Late January, and what better way to cheer you up after the annual nonsense about “Blue Monday” (the idea that the third Monday in January is the most depressing day of the year, and nothing to do with New Order’s seminal 12”) than a new employment bulletin?
First up, good news for employers, albeit, less glad tidings for litigious employees and employment lawyers.
The tail end of 2014 saw the latest legal challenge resulting in defeat for UNISON, with the High Court turning down the union’s second application for judicial review of the government’s decision to bring in fees. While UNISON produced statistics showing a significant fall in the number of claims brought since fees were introduced, lack of evidence was a problem in the case – no actual individuals could be shown to have been unable to bring claims because of cost.
In the way of these things, that this is far from the end of the matter. The Court has given permission to appeal, and during the course of this year we could see the emergence of the evidence UNISON needs. Whatever happens, tribunal fees will remain firmly on the agenda in 2015.
Obesity can be a disability (possibly, sometimes)
Kaltoft v Billund
After much speculation, the decision is in: the effects of obesity can sometimes amount to a disability.
The European Court of Justice (ECJ) reached this conclusion following a referral from a Danish court in Kaltoft v Billund. The case concerned a childminder who claimed that his obesity was a factor in his redundancy.
The ECJ said that if someone’s obesity causes them to have a physical or mental impairment which satisfies the legal definition of disability, they could be protected by discrimination legislation. So obesity, by itself, does not confer legal protection, but its effects could render a person disabled for employment law purposes. This important nuance has been missed in much of the media coverage of the case.
To be clear, not every obese person will be disabled for discrimination purposes – far from it. However, those who are unable to participate in professional life on an equal basis with other workers as a result of a physical or mental impairment which is caused by their obesity might be. This will have to be judged on a case-by-case basis, focusing on the effect of a person’s obesity, rather than the cause or extent of the obesity itself.
What does this mean for employers?
Our view is not nearly as much as the Daily Mail would have you believe. However, if you have employees with a physical or mental impairment that is caused by their obesity you must not discriminate against them because of it and should make reasonable adjustments to their working conditions, to help overcome the effect of their disability. What this means in practice will always depend on the facts – whilst it is just about conceivable that a reasonable adjustment for someone whose obesity means they have difficulty walking might be to allow them to use a parking space near the font door (the example often cited in the press), you don’t have to change all your executive parking spaces to spaces reserved for the very overweight quite yet.
January 2015 delivers another important date in the ongoing auto-enrolment timetable.
We are in the middle of the staged introduction of this pensions initiative which requires employers with at least one employee (meeting certain criteria) to automatically enroll them into a pension scheme. The largest employers should already have done it. On 1st January 2015, it is the turn of employers who have 58 PAYE scheme members. More staging dates (for ever-smaller employers) will follow.
If you have not started thinking about auto-enrolment, you should make it your belated new year’s resolution. Employees who are aged between 22 and state pension age, who earn at least £10,000 per year and who work in the UK are entitled to be enrolled on your pension scheme from your staging date, so check when this is. You need to work out who is eligible, choose your pension provider and begin the important task of communicating this to your workforce.
There are processes to be designed, contribution levels to be decided, payroll systems to be aligned and staff to be brought up to speed on the changes. Getting to grips with this as far in advance of your staging date as possible is a wise course of action.
Holiday pay claims limited
We have got a new set of regulations which take care of what, for some employers, was the worrying possibility of facing large, backdated holiday pay claims.
The Deduction from Wages (Limitation) Regulations 2014 limits holiday pay claims to two years before the date of the ET1 claim form. The Regulations apply to all unlawful deductions claims, with some exceptions – claims for SMP, SSP and guarantee payments, for example. The Regulations also make clear that the right to holiday pay is not incorporated as a term in employment contracts.
They come in the wake of the case of Bear Scotland v Fulton which decided that compulsory non-guaranteed overtime should be included in holiday pay calculations. Although the case put in place some important restrictions on claims, there are concerns that it might be overturned. However, by limiting the extent of claims to a two-year period, the Regulations provide significant comfort to employers.
While it may be breathe-a-sigh-of-relief time, a word of caution: there is currently a window of opportunity for astute employees to take advantage of a brief transitional period. The Regulations only apply to ET1s presented on or after 1 July 2015. So there is some potential for claims, stretching back longer than two years, to be issued now. Claimants would still need to clear the hurdles put in place by Bear Scotland and show a series of deductions, which is not as easy as it sounds. Once again, the dire predictions of an EU law-derived calamity in some quarters of the media have proved to be wide of the mark. Is there a theme developing here?
Redundancy and maternity leave
Sefton Borough Council v Wainwright
Ms Wainwright was on maternity leave when her role was made redundant. A new role was created and allocated to her colleague. She claimed automatically unfair dismissal, based on the requirement in the Maternity and Parental Leave Regulations for employees on maternity leave to be offered a suitable available vacancy where there is a redundancy situation.
She won her unfair dismissal claim, and a useful point emerged, which is that it is not necessarily discriminatory for an employer to fail to offer someone like Ms Wainwright the alternative position. Although she had been treated unfavourably, it was not necessarily because of her pregnancy or maternity leave.
