Oliver McCannn
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Employers Update - June 2011
Welcome to the June edition
of Employ!
With
summer holidays around the
corner, we set out a few
practical tips to managing
holiday issues and absences.
We also bring to you the
usual most recent and
important employment law
developments and answer your
questions.
If you
have any questions or wish
to explore our employment
law service options, please
contact us - we can tailor a
service option to suit your
needs!
Oliver McCann - Partner and
Head of Employment
James Bellamy
- Employment Solicitor
Tel: 0844 8000 263
Email:
oliver.mccann@taylors.co.uk
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… or not, as the case may
be!
Whether it is a holiday on the Costa del
Sol or week away in Torquay, many employees
will be preparing to go away on their
jollies. Usually this is well-planned and
organised but here are a few tips/reminders
on holiday issues:
-
Ensure you have a clear
holiday policy which explains how annual
leave must be booked and on what basis
it will be granted.
-
Remind employees that
they must not book a holiday until their
annual leave requests have been granted.
-
Ensure your holiday
policy makes it clear that if an
employee falls ill whilst on holiday
then they must comply with the sickness
absence policy to convert the holidays
into sickness leave.
-
Remind those on long
term sick that they can elect to use
their holiday leave whilst off sick but
to do so must comply with usual holiday
booking procedures to be entitled to
holiday pay – remember an employee who
is prevented from taking annual leave
during long term sickness will be
entitled to carry that annual leave into
the next annual leave year – as such it
is best to encourage those on long term
sick to use up their entitlement.
-
Where an employee’s pay
varies, (eg. piece work or shift work
with varying allowances), then paid
annual leave should correspond with
average earnings (including allowances,
supplements, bonuses, commission where
they are systematic components of pay –
Advocate General opinion in Williams v
British Airways 2011).
The natural instinct is to feel
sympathy for Haringey London BC and the
government following the recent decision of
the Court of Appeal that Sharon Shoesmith
had been unlawfully dismissed and could now
be in line for a significant compensation
payout (£2.5m has been suggested by the
media).
However, the decision of the Court of
Appeal is correct and Haringey London BC and
the government acted foolishly in the manner
in which they dismissed Sharon Shoesmith! It
seems both were more concerned about
appeasing the public outcry and looking for
a sacrificial lamb rather than focussing on
the alleged failings attributable to Sharon
Shoesmith and adopting a robust and fair
procedure in handling her dismissal.
This case serves as an important reminder
about the importance of a fair process when
dismissing an employee. Having a strong case
or significant pressure being applied is no
excuse to cut corners. The Court had held in
this case that the procedure adopted lacked
the elementary fairness that the law
requires – the opportunity for the accused
to have a reasonable opportunity to put
forward their case.
Long term absence from work can be a
fair reason for dismissal on grounds of lack
of capability. The issue of the fairness of
the dismissal will turn on the
reasonableness of the decision.
A number of factors can affect that,
including length of service, importance of
the job, the size of the business and
resources (eg. availability of temporary
staff, etc). Also key to any capability
dismissal is carrying out a reasonable
medical investigation upon which a decision
can be made. But where do you draw the line
in terms of medical enquiries?
What do I need to know?
A recent decision by the Employment
Appeal Tribunal has provided some useful
guidance on this point confirming three
important points:
- the standard of medical enquiry is
simply that of a reasonable enquiry, not
one which is of a higher standard of
evidence;
- the decision to dismiss is a
managerial one, not a medical one;
- an employer should make its own
assessment of the risk to an employee’s
health from returning to work based on
reasonable enquiries.
In this case, the employee was a manager
for a rail freight company. He was off work
with stress related absences. This was the
second occasion of stress related absence.
The employer instructed an occupational
health physician to prepare a report and to
also refer the employee on to an occupation
health psychologist. The occupational health
physician refused to make a referral and so
the HR manager did this direct. As it
transpired, the report from the psychologist
was more informative from the employer’s
perspective and enabled it to make a
decision. The employee felt this was unfair
as the physician had felt there was no need
to make such a referral and that a return to
work would be possible.
It was held that the employer acted
reasonably and that the decision to dismiss
was reasonable, particularly because the
psychologist was very doubtful about the
employee’s ability to return to work without
succumbing to further periods of stress
related absences.
