Free Employment Bulletins
13.01.12 An Employee on sick leave must request annual leave to receive payment.
In the recent case of Fraser v Southwest London St George’s Mental Health Trust it was decided that an employee who is absent due to long term sickness must actively request annual leave in accordance with Regulation 15 of the Working Time Regulations 1998 to be entitled to receive payment for this period.
Case law has made it clear that holiday entitlement continues to accrue even where the employee is on long term sick leave. Therefore an employee who is off sick would still be entitled to take and be paid for their 5.6 week statutory holiday entitlement.
However, in previous cases it was suggested that the requirement to request annual leave should not apply to workers who are off sick as it might appear somewhat artificial for an employee who is not at work to have to give notice for part of the absence to count as holiday.
The Fraser case provides some welcome relief for employers with employees on long term sick leave as it also establishes that there is no implied contractual duty on an employer to inform staff of their right to request statutory holiday leave whilst on long term sickness.
KBL are able to provide further advice and assistance to businesses that have employees who are absent due to long term sickness, both relation to annual leave and also any other issues that may arise.
06.01.12 New Compensation Limits
As of 1 February 2012 there will be an increase in the limits placed upon certain Employment Tribunal awards and other amounts payable under Employment Legislation.
The main changes are as follows:-
. Increase on the cap for a week’s pay for the purposes of calculating a statutory redundancy payment from £400.00 to £430.00.
. Maximum compensatory award for unfair dismissal increases from £68,400.00 to £72,300.00.
. Guaranteed pay in relation to lay off periods and short term working increases from £22.20 per day to £23.50 per day.
. The minimum basic award in cases where dismissals are unfair by virtue of health and safety, being an employee representative or trade union/occupational pension trustee reasons will increase from £5,000.00 to £5,300.00.
The new rates apply where the event giving rise to compensation or payment occurs on or after 1 February 2012.
22.12.11 The Office Christmas Party
If you’re having one this year, the Employment Team 'hopes it’s a good one'.
However, many employers have decided not to have their normal Christmas Party but have instead arranged (or contributed in some way) to a 'Work Christmas Night-out'. The employer may still be liable (in law) for any inappropriate employee behaviour that takes place on such a night out.
If your business needs confidential and/or urgent advice about these issues, please do not hesitate to contact us.
15.12.11 New Statutory Payment Rates
New Rates of Statutory Maternity Pay and Sick Pay Announced
The Minister of State for the Department for Work and Pensions has recently announced the proposed new rates for statutory sick pay and statutory maternity, paternity and adoption pay.
The new rates are expected to come into force on 9 April 2012.
Statutory Maternity, Paternity, Additional Paternity, Adoption Pay and Maternity Allowance will increase from £128.73 to £135.45, whilst Statutory Sick Pay will increase from £81.60 to £85.85.
10.10.11 Annual Tribunal Stats Reviewed
The Employment Tribunal Service has issued its statistics for the year 2010 – 2011.
The report shows that there has been an 8% drop in claims received by the Tribunal Service when compared to the previous year.
Interestingly, whilst the number of unfair dismissal and redundancy pay claims has reduced slightly, claims in relation to the Part Time Workers (Prevention of Less Favourable Treatment) Regulations have increased three fold. Further, claims in relation to age discrimination have increased by 32%.
The statistics have also calculated the median award made in relation to claims. The median award for an unfair dismissal claim was calculated as being £4,591.00. Median discrimination claims (excluding age) were approximately £5,000.00 - £6,500.00, whereas age discrimination claims were £12,697.00.
The highest award in relation to an unfair dismissal claim in the year 2010 – 2011 was £181,754.00. This is likely to be a dismissal that was as a result of a whistle blowing or health and safety issue. The highest award for sex discrimination was £289,167.00.
It is possible that the number of unfair dismissal and redundancy claims have slightly decreased as a result of an improving economic climate. This reduction should be seen in the context of a significant increase in claims in the years 2009 – 2010 where claims increased by 56% due to a mixture of increased multiple claims and economic factors.
The median award statistics evidence what a significant and potentially devastating impact a claim can have on a business. KBL are able to assist your business both with minimising the chances of a claim being received by an employee and also limiting the damage a claim can have on a business once issued.
