Charles Russell Employment update: May 2010 Time off for training
Welcome! Intro – could this effectively be the opinion piece? To spark an interest, like an editors note… with a new photo of dg.
David Green Head of Employment and Pensions +44 (0) 20 7203 5066 david.green@charlesrussell.co.uk
Also effective from April is the new right to time off to study or train train. It applies to employers with more than 250 employees from 6 A p r i l 2 0 1 0 and for all other employers from A p r i l 2 0 1 11. The procedure for making a request is very similar to the flexible working regime, and like that regime is merely a right to request the time off. The employer can refuse for specified business reasons, which are broad, making the right relatively toothless. Additionally, there is no right to be paid for the time off or the training, so in reality this may not be an attractive option for many.
Will the Equality Bill beat the election?
What's new? [A round up of the latest news from the Empen scene]
Will the “fit note” work? In an attempt to get employees on long term sick leave back to work, the government is introducing the “ fit note note”” from April. GPs will have to certify that the employee may be fit for work (taking into account certain issues) rather than is fit for work. Those behind the changes hope that this will encourage more discussion between GPs and their patients, and employers and employees, as to what steps may help the individual back to work. It seems fairly ambitious to expect a change in the culture of sickness absence in the short term, but this may mark the start of a shift in approach.
Increasing rights for fathers, or adding a burden to business?
The progress of the Equality Bill through Parliament is nearly complete and it is on track to receive Royal Assent in the Spring with the aim of the majority of the provisions coming into force in October 2010. It is unlikely that a change of government will have any impact on this, but until it receives Royal Assent anything is possible! This marks a significant overhaul of the discrimination legislation, seeking to unify and consolidate the different strands of the current discrimination legislation and introduce some new concepts. For example combined discrimination claims involving two types of discrimination, outlawing pre-employment health questionnaires except for specific reasons, limiting the enforceability of pay secrecy (“gagging” clauses) and introducing the power to require employers with 250 or more employees to publish information on pay.
In April, legislation providing for additional paternity leave and pay comes into force. The new right will apply to parents of children due on or after 3 A p r i l 2 0 1 1 or to adoptive parents matched on or after that date. What this will mean is that employees who are eligible (usually the father) will be able to take up to 26 weeks additional paternity leave once the child is over 20 weeks a n d the mother has returned to work. If the mother has returned to work during the first 39 weeks (ie whilst she is still receiving statutory maternity pay), then the father will be entitled to additional paternity pay. It will be interesting to see what the levels of take up for this will be - much is likely to depend on the level of pay of the returning mother in determining whether this is financially viable for a family.
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Charles Russell Employment update: May 2010
The latest cases It’s no holiday for employers The first tribunal cases following the landmark decision House of Lords decision on holiday and sickness are starting to come through and so far the decisions are not good news for employers. Firstly, in Shah v First West Yorkshire Ltd the tribunal decided it could add words in to the Working Time Regulations to allow an employee, who was unable to take his holiday as a result of being on sick leave, to carry it forward into the next leave year. This follows almost exactly the same facts as the ECJ decision in Pereda v Movilidad Madrid and is therefore not altogether surprising. Although this is a first instance decision and therefore not binding, it seems likely that other tribunals will follow this approach rather than waiting for the legislation to be amended. It remains to be seen what a higher tribunal or Court will make of this, but in the meantime, it does not bode well for employers. Secondly, it has been reported that in another decision, Rawlings v Direct Garage Ltd , an employment tribunal decided that an employee who had been off sick for over a year was entitled to be paid for all his untaken holiday entitlement for the entire period (ie spanning more than one holiday year) on leaving the company. As with the S h a h decision, this will not be welcomed by employers who are left with a degree of uncertainty until we get a ruling from a higher court.
Contract variation made simple? Varying employees contracts is, understandably, not straightforward. Employers are generally advised to consult with employees to try and seek consent to any variations. If all else fails, many employers terminate employment and re-engage on revised terms, but this is not risk free. A recent EAT decision may, on first glance, appear to help employers out. In Bateman and others v Asda Stores Ltd the EAT found that where there is a variation clause which is clear and unambiguous an employment contract can be varied without an employee’s consent – even if this results in a financial loss to the employee. In this case, Asda relied on a term in the staff handbook in which it “ reserved the right to review, revise, amend or replace the contents of this handbook, and introduce new policies from time to time reflecting the changing needs of the business” in order to change the existing pay Charles Russell LLP
On a practical level however, there are issues with this judgement. Many arguments, which may have helped the employees, were not used. For example, the EAT did not consider the “trust and confidence” argument as the employees had expressly conceded before the tribunal that there was no issue nor did it consider arguments on “relevant background” relating to the ability of the employees, most of whom were not particularly literate, to understand the nature of the terms of the staff handbook as this had not been raised before the tribunal. It is also significant that only one of the six test cases involved a financial loss.