So while it is automatically unfair to fail to offer a suitable available vacancy to a woman on maternity leave in a redundancy situation, it should not be assumed to also be discriminatory. This is significant in the context of compensation; unfair dismissal is capped, but there is no limit on the amount that can be awarded in discrimination cases. It is, of course, best not to get it wrong in the first place….
Time limit in detriment cases
McKinney v London Borough of Newham
When an employee claims to have suffered a detriment because of having made a protected disclosure, they have three months in which to bring a tribunal claim. But when does the clock start ticking?
Mr McKinney brought a claim alleging detrimental treatment caused by his employer’s decision to reject his grievance. Should he have brought the claim within three months of the employer’s decision, or – as he had done – within three months of the date he learned about that decision by receiving his appeal letter?
Time ran from the date the employer took the decision to reject the grievance, the Employment Appeal Tribunal (EAT) held, and not when Mr McKinney was notified of it. The claim had therefore been brought out of time.
A useful point for employers to bear in mind, and a reminder of the strict rules on the timing of claims although it is worth noting that the EAT made clear that it would not have gone the same way if the disputed event was a dismissal, which does need to be communicated to be effective.
Restrictive covenants under consideration
Re-use Collections v Sendall & May Glass Recycling
Changing employees’ terms and conditions presents a number of pitfalls for employers. Rather than impose new arrangements, there is a bargain to be struck; if the terms are to be less favourable to the employee, for example, then this usually calls for some sort of benefit or other sweetener (or “consideration” for the technically-minded amongst you). It is an important point of contract law.
In this case, a question arose over the status of restrictive covenants. Specifically, could the employer rely on covenants which it had introduced to the employee’s contract, but for which it had not offered any new consideration.
Mr Sendall worked for a family recycling business for many years without having a written contract. When Re-use took the company over, it issued a contract containing non-solicitation, non-dealing and non-compete clauses which Mr Sendall signed.
Not long after, he left to work for a competitor. Re-use wanted to enforce the covenants but the High Court held that it could not. Mr Sendall had not had “some real monetary or other benefit” for the contract variation, the Court said (and the covenants were unreasonably long in duration, in any event).
Re-use had argued that his benefits package, which included a pay rise, amounted to consideration, but the Court disagreed. The new contract confirmed mainly existing benefits and there was nothing to say that the pay rise was unique to Mr Sendall – or that it was linked to the new terms to which he was agreeing. It was significant that the employer had not made it clear that the pay rise, or his continued employment, for example, was conditional on Mr Sendall accepting the new employment terms.
So Mr Sendall had not received a separate benefit linked to the change in his contractual terms. Bear this in mind when looking to amend terms and conditions. Make sure you give some sort of valuable consideration (a signing bonus, or perhaps extra holiday) and make clear that the employee is getting that benefit as a condition of accepting the new terms.
And, as always, take care over the wording of restrictive covenants.
Offensive tweets and unfair dismissal
Game Retail Ltd v Laws
Mr Laws was Game’s risk and loss prevention investigator. He opened a Twitter account (which did not specifically link him to his employer) and began following the stores for which he was responsible so that he could monitor inappropriate activity. Sixty-five Game stores subsequently followed Mr Laws, after one of its managers encouraged them to do so.
But it was Mr Laws himself who got into hot water for posting offensive tweets. He was dismissed but initially won his unfair dismissal claim. Dismissal was not within the band of reasonable responses, the tribunal said. The tweets had been posted using Mr Law’s own phone, outside working hours, and for private purposes. It had not been established that any member of the public had access to Mr Law’s Twitter feed (keen users of social media might wonder at this point how familiar the Tribunal was with Twitter) and had connected him with the company. Also relevant was the fact that Game’s disciplinary policy did not specifically say that use of social media in this way could be treated as gross misconduct.
The Employment Appeal Tribunal (EAT) disagreed. Mr Laws had not attempted to ensure that his tweets only went out to a private audience. He had not set up two accounts (one personal, one professional), nor had he adjusted his settings to restrict his followers. And he was knowingly tweeting in the context of having some 65 of the Respondent’s stores following his feed – and on the recommendation of a store manager. It therefore could not be considered private usage.
A new tribunal will now decide the question of whether dismissal was within the band of reasonable responses.
Schizophrenia and gross misconduct
Burdett v Aviva
Mr Burdett suffered from schizophrenia. He was dismissed for gross misconduct following a series of assaults in the workplace.
The question for the Employment Appeal Tribunal (EAT) was whether the tribunal was right to have found his dismissal fair. Mr Burdett had admitted the gross misconduct and he had admitted a serious error of judgment in discontinuing his medication without getting medical advice. The tribunal had held that in light of those admissions, very little investigation was needed and the employer had reasonable grounds for its belief. Given the nature of the misconduct, it was proportionate to dismiss, the tribunal said.
But the EAT thought differently. The evidence was that Mr Burdett had only committed the assaults because of his mental impairment. Admitting to the assaults was not the same as admitting that he had willfully misconducted himself. The tribunal ought to have asked if there were reasonable grounds for concluding that Mr Burdett had carried out the assaults willfully or in a grossly negligent way.
So gross misconduct requires culpability – and this is important to take into account when dealing with an employee who has a mental illness. It is not, as the EAT pointed out, a simple case of whether the employee did or did not carry out the act; it is more complicated than that, and you will need to fully consider this before dismissing.