01.09.11 Compulsory Retirement Guidance
European Court of Justice Provides Guidance on Justifying a Compulsory Retirement Age.
As reported in our July 2010 bulletin, it is no longer possible for employers in the UK to compulsorily retire employees at 65 (or any other particular age), unless the employer is able to justify that particular retirement age based on the specific facts.
The European Court of Justice (ECJ) has recently provided guidance on the justification of compulsory retirement ages and identified what may amount to a justification under the EU Framework Directive on Equal Treatment.
The ECJ decided that a provision contained within German law, specifying a retirement age of 65 for permanent civil servant prosecutors, was capable of justification.
The ECJ recognised that the legitimate aims of establishing a balanced age structure within the workforce, encouraging the recruitment and promotion of younger people and avoiding performance disputes with older workers, were legitimate social policy aims that were being pursued by the employer by appropriate means.
Additionally the ECJ stated that courts were entitled to take cost considerations into account when assessing justification, however, the desire to achieve a cost saving cannot on its own constitute a legitimate aim capable of justifying a specific retirement age.
Clearly this decision is very "pro-employer", however, is it likely that this case in particular may be one which is restricted to its own facts. In this case a number of facts were unique to the particular business, for example, the number of prosecutor posts was very limited and the employees were entitled to fairly unique and generous pension benefit whereby the employees could retire on a percentage of their salary and continue to work in another role without a compulsory retirement age.
Had this not been the case, the outcome may have been different.
Clearly, this is an area of law which is currently in a state of flux and therefore poses a high risk for employers who are contemplating retiring employees. KBL are able to provide advice and assistance in respect of the new retirement regime in a bid to reduce any potential risk of claims against the business following the retirement.
18.08.11 The Employment Appeal Tribunal recently handed down a decision in the case of NHS Leeds -v- Larner...
Where an employee is absent as a result of sickness for the whole of the pay year, they are still entitled to receive a payment in respect of entitlement to annual leave upon the termination of their employment.
This entitlement does not depend upon the worker submitting a request to take annual leave before the end of the relevant pay year.
In this case Mrs Larner was absent for the whole of the year 2009-2010 as a result of ill health. NHS Leeds subsequently decided to dismiss Mrs Larner on the grounds of incapability due to ill health. They initially refused to make any payments in respect of untaken annual leave as no formal request to take the leave had been received from Mrs Larner.
The EAT held that, as Mrs Larner had been unable to enjoy periods of relaxation and leisure during her ill health absence, she retained her right to take that leave or receive payment in lieu at the termination of her employment.
Interestingly, the Employment Appeal Tribunal went on to comment that the position may be different in the case of an employee who is not absent due to ill health but still fails to make any request for leave during the whole of the pay year. The justification for this being such an employee would have had an opportunity to exercise their right to annual leave.
05.08.11 The Supreme Court has passed judgment on the recent case of Autoclenz Limited v Belcher in which it was decided that a number of “self employed” car valeters were actually employees.
This decision was reached despite the valeters paying their own taxes, purchasing their own insurance, uniforms and materials and the contracts expressly describing them as self-employed contractors.
The contracts also stated that the valeters were under no obligation to attend work, although in practice it was found that the valeters were expected to attend work and provide the valeting services personally, rather than sending a substitute.
The Supreme Court decided that the reality of the situation would trump the terms of the written contract. The fact that an employer had included a substitution clause in the contract, theoretically permitting the valeters to send an alternative person in their place, would not determine the issue if it did not reflect the reality of what was expected of them.
It was not necessary to show that such a clause was a sham to mislead HMRC, just that the clause didn’t reflect what actually occurred.
It is clear from the outcome of this case that Tribunals and Courts will examine both the contents of self-employed contracts and the day to day mechanics of a working relationship when deciding whether an individual holds an employee or worker status.
18.05.11 Increased Minimum Wage
The Government has announced that the National Minimum Wage for adults will increase from 1st October 2011. The increases are as follows:-
• 21 year olds and over – increased by 15p an hour to £6.08
• 18 – 20 year olds – increased by 6p an hour to £4.98
• 16 – 17 year olds – increased by 4p an hour to £3.68
• Apprentices – increased by 10p an hour to £2.60
19.04.11 National Employment Savings Trust
The Government has announced new requirements that will mean employers in Great Britain must automatically enrol eligible employees in a pension scheme, in a bid to encourage all employees to save for their retirement.
