Oliver McCannn
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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
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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:
-
Statutory maternity pay
(and also adoption and paternity)
increases to £128.73 p/w.
-
Statutory sick pay
increases to £81.60 p/w.
-
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).
-
“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).
-
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).
-
Default retirement age
abolished – see separate update below (6
April).
-
Right to request
flexible working extended to children
under 18 (commences 6 April 2011).
-
Right to time off for
training will not be extended to all
employers as anticipated this April.
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!
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.
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.
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?
- 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.
- 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.
- 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.
- 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.
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.
Copyright 2006 - 2011 Taylors Solicitors
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