Oliver McCannn
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Employers Update - October 2011
Welcome to Employ! the
monthly employment / HR
newsletter which keeps you
up to date with key
developments.
In this
edition we bring you up to
date with government plans
for employment legislation
over the next 2 years some
of which will be well
received by Employers (for a
change!) but other aspects
not so well received.
As ever
keep sending your HR
questions to us for our Q&A
section and if you wish to
discuss any HR/Employment
matter feel free to contact
the employment team.
Oliver McCann - Partner and
Head of Employment
Email:
oliver.mccann@taylors.co.uk
Tel: 0844 8000 263
Leanne Eddleston - Employment
Solicitor
Email:
leanne.eddleston@taylors.co.uk
Tel: 0844 8000 263
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It is with great pleasure
that we welcome Leanne Eddleston who has joined the
Employment Team from Eversheds.
Leanne's appointment further
strengthens our Employment team and is in
line with the Taylors philosophy of
delivering a city service to your doorstep
without the city rates.
October always brings some form of
legislative changes or introductions but we
were perhaps a little surprised when
Employment Tribunal reforms shot to the top
of the agenda at this month’s Tory party
annual conference.
What do I need to know?
We still await the outcome of the
consultation document “Resolving Workplace
Disputes” which did outline a number of key
proposals but we never expected the
government to bring forward two of their key
proposals both of which are intended to be
good news for employers and to help boost
economic growth.
The government has confirmed that from
April 2012 the qualifying period of
continuous employment to bring an unfair
dismissal will rise from 1 year to 2 years.
Further, from 2013 individuals who wish to
bring claims through the Employment Tribunal
will need to pay Tribunal fees, with an up
front issue fee of around £250 and a listing
fee (when the matter is listed for a
hearing) of around £1000.
The intention is to reduce the number of
unfair dismissal claims but there is doubt
as to whether the changes will in fact have
this effect.
The increase in the qualifying period
will be good news for you as an employer but
only if you retain robust procedures as to
the reasons for dismissal and have a clear
paper trail. If not then there is a risk
that employees will allege that their
dismissal is either discriminatory or for an
automatically unfair reason that does not
need a qualifying period i.e. whistle
blowing or dismissals for asserting a
statutory right (e.g. family leave). Indeed
many commentators believe there will be a
notable rise in such claims, and whilst the
government has attempted to head off this
risk by introducing tribunal fees to deter
vexatious claims, the small print alludes to
a waiver of fees for those claimants who do
not have the means to meet them – most
people dismissed will be out of a job at the
outset and so could meet the fee waiver
criteria easily.
Further, as many businesses have already
reduced their workforce, the likelihood is
that those left currently meet the 2 year
qualifying period.
- Other changes which have arisen from
the government consultation on Modern
Workplaces include:-
- Extending the right to request
flexible working to ALL employees, not
just those with dependants
- Removing the technical step by step
flexible working request procedure and
replacing it with a duty to consider
requests “reasonably”
- Allowing more than one flexible
working request per year and allowing
temporary changes, not just permanent
ones
- Introducing a new system of shared
parental leave – 1st 18 weeks maternity
leave, with the balance of 34 weeks
being classed as parental leave which
can be taken by mother or father and
concurrently
- Increasing paternity leave to 4
weeks
- Amending the Working Time
Regulations to bring them in line with
European case law
A recent case addressed this issue
after an employer mistakenly sent notice to
terminate employment whilst still
negotiating with the employee to move her on
to a self employed arrangement. After
receiving the notice to terminate, the
employee advised her employer that she did
not agree to the proposed self employed
agreement and that she treated her
employment as being terminated. The Employer
quickly tried to make amends without
success.
What do I need to know?
The Court of Appeal has held that the
retraction of a dismissal notice is
effective only with the employee’s
agreement. Failing this, a clear written
notice of termination remains effective
notwithstanding the employer has made a
mistake or changed its mind!
So what should you do in these
circumstances? If the employee is being
deliberately difficult and angling at an
unfair dismissal claim then the best course
of action would be to write an open letter
to the employee explaining that there has
been a genuine misunderstanding and offering
to re-instate the employee with immediate
effect and with back pay where appropriate.
If such an offer is refused, then at least
you have an argument that the employee has
unreasonably failed to mitigate her losses
by refusing the offer made.
Of course the same principle set by this
case applies vice versa to an employee who
resigns and then changes their mind. The
decision whether to allow the employee to
retract a resignation is usually yours,
subject to disability resignations – see the
article on this in this months Employ!