This enrolment will take place over 4 years on a rolling basis - starting on 1 October 2012 - with larger employers being affected before smaller employers and newer businesses. It is intended that by September 2016 all businesses will have joined the National Employment Savings Trust (NEST) Scheme. All employees who earn over £7,745.00 a year will be automatically enrolled by their employer in the NEST scheme - unless there is an alternative pension scheme already provided by the business. However, employers are to be granted a three month period within which to enrol employees and therefore temporary employees (employed for a period of less than three months) are excluded.
As a result of these changes, over the coming years, employers will need to start to contemplate enrolling employees in the NEST scheme - or alternatively ensuring that a separate company scheme is in place. Employers that breach this requirement will face compliance notices and penalties that vary according to the size of the business. Criminal penalties could also apply in the case of wilful failure to comply.
08.04.11 TUPE Case Update
A recent case should act as a salutary warning to all businesses looking to acquire other businesses in administration. The liability for a pre-acquisition dismissal will transfer to the transferee (i.e. a buyer) where the dismissal was connected to the transfer itself.
In this case even though the administrator had (at the time of the dismissal) not yet identified a particular buyer - the eventual buyer was still held liable for the dismissal. The tribunal found that the administrator had dismissed the employee (actually the Chief Executive of the insolvent business) to enable a purchaser to acquire the business and assets without the continued employment of its Chief Executive.
KBL provides commercial advice in relation to all employment and TUPE related issues - arising from commercial acquisitions and sales. Spaceright Europe Ltd v Baillavoine and another Employment Appeal Tribunal.
07.04.11 Sex Discrimination Case
The Court of Appeal has ruled that when providing women who are pregnant, or on maternity leave, with special treatment employers must act ‘proportionately’.
A male solicitor was successful in his claim for sex discrimination following a redundancy dismissal as a female colleague - who was on maternity leave at the time – had her work assessment score ‘unfairly inflated’ - thereby saving her from redundancy.
Whilst employers are often alert to the risks surrounding the dismissal of a pregnant employee –consideration should also be given to the risks of imposing any corresponding disadvantage on other employees.
KBL are able to assist businesses to plan and implement redundancy dismissals whilst highlighting any hidden risks which may not yet have been identified.
22.03.11 New Statutory Payments
The Government has now announced the proposed new rates for statutory payments for the tax year 2011 to 2012: The weekly rate of Statutory Sick Pay (SSP) will rise to £81.60 with effect from 6 April 2011. The standard weekly rate of Statutory Maternity Pay (SMP) and the weekly rate of Ordinary Statutory Paternity Pay (OSPP), Additional Statutory Paternity Pay (ASPP), and Statutory Adoption Pay (SAP) will rise to £128.73 (or 90% of average weekly earnings, if lower) for complete payment weeks commencing on or after Sunday 3 April 2011.
The weekly lower earnings limit for qualifying SSP, SMP, OSPP, ASPP, and SAP will rise to £102.00 with effect from 6 April 2011.
14.12.10 Increase in Award for Dismissals
As of 1st February 2011, the maximum compensatory award for an unfair dismissal claim will increase from £65,300.00 to £68,400.00. Additionally, the new cap for a week’s pay when calculating a basic award will increase from £380.00 to £400.00. This therefore means that the maximum award an employee can receive for an unfair dismissal claim will increase to £80,400.00.
25.10.10 Is There A Rooney In Your Office?
As most of you will be aware, all may not be well in the dressing rooms at Manchester United. Sir Alex Ferguson recently indicated that Wayne Rooney no longer wished to play for the team – this was quickly followed by an announcement that he had signed a five year deal to stay at United.
Reading between the lines it appears that this tension may be causing unrest at the Club. If you have a disruptive influence in your team/office this can often lead to a difficult working environment - which can cause problems with other members of staff.
The reason for the behaviour may be dissatisfaction with co-workers or it may be an outlet for personal problems. Whatever the reason - if it causes problems with co-workers - it could have a negative effect on business. A 2006 Court of Appeal case established that a dismissal due to a problematic personality could be fair.
