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Employers Update - August 2012

Welcome to the August edition of Employ!

Many thanks to all of those who attended our Manchester HR Exchange launch event last month for helping to get this series of specialist events off to such a good start on Social Media in the Workplace. Details of the next Manchester event will be announced shortly and also made available by following the link below:


Social Media law was again hitting the headlines today with reports of ‘menacing’ tweets allegedly sent to the Olympic Diver, Tom Daley, being the subject of police investigations

For those of you who usually attend or wish to start attending our Lancashire events, the next session will be held on 6 September 2012 and the hot topic will be Retirement and Pension Auto-Enrolment. Registration forms and full details will be sent out shortly, and can be accessed via the website (or, if you prefer please call).

This month’s Employ! brings you an update on the most recent Tribunal statistics and details of the new fee proposals which may have an impact on those statistics next year. We also have more case law updates on redundancy scoring; breakdown of trust dismissals; yet more developments on the subject of holiday pay for sick workers; and, an interesting question and answer session on avoiding pregnancy discrimination.

Happy reading!

Will Clayton
Head of Employment

Key Employment Team Contacts:

Will Clayton Elaine Hurn Emma Swan Leanne Eddleston
Will Clayton
Head of Employment
Email Will
0844 8000 263
  Elaine Hurn

Email Elaine
0844 8000 263
  Emma Swan
Senior Associate

Email Emma
0844 8000 263
  Leanne Eddleston

Email Leanne
0844 8000 263



In This Edition:

Employ! Email Updates

Employ! is Taylors FREE monthly employment law newsletter which keeps busy HR professionals up to date with developments in the fast-moving world of work. Sign up now to have Employ! sent to you via email each month.


Breakdown of Trust Dismissals

The Court of Appeal has warned that although the mutual duty of trust and confidence goes to the heart of an employment relationship, a breakdown of trust should not be used as a convenient label to justify dismissal in every situation where an employer feels let down by an employee or where there is no other lawful reason for the dismissal.

In this particular case, the employer, OFCOM, dismissed an employee after receiving limited information from the metropolitan police that he had been involved in child abuse in Cambodia. OFCOM defended the employee’s subsequent unfair dismissal claim on the basis that he had been dismissed for Some other Substantial Reason, namely a breakdown in trust and confidence between the parties in light of the police information.

The Court of Appeal agreed with the EAT’s finding that the dismissal had been fair in the circumstances. However, it stressed that whether an SOSR breakdown of trust dismissal is unfair will depend in each case on the particular facts and, in particular, it will be for the Tribunal to determine whether on the facts, the breakdown is substantial and sufficient enough to justify the dismissal.

What do I need to know?
This case is one of a number of recent decisions on SOSR dismissals (see our July edition of Employ! which also addresses this issue). In the present case where the dismissal was held to be fair, the procedure followed by the employer was not criticised. This can be contrasted with other recent SOSR cases, where the dismissal has been held to be unfair, and where no, or very little procedure was followed.

In particular, employers should make sure they carry out a fair process and this will usually require a fair and reasonable investigation of the facts before deciding whether the SOSR reason is sufficient enough to warrant dismissal.

Redundancy Scoring

A recent case has reaffirmed that in deciding whether a redundancy dismissal is unfair, the Tribunal should not undertake a detailed critique of the redundancy scores awarded unless there is evidence to question the employer’s motives.

In this particular case, the Tribunal found that the employer was faced with a genuine redundancy situation, that a fair process had been followed and that the employer did not have an ulterior motive. Notwithstanding this, it held that the dismissal was unfair on the basis that some of the scores awarded to the employee had been lower than they should have been.

The EAT overturned this decision and held that it had been wrong for the Tribunal to take this approach. As per previous case law, unless there is evidence of a clear inconsistency which would indicate bias or incompetence on the behalf of the employer, the Tribunal should not carry out an exercise of close examination of the scores awarded in a redundancy process. Nor should the Tribunal substitute its own view as to the score it would have awarded to the employee, in the place of that which was actually awarded by the employer.

What do I need to know?
In carrying out the scoring process, employers should take steps to make sure the scores awarded can be explained and justified if they do come under scrutiny. An effective method of doing this is to be able to refer to documents and records upon which scores are based, and to ensure that the scoring process is carried out by an objective manager, or possibly two separate managers, to offer as much protection as possible from allegations of bias.

Disability Discrimination – Reasonable Adjustments

The EAT have held that the duty to make reasonable adjustments for a disabled employee does not necessarily automatically end when the employee goes on sick leave.

In a recent case, an employee on sick leave brought a claim more than three months after his sick leave had commenced. The employer argued that the claim was out of time, on the basis that the duty to make reasonable adjustment ceased when the employee went on sick leave and was no longer working the job.

The EAT held that this was incorrect. The employee argued that making reasonable adjustments would have prevented him from going on sick leave in the first place or, if he was already on sick, helped him to return to work. The EAT therefore concluded that the Tribunal would need to identify which adjustments were reasonable and the effect they would have had before determining when or if the duty had ceased. Only then could the Tribunal determine the deadline for the employee to bring the claim.

