Transcript The HR Exchange

Thursday 1 December 2011
Employment Law
Update
1. Dismissal Cases: Deadlines
John Lewis Partnership v Charman [EAT 2011]: A claim
may be accepted beyond 3 month deadline - employee
reasonably ignorant of time limit and awaiting the outcome of
an internal appeal against dismissal.
Wang v University of Keele [EAT 2011]: Contractual notice
(oral or written) runs from day after notice is given – important
for determining the EDT in unfair dismissal cases.
Best Practice: When giving notice, ensure
dismissal date is clear – if it is ambiguous, it will be
construed in favour of the employee.
2. Dismissal Cases: Variation of
T&Cs
Garside & Laycock v. Booth [EAT 2011]: SOSR dismissal
for refusing a pay-cut: key question is the reasonableness of
employer’s decision to dismiss, NOT whether it is reasonable
for employee to accept pay cut!
Slade v. TNT [EAT 2011]: Termination and re-engagement:
balancing advantages to business with effect on employees
= reasonable SOSR dismissal.
Best Practice: If proposing changes to T&Cs
always engage in meaningful consultation and
ensure proposals are reasonable.
3. Dismissal: Notices
CF Capital v. Willoughby (CA, 2011): An employer
cannot unilaterally withdraw an intended,
unambiguous written notice of termination,
notwithstanding the fact that the notice was given
prematurely / mistakenly.
Best Practice: In the context of a potential redundancy
situation, ensure that notice is not given prematurely, ie.
before parties have explored any alternative
arrangements.
4. Mitigation of Loss
Debique v Ministry of Defence (EAT, 2011):
 Claimant brought a successful claim for indirect
discrimination.
 Employer made reasonable offer of alternative employment
but the Claimant refused it.
 Claimant was awarded nothing in respect of loss of
earnings - she had unreasonably rejected the offer of reengagement and therefore failed to mitigate her loss.
Best Practice: Potential to reduce liability if you are able
to make a reasonable offer of re-engagement to a
“wronged” employee!
5. Disciplinary Policies
Hussain v. Surrey & Sussex NHS (HC 2011):
 Was the disciplinary procedure contractual?
 The importance of provision to the working relationship
 The level of detail and certainty prescribed by the
provision
 Context and workability of the provision
Best Practice: Disciplinary policies should still be kept
expressly non-contractual. This minimises the risk of wrongful
dismissal claims for breach of contractual procedure and
avoids need to consult when proposing amendments.
6. Reasonable Adjustments
Leeds Teaching Hospital v. Foster [EAT 2011]:
An adjustment does not need to have “good” or “real”
prospects of successfully alleviating a disabled
employee’s disadvantages for it to be a reasonable!
Best Practice: If an adjustment is identified, consider
implementing it. Avoid second guessing its prospects of
success!
7. Reasonable Adjustments
[cont]
Cordell v FCO [EAT 2011]:
 An adjustment costing £250K not reasonable
 Cost alone decision
 Judgement call as to what is “right and just”
Best Practice: Reasonableness of an adjustment can take
into consideration cost, but be careful where cost alone is
sole determining factor! Take advice!
8. Holiday Law Developments
KHS AG v. Schulte (European case - ECJ, 2011):
 The Working Time Directive (out of which the WTR are borne)
does not require the unlimited accumulation of annual leave by
an employee on sick leave for several years
 Purpose of annual leave = provide a rest from work for health
and safety reasons
 Member States (inc. UK) may therefore provide for holiday
entitlement accrued by long-term sick employees to expire after
a set period.
 What is an appropriate “set-period”? No clear-cut answer –
longer than 6 months – in this case 15 months was sufficient
9. Holiday Law Developments
[cont]
Fraser v. St George’s NHS Trust (EAT, 2011):
In order to be paid for statutory holiday accrued whilst on sick
leave, an employee must give the required statutory notice in
the relevant leave year.
“Use it or lose it” approach
Positive from an employer perspective. . .
BUT BEWARE: this case is in direct conflict with an
authority from earlier this year . . .
10. Holiday Law Developments
[cont]
Conflicting Cases: NHS Leeds v Larner
Employee off sick for an entire year was entitled to paid
annual leave for that year (or payment in lieu of such on
dismissal) despite no request for the leave!
AG opinion in Schultz-Hoff also casts doubt on the Fraser
case
Best Practice: Until this conflict is resolved, it is risky to rely
blindly on the Fraser case when dealing with requests for
holiday pay from sick employees. As a general rule,
encourage those employees on long-term sick to take
accrued annual leave!
11. Holiday Law
.
Williams
v. British Airways plc 2011
 What is basic pay for holiday pay purposes?
 “Normal remuneration”
 Comparable to periods of work
 Any inconvenient aspect which is intrinsically linked
to personal performance
Best Practice: Review method of calculating holiday pay to
ensure compliant with UK and EU law.
12. Termination Payments
Publicis Consultants v. O’Farrell [EAT 2011]:
Reserve the words “ex-gratia” for payments that are
truly intended in excess of contractual entitlement
Best Practice: Do not mis-label payments! Identify
clearly the nature of the termination payment.
13. Implied Terms
Garratt v. Mirror Group Newspapers [EAT 2011]:
Term implied through custom and practice meant
that enhanced redundancy payment was conditional
on employee entering into a compromise agreement.
Best Practice: It is always better to rely on an express
term than an implied one. If a term is important, ensure
that it is expressly stated and publicised accordingly!