The reason for the dismissal was said to be for ‘some other substantial reason’ - as the employee’s behaviour had resulted in a breakdown in the employer’s confidence in the employee and prevented the other employees from working as a team. However, this does not automatically mean that a personality clash can lead to a fair dismissal. If an employee has accrued over one year’s service employers need to be cautious when contemplating a dismissal.
If the dismissal does not comply with the ACAS Code of Practice, or be for a fair reason, there is a risk that the employee will be successful in a claim for unfair dismissal. Employers may wish to informally address the issue by holding a private discussion with the troublemaker in order to bring the issue out into the open. This may lead to the cause of the issue being identified and both parties can then work towards maintaining a more harmonious workforce. If a cause is not forthcoming, employers may wish to take the opportunity to explain to the employee that their behaviour is currently not acceptable.
KBL are able to offer advice when a business finds itself with a problematic employee - as not all employers can afford to retain disruptive influence, even if he is their star player!
08.10.10 Equality Act 2010 - Changes Today!
We are concerned about the quality of drafting of the Act - specifically the sections of the Act dealing with Compromise Agreements. Suffice to say until these drafting issues are resolved by amendment or case law - employers should ensure any Compromise Agreement they use is fit for purpose, up-to-date and that it effectively settles discrimination claims under the Act.
There may, depending on the issues - be other safer ways to effect a settlement. KBL can assist with drafting and advising upon Compromise Agreements.
14.10.10 Warning to Employers!
A recent Employment Appeal Tribunal case established that the provider of a discriminatory reference can be liable for future loss of earnings. In this particular case an employee, who happened to also be a solicitor, was victimised as a result of a reference obtained from a previous employer.
As a consequence of this reference the perspective employer withdraw a job offer. The employee has therefore been discriminated and victimised by both his past employer and also his potential future employer. Whilst the original Tribunal hearing thought that a claim for loss of future income against the previous employer was not possible, the Appeal Tribunal disagreed because if the future employer had not been motivated by discrimination or victimisation then the employee would have no remedy for loss of earnings.
As a result the Employment Appeals Tribunal suggested that the award of damages be split between the past employer and the perspective future employer to reflect their culpability. It is therefore important that when employers are drafting and providing references thought is given to what impact such a reference will have on the employee's ability to obtain future employment and also whether it could be said the contents of the reference are discriminatory or an act of victimisation. Should you have any concerns about the contents of a reference
KBL are able to assist with the drafting of such a document.
28.09.10 The Equality Act - Are You Ready?
The Equality Act 2010 comes into force on 1 October 2010. The key changes include:
1) Amending the wording of the definition of discrimination to clearly cover discrimination based on perception of a prescribed characteristic.
For example, a person is called names suggesting that person is gay. The person is not in fact gay, but will be able to bring a claim because of the perception that they are gay. ACTION – revise policies and procedures – consider training.
2) The Act will prohibit direct discrimination and harassment based on association in respect of race, sex, gender reassignment, disability, sexual orientation, religion or belief and age.
For example, an employee is refused a promotion because they care for a disabled relative. If the refusal is due to the disability then this will be discriminatory. ACTION – revise policies and procedures – consider training.
3) Employers will be liable for the actions of third parties in certain circumstances.
For example, where a customer sexually harasses an employee, the employer may be liable for the actions of the customer, if the employer has failed to take reasonably practicable steps to prevent such behaviour. ACTION – revise policies and procedures – consider training.
4) Major changes to disability discrimination – effectively reversing the decision of London Borough of Lewisham v Malcolm [2008] IRLR 700 – which we covered in our update in 2008/2009. ACTION – revise policies and procedures – consider training.
5) Outlaws employers' pre-employment health enquiries unless they are made for a number of limited prescribed reasons. In most cases, this will mean pre-employment health questionnaires, and some questions usually asked at interview, will be unlawful. ACTION – revise policies and procedures – consider training - revise offer letters, application forms and processes. Also, consider how to manage health questionnaire process post commencement of employment.
6) Limits the enforceability of pay secrecy clauses. ACTION – assess risk of Equal Pay claims and take steps to mitigate any such risks.
7) Employment Tribunals will have the power to Order employers to take any appropriate steps to help the general workforce. ACTION – undertake KBL’s health check of your policies, procedures, employment contracts and processes.
