Welcome to the May edition of Employ!
This month there’s a number of important issues to cover that will effect all readers – so hopefully you’ll take note and follow the links to find out more. As always, we also highlight changes that may be relevant to your business.
If you have any concerns about anything mentioned within this newsletter or how it may impact upon you or your business, please feel free to email me. As always keep your questions coming in and I’ll answer them in the next edition.
Tel: 0844 8000 263
Sex in the City!
Coinciding with the release of the eagerly anticipated film, a former leisure manager has won his unfair dismissal claim against Aberdeen City Council after he was forced out of his job for raising a complaint when he stumbled across a female colleague performing a sex act on the then director of sport and leisure.
The Council sought to suggest the claimant was making the allegations up to deflect issues relating to his own behaviour. The tribunal disagreed and awarded compensation of £26,000 to the claimant after a 20 day tribunal hearing.
> What Do I Need to Know?
When an employee raises a complaint it must always be treated properly and objectively. Failure to do so can lead to a claim for constructive unfair dismissal. Where that complaint relates to a breach of a legal obligation (which is given wide interpretation by the courts) then the dismissal may even fall in to the whistle blowing category entitling the tribunal to make an award for unlimited compensation.
In relation to whistle blowing, a survey by Grant Thornton has revealed that nearly half of businesses do not have in place a whistle blowing policy designed to provide a system for raising complaints/disclosures and giving protection to those doing so. If you need assistance to put in place such a policy please contact me.
Illegal Working – Information YOU Need to Know!
New rules on illegal immigrant working brought in at the end of February introduced a new civil offence of negligently employing illegal workers.
The penalties have also significantly increased to the extent that you cannot afford to identify your employees and perspective employees in accordance with the rules.
> What Do I Need to Know?
Click here to learn more
Online Employee Blacklist!
A national organisation, the Action Against Business Crime (AABC), is to launch an online blacklist of workers accused of theft or of causing loss to employers or suppliers.
The list will include those workers dismissed or who have left employment whilst under the investigation for acts of dishonesty including theft of money or merchandise, falsification or forgery of documents, causing damage to company property. The information is to be shared between members of the register who can access the national system enabling them to search against the details of a job applicant.
The scheme has come under condemnation from a variety of quarters with claims the online system will effectively discriminate against those individuals who may have been entirely innocent of such allegations but dismissed because the standard of proof in employment dismissal cases is only on the balance of probability.
The scheme is supported by major retailers such as HMV, Selfridges, Mothercare and Harrods. The retail industry suffers losses every year due to loss, theft and fraud from staff in the region of £497 million and this scheme is designed to enable retailers to identify those job applicants who pose a threat to their business.
> What Do I Need to Know?
Taylors would advise you to exercise extreme caution if you are involved with this scheme or intend to become a member. It maybe a useful tool to search against individual names but we would advise you to think carefully before placing a former employee’s details on the list. This is a libel case waiting to happen. There may also be issues of breach of confidentiality and breach of the Human Rights Act 1998.
Click here to read the press release about this scheme
Worker Not Employed by Agency
Another case from the EAT found in favour of the employment agency that workers were not employees. The employment agency supplied staff to hotels and food processing factories. A group of Polish workers were assigned to a food producer.
The employment agency provided the workers with hostel accommodation and transport. When the workers sought to join a trade union the employment agency dispensed with their services.
The workers sought to bring unfair dismissal claims but before doing so had to persuade the Employment Tribunal they were employees’ of the employment agency. The tribunal and the EAT found in the workers favour. The Court of Appeal however over turned the EAT decision stating that if a written agreement is to be found to be a sham then there must be a clear finding that the real agreement is something different and that the written agreement was effectively designed to present a misleading impression.
> What Do I Need to Know?
In other words it is now more difficult for the Tribunals to overlook what is expressed in writing. Here the Tribunal incorrectly glossed over a written term that there was no mutuality of obligation ie a duty on the employer to provide work and a duty on the employee to accept work, a pre requisite to there being an employment contract.
Flexible Working – Are You Going to be Ready?
The government has reiterated its intention to introduce legislation next year which will give parents the right to request flexible working up to their child’s 16th birthday.
> What Do I Need to Know?
Presently it is limited to parents with children aged 6 and under or disabled children 18 and under. The changes will mean 4.5 million more workers will accrue this right.
At the same time it has also been mooted that all employees be given the right to request time off to attend training courses and that an employer must have a legitimate business reason for declining such a request. Watch this space!
Read more about Flexible Working
Private Health Insurance and Age Discrimination
In a recent case an employment tribunal considered whether it was age discrimination to provide private medical insurance under a flexible benefits scheme, where the cost of cover depended on the age of the employee.
A flexible benefits scheme usually involves the employer giving the employee a “pot of money” to be allocated pursuant to the employee’s choice to a range of insurance policies such as death in service benefit, critical illness cover, income protection and private health care.
A 51 year old claimed that she was treated less favourably based on her age because the age-related premiums under the medical insurance scheme were more costly for her than for a younger person and thus meaning that her “pot of money” did not go as far as her younger counter parts. The minority of the tribunal agreed with her. However, the majority disagreed and the employment tribunal held that the scheme did not discriminate on grounds of age. It also commented that even if it was discriminatory, the arrangement was objectively justified as a proportionate means of achieving the legitimate aim of recruiting and retaining staff.
It may have assisted the employer that it had gone to some lengths to determine which was the most rewarding employee benefit and had retained evidence in this regard. This it had done by staff surveys and seeking professional advice on the implementation of the scheme. This is clearly encouraging but it is only a decision of the Tribunal and does not provide conclusive authority. It will take time for these cases to filter through the higher courts.
Read more about Age Discrimination
Your Questions Answered
1. I recently set up a company and last week won a contract to provide a service to a new client. The previous contractor has 2 staff members but one of them has been on long term sick for 5 months so someone else has been covering during this period. I have been told TUPE applies and I must TUPE over the 2 staff members and the third one on long term sick too. I am not buying the other company, just the contract so I am concerned about taking on 3 members of staff, when the contract only requires 2. The third employee has been and is likely to be, on long term sick for some time to come. Should it not be the responsibility of the current contractors to reassign her even though they say she must be TUPE’d along with the contract?
The Transfer of Undertakings (Protection of Employment) Regulations 2006 are very likely to apply. The new regulations specifically include service provision changes such as this. However only those employees assigned to the particular contract or function which is the subject of the transfer will transfer. You need to identify whether these employees’ are assigned to more than just one contract by their present employer – if so there is a strong argument that they do not transfer.
If they do transfer then I am afraid the employment issues relating to these 3 individuals pass to you. That means you will have to deal with the long term incapacity issue – if you cannot continue to employ someone on long term incapacity, especially as you may need to confirm the replacement employee’s position as permanent then you may be justified in terminating their employment as long as you have followed a fair procedure which includes consideration of medical evidence before making your decision. Alternatively you could wait for the ill employee to return and then make one of the three redundant. Again a fair procedure may need to be followed.
Read our recent TUPE article here
2. Our contracts of employment have a clause which enable us to alter an employee’s working hours to meet the needs of the business – can we just implement the clause without risk of a claim?
The fact you have the clause in your contract puts you in a strong position. However the express clause does not mean you have a “carte blanche” to change hours as you see fit. The implied clause of trust and confidence means that the express clause must be exercised in a manner which does not breach this. Accordingly you will need to consult with the employee and give reasonable notice. You must also have sound business reasons for changing the hours and selecting that particular individual to change their hours. Unjustified differential treatment could be viewed as an indirect way of bullying an employee and a breach of trust and confidence.