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Oliver McCannn   


Employers Update - March 2011

Welcome to the March edition of Employ!

We aim to keep you informed of all the latest developments in HR and employment law.

This month, we take a look at the most recent updates relating to the abolishment of the retirement age since the release of draft regulations, a round up of changes coming into force in April and details of the most recent and important or interesting cases.

If you have any questions to submit for our Q&A section, then click here.

If you have any queries or wish to have a chat about Taylors Employment Services please contact Oliver McCann on 0844 8000 263 or 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


In This Edition:

» What’s coming in April?
» Retirement Update
» Dismissal – Relying on an Existing Final Written!
» Social Media and Dismissal!
» Preventing a Strike!
» Your Questions

Employ! Email Updates

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What’s coming in April?

Each April we see the introduction of new legislation, either to amend or replace existing legislation or to introduce new law!

What do I need to know?
This April the following changes occur:

  1. Statutory maternity pay (and also adoption and paternity) increases to £128.73 p/w.

  2. Statutory sick pay increases to £81.60 p/w.

  3. Single equality duty comes into force under s149 of the Equality Act 2010 – applies to public sector and replaces the current existing duty by extending to other protected characteristics (6 April).

  4. “Positive action” comes into force under s159 of the Equality Act 2010 – this allows an employer to treat those with a protected characteristic more favourably than others in connection with recruitment and promotion. This applies to candidates with equal merit and the positive action must be to overcome or minimise a disadvantage or address an area of the business which is under represented (6 April).

  5. Additional paternity leave and pay - employees who are fathers (including spouses or partners of mothers) and employees who have been matched for adoption and are spouses or partners of the person taking adoption leave, are entitled to take additional paternity leave of up to 26 weeks in the first year of their child’s life or the first year after the child’s placement for adoption and may be entitled to additional paternity pay (transferred from the mother). Additional paternity leave has effect in relation to children whose expected week of birth is on or after 3 April 2011 or who are matched for adoption with a person who is notified of the match on or after 3 April 2011. There are further criteria which employers need to familiarise themselves with (3 April).

  6. Default retirement age abolished – see separate update below (6 April).

  7. Right to request flexible working extended to children under 18 (commences 6 April 2011).

  8. Right to time off for training will not be extended to all employers as anticipated this April.

Retirement Update

Last month we detailed what appeared to be an error in the draft regulations which had been released in readiness for the abolishment of the default retirement age. A second set of draft regulations have now been published repealing the default retirement age.

What do I need to know?
The drafting error identified in the last Employ! has now been addressed and in addition some clarity has been given on other issues. The regulations provide for:

  • Employees can be lawfully retired provided:
    • notice of intention to retire (6-12 months notice) is given by 5 April 2011 – you must ensure that service of the notice is in fact received by the employee on this date. It is not good enough to send a letter dated 5 April which is received by the employee on a date after this, as notice is arguably only effective once read by the employee (Gisda Cyf v Barratt 2010);
    • the employee has attained (or will attain) the age of 65 by 30 September – this removes the error in the draft regulations which omitted the words “has attained” and now allows employers to retire those already 65 before 5 April.
  • The last date an employee can exercise a request to work beyond the retirement age is 5 January 2012 (assuming an employee received 12 months notice to retire on 5 April 2011 to expire 5 April 2012), and that the employee must exercise his right no later than 3 months before the intended retirement date.
  • The last date for retirement appears to be 5 October 2012 – this is on the basis that an employee receives 12 months notice to retire on 5 April 2011 (notice to expire 5 April 2012) and agrees to an employee’s request to work beyond the retirement date which must be limited to no more than 6 months up to 5 October 2012, as otherwise after 6 months extension it would be necessary to issue fresh notice to retire which it would no longer be lawful.

The safest course of action in our view remains to work well inside the above dates, ie to serve notice to retire at least 1 week before 5 April 2011 (and ensure that it is personally delivered to the employee), and not to simply agree to any extension of working (but if you must for business reasons, then agree to a defined period where the extended contract is limited to an additional 5 months and expires before 5 October 2012). If in doubt, take legal advice!

Dismissal – Relying on an Existing Final Written!

A recent case has confirmed that it is open to the Employment Tribunals to consider the validity of a previous final written warning which is relied upon by the employer to dismiss the employee.

This decision applied to a final written warning which was not appealed by the employer either!!

What do I need to know?
In this case, the employee produced evidence to the Employment Tribunal which demonstrated that the procedure adopted for the imposition of the final written warning was flawed. The employee had been refused an adjournment which, if granted, would have resulted in the employee producing evidence that was relevant and would have altered the reasonableness of the final written warning.

Although the employee decided not to appeal, it was found this was not because the employee in fact agreed to the level of the warning or an admission was implied.

This case makes it clear that where dismissal may be an outcome due to existing disciplinary warnings, then the disciplining officer would be wise to consider the reasonableness of any live warnings on the personnel file before making their decision. This is necessary even where there was no appeal against that warning. Accordingly it would be wise to raise, in a subtle way, the existence of the previous warning by getting the employee to acknowledge that they have previously received a warning – there is no need to explicitly ask if they have any issues with it as the simple reference to the existence of that previous warning is likely to prompt a reaction from those who believe it was unfairly imposed.