14. Sham Contracts
Autoclenz Ltd v. Belcher [Supreme Court, 2011]:
 Expressed in contract as “self-employed contractors”
 In reality the workers were expected to attend work and
provide their services personally
 Held to be employees and therefore entitled to minimum
wage and holiday pay
Best Practice: Practical reality will outweigh what is
expressed in the contract! Ensure what is written in the
contract accurately reflects the reality of the relationship.
15. Redundancy Scoring
Dabson v. David Cover & Sons [EAT 2011]:
Marks awarded in redundancy selection process
should only be investigated by Tribunal in
exceptional circumstances.
Best Practice: Although welcome news for employers, need to
ensure selection criteria are chosen carefully and scores awarded
fairly and objectively. Clear evidence of bias, mistake or
discrimination may justify the Tribunal looking more closely.
16. Variation of Contracts
Moutrie v. Public Sector Consultants [ET 2011]:
 Employer bound by proposed variation to
individual’s notice period
 The lack of clarity when the variation would be
implemented was employer’s downfall!
Best Practice: Where implementing changes to T&Cs,
clarity on what is proposed and when the changes take
effect, if at all, is critical!
17. Redundancy Dismissals
King v Royal Bank of Canada (EAT, 2011):
 Dismissal claim procedurally unfair, but genuinely on
grounds of redundancy and therefore not substantively
unfair
 Genuine redundancy situation does not negate remedy of
re-engagement / re-instatement being awarded.
 Vacancies to be considered not limited to those at time of
dismissal – should include those arising at time when
employer should have been following a fair procedure.
Best Practice: Meaningful consultation and full consideration of
alternative vacancies critical to fair redundancy!!
18. Whistleblowing
NHS Manchester v. Fecitt & Ors 2011(CA)
 Protected disclosures by 3 employees against another
colleague
 For employer to avoid liability must show that the making of
the disclosure did not materially influence detrimental
treatment
 Cannot be vicariously liable under PIDA/ERA where
employees victimise their whistleblowing colleagues
Best Practice: Before you dismiss or impose detrimental
changes on employee, ensure that reason is not influenced by
past disclosure
19. Employment Law Reform:
Government Proposals
Cutting Red Tape: Reforming Unfair Dismissal:
 Qualifying period to bring a UD claim will be increased
from 1 to 2 years from April 2012
 Fees to bring UD claim - details of fees not yet confirmed
but rumoured to be:
- £250 for lodging claim then £1,000 listing fee (to list
hearing)
- Fees to be refunded if Claimant is successful
- Higher fees if claim for more than £30,000
20. Reforming Unfair Dismissal
Employer arguments for and against UD reforms:
Will deter vexatious / weak
claims.
Claimants more likely to turn to
discrimination elements in order to
circumvent the 2 year qualifying
period – more costly to defend.
Give employers more confidence
to hire – minimise the “fear
factor”.
Dispensation of fees for lowincome Claimants? Will catch
most people without a job!
Overall: argument that the
difference made won’t be
dramatically advantageous to
employers? Could in fact end
up costing them more overall?
Claimants who settle pre-hearing
will want to recover fees they have
paid out from the employer –
higher costs of settlement.
Dramatic changes won’t be seen –
no major advantage
21. Employment Law Reform:
Government Proposals
Protected Conversations:
What? Government is to consult on employers being able to
have “frank” conversations with under-performing staff without
fear that those conversations will be admissible in Tribunal
proceedings
Why? The Government wants to stimulate growth and
encourage employers to create new jobs. The Government
believes that if employers are so concerned that they will end
up in a Tribunal, they will be reluctant to create those jobs.
22. Protected Conversations
Background: Possible compromise instead of implementing
the controversial proposals of the Beecroft Report (“no-fault
dismissals”)
Will it work?: Reservations have been raised already:
 Difficult to lay down rules as to what will and what won’t be a PC?
 Cannot oblige an employee to engage in a PC? Protection from
victimisation for those who refuse?
 Unscrupulous employers may take advantage – use PCs to
initiate inappropriate conversations
 Doomed to fail? (much like the statutory DDPs?)
23. Sickness Absence Shake-up?
 An independent review has made a recommendation to
the Government that a new body, the Independent
Assessment Service (IAS), be set-up to assess individuals
signed off work for more than 4 weeks.
 Long-term absence is a costly problem for employers –
an estimated £9 billion per year!
 Under the current “fit-note” regime, GPs are expected to
make job-related decisions without the relevant expertise.
 The current sickness absence system is ineffective.
24. Sickness Absence Shake-up
[cont]
Other Recommendations?
 Employer expenditure on sick employees (eg. medical
treatments, rehabilitation, etc) should attract tax relief.
 Record-keeping requirements under the Statutory Sick
Pay regime to be relaxed to reduce administrative burden.
 Job briefing service to help long-term sick employees to
get back into work before they fall into the benefits system
 Public sector occupational sick pay regime to be reviewed
– sickness absence rates higher and Occupational Sick Pay
more generous than in private sector
25. More Proposals!
 Compensated no fault dismissals for micro firms
 Slim down dismissal procedures
 Call for evidence on period of collective
consultation and TUPE
 Portable CRB checks
 Closing loophole in whistleblowing cases
 Simplifying settlement agreements
 Compulsory pre-claim conciliation
Taylors Solicitors
Employment Team
Oliver McCann – Leanne Eddleston
Rawlings House
Exchange Street
BLACKBURN
BB1 7JN
t: 0844 8000 263
www.taylors.com
Ninth Floor
80 Mosley Street
MANCHESTER
M2 3FX