Taylors Solicitors

| Bookmark | Help | Print

Call us on 01254 297900 


Oliver McCannn   


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


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.

Time to jet off!

… 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:

  1. Ensure you have a clear holiday policy which explains how annual leave must be booked and on what basis it will be granted.

  2. Remind employees that they must not book a holiday until their annual leave requests have been granted.

  3. 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.

  4. 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.

  5. 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).

Rough Justice – the Shoesmith case?

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.

Taking the stress out of a capability dismissal!

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.

Stand up and be counted!

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.

Let us pray!

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.

Your Questions Answered

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

» Print          »

Home  |  Services  |  News  |  People  |  About  |  Contact
Blackburn: Rawlings House, Exchange Street, Blackburn, BB1 7JN.
Tel: 01254 297900 / Fax: 01254 297916
Manchester: Ninth Floor, 80 Mosley Street, Manchester, M2 3FX.
Tel: 0161 200 5690 / Fax: 0161 200 5699
©Taylors Solicitors  |  Website Terms  |  Data Protection  |  Website Design  |  Sitemap
Regulated by The Law Society