Employment Law

In November 2011 Business Secretary Vince Cable outlined to the manufacturers’ organisation, the EEF, the Government’s plans for the “most radical reforms to the Employment Law system for decades”.

Amongst the proposals are the following:-

• To seek views on introducing compensated “no fault” dismissals for micro firms with fewer than 10 employees.
• To consider the slimming down and simplification of dismissal procedures.
• To consider the introduction of fees for Tribunal claims.
• To require all employment disputes to be offered ACAS Pre-Claim Conciliation before going to a Tribunal.
• To increase the qualifying period for unfair dismissal to two years from April 2012.
• To consider having “protected conversations” to allow employers to have discussions with staff about retirement or poor performance, which could not be relied upon in a Tribunal claim.
• To review the Tribunal rules so to make the Tribunal process simpler and more efficient.
• To consider the development of a “rapid resolution” scheme to offer a quicker and cheaper alternative to Employment Tribunals.

Mr Cable described these proposals as “emphatically not an attempt to give businesses an easy ride at the expense of the staff”.

Daven Naghen, head of our Employment Team commented as follows on the proposed reforms:-

“No doubt if most of these proposals come to fruition then there will be seen to be a big shift in Employment Law in favour of the employer, especially those employers who are small businesses.

Some of the proposals make good sense in theory and appear “even-handed”.  I obviously await with interest the actual details.  I particularly feel the ideas of “protected conversations”, more pre-claim involvement by ACAS and a “rapid resolution scheme” are potentially very helpful to all parties.  These proposals do not necessarily weaken the position of employees, but hopefully will provide a more effective way of resolving work place disputes without the need for lengthy, costly and stressful Tribunal claims.

On the other hand employees will certainly feel that they will be disadvantaged by the proposal to increase the qualifying period for unfair dismissal to two years and by the imposition of fees for Tribunal claims.”

If you want any advice on any of the issues referred to in this article, then please do not hesitate to contact Daven on daven.naghen@maplessolicitors.com, or on 01775 722261 or at 23 New Road, Spalding, Lincolnshire PE11 1DH.

In the recent case of Fraser –v- Southwest London St George’s Mental Health Trust the Employment Appeal Tribunal (EAT) held that an employee on long-term sick leave must request annual leave to be entitled to payment for it.  Therefore staff who remain on long-term sick leave, are not automatically entitled to holiday pay unless they request annual leave in the same way as say an employee who is not on sick leave.

Daven Naghen, head of our Employment Team commented as follows:-

“There have been a number of cases on this point, and now the EAT has clarified the matter.  In essence employees on long-term sick, like employees who are not off sick, have to use it or lose it in terms of holiday – they must request it or else they lose the right to holiday pay.  From a good relations point of view, an employer should ensure that its holiday policy and sickness policy include clear references to the fact that an employee on long-term sick leave will need to request holiday in the usual way or else the employee shall lose his or her entitlement to holiday pay.”

If you require any advice on this topic then please contact Daven on 01775 722261 or email daven.naghen@maplessolicitors.com or contact him at 23 New Road, Spalding, Lincolnshire PE11 1DH

In November 2011 the Government published the results of a review of sickness absence.  The review recommends the creation of an Independent Assessment Service (IAS) which would assess whether people are fit to work when they have been signed off for four weeks, relieving GP’s of this task.  According to the authors of the review, GP’s do not have sufficient time to perform in-depth assessment of individuals and they have not had training in occupational health which can make it difficult for them to make decisions on an individual’s ability to continue working

The proposed IAS would assess a person’s functional capacity and would make recommendations about a person’s ability to return to work immediately (or with work place adjustments) or whether the person is not fit to return to work at all.

The review believes that if the IAS is implemented that it would allow up to 20% of the 300,000 people currently off work in the UK to get back to work sooner and help reduce the £15 billion cost to the UK economy each year.

Other proposals of the review include:-

1. The payment of Job Seeker’s Allowance rather than Employment Support Allowance (for a period of three months) to people who are signed off sick.  This means that they would receive less money and would have to prove that they were looking for work;
2. Tax incentives for firms to take on or retain staff with long-term conditions;
3. Statutory Sick Pay record keeping obligations to be abolished, reducing the administrative burden for employers and saving an estimated £44 million; and
4. Government-backed help to find a more appropriate job for those who can no longer do what they have been doing.

Daven Naghen, head of the Maples’ Employment Team commented as follows:-

“In theory this sounds great.  From my experience of these matters GP’s do not have the time or skills to properly assess the ability of a patient to return to work (with or without adjustments) and many too often pander to the wishes of the patient.  In turn such a patient can often drift into idleness, especially with the attractive State Benefits currently available.  The IAS might just help to enable employers to manage staff absence more effectively.  At the same time I am concerned that this might just be a money saving exercise which may become too punitive on employees and not ultimately look to their best interests.”

For further advice on this review and the possible implementation of the IAS please contact Daven Naghen on 01775 722261 or email daven.naghen@maplessolicitors.com or contact him at 23 New Road, Spalding, Lincolnshire PE11 1DH

More and more in recent times we have been approached by employers who are concerned about the performance of members of their staff who are going through troubled times with their spouse or partner.  Quite often domestic/matrimonial difficulties can lead to reduced performance and increased absenteeism from staff, as the employee struggles to come to terms with the problem.  To assist we can offer a one hour appointment to your staff for just £100 inclusive of VAT, so that we can help them with any matrimonial difficulties which may in turn help your business in respect of an improved performance from the employee and reduced absenteeism.

If you have an employee who you feel would benefit from this offer then please email anita.toal@maplessolicitors.com or telephone Anita on 01775 722261.

