Around about now, some parents-to-be will be thinking ahead to next April. Now they have something to think about in addition to choosing names, repainting the spare room and taking out a second mortgage to buy a pushchair. In less than nine months’ time babies will start to be born to mothers, fathers and partners or will be placed with adopters who are entitled to a new form of shared parental leave.
The key date is 5th April 2015; babies born or placed through adoption on or after then will trigger rights for their parents to share paid parental between them, rather than the mother taking all (or most of) the leave as maternity leave. The existing (and very rarely used) additional paternity leave rules will be replaced.
It may seem some way off, but now is the time for businesses to start considering how they will implement the new rights and preparing policies to deal with employees’ requests. The new rules are quite fiendish in their complexity and do raise some difficult practical issues. We will be hosting a seminar in the new year to give you the full picture, but if you can’t wait, do get in touch.
The birth of new antenatal rights
Sticking with the parent and child theme, the right to attend antenatal appointments during working hours has been extended. As of 1 October 2014, expectant fathers and the partners of pregnant women can request to take unpaid time off work to be present at pregnancy-related medical appointments, as well as classes like parentcraft. The right extends to intended parents in a surrogacy arrangement too.
Under the previous rules, pregnant women were the only category of worker entitled to reasonable time off, and they had (and still have) the right to be paid their normal hourly rate for that time. Now anyone who has a “qualifying relationship” with the pregnant woman or her unborn child has the right to accompany her to antenatal appointments, regardless of how long that person has worked for you (although an agency worker must have completed their 12-week qualifying period).
The minimum requirement is to allow an employee or agency worker to be away from work for up to two antenatal sessions lasting no more than six and a half hours each – it is of course open to employers to be more generous.
Dismissal for non-criminal conduct
Okhiria v Royal Mail
Gross misconduct at work can also amount to criminal behaviour. But that crossover does not necessarily have a bearing on an employer’s internal procedures. It is perfectly possible that an employer can dismiss fairly even where the police decide not to prosecute or where there has been an acquittal.
Mr Okhiria, a postman, was dismissed for gross misconduct after being suspected of various criminal activities. He was due to be prosecuted but before that happened the Royal Mail dismissed him. He was later acquitted of the criminal charges and brought an unfair dismissal claim, arguing that his employer should have waited until the criminal proceedings were over before deciding whether or not he should lose his job.
His claim failed. The Employment Tribunal held that the employer had adequately and reasonably investigated the alleged misconduct and its decision to dismiss fell within the band of reasonable responses.
Every case turns on its own peculiar facts but there were some interesting points here, in addition to the main concept that internal disciplinary processes are usually distinct from criminal proceedings.
For instance, it did not matter that the disciplining officer did not have a transcript of the police interview (or a copy of the tape) to hand – relying on a summary of that interview was fine. Nor did it matter that papers relating to the internal appeal and which invited a response from Mr Okhiria were sent to the wrong address. The employer had no reason to believe that had happened because employees rarely respond, and also Mr Okhiria had (and failed to take up) an opportunity to point out later that he had not commented on the notes.
Status is what it is
Plastering Contractors Stanmore v Holden
Mr Holden was employed by Plastering Contractors Stanmore (PCS) as a general labourer. Almost four years after he started it was agreed, in exchange for a payment of £200, that he would become a “labour-only subcontractor”.
From that point, PCS used him on an as-and-when basis although he worked almost exclusively for the company. His pay depended on the work he undertook, according to a tariff set by PCS. PCS provided some safety clothing and, if Mr Holden had to transport equipment between sites, he was provided with a vehicle.
That arrangement continued for 12 years until Mr Holden became fed up and started working elsewhere. He brought a holiday pay claim against PCS. The question was, had he been a worker (and so entitled to holiday pay) or self-employed (and not)?
The Employment Appeal Tribunal (EAT) upheld the tribunal’s decision that, despite the purported change in status, Mr Holden remained a worker. He had been regularly offered work by PCS over a period of 16 years and the company expected him to turn up – and that meant he was integrated into the workforce. There was enough mutuality of obligation during each assignment to suggest worker status and PCS had exercised the necessary degree of control over him.
So attempts to change status, even where agreed and understood – and, as in this case, paid for – will not necessarily succeed where the reality of the working relationship is something else. The message issued repeatedly by the Tribunals is that the important thing is what the relationship actually is, not how it is described.
Fixed term worker denied PHI
Hall v Xerox UK
Fixed term workers have their own branch of protection against discrimination. It is there to ensure that these workers, whose contracts are set to end on a particular date, are not (without justification) treated less favourably than permanent staff.
But, as Hall v Xerox UK illustrated, differences in treatment are sometimes beyond an employer’s control; and where that is the case, the employer cannot be liable.
Xerox’s permanent and fixed term employees were entitled to permanent health insurance. Payments kicked in once the employee had been off work for 26 weeks because of a qualifying injury, but Xerox was only contractually bound to pay the employee if the insurer had already paid up.
Here the insurer refused cover because Mr Hall’s contract expired within the 26-week period, even though Xerox had agreed to renew it.
The Employment Appeal Tribunal upheld the tribunal’s decision that Xerox was not liable for fixed term workers discrimination. While Mr Hall had been treated less favourably than a permanent employee and that was because he was a fixed term worker, the employer was not to blame. Xerox had not caused the discrimination. Rather, it emanated from the insurer; it was the insurer’s decision not to pay.
It was relevant in this case that the policy exclusion was a standard one and was replicated in other insurance policies. So the fact that it had not been open to Xerox to negotiate out of that particular term provided further exoneration.
Emergency time off
Ellis v Ratcliff Palfinger
Employees are entitled to take unpaid reasonable time off work to deal with dependant-related emergencies. It is subject to their telling the employer – as soon as reasonably practicable – why they are absent and for how long they expect to be off work.
Mr Ellis’ automatically unfair dismissal case failed because he had not taken the necessary steps to keep his employer informed of his whereabouts when his wife went into labour and went on to give birth.
He was already on a final written warning for attendance issues. He took his wife to hospital several times one Monday without telling Ratcliff where he was, although his father telephoned for him that afternoon. The next day he again attended hospital where she gave birth. He did not go into work and did not telephone to explain why. He was then contacted by his employer who asked him to explain his absence urgently, and Mr Ellis left a voicemail message explaining that he would not be in work the next day.
At his disciplinary hearing Mr Ellis said that the battery on his mobile phone had died and he could not remember Ratcliff’s phone number. He was dismissed.
The tribunal held that he had not been automatically unfairly dismissed for taking time off. Employment protection did not kick in because Mr Ellis had not kept his employer informed about his absence. The reasonable practicability of making contact depends on the employee’s state and condition, and here Mr Ellis could have made more of an effort.
The Employment Appeal Tribunal upheld that decision.
Elys v Marks & Spencer
It comes to something when you fall asleep at work.
For one employment tribunal lay member, this may have been the unfortunate reality when he was observed with his eyes closed at various points during a three-week hearing. He had been drooling and even received a nudge from the judge.
The claimant (who had lost) appealed the decision, arguing that the judgment should be overturned because a sleeping lay member is a material procedural irregularity.
The Employment Appeal Tribunal (EAT) held not. On the subject of sleep, the EAT said that the member had dry eyes, so closed them, and had been taking painkillers. But other than that, the member was not guilty of inattention or of giving the appearance of inattention. He had asked questions, taken notes and taken a full part in the tribunal’s discussions. The 15 to 20 seconds he had spent ostensibly asleep was not enough to be a procedural irregularity.