Social Media and Dismissal!

The use of social media is phenomenal and is quickly becoming one of the most difficult areas for employers to control in relation to the behaviour of their employees.

Whilst many employers have in place detailed policies and procedures relating to the use of company computer systems during working hours, difficulties arise when employees engage in conduct outside the workplace on social networking sites but which still have some relevance or link to their employment with the company.

For example, it is increasingly common for employees to engage a campaign of bullying against work colleagues or for disillusioned employees to make negative or even disparaging comments about their employer or work through postings on Facebook for example.

Can an employer take action?

What do I need to know?
In a recent case, an Employment Tribunal held that a dismissal for gross misconduct was fair, even though the act complained of took place outside work on personal computer equipment.

Mr Gosden was employed by a charity which provided services to HM Prison Services (“HMPS”) to work with drug users in prisons. Mr Gosden, outside of working hours and on his own computer system, forwarded on a chain mail (headed “It is your duty to pass this on”) to an employee of HMPS whom he knew through his work for the charity. The email was sent to the colleague at his personal email address, not that of HMPS. However, his colleague then forwarded it on to colleagues through the HMPS computer system. The email was of a sexist and racist nature.

HMPS investigated the matter and in conclusion forced their employee to retire. The charity also investigated matters and subsequently dismissed Mr Gosden for forwarding the email on to the personal email address of a HMPS employee, as in doing so he was in breach of the Equal Opportunities Policy and engaging in conduct which might damage the reputation or integrity of the charity.

Mr Gosden had contended that he should not be held to be at fault for the act of sending the email to HMPS computer systems which was committed by the HMPS employee. He denied that the email was offensive and also said that the conduct took place outside his employment.

The Tribunal found the dismissal for gross misconduct fell within the band of reasonable responses as the email was forwarded onto one of its biggest clients and the employee had failed to control the distribution of the email as he knowingly forwarded on the email which expressly encouraged others to do the same. For the latter reason, the Tribunal also concluded that this took the issue outside the realms of “private life” and, as such, there were no human rights issues either.

Although this employer managed to argue that the dismissal was fair despite the lack of any express policy, it would be wise for all employers to consider putting in place a policy which sets out the guidelines of expected behaviour outside the workplace so as not to damage the reputation of the employer, with emphasis on social media and offensive emails.

Preventing a Strike!

In this current economic climate, the possibility of a strike is perhaps higher than it has been for a long, long time!

British Airways led the way in late 2009 and throughout 2010, challenging various strikes as unlawful due to ballot irregularities and successfully obtaining injunctions. Others have followed suit and it is clear that employers are more inclined to carefully scrutinise the entire process in order to identify any errors which could create a window of opportunity to force the union to call off the strike or face legal action.

A recent Court of Appeal decision overturned injunctions against strikes in both the RMT and ASLEF cases. The decision establishes some clear guidelines which will ultimately assist unions in preventing them from falling into the same traps which they have over the past 18 months and probably making interim injunctions more difficult to achieve.

What do I need to know?

  1. The provisions which allow “accidental” ballot errors to be disregarded can rescue a ballot where genuine and immaterial errors occur. Here, accidentally balloting two members not entitled to vote was “accidental” and could be disregarded.
  2. The ballot notification provisions which require information about the categories of workers entitled to vote only requires disclosure of information in the union's possession. That information must be accurate as is reasonably practicable. There is no requirement to generate new information or improve existing records. A minor immaterial breach of the duty to provide accurate figures can be disregarded.
  3. How the lists and figures of employees in notices are reached only requires an explanation as to how those figures have been arrived at. For a breach to occur, the explanation given would have to be "positively and materially misleading" before it breached the statutory requirements.
  4. There is no obligation on a union to refer to any particular categories of jobs in a notice and the statutory requirements are met by referring to general job categories, regardless of what categories might be used in, for example, pay negotiations.

Your Questions Answered

Q: I have an employee who is not performing in their role, despite previous warnings and assistance given. I am considering a demotion to a more junior administrative position. I am able to do this?

A: Much depends on whether the poor performance arises from a lack of capability or is misconduct (ie. laziness).

Demotion involves substantially changing a number of the employee’s terms and conditions of employment (role, salary, hours, etc). Any unilateral change would be a breach of contract entitling the employee to resign and claim constructive unfair dismissal (assuming they have 12 months service).

If the poor performance is a capability issue, then demotion may be possible via your responsibility to consider any alternative positions before dismissal! However, to get to this stage you must have given the employee a reasonable opportunity to improve, warned them of the consequences of not improving and provided assistance/training where required.

If the poor performance is misconduct, then you may have within your disciplinary policy and/or contract of employment, a right to demote as a result of disciplinary action. Typically demotion is an alternative to dismissal and there would be an implied restriction on using such terms in any other situation.

Accordingly, to impose demotion, it would be wise to ensure that (absent demotion) you would be entitled to dismiss the employee for poor performance. This would mean having complied with your disciplinary policy in relation to issuing previous written warnings, etc.

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