In this edition of Employ we discussed
an employer’s inability to retract a
dismissal notice without the employee’s
agreement. Common sense would say that this
principle applies equally to an employee who
wants to retract their resignation and be
reinstated? Not necessarily!
What do I need to know?
In a recent case a probationary police
officer resigned from her employment. At the
time of her resignation neither she nor the
police force was aware of any health
problems. However shortly after resignation
the employee was diagnosed as suffering from
depression. Accordingly two weeks after her
resignation she asked to be reinstated
explaining that her decision to resign was
taken in haste due to her depression. Her
request was refused and she was advised if
she wished to rejoin she would have to
reapply.
The employee complained to an Employment
Tribunal that the Policy, Criterion or
Practice (“PCP”) not to allow officers who
have “retired” to be reinstated placed those
with depression at a substantial
disadvantage as their decision to leave was
more likely to be on irrational grounds. She
brought a claim that the refusal to
reinstate was a failure to make a reasonable
adjustment.
Surprisingly the claim was successful and
upheld by the Employment Appeal Tribunal.
Even more so because the individual was no
longer an employee when the request to make
a reasonable adjustment was made – the
obligation to make reasonable adjustments
being to remove a substantial disadvantage
to keep a disabled employee in employment.
This case naturally gives cause for
concern for employers as to when they may
legitimately turn down a request to be
reinstated on grounds that the decision to
resign was clouded through ill health.
If you receive a resignation from an
employee suffering from stress or depression
it would be sensible to hold an “Exit
Interview” with the employee within a week
of the resignation in order to explore with
the employee whether they have made a
reasoned judgement – ensure they have the
opportunity to bring a work colleague or
even a family member with them. Any other
resignation should be taken at face value
and no action need to be taken unless an
employee suggests they have made a mistake.
Timing is everything – in this case, the
employee made the request within two weeks
of leaving.
A recent case has held that refusing
to provide a deaf employee with English
lipspeaker support was not a failure to make
reasonable adjustments because the cost of
providing such support was unreasonable.
What do I need to know?
The employee, employed by the Foreign &
Commonwealth Office, had been offered and
had accepted a promotion to a role in
Kazakhstan. The FCO had provided her with
English lipspeaker support at her previous
role in Poland but the cost to provide this
same support in her new role was
substantially more (£230,00 in total) and
the job offer was withdrawn.
It was held that Tribunals should make a
judgment on the basis of what they consider
“right and just” when considering whether
there has been a failure to make reasonable
adjustments. Cost is one of the key issues
to be considered when determining whether or
not an adjustment is reasonable but the
costs must be weighed with the other
factors, including the degree of benefit to
the employee if the accommodation is made.
In this case it was held the cost of the
adjustment was “unreasonable” and so the
claim failed. The good news is that there
appears to be a greater willingness in
discrimination claims generally to take
financial cost considerations as the sole
factor for determining whether to make a
reasonable adjustment.
Remember, however, that each case will be
decided on its own facts and a detailed and
careful analysis of possible adjustments
must be undertaken before a decision is
reached that it is not “reasonable”.
The UK Corporate Governance Code sets
out standards of good practice in relation
to board leadership and effectiveness,
remuneration, accountability and relations
with shareholders.
What do I need to know?
All companies with Premium listing of
equity shares in the UK are required under
the Listing Rules to report on how they have
applied the Code in their annual accounts
and report. The current edition of the Code
was published May 2010 and applies to the
financial years beginning after June 2010.
The Financial Reporting Council (FRC)
announced two changes to the Code to
strengthen the principle on boardroom
diversity. This will require listed
companies to:
- Report annually on their boardroom
diversity, including gender, and on any
measurable objectives that the board has
set for implementing the policy and the
progress it has made in achieving the
objectives
- Consider diversity of the board,
including gender, when evaluating board
effectiveness
Changes will apply for financial years
1st October 2012. The FRC strongly
encourages all companies to voluntarily
apply and report on these changes with
immediate effect.
The recent Carlos Tevez and Manchester
City affair highlights the challenges some
employers face when dealing with difficult
employees.
The multi million pound player seemingly
refused to play as a substitute against
Bayern Munich. Unsurprisingly this resulted
in wide spread criticism and disgust, a view
apparently aired by Man City boss Roberto
Mancini publicly saying that Carlos Tevez
was "finished".
Prior to this Carlos Tevez has made no
secret of his desire to leave. So where do
Man City stand as an "Employer"?
Tevez’s primary contractual obligation is
to play football for Man City, a fundamental
term which he refused to comply with.
