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Employment Law: An Update
January 2006
Alison Bell
Hot Topics:
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Discipline and grievance
Long term sickness
Changing terms and conditions
Compromise agreements
New Legislation:
• TUPE 2006
• Work & Families Act 2006
Recent Cases
What's in the pipeline
Hot Topics
Discipline and grievance
Disciplinary/dismissal and
grievance procedures
• Statutory Dispute Resolution Regulations
• In 2 parts: Disciplinary/Dismissal Procedure and Grievance
Procedure
• Standard 3 step procedure
o Put it in writing
o Meet and discuss
o Appeal
The disciplinary/dismissal
procedure
• Mandatory Disciplinary/Dismissal Procedure
• An additional obligation
• If the employer fails to comply:
o Automatic finding of unfair dismissal; and
o An increase in compensation
Points to note in the standard
procedure
• Step 1 – Put it in writing, send it to the employee and invite the
employee to a meeting
• Step 2 – Arrange the meeting before action is taken
• Step 3 – If the employee appeals, invite the employee to a
further meeting and inform the employee of the final decision
Practical implications
• Post employment disputes
• Overlapping procedures
Practical Implications
• Retirement
• Redundancy
Practical implications
• Probationary periods
• Fixed term contracts
Grievance and disciplinary
procedures
• A wide definition of “grievance letter”
o Solicitor’s letter (open or without grievance)
o Flexible working request letter
o Complaint about handling of earlier grievance
• Solicitor’s letter asking for settlement not an appeal
• Information required as part of a DDP
• Employers must not rely on expired disciplinary warnings
Long term sickness
ACAS Code of Practice
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Investigation
Establish underlying cause
No reason for absence – discipline
Genuine illness – capability
Sympathetic and considerate approach
Consultation, consultation, consultation !
Long term sickness - capability
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Regular contact
Consult employee
Employee’s medical evidence
Own medical evidence
Need to replace
Long term sickness (2)
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Warn employee of dismissal
Meeting with employee to consider
Alternative employment
Reasonable adjustments
Decision
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Nature of the illness(es)
Likelihood of recurrences
Other sickness absence?
Length of absence
Decision (2)
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Spaces between absences
Need for particular employee
Impact on others
Length of employment
Consistency
Varying terms and conditions
Varying terms and conditions
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Employment law implications
Possible routes forward
Contractual change
Consultation
Redundancy situation
Contractual change ?
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Terms and conditions
Employee handbook
Individual agreements
Longstanding practice
If no contractual change
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Discuss at consultative forum
Individual consultation process
Reason for objection
Discrimination issues
Disciplinary procedure for refusals
If contractual change
• How important
• Business reasons
Introducing contractual change
• Four options
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Through a contractual right
By agreement
By imposing the change
By dismissal and re-engagement
Imposing the change
• Resign and claim constructive dismissal
• Continue to work under protest
• Claim unlawful deduction from wages (if there is an effect on
pay)
• Claim breach of contract
• Claim discrimination (eg if there is a negative effect on a
particular group of employees)
Dismiss and re-engage
• Wrongful dismissal
• Unfair dismissal whether or not re-engaged
• Business need, ‘some other substantial reason’
Redundancy
• Very significant changes
• Consultation with employees’ representatives
• Individual consultation
Varying Terms and Conditions –
Summary
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Employment Law implications
Possible routes forward
Contractual change
Consultation
Redundancy situation
Compromise Agreements
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The technical requirements
When to use
Without prejudice conversations
Tactical considerations
New Legislation
Summary of main TUPE changes
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More transactions likely to be TUPE transfers
Old employer can be liable for failing to consult
Old employer must disclose information to new employer
New employer has (limited) ability to change contracts of
employment
• Insolvency
Work and Families Act
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Maternity and adoption pay
Keeping in touch
Early return to work notice
Flexible working for carers
Paternity pay
Minimum annual leave entitlements
Practical implications
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Pay administration