There are many instances of employers purporting to dismiss employees and then looking to withdraw or retract the dismissal. A recent case of Willoughby (W) –v- CF Capital Plc (CFC) provided some further legal guidance on this subject.

W was told by her manager that CFC was experiencing difficulties, and that one way to avoid redundancies was for staff to become self-employed on a retainer plus commission basis.  W expressed an interest in this option and requested more information.  After repeated requests for paperwork, W eventually received on 23^rd December an agency agreement to effect the move to self-employed status. The agreement stated that her existing employment would end on 31^st December.

W took legal advice and informed CFC that she declined the agency agreement.  On 5^th January W’s manager rang her to say that there had been a misunderstanding and that if she did not want to become self-employed that she could continue in her employment.

W maintained that she had been dismissed and claimed wrongful and unfair dismissal.  CFC denied that there was a dismissal and claimed that W had resigned.

The Employment Tribunal (ET) found that the letter from CFC ‘without more’ amounted to a dismissal.  However the ET found ‘special circumstances’, as W’s manager had genuinely believed that W had agreed to become self-employed, and the dismissal was withdrawn as soon as practicable after W had alerted them to the mistake.  The ET held that W had resigned, having refused the explanation of the situation and offers to continue to employ her.  W appealed.

The Employment Appeal Tribunal (EAT) allowed her appeal!  They said the ET had failed to ask whether ‘in the special circumstances’, W was entitled to assume that the decision to dismiss her was a conscious, rational decision.  In other words, was there anything to indicate to W that the words of dismissal were not to be taken at face value?

The EAT noted that the main practical problem addressed by ‘special circumstances’ had been words spoken in the heat of the moment and then quickly retracted.

On the basis of the ET’s findings that the reference to termination in the letter was intentional, not an error, W was entitled to assume that this was a conscious rational decision and to consider that her employment had ended.  Further the EAT held the Tribunal was wrong to hold that the withdrawal of the dismissal was timeous.  For a clearly expressed dismissal to be retracted it must be done quickly, usually within a day or two.  In this case the period was much longer and the Christmas holiday period was no excuse.

Daven Naghen, head of our Employment Team commented as follows:-

“This ruling may have been harsh on the employer, but shows that the employer must take great care in these matters.  An employer is only likely to be able to retract a dismissal if it was say made in the heat of the moment and the retraction is made almost instantly within no more than a couple of days at most.  If an employer notifies an employee in writing of a dismissal it will have great difficulties in retracting the dismissal as a written letter could suggest that the employer has made a conscious and rational decision to dismiss.

Subsequently a dismissal which cannot be retracted may lead to a claim by the employee for wrongful dismissal and or unfair dismissal.”

If you need advice on this subject matter then please email daven.naghen@maplessolicitors.com or telephone Dav on 01775 722261.

Recently the European Court of Human Rights (“ECHR”) held in a Romanian case that although accessing an employee’s personal messages on a work computer and using this to justify the dismissal of that employee for breach of the employer’s rules on computer usage engaged the employee’s right to respect for a private life, family and correspondence under Article 8 of the European Convention on Human Rights, that there was no violation of Article 8 in this particular case. Despite newspaper coverage to the contrary, the case does not mean that employers have carte blanche to monitor employees’ telephone calls, texts and emails etc at work. Monitoring may be lawful but only in certain limited circumstances.

The facts of the Romanian case

The employee was an engineer who had his Yahoo messenger service communications monitored by his employer. His employer had asked him to use the service for work purposes only, but the employee had used it for personal messages to his family. When challenged about his usage of the service, the employee denied any personal use which resulted in his employer producing a 45 page transcript of communications which did show that some were of a personal nature. As a result the employer sacked the employee and the employee claimed a violation of his right to respect for his correspondence under Article 8.

The decision of the ECHR

The ECHR held that although Article 8 had been engaged, it had not been violated, and differentiated the case from previous decisions involving UK cases of Halford and Copland. In Halford and Copland the personal use of an office telephone was allowed or at the very least tolerated. In the Romanian case personal use by staff of the employer’s computers etc was strictly prohibited.

The ECHR also noted the following:-

(i) The scope of the monitoring was limited to the framework of disciplinary proceedings;

(ii) The employer’s decision to dismiss was not based on the content of the messages, but purely on the fact that the employee had used the employer’s computers for personal use;

(iii)It is not unreasonable for an employer to want to verify that its staff are completing their professional tasks during working hours;

(iv)The Yahoo messenger account was examined, but not other data and documents stored on the computer so that the employer’s monitoring was limited in scope and proportionate; and

(v) The employee had not convincingly explained why he had used the Yahoo messenger account for personal use.

Hence on balance between the employer’s and employee’s rights, it was fair for the employer to monitor the employee as it had done (and to dismiss).

Conclusions

Daven Naghen head of our employment team has commented as follows:-

“This case does not give employer’s carte blanche to monitor staff usage of its IT and communications systems. If an employer is going to be able to do this lawfully then the employer will need a clear and well drafted policy setting out the ground rules and will need to bring this to its staff’s attention prior to any monitoring taking place.

For example if the policy clearly states that no personal usage is allowed, or only within certain limited parameters, then the monitoring of the IT and computer systems to check compliance with the policy may be lawful provided it is limited in scope, e.g. within a disciplinary content.

The policy should clearly state under what circumstances IT and computer systems may be monitored and also the consequences for any breach of the policy.

Without such a policy the monitoring of an employee’s usage of the employer’s IT and communications systems is still likely to be a breach of Article 8.”

If you need any advice or guidance on this subject, either as an employer or as an employee, then please contact Daven Naghen on 01775 722261 or email daven.naghen@maplessolicitors.com or arrange an appointment or visit our offices at 23 New Road, Spalding, Lincolnshire, PE11 1DH.