Take a risk assessment not a risk with pregnant workers Under health and safety legislation, employers who employ women of child bearing age are under a duty to assess the risks to pregnant workers. In the recent case of O ’ Neill v Buckinghamshire County Council the EAT had to asses when this duty arises. Was there a general obligation to carry out a risk assessment for pregnant workers, or was the duty only triggered in certain circumstances? The EAT found that the duty is only triggered if:: l
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The employee has notified the employer in writing that she is pregnant; The work is of a kind which could involve a risk of harm or danger to the health and safety of the expectant mother or her baby; and The risk must arise from either processes, working conditions or physical, chemical or biological agents in the workplace.
Although it is easy to assess whether the first precondition has been met, the second two are less obvious. Therefore, where there is any element of doubt as to whether there is a risk of harm, employers should carry out a risk assessment. This is particularly in view of the fact that the EAT confirmed that if no risk assessment is conducted when the duty is in fact triggered, this would be automatic unlawful discrimination.
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Charles Russell Employment update: May 2010 Harassment, but no discrimination – there may still be a claim. Where an employee suffers at the hands of a co worker, but there is no element of discrimination, employers may still be liable under the Protection from Harassment Act 1997 (PHA) for harassment by one employee against another. In the recent case Veakins v Kier Islington Ltd the Court of Appeal held that a supervisor’s conduct of picking on and humiliating Miss Veakins, who was a trainee electrician, which resulted in her being signed off with clinical depression amounted to harassment under the PHA. This case is quite unusual in that the evidence was not challenged by the employer, but is a reminder for employers of the potential for claims under the PHA, particularly where there is no element of discrimination and given that it is not straightforward to bring stress-related claims. Each case will turn on its facts and the course of conduct complained of must be found to have crossed the threshold of being oppressive and unacceptable (rather than being unattractive, unreasonable or regrettable) and be such that it would sustain criminal liability. The Veakins case has now been applied in Rayment v Ministry of Defence where the High Court held that the conduct of senior officers towards a female soldier was “oppressive and unacceptable” and amounted to harassment under PHA. The case involved incidents such as a superior officer telling Ms Rayment without warning that an administrative error meant she had no job and must repay a month’s salary, an inappropriate final written warning, the decision to discharge her from the army while on stress-related sick leave and re-posting of pornographic pictures in the restroom after she had removed them.
In Muschett v HMPS the Court of Appeal held that an agency worker was not protected from discrimination by the end user as he was held not to be employed by either the agency or the end user and therefore did not come within the definition of “employment” or “contract worker” for the legislation to apply. It seems unlikely that Parliament would have intended that an agency worker in this scenario would have no protection and many commentators have criticised this decision. The Agency Workers Regulations do not address this point, although in fact the Directive which they implement specifies that agency workers should have the same level of protection as permanent employees in relation to, amongst other things, anti-discrimination legislation. We will have to wait and see if this is addressed before the regulations come into force. In May & Baker Limited t/a Sanofi Sanofi-- Aventis Farmer v Okerago the EAT held that an employee had no remedy for discrimination by an agency worker. In order for the employer to be liable the agency worker has to be shown to be either an employee or an agent of the employer. The “employee” argument is unlikely to succeed, following case law, and the “agent” argument is difficult given that the employer must be shown to have authorised the discriminatory act.
Agency workers – gaps and loopholes The final version of the Agency Workers Regulations 2010 which give agency workers the right to equal treatment in respect of pay and working conditions after a qualifying period of 12 weeks was laid before Parliament in January this year and are due to come into force in October 2011 2011. The legislation does not, however, give them employment rights such as the right not to be unfairly dismissed or to a statutory redundancy payment. In the meantime there have been two discrimination cases involving agency workers which appear to show a lack of protection from different perspectives.
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Charles Russell Employment update: May 2010
Case watch Age discrimination – the cases mount up Age related claims are increasing in the Tribunals, and when looking at cases on appeal, age issues appear to be dominating the courts time. Below we highlight some key age cases currently being appealed, decisions should be coming out in the next few months. The case of Seldon is an appeal against a decision that a rule requiring partners in a practice to retire at a particular age was potentially justifiable, but that no evidence justifying a decline in performance past age 65 had been provided in this case. The issue of justifying retirement ages, and what evidence a tribunal will need will be preoccupying more and more employers over the next few years as the “default” retirement age will be either raised or abolished. Any guidance on what tribunals should be looking for when the issue of justification arises, would be most welcome! Another area that has resulted in several reported cases is where an employer dismisses an employee before a particular age, in order to avoid paying an age related benefit, such as enhanced early retirement. In London Borough of Tower Hamlets v Wooster, the Court of Appeal will be looking at this issue. Finally, in [ ] the Court of Appeal will have to examine whether an employer is justified in introducing a provision that only allows employees to progress if they hold a particular qualification (in this case a law degree). Is it right that this requirement can be introduced when an employee has reached an age that would make taking a degree pointless as retirement is only a few years away?
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