Archive for March, 2015
Employment law is in the news again, with the continuing fallout from Jeremy Clarkson’s fisticuffs. Rarely have the employment consequences of punching someone at work been debated so feverishly. We promise not to jump on the bandwagon by writing earnest articles debating whether it is a dismissable offence and secondly noting that now would be a good time to review your disciplinary policy – this is one time when the answer really is as obvious as it seems…..
There is not long to go before new shared parental leave entitlements begin. Parents of babies expected on or after 5 April 2015 will be able to share up to 50 weeks off work, something which the government hopes will kick-start a feeling of empowerment among fathers to spend more time with their children.
It is estimated that 285,000 working couples each year will be eligible for the new leave arrangements. They will need to comply with some fairly complicated notice arrangements, which includes giving their employers eight weeks’ notice of the pattern of leave they plan to take.
Acas’s guide to Shared Parental Leave is a good place to start to get a handle on what the new rights mean. You can access it here: http://www.acas.org.uk/index.aspx?articleid=4911. A cas is encouraging early discussions between employers and employees about the various options that are available so that proper plans can be put in place.
We try, we really do, not to be pessimistic about the impact that these measures will have, and whilst past experience (admittedly, with less far-reaching rights) suggests that take-up is unlikely to be particularly high, some parents will definitely want to take advantage of the new rights. You should, therefore, have a shared parental leave policy in place. We can help you put this policy together and assist with other changes (to staff handbooks and employment contracts etc), which are likely to be necessary.
Mr Williams was employed by Leeds as technical director when he was given notice of redundancy. His contract would terminate at the end of his 12-month notice period (as the Club later agreed), or earlier if he was guilty of gross misconduct.
Shortly after receiving his redundancy notice, he was summarily dismissed on the grounds that five years earlier he had sent obscene and pornographic material from his work email account to a friend at a different club. It was later discovered that Mr Williams had also forwarded the email to two other people – one of whom was a female receptionist at Leeds.
He claimed wrongful dismissal (that is, breach of his employment contract), arguing that what he had done was not serious enough to amount to a fundamental breach of contract. The High Court held that it was. It was conduct which breached the implied term of mutual trust and confidence between Mr Williams and the Club. Relevant to this conclusion was:
- Mr Williams’ seniority
- the nature of the images
- the fact that images were sent by a senior manager to a junior female employee
- potential reputational damage: dissemination of the images was readily identified with the Club.
In this case, it did not matter that Mr Williams had not been given a copy of the Club’s internet policy. It ought to have been obvious to him – a member of senior management – that the Club’s email system should not be used to send obscene or pornographic images, the High Court held. So the Club had been entitled to dismiss him without notice, and Mr Williams’ claim failed.
An interesting point in this case was the Court’s finding that before dismissing him the Club had decided that it did not want to pay Mr Williams during his notice period and was actively looking for evidence of gross misconduct. Those facts did not prevent the Club dismissing Mr Williams summarily when it discovered the misconduct, said the High Court. Nor did they prevent the Club from relying on misconduct discovered after dismissal in order to justify it. Whilst employees might raise an eyebrow at the Court condoning an employer trawling through (very) old emails to sift out evidence of misconduct, this case is not surprising in terms of contract law. It is good news for employers wanting to oust employees on long notice periods (many employees will have sent private emails in the past that could come back to haunt them) but one loud note of caution is that this was not an unfair dismissal claim, and it cannot be assumed that an Employment Tribunal would find that a summary dismissal in these circumstances was fair if the employee were to bring an unfair dismissal claim. So, proceed with caution if you do go digging for old dirt to justify a dismissal.
How much investigation is it reasonable to carry out where misconduct is alleged? It is a question every employer asks from time to time because a great deal hinges on what is discovered, and what could be discovered, by carefully looking into all the circumstances. And employers know just how important it is to reach the right conclusions. In Shrestha v Genesis the employee argued that his employer had not done enough.
Mr Shrestha was a mobile worker; he travelled by car to visit clients in their homes and he submitted mileage claims. When his claims were audited, it was suspected that he had been over-claiming. At his disciplinary hearing he explained that the high mileage was due to difficulties in parking, one-way road systems and roadworks.
The employer did not put each specific journey to Mr Shrestha and analyse the purported reasons for the additional mileage. Each journey was above the AA suggested mileage and it did not seem plausible, the employer said, that they could all be justified in the way Mr Shrestha had sought to do. He was dismissed.