Increased warning of return to work
Reasonable contact – KIT days
Sharing maternity/adoption leave
Impact of increase flexible working for carers
Recent Cases
Case law developments
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Disability absence and sick pay schemes
Sickness vs disability
Vicarious liability for harassment
Whistleblowing – detriment after termination
Discrimination by association
‘On racial grounds’
Case law developments
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Length of service and pay
Employers vicarious liability for discrimination
Public holidays for part time workers
Using the right procedures
In the pipeline
Future legislation
• Commission for Equality and Human Rights – Oct 07
• Data protection fully implemented – Oct 07
• Smoking bans – 2007/08
Smoking
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Smoke free premises
Signage requirements
Vehicles
Penalties
Age Discrimination
January 2006
Age discrimination
• Outline of the Regulations
• Specific issues
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Recruitment
Service related benefits
Retirement
Other areas of impact
General observations
• Applies to all applicants/workers
• Irish experience: 22% of claims about age
• Many existing policies/practices are ageist
• Uncapped compensation
Some statistics…
• 40% increase in age claims in the US
• High numbers already facing age discrimination
• Big cultural change required
Main principles
• Direct – different treatment actual/perceived age
• Indirect – policy/practice/criterion disadvantages
• Harassment
• Victimisation
• Positive discrimination
• Selection must be age neutral
Main Principles - Justification
• Direct and indirect
• Proportionate and legitimate
• Evidence not assertion
Other exemptions to AD
• Genuine occupational requirements (very limited)
• Pay based on national minimum wage
• Complying with a statutory authority e.g. health & safety, under
18s doing bar work
• Occupational pension schemes
• Life Assurance
• Some pay and other service-related benefits
• Contractual redundancy payments
What else…
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Employers liable for acts of employees
No age limits for unfair dismissal and redundancy
Default retirement at 65
Right to request to work longer
Enforcement & Remedy
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In the Employment Tribunal
Brought within 3 months of the discriminatory act
Provided compliance with the Statutory Grievance Procedure
Compensation = Uncapped
Recruitment issues
Employment strategy
• Get the right person to do the right job
• Ensure you have an age diverse workforce
Job adverts
• Wording of adverts
• Experience, qualifications, qualities
• Where are you advertising?
Job applications
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Application Form
Job Description
Interview
Selection panel
Recruitment agencies
Selection process
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Stereotypical assumptions
References
Monitoring – applicants
Monitoring – workforce
Records
What the new legislation
doesn’t mean
• you have to recruit over the age of 65
• you have to recruit the wrong person
• there are no circumstances for exclusion based on age
Pay & Benefits
Service Related Pay & Benefits
Examples of benefits commonly related to service
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Incremental pay scales
Enhanced holiday entitlement
Extended notice periods
Eligibility for private medical insurance
Enhanced redundancy/sick pay scheme
Service Related Pay & Benefits
• Up to 5 years’ service OK, providing
• applies to all staff doing “work of like nature”
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• length of service is sole criterion
• 5 years + OK with justification
• Backed up by evidence
Retirement issues
Retirement issues: overview
• 65 default age, until 2011 review…
• blanket dismissal at 65, with no reason given
• NRA’s of less than 65, almost impossible to justify
• Less than 65 NRA – risky
• above 65, do not have to justify where fixed
• No NRA: no “retirement” dismissal protection
Retirement issues cont’d…
• No upper age limit for unfair dismissal
• Set timetable and process to achieve
• Includes right to request working after retirement
“Planned retirement” (PR)
process
• Employer triggers
• Notice must expire on “planned retirement date”
• Inform employee of right to request continued working
• Employee request 6 months – 3 months prior
• Like flexible working process
• No requirement to give reasons for refusal
Transitional provisions
• For retirement until 31 March 2007
• Must advise employee of right to request to continue working
• Normal notice
• Request – up to 4 weeks after termination
• Meeting within reasonable time
Points on process
• Consequence of breach (including insufficient notice of
retirement):
o Automatic unfair dismissal
o Compensation up to 8 weeks’ (capped) pay
o Possible age discrimination claim
Change working pattern
post-65?