John Hassells, Head of the Employment team, comments - ‘The Equality Act represents the biggest overhaul of discrimination legislation for some time. Employers need to prepare now, if they haven’t already, to ensure that they do not expose their business to employment disputes and claims’.
10.08.10 National Minimum Wage Increase
The National Minimum Wage will go up from £5.80 to £5.93 per hour from 1st October 2010. Importantly, the main rate becomes payable from the age of 21 - an increase from the current age of 22. Workers between 18-20 years of age will see the rate rise from £4.83 to £4.92. For workers aged below 18 who have ceased to be of compulsory school age the minimum wage rises from £3.53 to £3.64.
29.07.10 65 and out to be scrapped
The coalition government announced this morning that it plans to scrap the default retirement age of 65 in the UK from October 2011. Given that an employer must give six months' notice before forcing someone to retire on the grounds of age, it means the changes could be applicable from 6 April next year – after this date no new forced retirement notices can be issued.
Currently the Employment Equality (Age) Regulations 2006 permit an employer to force an employee to retire at the age of 65 without having to pay any financial compensation. The only obligation upon the employer is to follow a compliant procedure, involving addressing the issue with the employee at least six months prior to the retirement date.
The issue of retirement was a particularly hot topic during the recent general elections. The Conservative Party initially maintained in its manifesto that they would increase the default retirement age to 66, whereas the Liberal Democrats wanted to scrap the default retirement age altogether.
Many businesses will this morning be asking “what now?” – we shall return to you later with our further thoughts on the change
07.07.10 Latest Tribunal Statistics
The Employment Tribunal Service has published its annual statistics for 2009/2010. he statistics have revealed that there has been a 56% increase in the number of claims submitted to the Tribunal.
The numbers of claims submitted to the Tribunal are currently at their highest level ever. There has been a 17% increase in the last year of the number of claims associated with unfair dismissal, breach of contract, and redundancy. It is likely that this increase is as a result of the poor economy.
The number of claims disposed of at a final hearing has increased by 22%, and as a result of the increase in claims approximately 400,000 claims currently remain outstanding. Only 65% of the claims submitted last year were listed for final hearing within the Tribunals target of 26 weeks of the claim being received.
John Hassells, Partner and Head of Employment at KBL comments "it is clear from the statistics that the economic climate has heavily influenced the likelihood of claimants submitting claims, perhaps because claimants are finding it increasingly difficult to obtain commensurate employment. More claims are going to a final hearing - suggesting employers are more willing to defend claims and take their chances in a final hearing.
KBL are able to assist employers should they receive a tribunal claim from an employee and identify the issues at an early stage, assess the risks, value of the claims, the costs, and benefits. We then work with our clients to identify the best defence strategy for their business."
23.06.10 Budget Announcement
As most of you will be aware the Chancellor yesterday announced details of the new coalition Government’s "Emergency Budget" to deal with the current economic climate. A number of these changes will have a significant impact upon businesses with employees, including the following:- A rise in the threshold for National Insurance payments.
A planned consultation upon whether the default retirement age of 65 should be phased out. The method by which increases in benefits such as maternity pay and sick pay are calculated will change in 2011, and increases will be in line with the Consumer Price Index, rather than the Retail Price Index. It is hoped that this will save £6 billion a year.
A two year pay freeze in the Public Sector - but public servants who earn to less than £21,000.00 per annum will receive a flat pay rise of £250.00 in both of these years. The personal allowance on which no income tax is payable will increase by £1,000.00 to £7,475.00 in April 2011.
KBL has significant experience advising and assisting clients in relation to employment law and Human Resources issues. We also provide in-house training sessions to employer’s management staff to ensure they are equipped to tackle employment issues including employee grievances and complaints of harassment. If you require advice or assistance in respect of the above or any other employment matter, please contact John Hassells, Head of Employment on 01204 527777.
Would your colleagues or associates like to receive these free email updates? If so, please contact jhassells@kbl.co.uk.
28.05.10 World Cup Conundrums Q&A
We are aware that many employers will experience issues with employees as World Cup fever takes hold. To try and help employers deal with problems which may arise we have prepared a list of questions we anticipate you may be asking over the coming weeks:
What steps can I take before the Word Cup begins to try and limit the disruption in the workplace? A clear and well communicated absence policy will ensure that employees are aware of any company rules which treat certain types, and levels, of absence as disciplinary offences. If these rules are clearly communicated to the workforce this will hopefully discourage staff members from taking non-genuine absences. Additionally you may wish to remind employees that they are able to pre-book annual leave on the days they wish to view the matches. This will enable the business to plan for the absence, rather than be caught short by a ‘sickie’.
