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The Employers Update - July 2009

Welcome to the July edition of Employ!

Following feedback from readers, we’ve reduced the amount of content within the usual Employ! email newsletter to give you just the headlines you need.

You'll now be able to read the articles in full, right here each month - and don't worry! As soon as the latest edition of Employ! goes live on our website, we will send all Employ! subscribers an email with all the headlines. If you haven't yet subscribed to receive the Employ! update emails, click on the link to the right and complete the simple subscription form.
Please email any HR queries you may have to oliver.mccann@taylors.co.uk or alternatively please feel free to contact the Taylors employment team on 0844 8000 263.

Oliver McCann
Tel: 0844 8000 263
Email: oliver.mccann@taylors.co.uk


In This Edition:

» Swine Flu Pandemic
» Disability Discrimination
» When I’m 65!
» Failure To Pay Victimisation!
» Your Questions Answered

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.

Swine Flu Pandemic

There are daily reports, both locally and nationally, of new cases of swine flu and the general consensus is that the number of cases will now increase dramatically over the next few months peaking this winter.
The government has switched its focus to treatment from containment, and is contemplating putting in place emergency measures which entitles employees to self certify for up to 14 days to avoid the need for them to obtain a GP certificate.
Taylors have received enquiries from local businesses impacted by staff falling ill with swine flu and businesses need to prepare for the worst. Most businesses rely heavily on their employees, without them business stops – can you afford for this to happen?
Further, as an employer it is your duty to safeguard the health of your staff and so putting in place a sensible policy to deal with the disease would be a significant step towards complying with that duty. Would it be unrealistic to suggest that corporate manslaughter charges could be made against those employers who recklessly expose their staff to the disease where a fatality arises?
What do I need to know?
Here are six practical steps a business can take and should encompass in a Swine Flu policy:

  • Distribute the official advice leaflets to your employees detailing how to prevent transmission, recognise the symptoms and follow the NHS Guidance for Employers
  • Put in place an action plan/policy as to how to deal with those who have the virus, those who are in contact with the virus, those who maybe highly exposed to the virus and are in high risk categories as well as what the position is on sick pay
  • Ensure you have a ready supply of tissues and bins in the workplace
  • Purchase hand sanitiser gels and distribute throughout the workplace encouraging all staff to regularly use the sanitiser gel whether ill or not
  • Obtain a list of volunteers of staff who will work extra hours if the need arises, having a reliable temping agency on stand by for short term worker requests
  • Consider arrangements for remote working

If you need a policy drawing up to fit in with your business please contact me.

Useful Information

Disability Discrimination – The Saga Goes On!

Earlier this year we reported on the Malcolm v Lewisham case which obliterated the concept of disability related discrimination by changing the “comparator” in such cases. The prediction was for “reasonable adjustments” to now play centre role in discrimination cases.

A recent case has confirmed that a decision to dismiss a disabled employee can be an act of discrimination by reason of a failure to make reasonable adjustments. Therefore limiting the effect of the Malcolm case which in essence allowed employers to argue that if they would have dismissed a non disabled person for the same reasons i.e. poor attendance record then the dismissal of the disabled employee cannot be an act of discrimination.

What do I need to know?
Handling disabled employees is extremely difficult and fraught with complex issues. The repercussions of getting it wrong can be devastating with claims attracting unlimited compensation.

Worse still, the definition of a “disability” seems to get wider each year to the extent that you may have employees’ who are disabled yet you are unaware of this – ignorance is no excuse if you ought to have reasonably known!

We’re here to help and are ready to provide specialist advice.

When I’m 65!

Since the introduction of the Employment Equality (Age) Regulation 2006 it had been provided for the Default Retirement Age of 65 (“DRA”) to be reviewed in 2011. The government has just announced to bring that review date forward to 2010.

It seems as though the challenge to DRA is gathering pace. The Heyday challenge on the DRA was heard on the 16th July in the High Court, following the ECJ decision that it is not incompatible with European directives to set a DRA so long as the DRA can be justified has having regard to social or employment objectives.

What do I need to know?
In the meantime there are hundreds of cases stayed in the Employment Tribunals challenging the decision to compulsory retire at 65. Consider your policy about retirement and put in place a contingency approach to retirement in the interim.

Failure To Pay Victimisation!

A recent case highlighted the far reaching consequences of a TUPE transfer and discrimination claims.

The employee was employed by an IT company but was made redundant in March 2004. In July 2004 the business of the IT company was transferred to one of its subsidiaries. The employee claimed unfair dismissal and race discrimination against the new owner of the business and succeeded in persuading the Employment Tribunal that the dismissal was automatically unfair for a reason related to the transfer (despite dismissal being 3 months before transfer) and also race discrimination. Liability passed to the new owner because of the application of TUPE who was ordered to pay £72,000 in compensation in 2006.

The new owner refused to pay the award. The IT company from which it had acquired the business had become insolvent and so the indemnities in the Business Transfer Agreement were rendered useless.

The employee obtained a county court judgement for the award but this remained unpaid as of April 2008. Accordingly the employee issued a fresh claim against the new owner alleging that the failure to pay the award and/or satisfy the county court judgement was an act of victimisation. The claim was initially rejected by the Employment Tribunal before it even got off the ground. A review hearing was rejected and the employee appealed to the Employment Appeals Tribunal who agreed that the act of failing to pay the award could be an act of victimisation. This decision was upheld by the Court of Appeal.

What do I need to know?
Remember that treating a claimant differently because they have brought a discrimination case will constitute victimisation. Such liability can even be that of an entity that never employed the individual concerned but where it is the one responsible for the victimisation as in this case.

Your Questions Answered

1. Do you have to pro rata bank holiday entitlement for part time staff?

Part timers are entitled to not be less favourably treated than their counterpart full timers. Previously, part time workers had been found to not have been less favourably treated in relation to bank holidays as the deprivation of the right to bank holidays was not because of their part time status but because they simply were not contracted to work on, for instance a Monday, when most bank holidays fall.

However a case last year, on different part time issues, effectively over turned this principal so that NOW you must allow your part time employees a pro rata entitlement of the annual bank holidays. As such an individual who works 3 days per week Wednesday to Friday will be entitled to 3/5th of the 8 Bank holidays per year i.e. 5 extra days leave to be used on Bank holidays or as they see fit.

In this scenario the employee, if bank holidays were not pro rata, would get between a minimum of 16 days or a maximum of 19 days depending when the Christmas an New Year bank holidays fall. Where the bank holidays are pro rata then the employee would get 20 days per annum with a number of those days being allocated towards the days where their days do fall on Bank Holidays.

2. We recently gave our cleaning contractor one month’s notice that we no longer required their services as we intended to perform the cleaning activities ourselves in-house. We have since received a letter from the contractor alleging that the two cleaners assigned to our premises should TUPE transfer to us. Is this correct?

It is quite possible that bringing in-house your cleaning activities falls within the definition of a service provision change under TUPE and as such does constitute a transfer to the extent you may be lumbered with the cleaners employment. This situation is by no means straightforward and there are a number of grounds which you could raise to challenge this proposition, subject to finding out further information about the individual cleaners activities prior to alleged transfer. Take legal advice urgently.

3. We are going through a redundancy process at present and have identified the pool for selection. Do we need to consult with all individuals in the pool or can we simply consult with those at risk?

Assuming this is not a situation where the statutory collective consultation obligations are crystallised (20+ employees) then the obligation is to consult with those who are provisionally selected using objective selection criteria. Remember it is only the individual being dismissed by reason of redundancy that can claim unfair dismissal and so it is with those selected that consultation is most important, not those who are safe having regard to the selection scores.

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