• No statutory right to request (unlike flexible working)
• For employee to initiate
• Tie in with flexible working arrangements
Other areas of impact
• Promotion – open and objective
• Training and development – equal access and engagement
• Redundancy procedures
Suggested action list
• Audit age profile (including recent applicants)
• Agree action plan and timetable
• Announce with top level backing
• Do impact assessment on all policies/practices
• Train/educate all staff
• Employment terms/benefits requiring renegotiation
Case Studies
December 2006
Case study 1 – long term absence
• Jane has been employed as a sales representative in Shire for
three years. In January of last year she started to suffer from
stress and has been off work ever since.
• She recently submitted a doctors note for an additional three
months which cited work related stress.
• Bob, the sales team manager does not think the condition is
genuine and is keen to replace Jane.
• Bob calls you later that afternoon to confirm that he is due to
meet with Jane this afternoon and intends to dismiss her on
grounds of capability.
Case study 1 – long term absence
• What are the associated risks if Bob decides to dismiss Jane?
• What could Bob have done to minimise the risk of a dismissal?
• What alternatives are there to dismissal?
• How would you advise Bob to proceed?
Case study 2 – disciplinary
• Sam is the manager of a sales team in Bigwood and has been
employed in that role for five years.
• Sam has a chequered disciplinary history and has a number of
both verbal and written warnings on his record.
• Following a recent incident Sam was suspended pending the
outcome of an investigation. After the suspension Sam wrote to
the company claiming that his conduct was the result of bullying.
• Having concluded the investigation the company decided to
proceed to a disciplinary hearing which they have asked you to
chair.
Case study 2 - disciplinary
• What if any difference will the previous disciplinary warnings have
in relation to the proposed disciplinary hearing sanction?
• Will the fact that Sam has previously complained of bullying
impact on the process?
• How would you advise the company to proceed?
• What are the potential risks to the company?
Case study 3 - probationary
• Dave started as an sales representative in the City two months
ago. During this time his performance has been assessed as
average/poor, albeit that Helen, the sales team manger, has not
communicated this to Dave.
• Helen is also disappointed at Dave’s continual moaning about
other members of staff and about the layout of the area office
following a recent incident in which he tripped.
• Helen is keen to dismiss Dave and cite the fact that he has not
reached the standards required during his probationary period.
Case study 3 - probationary
• What is the relevance/purpose of the probationary period?
• Is Helen safe from an Employment Tribunal Claim if she dismisses
Dave?
• Does the fact that Dave has made complaints have any
relevance?
• What other considerations might be relevant?
• What could the company have done better?
Case study 4 - fraud
• Judas is a sales team manager in the Moneytree area with over
ten years service.
• Following an internal investigation Ben, Judas’s line manager,
uncovered a number of discrepancies in Judas’ sales figures and
area receipts and carried out an internal investigation. Ben also
reported the matter to the police.
• Ben later dismissed Judas for gross misconduct.
Case study 4 - fraud
• What should Ben have done when he suspected a possible Fraud?
• Did Ben follow the right procedure?
• Prior to the disciplinary the Police told Ben not to disclose certain
documents to Judas, what if any impact will this have on the
disciplinary process?
• What other sanctions are available to the company?
Case study 5 – unauthorised absence
• Sue is a sales representative in Skive. In her three years with the
company Sue had received a number of verbal warnings in
relation failing to follow absence reporting procedures.
• Having failed to turn up to work for 2 weeks the company write
to Sue confirming that she has been dismissed.
• Sue appeals the dismissal and provides a post dated sick note
citing work related stress. You are asked to conduct the appeal.
Case study 5 – unauthorised absence
• What should the company have done when Sue failed to turn up
to work?
• What else will you want to know prior to conducting the appeal?
• What options are available to you at the appeal?
• What potential risks are there in upholding the dismissal?
Case study 6 - disciplinary
• Adrian the area manager in Risk has asked you to chair an appeal
in relation to an employee they dismissed for capability.
• On receipt of the papers it soon becomes clear that the company
have not followed any of the correct procedures.
• In addition it appears that Greg (the employee) had often
complained that his line manager did not support him or
investigate his requests for further training.
Case study 6 - disciplinary
• Upon further review you note that Greg is 64 and suffering from
arthritis, what if any impact might this have?
• In his appeal Greg states that he often asked to be excused from
manual work, but that he was told this formed part of his duties.
Does this impact on your decision?
• What options are available to you at the appeal?
• What do you see as the perceived risks?