Latest update from Hancocks Solicitors
| Published: 20th May 2008 15:38 |
APPEAL CANNOT RECTIFY PREVIOUS ERROR
The Employment Appeal Tribunal (EAT), overturning a Tribunal's earlier decision, has recently held that an appeal cannot rectify a previous failure by the employer to follow the statutory dismissal procedure.
The case involved the dismissal of an employee due to redundancy. During the consultation period prior to his dismissal, the employee was invited to a meeting and the process confirmed in writing. However, the employee was not provided with adequate information regarding his selection for redundancy and was therefore unable to challenge the decision at the stage 2 meeting, during which his employment was terminated.
During the internal appeal, the reasons for his selection were fully considered with the employee, with the decision to dismiss upheld. The employee maintained at Tribunal that, because the employer had failed to provide him with sufficient information at the dismissal meeting, his redundancy was automatically unfair. The Tribunal held that the dismissal was, in fact, fair as the appeal hearing had rectified the previous error by re-considering the selection criteria with him.
The EAT, although agreeing that the employee would have been dismissed in any event, found that an appeal cannot rectify a previous failure to follow the statutory dismissal procedure and the employee's dismissal was therefore automatically unfair.
Although the statutory dismissal procedures are due to be repealed in the next 12 months, until then employers must ensure that each stage is followed to the letter. This involves, as a minimum, inviting the employee to attend a meeting setting out in writing the reasons for potential dismissal, holding the meeting with the employee to discuss the reasons prior to dismissal, confirming the decision to dismiss in writing and informing the employee of his/her right to appeal.
RESOLUTION OF WORK PLACE DISPUTES BY MEDIATION
Mediation is becoming the favoured alternative to litigation within the business and commercial sector. With the introduction of the Employment Act 2008, requiring the parties in a dispute to consider settlement by way of alternative dispute resolution, mediation should be the first, rather than the last, option to settlement.
This last development in workplace disputes also comes at a time when the reduction of ACAS Conciliation Officers often leaves the parties without a vital "go-between".
As an impartial and mutually agreed third party, a mediator can assist and guide the parties to be part of a process in which they are fully involved and who themselves work towards a resolution of their own invention and crafting.
The advantages of mediation are several, not just saving of legal costs, but also of management time; convenience of time and location to suit the parties; the flexible, voluntary and participatory process; the creative options available for settlement; confidentiality and importantly the preservation of working relationships.
We work in association with Pat Wright of Hopkins Solicitors who is an accredited mediator. For more details of the process of mediation and its advantages please contact Pat at pwright@hopkins-solicitors.co.uk or telephone 0115910555.
INFORMATION AND CONSULTATION
As from 6 April 2008, the Information and Consultation of Employees (ICE) Regulations came into force for organisations with 50 or more employees. Subject to certain conditions, the Regulations give employees the right to request that their employer sets up or changes arrangements to inform and consult them about issues such as:
the Company's economic situation;
employment prospects;
any decisions likely to result in substantial changes in the work organisation or contractual relations.
There is no set requirement imposed on employers for reaching an Information and Consultation agreement, unless a formal written request is made from at least 10 per cent of employees, with a minimum of 15 and a maximum of 2,500 employees. Alternatively, in the absence of such a request, the employer may choose to negotiate an agreement with employees.
Where an agreement is to be reached, the employees must be allowed to elect their own representatives in order to negotiate the agreement. Although the Regulations allow flexibility as to how the agreement is set up, it should specify how and when informing and consulting will take place.
Although the Regulations do not currently apply to organisations with fewer than 50 employees, a smaller employer may wish to open up negotiations with employees to establish some sort of agreement. In any event, whether an Information and Consultation Agreement exists, an employer is obliged by law to consult with staff (or their representatives or recognised trade unions where appropriate) on the following issues:
health and safety;
changes to the contract of employment;
proposed redundancies (if 20 or more are planned);
sale or transfer of undertakings (i.e. the business, or part of it, is to be sold or contracted out etc);
changes to pension schemes.