Mr Shrestha lost his unfair dismissal claim. The employer’s investigation was reasonable, the Court of Appeal held. While an employer must consider every defence the employee puts forward, the extent to which these must each be investigated depends on the circumstances. An employer’s reasonableness should be assessed by looking at the investigation as a whole.
Successful claimants do not always get the compensation they think they are entitled to. One reason is the possibility of awards being reduced to reflect the part the claimant played in what happened to them. In this case, it came down to how likely it was that the claimant would have got the job he felt he been denied the opportunity of getting.
The claimant was a doctor who had previously worked for the Health Board. The employment relationship had been rocky. Some years after having resigned, he applied for a role there. (This followed some unsuccessful applications for other posts with the Health Board.) He was the only applicant and was shortlisted but the vacancy was withdrawn before he could be interviewed. There was concern that if he was not offered the job then he would claim discrimination. There was also a re-organisation underway, and the Health Board might have decided not to fill the vacancy in any event.
The tribunal held that he had been subjected to victimisation. But it reduced his compensation by 90% on the basis that he had only a 10% chance of being appointed in that role. The Employment Appeal Tribunal upheld that decision. It was significant that the Health Board was prepared to not appoint anyone to the position.
Can it really have been a year? Yes, it can, and the annual compensation limit increases are with us again.
The main changes are:
- maximum week’s pay for redundancy payments will be £475
- maximum compensatory award for unfair dismissal will be £78,335 (although still subject to a cap of a year’s pay, if less)
These figures will apply to dismissals from 6 April 2015.
Mr Stack was a company director who, last year, the Employment Appeal Tribunal (EAT) held was not an employee. He had no formal employment arrangement with the company and no contract, he had other business interests, and he was not paid for the work he did. There could not be a binding contract if he was not being paid, the EAT held.
The Court of Appeal has now reversed that decision; Mr Stack, it turns out, is both an employee and a worker. The lack of remuneration terms was not fatal to his status. The nature of the agreement between Mr Stack and his co-directors was that they accepted some obligation to work for the company. In view of the way these three worked together, a remuneration term could be implied, and that created enforceable obligations between the parties.
Although an extreme example, this case again illustrates how difficult it can sometimes be to decide whether someone is an employee or not.
Constructive dismissal is time-sensitive. If an employee waits too long after the alleged breach of contract before resigning – and if they show an intention for the employment relationship to continue – the likelihood is that their claim will fail. That is because they will have been taken to have affirmed the employment contract – in other words, treated it as still valid and continuing.
That is what happened to Ms Mari, a systems support analyst at Reuters. She had been off work for five months with stress, anxiety and depression. When she returned, her previous work area had been reallocated and she was given no specific work area. She was continually given work which was well below her level of expertise and was badly treated by colleagues. She raised a grievance but that did not resolve the situation. She then went on sick leave with stress and depression.
She wrote to the company complaining about her treatment. In the letter she said:
Despite bringing my concerns to management numerous times, I do not feel that the company has taken my complaints seriously or have acted with the intention to abide by the term of mutual trust and confidence.
Please accept this letter as confirmation that I will no longer tolerate this situation and I am now considering my position. However, I am still not well enough to directly deal with this situation or conduct a grievance. When I am well enough, I will be in contact again.”
A full year and a half later, she resigned and claimed that she had been forced to do so by her employer’s behaviour.
The Employment Appeal Tribunal held that the tribunal was right to have found that she had affirmed the contract. By accepting sick pay and requesting PHI (among other things) she had shown an intention for her contract to continue. There was therefore no constructive dismissal.
E-cigarettes (and for the more extreme hipsters out there, e-pipes, apparently) are everywhere – including at work. Employers, however, have not all been quick to update their policies to reflect this.
This point was highlighted by a tribunal in Insley v Accent Catering. A school catering assistant was accused of using her e-cigarette in full view of pupils. She resigned before her disciplinary hearing and brought a constructive dismissal claim. It failed because the tribunal said that the employer had acted properly. But the tribunal made it clear that had Ms Insley been dismissed then the school’s smoking policy would have become relevant (and dismissal might have been unfair). In this case, while the policy prohibited smoking on school premises, it did not say the same about the use of e-cigarettes.
Of course, this raises more questions than it answers – should vaping be treated in the same was as smoking? Can vapers vape at their desk? All good questions which should be dealt with in your policy.
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