Ordinarily an employer would, and should,
view this as a fundamental breach of
contract, gross insubordination and/or a
breakdown in mutual trust and confidence any
of which could be grounds for summary
dismissal – of course, only after following
a reasonable investigation and fair
disciplinary process.
The reality however is that Football is
an industry where the players usually hold
the cards given the fact that they are not
merely employees but also commercial assets;
Tevez is undoubtedly worth millions to
Manchester City. As such dismissal was never
really on the cards, instead Mancini
deciding to impose a significant fine on the
player – but what example does this really
set for the rest of the squad, particularly
where a player can afford the fine?
Further, Mancini’s public comments about
being “finished” (an understandable
reaction) exposed the Club to a situation
where Tevez may have had grounds to walk
away and claim constructive dismissal – an
outcome which Tevez may have actually
considered taking but for the impact on his
professional reputation.
Although this affair is a million miles
away from the realities of day to day
business it nevertheless serves as a
reminder of some of the difficulties
employers can face when confronted with
difficult employees in particular:]
- Ensuring consistency of disciplinary
treatment – have Manchester City now set
a precedent and weakened their future
position with other dissenting players?
To treat other players differently may
result in allegations of unfairness,
victimisation or discrimination.
- When faced with a difficult employee
it can be hard not to publicly make
adverse comments against the individual.
However, as an employer you need to act
carefully when responding to such
behaviour to avoid making matters worse,
keeping your options open and ensuring
you hold the cards when deciding how to
progress the matter.
These matters are never easy and when
issues first start to develop it is critical
that you take strategic legal advice to
ensure you protect yourself and achieve the
outcome you want.
Q. We are currently recruiting for
various positions. Is it okay to use
Facebook or Twitter to get some additional
information about candidates?
A. In short, it is not advisable to use
social media as a way of checking-up on
potential recruits.
The biggest risk that you face in doing
so is being accused of discrimination. You
are under a statutory duty not to
discriminate against applicants on a number
of grounds, including on the grounds of
their sex, sexual orientation, age,
disability, race, religion or belief. By
using social media sites as a way of viewing
information about a potential candidate, you
are more likely to come across information
relating to these characteristics. This
could make it easier for a rejected
candidate to argue that the recruitment
process was not objective and that they have
been discriminated against.
In addition, viewing and collecting
online data about a candidate will
constitute data processing for the purposes
of the Data Protection Act. Therefore, in
order to ensure that you do not fall foul of
the data protection principles it is
important that you have in place relevant
measures to protect the information
collected, and that you are transparent with
regards what information is being collected
and how it will be used.
ACAS has recently issued guidance on the
use of social media in the workplace,
including in respect of recruitment. You can
access it at www.acas.org.uk.
Q. One of our employee’s wants to take
additional paternity leave (i.e. in excess
of the usual 2 weeks ordinary paternity
leave). This is the first request we have
received for statutory additional paternity
leave and we are unsure as to whether he is
eligible. With regards his circumstances, we
understand that his wife does not work – she
has been a stay-at-home mum since the birth
of their previous children. Please advise.
A. The statutory paternity leave rules
changed dramatically for those employees
whose children were born or adopted from 3
April this year. Qualifying employees can
now take up to 26 weeks of additional
paternity leave (“APL”). Such leave cannot
be taken until after the child is 20 weeks
old, and must be taken by the child’s first
birthday.
There are a number of requirements that
need to be fulfilled before an employee is
eligible to take APL. The employee must
satisfy the usual criteria to be eligible
for ordinary paternity leave and must remain
employed until the week before the first
week of APL.
In addition, the employee must provide
two written declarations:
a. an “employee declaration” confirming that
the purpose of the APL is to care for his
child; and
b. the “mother’s declaration” to verify
certain information about the child’s
mother, including confirmation of the date
that she intends to return to work (see
below).
The employee must also give his at least
8 weeks’ notice of his intention to take
APL.
Importantly, APL can only be taken by an
employee if the child’s mother was entitled
to statutory maternity leave, maternity pay
or maternity allowance and only once she has
returned to work. The rationale for this is
that APL is designed to allow parents to
share parental leave following the birth or
adoption of a child – it is not designed to
allow both employees to be absent from the
workforce simultaneously. Therefore, in the
circumstances that you have outlined, it
does not appear that the child’s mother was
entitled to any of the specified statutory
maternity benefits (because she has been out
of work for some time) nor that she will be
returning to work. On this basis, your
employee will not be eligible to take
statutory APL
Copyright 2006 - 2011 Taylors Solicitors
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