Where an employer is proposing
collective redundancies (20 or more) or
there is a proposed transfer of a
business/service provision change caught by
TUPE 2006, the employer needs to engage in
information and consultation. This is not as
straightforward as it may seem!
What do I need to know?
The rules about information and
consultation are quite technical and a
failure to comply with the technical
requirements could result in a breach of the
relevant regulations and entitle all
affected employees to a protective award (of
up to 90 days or 13 weeks gross pay).
One of the requirements is to comply with
the election of employee representatives
where there is no recognised trade union or
established employee council. This involves
a process of nomination, secret ballot and
election.
A recent case has confirmed that an
election is only required where more
nominations than seats available are
received. Accordingly where the nominations
are equal to or less than the number of
representative positions there is no need
for a ballot.
This is useful as tactically, where there
is limited time within which to work (which
is usually the case), it can be advantageous
to adopt a generous approach to the number
of representative positions available in the
hope it obviates the need for a ballot.
What do you do when an employee asks
if they can leave part way through their
shift to attend prayer meetings which are
part of their religion? If you refuse, there
is the prospect of a claim for indirect
discrimination on grounds of religious
belief/race under the Equality Act 2010.
In a recent case, however, the Court held
an employer’s refusal was justified.
The employee was employed as a security
guard. He had previously been allowed to
leave site at lunch times to attend prayer
meetings. However the customer changed its
requirements and insisted that all security
guards stayed on site throughout the
duration of their shift. A failure to comply
would result in penalties being imposed on
the employer as well as jeopardising the
contract and future work. The employer was
not prepared to take the risk and refused
the employee permission to leave site in the
future for prayer meetings. They tried to
look at alternatives which included swapping
his days and transfer to other sites, none
of which were acceptable.
What do I need to know?
The Court held that the financial
implications for the employer of being in
breach of contract with its customer,
together with the commercial risk of losing
the contract, justified the requirement. It
was proportionate, as the employer had
looked at alternatives and further there was
a prayer room on site which facilitated the
employee’s prayer requirements – it was just
that the employee preferred to pray with the
Mosque’s community.
Taylors recommend that employers avoid a
set policy on the right to pray. Although it
is becoming good practice to create prayer
facilities on site to attend to the needs of
employees from certain faiths, the ability
to have a stand alone policy which meets all
requirements is remote – each case will have
to be decided on its own facts, having
regard to the position of the employee, the
nature of their religion and the impact upon
the business of agreeing to the request,
etc.
Q. Is it correct that an employer can
be liable if one of its employees is
harassed by a customer?.
A. In short, yes, there is a potential for
liability. This applies under some (but not
all) of previous discrimination legislation,
ie the Race Relations Act 1976, but now
applies to all protected characteristics
under the Equality Act 2010. An employer can
be liable for the conduct of a third party
in circumstances where there is a continuing
course of offensive conduct of which the
employer is aware but does nothing to
safeguard against. This has recently been
confirmed in the case of Sheffield CC v
Norouzi 2011 relating to the racial
harassment of a social worker by a child
under the care of the local authority. The
council failed to take steps to protect
their employee from this behaviour.
Q. We intend to restructure at
management level and if we proceed it will
see two managerial posts effectively merged
into one. Both affected managers are
suitable for the new post. It is our
intention to advise them that they are
redundant from their current posts but can
apply for and be interviewed for the new
post. One of the managers is currently off
on maternity leave. Does this create any
problems??
A. It does and extreme care needs to be
taken as to how you roll out the restructure
and redundancies. If you make both posts
redundant and proceed on the basis that the
new post is a suitable alternative, then
this may result in Regulation 10 of the
Maternity and Parental Leave Regulations
1999 being engaged, which means the manager
currently off on maternity leave is entitled
to be offered - without the need to be
interviewed - the vacant position, even
though she may not be the best candidate for
the role. These regulations say that where
it becomes impracticable to continue to
employ an employee on maternity leave by
reason of redundancy, they have the right to
be offered any suitable alternative vacancy.
A failure to do so will render the dismissal
automatically unfair and give rise to a
possible additional sex discrimination
claim.
There is a possible way around this to
enable you to keep the best individual for
the role, but we need more detail to advise
further. Given the potential for a claim
here, it is worth taking pro-active legal
advice.
Copyright 2006 - 2011 Taylors Solicitors
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