The Employers Update - June 2010
Welcome to this month’s edition
of Employ! The World Cup does not
have long left to run but hopefully
it has not caused you any HR
headaches!
Once again we cover further
important developments in the HR
sphere together with details of a
new interactive tool from ACAS
called the ACAS Work Model. Feel
free to distribute this newsletter
to your colleagues and contacts.
If you have any queries in relation
to the content of Employ, or any
employment issue, please call the
Employment Team on 0844 8000 263
or email
oliver.mccann@taylors.co.uk.
Oliver McCann - Partner and
Head of Employment
James Bellamy
- Employment Solicitor
Tel: 0844 8000 263
Email:
oliver.mccann@taylors.co.uk
|
|
|
Make no mistake, handling the
personnel issues which arise from mental
illnesses is not only very sensitive but
fraught with legal issues, particularly from
the DDA 1995 perspective!
A recent case involved a lawyer who had
a job offer from DLA Piper solicitors
withdrawn. She believed the primary reason
for this was the medical questionnaire which
disclosed a history of depression. DLA state
the reason for the job offer withdrawal was
a freeze on recruitment in light of the
credit crunch.
One of the issues was how to determine
whether a mental illness constitutes a
disability under the DDA. Although medical
evidence is critical to this issue it also
stated that when considering the issue of an
impairment in cases of alleged depression,
there is a distinction between clinical
depression and a reaction to adverse
circumstances. While both can produce
symptoms of low mood and anxiety, only the
first condition should be recognised under
the DDA - the requirement that an impairment
have a long term effect, should mean that
the two conditions are more easily
distinguished.
Another issue related to “perceived”
discrimination. The claimant argued that
even if she was not in fact disabled it
matter not, DLA perceived her to have a
condition which was a disability and so she
had been discriminated against (akin to the
Coleman v Attridge law case). The EAT
recognised that it would have had to refer
the matter to the European Court of Justice
to determine whether perceived
discrimination was covered by the
directives. It chose not to on the basis
that firstly it may not be necessary if a
disability is in fact established, secondly
to do so would be based on assumptions i.e.
that DLA had in fact withdrawn the offer
because of the disability which had not yet
been determined.
Another case has just held that treatment on
the basis of a mistaken perception that an
employee is suffering from a disability is
not covered by the DDA. There must be an
actual disability.
This case highlights the dangers of
retracting job offers based on medical
information gleaned from pre employment
medical questionnaires.
What do I need to know?
- handling issues arising from mental
illnesses needs extra care and attention
- consider what the appropriate stage
is to seek medical information in the
recruitment process
- note that the new Equality Act 2010
(due in October) will restrict
significantly the use of such
questionnaires until the job offer stage
– the key policy reason is to force the
employer to make a recruitment decision
based on competency, skills and
experience and if medical issues arise
at the offer stage, to force the
Employer to have to justify its decision
after consideration of reasonable
adjustments
- ensure you have the full medical
information before making any decision
- consider whether, based on the
medical information, the condition is in
fact a disability and covered by the DDA
- note the new Equality Act 2010 will
cover “perceived” discrimination – avoid
basing decisions on perception
- the ability to distinguish between a
mental condition which is covered by the
act and one which is not is not as easy
as the EAT suggest when one considers
that DDA conditions extend to those that
are “likely” to be long term – this
could apply to many mental conditions
even if it seems trivial at the outset.
Again full medical information will
assist in this regard.
The new coalition government has
announced it will halt the registration with
the VBS following criticism it is
disproportionate, over burdensome and
infringes civil liberties.
What do I need to know?
The timing and potential scope of the
requirement on individuals working with
children and vulnerable adults to register
on the scheme depends on the review of
whether or not it remains a criminal offence
for barred individuals to apply to work with
children or vulnerable adults and employers
will continue to face criminal sanctions if
the knowingly employ such barred
individuals.
There also remains an obligation to refer to
the Independent Safeguarding Authority any
information on an individual working with
children and vulnerable adults where they
consider them to have caused harm or pose a
risk.