What can I do during the World Cup to minimise disruption to the business? You may wish to appoint an individual staff member to deal with all absences during the World Cup. This individual will be primed to ask a number of probing questions about the absence. You may also wish to communicate to the work force that any absences coinciding with the games will be scrutinised more closely, and also will be required to attend a back to work interview upon their return. This will hopefully deter employees from calling in sick when it is not genuine. Alternatively you may wish to embrace the World Cup and arrange for the key matches to be shown on a television in a designated room. Employees may be permitted to watch the matches on the understanding that they make up the time later that day. Other possible compromises may include allowing employees to take unpaid leave to watch the matches, or relaxing the internet policy to allow employees to follow their team’s progress.
What should I do if I suspect an employee is not genuinely ill or is too hung over to attend work? If a pattern of absences is spotted which you suspect may not be genuine disciplinary action should be considered. However, it is important that you consider any disability issues which may be the cause of the absence in order to avoid allegations of discrimination. If an employee attends work and is clearly under the influence of alcohol employers should be mindful of any existing policies in place which may dictate how the employee is treated and what will be tolerated. As part of any disciplinary process employers are required to investigate the alleged misconduct and a non-genuine absence can be difficult to prove.
KBL are able to assist you with any disciplinary procedure you may be considering. Contact our Employment team for further information.
22.04.10 The Equality Act 2010
General pre-employment medical questionnaires to be banned. As a result of the newly implemented Equality Act, from October 2010 employers will generally no longer be able to ask an applicant questions about their health before either offering the work to the applicant or including the applicant in a short list pool.
This section will apply to enquiries in the application form or a medical questionnaire, as well as questions in the interview itself. Although the Act does define a number of exceptions to this rule, employers will need to be very confident that an exception applies, or potentially face enforcement action from the Equality and Human Rights Commission. Whilst an easier alternative may be to not ask any medical questions at all, information about employee’s health does have value to a business.
In our view it will no longer be appropriate to use a pro forma general medical questionnaire that is sent out to all applicants. It may be sensible for any employer who intends to use a questionnaire, to re draft the document to ensure it does not contravene the Act and is role specific. We would be happy to assist with the drafting of relevant documentation and provide advice in relation to the above.
16.04.10 Equality Act - Are You Ready?
The Equality Act 2010 has been approved by the House of Commons and will enter the statute book this week, coming into force in October 2010.
Some of the main features of the legislation include the following: Discrimination law is to be harmonised to cover age, disability, sex, gender reassignment, sexual orientation, race, religion or belief;
The offence of indirect discrimination is to be replaced with a prohibition on discriminating against a person with a disability by treating them unfavourably when the treatment is not justified as being a proportionate means of achieving a legitimate aim; Employers will not be permitted to question job applicants about their health and whether they have a disability – other than in specific circumstances;
The prohibition on discrimination by association will be extended to protect spouses, partners, parents and carers who look after a disabled person or older relative from discrimination;
From April 2011 an employee who claims they have been specifically discriminated against for a combination of reasons, for example as they are a disabled Asian man rather than just because of their race, gender, or disability, will be able to claim for this combination of characteristics;
Employees will be free to discuss pay and whether there is a connection between pay and having particular characteristics;
and The Tribunal will have the ability to make recommendations in cases where unlawful discrimination has occurred, for example providing training for staff, or setting up a review panel to deal with discrimination issues.
Is your business ready for the changes? By October 2010 employers will need to make a number of changes to the way they operate to ensure that they do not fall foul of the new provisions, this may include re-drafting application forms or interview questionnaires, or amending employment contracts and hand books to take into account the changes. Should you require any advice or assistance in relation to how the implementation of the legislation will effect your business please contact John Hassells at KBL on 01204 527777.
12.04.10 Disciplinary Policies May Be Unfair
Dismissals for actions identified as minor in disciplinary policies may be unfair A recent Court of Appeal case has warned that employers who have disciplinary policies which detail specific sanctions for various types of misconduct may result in the Tribunal drawing its own conclusions as to the employer’s view of the misconduct.