PART-TIME WORKERS
Employers have recently been reminded about the importance of not treating part-time workers less favourably than their full-time counterparts in accordance with the Part Time Workers (Prevention of Less Favourable Treatment) Regulations. The EAT has also clarified that the part-time status of the worker need not be the sole or main reason for the detrimental treatment, but simply a material factor.
In the case of Sharma and others v. Manchester City Council, the employees worked as part-time lecturers. The employees' contracts of employment entitled the Council to reduce their working hours by up to one third which, following a cost-cutting exercise, is precisely what happened. The right to vary working hours to the same degree did not exist in the contracts of full-time (and some other part-time) employees.
At tribunal, the Council claimed that, as other part-time workers had not had their hours reduced, the detrimental treatment could not solely be due to the employees' part-time status. It argued instead that, as the employees' contractual terms permitted a variation of working hours, the Council was therefore able to reduce their hours without being in breach of contract.
On appeal, the EAT found in favour of the employees, stating that the employees only needed to demonstrate that their part-time status was one of the material reasons for the detrimental treatment, not the sole reason, thus bringing the law in relation to part-time workers in line with other areas of discrimination law.
Employers must in addition consider the fact that, as approximately 80 per cent of part-time workers are female, less favourable treatment based on their part-time status may also amount to indirect sex discrimination.
With no upper limit on compensation for successful discrimination claims, employers must take care not to subject part-time workers to any kind of detrimental treatment, unless it can be objectively justified. It is therefore advised to review contracts of employment, policies and procedures, and also the allocation of benefits to ensure that there is nothing which may lead to a complaint of unfair treatment.
IVF TREATMENT AND DISCRIMINATION
The number of women undergoing IVF treatment (‘in vitro fertilisation') in order to conceive has dramatically risen over the last few years but, until recently, there has been no guidance for employers on how such employees should be handled.
However, the European Court of Justice (ECJ) has reached a decision in relation to an Austrian case (Mayr v. Backerei und Konditorei Gerhard Flockner) which provides some clarification as to the legal rights of such women in the workplace.
The employee had undergone treatment, and had reached the stage where her eggs had been fertilised but not yet implanted. Following complications as a result of the treatment, the employee became ill but was then dismissed whilst on sick leave.
The ECJ held that, as the employee was not actually pregnant at the time of her dismissal, she was not protected under the Pregnant Workers Directive. However, if the dismissal was due to the IVF treatment which the employee was receiving, this amounted to sex discrimination as only women can undergo IVF, and protection is therefore afforded by the Equal Treatment Directive.
Any employees undergoing IVF, or any other fertility treatment, should therefore be treated carefully by employers. It may be appropriate to consider allowing paid time off to attend appointments or undergo treatment, and to pay particular caution when contemplating disciplinary action or dismissal where there has been sickness absence due to receiving fertility treatment.
DYLEXIA IN THE WORKPLACE
The government estimates that approximately 4 per cent of the UK working population are dyslexic, while the British Dyslexic Association (BDA) claims that the figure is much higher, with around 10 per cent of workers suffering from dyslexia at some level.
Despite dyslexia being such a common issue, the majority of employers are not aware that it falls within the definition of disability under the Disability Discrimination Act (DDA) and, as such, they have a duty to make reasonable adjustments in order to support sufferers within the workplace.
Often dyslexia is only identified as a result of the employee eventually being taken through a disciplinary or performance management process, but some are not quite so lucky. A recent case involving a dyslexic trainee policeman highlights the ignorance which surrounds the condition. The probationer was subjected to unsympathetic and humiliating treatment from his seniors, who called him lazy and made him repeat the same piece of paperwork up to 10 times. The tribunal upheld his claim of unfair constructive dismissal, stating that the ex-employee had clearly been bullied and denied opportunities due to his dyslexia. He is now seeking damages of up to £500,000, for the loss of a potential 30-year career with the police.