A recent case has upheld a claim for
damages for breach of contractual
disciplinary procedures, rejecting the
principle that breaches of contractual
disciplinary procedures in the run up to
dismissal are not meant to sound in damages.
An NHS Orthopaedic Surgeon was summarily
dismissed for gross professional and
personal misconduct following a disciplinary
hearing. The Surgeon has been unable to find
permanent employment in the NHS since. A
claim was brought against the trust for
damages in the sum of £4m alleging a breach
of contract based on:
- the conduct of the disciplinary
procedure was defective and in breach of
the NHS’s express disciplinary procedure
- the disciplinary procedure was a
contractual term of his employment
contract
- the defective procedure directly
caused the finding of misconduct
- the misconduct finding resulted in
the Surgeons inability to find permanent
NHS employment post dismissal due to a
loss in professional status
The Court of Appeal has confirmed that
the Surgeon may pursue a claim for damages
arising from the NHS’s breach of the
contractual disciplinary procedure. Such a
claim is not restricted by the previous
principles that damages for breach of
employment contracts are limited to the end
of the period when the contract could
lawfully have been brought to an end (i.e.
the end of the notice period plus the time
it would have taken to go through any
contractual procedure for dismissal). It
also stated that the case of Johnson v
Unisys was limited (this case related to a
claim for damages arising from the manner of
dismissal) to breaches of implied terms of
trust and confidence applicable to the
manner in which dismissal occurred. However
in this case the claim is founded on a
breach of express contractual disciplinary
procedures and so there is no reason in law
why such a claim for damages should be
restricted.
The Surgeon now has the chance to pursue
his claim but his claim for damages will
still be difficult as he well have to
establish the 4 points above, in particular
demonstrating that the defective procedure
has caused the misconduct finding which in
turn caused his dismissal which in turn
caused his losses. It is likely the NHS will
seek to argue forcefully that absent any
defects a correct procedure would still have
resulted in dismissal.
What do I need to know?
- Identify whether you express your
disciplinary procedure to be
“contractual”
- If the disciplinary procedure is
“contractual” you must follow it, a
failure to do so will be breach of
contract
- Consider amending any contractual
procedures to build in some flexibility
in to the procedures – note obligations
to inform and consult staff regarding
any changes
- Prior to effecting a dismissal
conduct a thorough review of the
procedure adopted as against the express
contractual procedure. If you identify
any defects take legal advice on how to
remedy the defects without a continuing
breach
- A breach of such procedures could
significantly increase your potential
liability, such claims for damages not
being limited in the level of
compensation which can be awarded
A common question employers ask an
employee when they desire of a parting of
the ways!
Legal professionals call “off the record”
discussions “without prejudice
communications” – the intention behind these
discussions is that whatever is discussed
between the parties cannot be used in
evidence against them in subsequent
litigation. Employers need to take care
however to ensure that when they wish to
talk “off the record” such discussions will
in fact gain protection from this legal
doctrine.
Case law has confirmed that “without
prejudice” discussions will only be
inadmissible in subsequent litigation where
the discussions are genuinely aimed at a
settlement. To apply both parties must be
aware there is a dispute or a potential
dispute which is capable of settlement. As
such an employee who is called in to a
meeting without any idea as to any dispute
cannot enter into without prejudice
discussions – as such timing of such
discussions is key!
Case law had established that even properly
held without prejudice discussions may still
lose its inadmissibility where
discrimination issues are involved (perhaps
where the motives behind the discussions are
to advance or protect discriminatory
conduct). The “exception” has now been
clarified by a recent case which states that
the “exception” would only apply where the
without prejudice discussions would act as a
cloak for perjury, blackmail or other clear
and unambiguous impropriety regardless of
the nature of the dispute.
In this case the claimant, who was claiming
victimisation following a previous sex
discrimination complaint, had sought to rely
on settlement discussions in relation to the
previous dispute to try and evidence her
claim. The court refused to allow this on
the basis that in this particular case the
discrimination point she was trying to
assert arising from the settlement
discussions was far from being a clear
discriminatory act.
What do I need to know?
