidance.pdf

Agency workers supplied by TWA TWA = employment agencies as well as intermediaries such

as umbrella companies, not to self-employed, bank staff managed service contracts

Swedish derogation – excluded from AWR – those who are paid in between assignments by TWA, ie. permanently employed by TWA – certain conditions must be satisfied

4. Agency Workers Regulations 2010 (in brief)

Day one rights – on-site facilities, internal vacancies Week 12 rights – pay, holidays, rest breaks, some

bonuses, commission Not – company sick pay, maternity pay, redundancy pay Pensions – not under AWR, but 2012+ pension reform Comparator – “as if test” 12 week qualifying service – factors affect service

accruing Must be in same role with same hirer (not supplier) –

change in role breaks service

5. AWR – The Rights

6. AWR – Enforcement

Best Practice: Needs to be close relationship between TWA and hirer, with exchange of information at outset and regular reviews to ensure compliance with AWR.

Dismissal effective when employee reads letter – Gisda Syf v. Barratt (S/C 2010)

PILON alone is sufficient to terminate contract – Societe Generale v. Geys (CA 2011)

7. Termination Issues

Best Practice: Clarity is important to avoid disputes – verbally notify decision to dismiss, ensure personal delivery of dismissal letter (or both) and expressly confirm exercising PILON.

Specify exact allegations – Celebi v. Compass (EAT 2010) SOSR – not a disciplinary procedure as not conduct

(Ezsias v. North Glamorgan NHS Trust (EAT 2011) R (Shoesmith) v. Ofsted & Ors (CA 2011) – unlawful

directions procedurally unfair

8. Dismissal – Procedural Points

Best Practice: Although SOSR not conduct, advisable to follow principles of natural justice, key to ensure no misunderstanding on facts. Clearly state allegations of misconduct and cross-refer to policies, procedures and disciplinary examples.

Reasonableness of previous warnings – Davies v. Sandwell Metropolitan BC (EAT 2011)

Lewd comment dismissal – context and surrounding circumstances relevant - Bowater v. NW London Hospitals NHS (CA 2011)

Dismissal with notice can be fair – Weston Recovery Services v. Fisher EAT 2010

9. Dismissal – Reasonableness

Best Practice: Most common reason for dismissal to be unfair is test of “reasonableness”, so take care to ensure dismissal is within range of reasonable responses of reasonable employer taking away subjective opinion.

Fair dismissal – offensive email sent from home computer to another personal computer – Gosden v. Lifeline Project Ltd (ET 2011)

Fair dismissal – inappropriate comments on Facebook – Preece v. JD Wetherspoons Plc (ET 2010)

10. Social Media & Misconduct

Best Practice: Employers should put in place policy covering conduct outside workplace including use of social media, which warns of risk of dismissal where company or staff are brought into disrepute or where evidence of bullying or discrimination.

Reason for dismissal held to be for refusal to sign a late form, lateness being caused by childcare issues – automatically unfair under s99 ERA 1996

Pressure to sign late form and deduction of pay – detriment under s47C ERA 1996

Clarke v. Credit Resource Solutions 2010

11. Time off to Care for Dependants

Best Practice: Exercise caution when dealing with disciplinary or capability issues which emanate from exercising right to time off to care for dependants.

Duty of care exists to former employee in the provision of a reference (Spring v. Guardian Assurance 1995)

Statement made by former employer 6 years later resulted in dismissal of individual in current employment

McKie v. Swindon College 2011

12. Negligent (Non-Reference) Statements

Best Practice: If you have nothing good to say, don’t say anything at all! All communications in relation to former employees should be approved by HR.

Common in capability issues – malingering/exaggeration

Pacey v. Caterpillar Logistics Services (UK) Ltd

13. Surveillance Evidence and Dismissal

Best Practice: Where surveillance evidence obtained and relevant to absence issues, don’t reach own conclusions but seek medical input and follow fair procedure.

Worker on day release to college Receiving on job training Individual learning plan Contract of apprenticeship, not standard

employment Contract – Chassis & Cab Specialists Ltd v. Lee (EAT 2010)

Distinction important

14. Apprenticeships

Best Practice: Identify clearly at outset nature of contract to avoid later mistake/uncertainty.

Violates dignity or creates intimidating, offensive or hostile environment for complainant

Subjective test – feelings of complainant relevant and whether reasonable to feel as such

Complainant’s own past behaviour such that not reasonable for him to feel way he did – Thomas Sanderson Blinds v. English

15. Harassment

Best Practice: Best line of defence is attack – where complaint of conduct has substance, consider whether reasonable for complainant to conclude environment offensive.

Eversheds v. De Belin (EAT 2011) Notional score awarded to employee on maternity leave

indirect discrimination Obligation to protect employees on maternity leave

under s2(2) SDA 1975, limited to reasonably necessary treatment, ie. proportionate

Disproportionate maternity benefits are discriminatory towards men

16. Discriminatory Selection Criteria

Best Practice: Review carefully redundancy criteria and scoring to ensure non-discriminatory.

Offering ill health retirement not within scope (Tameside Hospital NHS Trust v. Mylott) (nb. consider issue of fairness of dismissal?)

Expensive adjustments not reasonable (Cordell v. Foreign & Commonwealth Office (2011))

Practical effect of RA to remedy disadvantage suffered – no sick pay in line with policy not failure (RBS v. Ashton (2011))

17. Disability – Reasonable Adjustments

Best Practice RAs key to disability discrimination legislation – consider effectiveness in remedying disadvantage, its practicality and cost against your financial resources, size and external support.

Kurumuth v. NHS Trust North Middlesex University Hospital (EAT 2011)

Uncertainty over right to work in UK was fair reason to dismiss

Reasonable – proper enquiries made

18. Immigration Status and Dismissal

Best Practice: Financial penalties and possible prosecutions for employing individuals who do not have right to work in UK. Right to work should be checked at outset when employment commences and reviewed regularly.

Implementation 1 July 2011 Corporate offence – failing to prevent within organisation Statutory defence Defence will require anti-corruption procedures Applies to conduct abroad as long as carries on

business in UK Guidance published on “adequate procedures”

19. Bribery Act 2010

Best Practice: Consider need for anti-corruption/bribery policies and review your whistle-blowing, expenses, corporate hospitality and disciplinary procedures.

Cherfi v. G4S Security Services Ltd (EAT 2010)- refusal to leave site on Fridays to attend prayers justified- PCP – proportionate means of achieving a legitimate aim- indicated that Woodcock v. Cumbria Primary Care Trust 2011 “correct” – cost alone!- “proportionality” – employer had tried to mitigate impact of PCP – prayer room onsite, offered work on other days

20. Let Us Pray!

Best Practice: Impossible to apply a standalone policy on “attending prayers” as each matter is fact sensitive regarding nature of job, hours of work and commercial pressures

Burns v. Santander UK Plc Job kept open but stopped wages Claim for unlawful deduction of wages Argued ready and willing to work but “unavoidably

prevented from doing so” Held – being remanded in custody was “avoidable” –

not entitled to wages

21. In Prison – Entitled to Pay?

Best Practice: Make express provision for entitlement to wages to automatically cease when remanded in custody

Taylors SolicitorsEmployment Team

Oliver McCann – Elaine Hurn

Rawlings HouseExchange Street

BLACKBURNBB1 7JN

Ninth Floor80 Mosley StreetMANCHESTER

M2 3FX

Tel: 0844 8000 263www.taylors.com