The BDA advises that employers carry out a dyslexia assessment where a problem is suspected and, where confirmed, employers should consider introducing available technology to assist the employee in their role. Solutions often do not have to be sophisticated or expensive, for example using a sans serif font at a minimum size of 12, spell-check with autocorrect, cut/copy/paste and coloured backgrounds.
The BDA offers extensive support and advice to employers, including a national helpline (0845 251 9002), in addition to one-day training courses covering, amongst other things, dyslexia awareness and making reasonable adjustments in the workplace.
Employers should be careful not to discriminate against dyslexic applicants during the recruitment process and, if considering carrying out dyslexia assessments, should only do so once a position has been offered. For those wishing to go the extra mile, dyslexia awareness training could be provided to assist managers in understanding the condition and the problems faced by sufferers. In addition, where technology is introduced to support a dyslexic worker, full and ongoing training should be available to ensure it is, in reality, making a positive difference.
EMPLOYED OR SELF-EMPLOYED?
In the majority of working relationships, it is usually clear whether an individual is working as an employee under a contract of employment, or in a self-employed capacity under a contract for services (as a sub-contractor). However, in certain situations it is not always so straightforward, which does not cause a problem until some sort of dispute arises.
An individual or the person for whom they are working cannot simply ‘choose' whether the worker is an employee or self-employed; it will depend on the terms, conditions and facts of each particular engagement. Although not definitive, the following list provides some guidance as to whether a relationship may be that of employer/employee or contractor/sub-contractor.
Employment:
The"employee" regularly works for the same "employer" and, where required, moves from site to site with the same employer;
Both parties are under a mutual obligation to one another under the terms of the employment contract - for example, the employee agrees to attend work at certain times, and in return the employer agrees to pay the employee a wage;
The employer has a right of control or direction over the employee regarding the carrying out of tasks (whether the employer chooses or needs to exercise control or not);
The employee must carry out the work personally - he/she cannot substitute someone else to carry it for them;
There is no financial risk to the employee in the running of the business;
The employer deducts tax (PAYE) and Class 1 National Insurance Contributions (NIC's) from the employee's wages;
The employer provides the equipment necessary to carry out the work;
The employee enjoys certain rights (subject to minimum qualifying periods), such as:
- Written particulars of terms of employment
- Protection from unfair dismissal
- Redundancy payment entitlement
- Statutory minimum period of notice
- Statutory sick pay
- Paid holidays
- Maternity/paternity/adoption/parental rights
Self-Employment (sub-contractor):
The sub-contractor usually works for different contractors on different projects for varying lengths of time;
The contractor and sub-contractor are not obliged to offer or accept any work - once a task is complete there is no obligation on either party to continue the relationship;
The sub-contractor has the right and flexibility to decide how and when the work is carried out;
The sub-contractor has the right to substitute someone else to do the work in his/her place;
The sub-contractor faces financial risk if the business is not successful or if other (unexpected) expenditure is incurred;
The sub-contractor is usually paid at a fixed rate for an agreed task;
The sub-contractor must calculate and pay his/her own tax and Class 2 and 4 NIC„X's through self-assessment;
The sub-contractor may have to complete regular VAT returns and make relevant payments (subject to annual taxable turnover);
The sub-contractor usually supplies the equipment necessary to carry out the work.
Although there may be a written contract of employment or contract for services in place, a tribunal (or, in some circumstances, HMRC) will look beyond the document if necessary in order to establish the reality of the situation. If it is found that an individual is actually an employee, he/she will be afforded the full protection of the employment relationship (subject to qualifying conditions), for example, the right to claim unfair dismissal, despite the fact that the two parties have been operating under a contractor/sub-contractor relationship.
It is therefore the responsibility of the would-be employer/contractor to decide on the status of the worker, and the fact that the worker may have worked in a self-employed capacity on a previous task is irrelevant - each engagement must be considered on its own merits.
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