If the employer goes on to treat the misconduct as being more serious than the policy specifies it is, for example by dismissing rather than giving a written warning, the Tribunal may find that this falls outside of the band of reasonable responses resulting in the dismissal being unfair. To avoid this finding an employer will have to produce evidence as to what happened after the policy was implemented to justify the change in response.
This case is a stark warning to employers and we strongly recommend that employers review disciplinary policies on a regular basis. Should you require any further information or assistance with amending your existing policies please contact John Hassells on 01204 527777.
01.02.10 Holidays Carried Over If Sick
Tribunal finds workers on sick leave may carry over holidays into the next leave year
A recent Employment Appeal Tribunal case established that employees may be allowed to carry over annual leave, which was ruined by sickness, to the following leave year.
In this particular case the employer's refusal to allow an employee to retake his holiday, ruined as a result of a broken ankle, in the new holiday year was in breach of the Working Time Regulations. The purpose of the Working Time Regulations holiday provision is to ensure that workers have a period of leisure each year thereby protecting their health and safety. It is therefore consistent with this purpose to allow workers, who did not have a period of leisure due to ill health, to take that leave in the following year if necessary.
03.02.10 Risks to Pregnant Workers
Every employer is under a duty to make a suitable and sufficient assessment of the health and safety risks to which its employees are exposed to at work.
The employer is required to record the findings of the assessment but is not obliged to hand over these findings to the employee as long as information about the risk is provided orally to that employee. In addition, once an employee has notified the employer in writing that she is pregnant and: the work she carries out is of a kind which can involve a risk of harm or danger to the health and safety of the expectant mother or her baby; and this risk arises as a result of any processes, working conditions or physical, chemical or biological agents in the workplace, then there is a duty placed upon the employer to conduct a specific risk assessment for a pregnant worker.
If there is an obligation to carry out a risk assessment and the employer fails to carry out such a risk assessment, employees may have a claim for sex discrimination as a result. It is not necessary for an employee to prove that they have suffered a detriment and therefore employers need to be alert to the requirement to carry out the risk assessments where the pre-conditions are met.
Furthermore, when an employee returns from maternity leave and lets you know she intends to breast feed you must carry out a further risk assessment to remove any risks that are identified.
22.01.10 Council Punish Binman
60 year old binman Albert Stewart has been removed from the round he has worked for over 33 years as a result of collecting too much rubbish!
Albert collected the extra bin bags left at the side of overflowing wheelie bins by residents on his route. Those caught leaving rubbish outside of wheelie bins can be fined up to £1,000.00. Albert was issued with a written warning by his employers and moved to another route.
Dylan Sharpe of Big Brother Watch condemned the council's actions commenting that "This case is a sad indictment of Britain." A representative for West Lancashire Borough Council said that residents were asked not to put out bags next to their wheelie bins and binmen were instructed not to take the bin bags away as it encouraged residents to break the rules.
KBL Comment: This decision may appear to be harsh but it demonstrates that where an employee breaches company rules or policies he may be disciplined regardless of whether he thinks they are fair on the customer.
14.01.10 Long Term Sickness
Does your business have any employees who are currently absent due to long term sickness? You may think that these employees are not a cost to your business, but this is not necessarily true. It is worth remembering that whilst someone remains employed, even if they are on long term sick leave, the following applies:
- With each additional complete year of service the employee gains additional entitlement to statutory notice pay;
- With each additional year of service statutory redundancy entitlements increase - as do unfair dismissal basic awards – subject to a cap of £11,400.00;
- There remains an ongoing risk of discrimination claims - specifically disability discrimination (arising from failures to make reasonable adjustments); and finally
- An on ongoing entitlement to holiday pay - see our update dated 17 September 2009
For the above reasons if you have any employees on long term sick leave you may wish to take a more proactive approach and look to terminate by reason of incapability in order to bring the above liabilities to an end. Managing long term sickness can be further complicated where an employee has the benefit of Permanent Health Insurance.
KBL can assist with all aspects of sickness management, including incapability dismissals and drafting and implementing any relevant policies. If your business needs confidential and/or urgent advice about these issues, please do not hesitate to contact our employment team on 01204 527777.