Engaging in without prejudice discussions to
resolve a dispute can be a huge benefit to
both parties but Employers need to be wary
that attracting the privilege which arises
from without prejudice discussions is always
susceptible to challenge emphasising the
importance of taking advice before doing so.
Before the statutory disciplinary and
grievance procedures were scrapped the
Employment Tribunals had the power to make a
statutory increase (or decrease) of up to
50% on any award having regard to any
failure to comply with statutory procedures.
Although the statutory procedures have
been abolished they have been replaced by
the Statutory ACAS Code of Practice on
Discipline and Grievance. A failure to
comply can result in the award being
increased or decreased by up to 25%.
A case under the old rules has set out some
of the considerations when applying the
uplift, which could equally apply when
applying the uplift under the new code of
practice. They are:
-
whether the procedures
were ignored completely or applied to
some extent
-
whether the failure to
comply with the procedures was
deliberate or inadvertent
-
whether there are
circumstances which may mitigate the
blameworthiness of the failure
-
the size and resources of
the employer are also, in principle,
capable of being relevant
What do I need to know?
-
It is a legal requirement
to comply with the statutory code of
practice for discipline and grievances
when considering misconduct /poor
performance issues under a disciplinary
procedure
- Failure can result in the
an award being increased by 25%
- If you are struggling to
comply with the Code of practice
identify whether any alternative action
should be taken to mitigate the
consequences of the breach
ACAS has launched its Model Workplace
tool on its website. Following a recent
demonstration at an ACAS event, Taylors
Solicitors would recommend this interactive
tool to all businesses, regardless of their
size.
The ACAS Model Workplace is designed to
be used by anyone who has a responsibility
for people management. – from owner managed
businesses to larger business who delegate
management responsibilities to its managers
and supervisors. It covers 10 modules
including recruitment procedures, equality
and diversity, discipline and grievances and
pay. After completing each module you will
be rated – green as compliant, amber as some
areas to address, red as an urgent note to
make changes. There will be guidance as to
where the issues are with reference to ACAS
material which may help.
It is intended to help you asses the
effectiveness of people management in your
workplace, give practical guidance on
setting up and maintaining good employment
relations and connect you to useful
resources.
You could ask departmental managers to
complete the tool which will enable HR
departments to assess how well their current
polices, procedures and employee relations
are understood and practiced in each
department and take targeted remedial action
where necessary.
Tool link:
http://www.acas.org.uk/index.aspx?articleid=2806
Your feedback on the interactive tool would
be really appreciated (which we will pass to
ACAS) as well.
If you use the interactive tool and it
requires action which you need legal
assistance with please do not hesitate to
contact us.
1. Are employees who are required to
work bank holidays, entitled to pay in lieu
of time off or additional holiday?
Much depends on what the employees overall
holiday entitlement. If for example your
full time contract provides for 20 days plus
bank holidays, then requiring an employee to
work on a bank holiday would mean that you
are not allowing the employee to take the
statutory minimum leave of 28 days per
annum. As such you would have to give a day
of in lieu. It is not allowed to pay in lieu
of holiday entitlement except when the
employment is terminated. If you provide
holidays over and above the statutory
minimum then you may be entitled to pay in
lieu for such days if the contract allows
you to.
2. We have won a security contract
with a customer. The previous contractor
provided a mixed service of security and
cleaning. The cleaning aspect is being given
to another contractor. Is this a service
provision change under TUPE such that we
have to inherit the employees?
TUPE may apply. The key is whether or not
the service you are providing moving
forward, is materially different to the
previous one. To establish this, it will be
necessary to compare every aspect of the
service currently provided, to the service
to be provided, perhaps with reference to
the service agreement with the Customer, if
one exists. If it is materially different,
then there is no service provision change
and TUPE does not apply. The outgoing
contractor will have to make its staff
redundant. If TUPE does apply you need to
identify which, if any, employees are
assigned to “service” which you are taking
i.e. the security personnel only, not the
cleaning personnel.
Copyright 2006 - 2010 Taylors Solicitors
»
Print
» |
