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Changes to Law – October 2009

1st October traditionally sees the introduction of new or amended legislation and this year is no different.

What do I need to know?

• 1st October 2009 – National Minimum Wage increases – £5.73 to £5.80, £4.77 to £4.83 and £3.53 to £3.57.
• 1st October 2009 - National Minimum Wage legislation is amended to prevent tips being used to top up an employee’s pay to meet the National minimum Wage.
• 1st October 2009 - The “weekly pay” figure for the calculation of redundancy pay and basic awards in unfair dismissal case increases from £350 to £380
• 12th October 2009 – Safeguarding Vulnerable Groups introduces a centralised vetting system for those banned from working with children or vulnerable adults. Employers can be fined £5000 for knowingly employing an individual named on the list.

Internal Disciplinary Hearings and Legal Representation

In our March edition we reported on a case which suggested that there may be circumstances where an employee has a legal right to legal representation at internal disciplinary (click here to read the March 2009 edition)

Although the above case has been appealed there has been another recent decision on the point in the medical profession.

Here a NHS junior doctor faced charges of serious professional misconduct, the outcome of which, if proven, would have resulted in dismissal and ultimately his becoming unemployable in the NHS generally. The doctor sought permission to bring legal representation to the disciplinary hearing and this was refused, the NHS trust relying on a specific exclusion within their terms and conditions of employment to the right of legal representation.

The doctor sought an injunction to force the NHS to allow him to have legal representation. Although refused by the High Court, the Court of Appeal granted his request. They did so by interpreting the contract of employment as in fact allowing legal representation by a lawyer instructed by the Medical Protection Society (a medical defence organisation for doctors).

Accordingly any NHS doctor or dentist has a contractual right to legal representation at internal disciplinary hearings.

What do I need to know?

Of greater interest to all public sector workers generally are the comments of one of the judges who confirmed that in his view where the disciplinary charges are of such gravity that someone might be unable to work in the future if the charges are proved, that person has a free standing right under Article 6 of the European Convention of Human Rights (right to a fair trial) to legal representation at internal disciplinary hearings. It is suggested that this could also mean that internal disciplinary hearings which may result in dismissal may need to be handled by an independent panel.

Whilst the above applies to public sector workers only, this decision in essence reaffirms the decision made earlier in the year which advocated the right to legal representation where dismissal may result in loss of a career by being placed on certain unsuitable registers ie those working in the education and social care sectors.

If you need to embark upon disciplinary proceedings in such circumstances – take advice!

Motive Irrelevant in Discrimination

A recent case involving Amnesty International has confirmed that the motive behind discrimination is irrelevant.

Here Amnesty International refused to appoint a Sudanese woman for the post of Sudanese Researcher on grounds that the organisation would appear to lack impartiality.

What do I need to know?

The Court concluded that the decision not to appoint the Sudanese woman was directly related to her ethnic origin and as such amounted to direct discrimination. The reason for the discrimination was not a factor to be considered. Direct Discrimination cannot be justified.

Blood Clot Caused by Reduction in Breaks

An interesting case reported in the media highlights the importance of carrying out risk assessments on a person’s job function/work station no matter how straightforward the job function may seem.

A 53 year old lady who worked for HM Revenue and Customs developed a life threatening condition after being required to sit at her desk for hours without a break. The employer restructured the work schedule which resulted in a reduction in the amount of time employees’ spent away from their workstation as they could no longer leave to do printing or photocopying tasks.

The employee had previously suffered from a blood clot in the past which had been successfully treated but had received medical advice that she must take regular breaks from her workstation to avoid the same occurring again. When the new routine was introduced the employee complained to her line manager who informed her that she would have to put up with new structure.

A blood clot developed causing severe pain to the employee which resulted in an emergency operation to remove the clot.

HM Revenue and Customs admitted liability and substantial compensation to the employee.

What do I need to know?

• Health and Safety regulations impose an obligation on an employer to carry out risk assessments on all aspects of an individuals job function which should also have regard to any individual health issues – failure to comply will effectively render the employer strictly liable for any injury or death
• Management must be advised to take employee complaints seriously – had they done so here the blood clot could have been prevented
• In this case the employee could have refused to work on grounds of imminent danger to her own health and safety – if dismissed or forced to resign dismissal will have been automatically unfair with compensation potentially unlimited
• There maybe a requirement under the Disability Discrimination Act to consider making reasonable adjustments where an individual’s medical condition is a disability

Unfair Dismissal Claims on the Up

ACAS has published its annual report for 2008/09. In summary it confirms that the recession has stimulated an increase in unfair dismissal claims by 22%.

ACAS have also reported a general increase on all other employment claims as well with demand for advice on redundancy rising by 75%.

The stark reality of a recession is that those employees’ who are dismissed, whether for redundancy or any other reason, are finding it increasingly difficult to find alternative employment quickly (2.43 million currently unemployed and rising weekly) which fuels them to bring a claim for unfair dismissal. To the employee there is nothing lost as the Employment Tribunal rarely awards costs to the winning party, yet it can prove costly for the employer even when you have done everything by the book.

Reports suggest that there maybe yet another wave of redundancies in the next few months with previous job saving tactics proving unsuccessful long term. As such more redundancy dismissals around the corner are likely.

What do I need to know?

Before you dismiss ensure that you have followed a full, proper and fair process – take advice for a second opinion – it is often cheaper to be proactive than reactive

Consider taking out employer protection insurance – this with the a HR helpline will give you peace of mind on all fronts – click her for more details.

Your Questions Answered

1. We need to reduce our overheads urgently. Can we impose a pay cut on all our staff?

To reduce pay you should either have a contractual right to do so within the contract of employment or seek the employee’s consent. Otherwise any unilaterally imposed pay cut will be in breach of contract (may result in a constructive unfair dismissal claim) and will amount to unlawful deduction of wages entitling the employee to claim their lost pay back.

There are ways to introduce a unilateral pay cut but such changes need to be introduced tactfully to mitigate the risk of claims – please contact me now for specific advice.

2. We have an underperforming salesman – do we have to follow the Statutory ACAS Code of Practice on discipline and grievances (“the Code”)?

The Code specifically refers to applying to disciplinary issues which is expressed to include misconduct and poor performance. It does however state that those employers which have a separate capability procedure may prefer to address performance issues under that but if they do must ensure that their own procedure adopts the basic principles of fairness set out in the Code.

It maybe necessary to identify the cause of poor performance – is it due to behaviour which is really misconduct or is it due to a lack of ability which is capability – this may have a bearing on how you handle the matter.

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