What do I need to know?
Employers are under a duty to make reasonable adjustments to help disabled employees where they are at a substantial disadvantage. This case serves as a reminder that this duty can continue whilst an employee is on sick leave, especially if the reasonable adjustment would help an employee return to work.

It also serves as a warning that employers should, wherever possible, adopt a pro-active approach to absence management and take appropriate steps to try and get absent employees back in the work place.

Tribunal Statistics 2012 - Overall Claims Decrease

Tribunal statistics for the period 1 April 2011 – 31 March 2012 have been released showing a decrease of 15% in the overall number of claims brought compared to the same period last year.

The decrease follows a trend of falling claims over recent years with the total number of claims dropping from 236,000 in the 2009/2010 period, to 218,000 in the 2010/2011 period and now even further to 186,300 in the most recent set of statistics.

The fall in claims includes a drop in the number of unfair dismissal claims from 47,900 in the previous year to 46,300. Claims for breach of contract and equal pay have also decreased.

There has, however, been an increase in the number of claims for a failure to inform and consult in a TUPE situation, up from 1,900 in the same period last year, to 2,600. This figure is reflective of the current economic situation where many companies finding themselves in financial difficulty are being rescued, but leaving workers unhappy about the handling of the situation.

The figures can be found in full by following the link below:


Tribunal Fees to be Introduced From 2013

The Government has confirmed that means-tested fees will be introduced from next Summer for those seeking to bring a claim in the Employment Tribunal. The move comes in response to the consultation which ran from late last year to Spring this year.

Fees will be structured in two parts whereby claimants will be required to pay an initial fee to issue the claim, and then a further fee if the matter reaches a hearing. The level of fees will vary dependent on complexity, with claims falling into two levels:

“Level One” claims will comprise of those claims which are administratively simple or straightforward to deal with, such as claims for redundancy pay or unpaid wages. Such claims will cost a total of £390, broken down as £160 upon the claim being issued and then a further £230 to be paid if the matter reaches a hearing.

Those claims with a greater degree of complexity will fall as “Level Two” claims which will cost a total of £1,200 if they proceed all the way to hearing, made up of an initial fee of £250 and a subsequent fee of £950 at the hearing stage.

In addition, judicial mediation will be offered at the cost of £600, a lower amount than the £750 proposed under the consultation, indicating that the government are keen to promote this as a better option for parties to resolve their disputes.

Successful Claimants will be able to recover their fees from the unsuccessful Respondent employer.

The introduction of fees seeks to redress this balance by encouraging potential litigants to explore alternative solutions and also reduce the number of speculative/nuisance claims.

Holiday Pay When Sick

Can a worker who is off sick all year carry forward unused holiday/paid annual leave into the next holiday year even if they did not make a request to take it in the year it was accrued?

Yes, said the Court of Appeal in their recent judgment in the case of NHS Leeds –v- Larner. Mrs Larner (“L”) had been off sick all year. Part way through the following year she was dismissed and her employers at NHS Leeds refused to pay her for leave undertaken in the previous year. In a decision which considered a number of recent cases including European cases the Court held that because NHS Leeds terminated L’s employment before she had the opportunity to take her carried forward leave, she was entitled to receive an appropriate payment in lieu.

Your Questions Answered

Q: We have an employee in her probation period whose performance has not been up to scratch. We have been monitoring her and have already extended her probationary period for a further three months to give her the opportunity to improve. Despite this, she has failed to do so. The company are therefore considering letting her go at the end of her probationary period. She has now announced that she is pregnant and the company are concerned about the implications this may have on the situation. Can we still continue as intended, or do we need to keep her on now that she is pregnant?

A: If the employee’s work performance is not of a satisfactory standard and the reason for this is wholly unconnected to her pregnancy, then you should be able to dismiss without fear of losing a claim for sex or pregnancy/maternity discrimination.
However, if a claim is brought you will be required to demonstrate with evidence that the employee's pregnancy played no part in your decision to dismiss.

You mention above that you have been “monitoring” the employee.  Did the monitoring include meetings with the employee to discuss her progress, your concerns and setting targets for improvement?  If it did, and if you recorded the discussions/the outcomes in writing (ideally using notes already provided to the employee) this should make it easier to pull together the evidence needed.

You will also need to be satisfied that the employee's pregnancy is not one of the causes of her poor performance.  The grey area here is that dismissing an employee for reasons related to her pregnancy can constitute unlawful pregnancy/maternity/sex discrimination (and an automatically unfair dismissal) so it is important that you are able to point to the evidence described above to show that this is not the case.  Ideally, the chronology of when her performance issues were first discovered will help you.

Bear in mind that because she is pregnant, the employee will have a statutory right to receive written reasons for her dismissal.  So if you receive a request do not ignore it as that may lead to other claims and potentially adverse inferences being drawn at Tribunal.

Copyright 2006 - 2012 Taylors Solicitors

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