Welcome
In this month’s Bulletin we take a look at some recent case law developments as well as forewarn you about employment law coming your way this spring. The economic situation has, if reports are to be believed, begun to improve and hopefully the trend of redundancies and pay-cuts will begin to reverse. Nevertheless, many businesses continue to suffer crippling cashflow problems, and British Airways provides a disturbing example of how a disgruntled workforce can bring a business to its knees.
Be Prepared - New employment law coming your way in Spring 2010
Right to request time off for training
From 6 April employers will be legally obliged to consider requests by employees to take time off for training purposes, in a similar way to which they are presently required to deal with requests for flexible working arrangements. Employers will be able to refuse a request where they believe there are good business reasons for doing so. Employers will not be obliged to meet the salary or training costs and the right will only be available to employees in organisations with 250 or more employees. However, from April 2011 the right will be extended to cover all employees.
Fit notes
The Government intends to introduce a “fit note” system, which will require doctors to indicate whether a worker is able to carry out any work at all, rather than to simply sign them off work completely. The content of the fit note is still very much “work in progress”, but the latest version provides four courses of action which the doctor can recommend to the employer: - phased return to work; amended duties; altered hours; and workplace adaptations. There will be a “comments” box for the doctor to use, where another option is thought more appropriate. The Government has said that the list is intended to encourage discussions between the doctor and patients, as well as between employee and employer, about the best means for getting people back to work.
In some cases employers will need to consider the doctor’s recommendations very carefully so as to avoid finding themselves at an increased risk of disability discrimination claims. This is particularly the case where changes to the employee's duties or workplace could be made that would help disabled employees return to work sooner.
Whistle blowing – important changes
After 6 April 2010, Employment Tribunals will have the power to pass on whistleblowing allegations (made under the Public Interest Disclosure Act) to a prescribed regulator. Claimants will be able to tick a box on their claim form if their claim involves allegations of a protected disclosure. They will also have to indicate whether they wish the tribunal to pass their allegations to a relevant regulatory authority. Where an Employment Tribunal informs a relevant authority (e.g. the FSA, where an FSA regulated body is involved) it will confirm that it has done so to all the parties to the tribunal proceedings.
Employers raised concerns during the consultation process that this will leave the claimant with additional and improper bargaining power. The Government’s response to this was that this situation can already arise where the claimant sends information directly to the regulator. However, in practice, it could result in an increase in the number of employers facing the additional burden of dealing with a tribunal claim alongside a regulatory investigation.
Dismissal – breach of human rights?
In the case of Henderson v LB Hackney and others, Miss Henderson had been dismissed when it was found that she had accessed pornography on a school computer and distributed it to a colleague. She claimed that she had been unfairly dismissed and that her right to freedom of expression under the European Convention of Human Rights had been breached. Miss Henderson was a mentor and leader at a school for girls with barriers to learning. The school had no internet policy at the time but had concluded that Miss Henderson had a complete disregard in a school context for the welfare of young people who could have accessed the inappropriate material circulated.
The Employment Tribunal dismissed her claim of unfair dismissal and she appealed to the Employment Appeal Tribunal which found in the School’s favour. It found that Miss Henderson was guilty of a major error of judgment in the way she breached the school's approach to vulnerable children. It was an act of gross misconduct over time and it affected the school's confidence in her. Regarding the human rights claim, it found that the Employment Tribunal cannot be faulted in balancing the right of Miss Henderson to freedom of expression and the right and duty of the school to protect children in its care from exposure to pornography.
Pregnant workers – risk assessment
The case of O’Neil v Buckinghamshire County Council provides employers with very useful guidance as to when an employer comes under a duty to conduct a risk assessment for a pregnant worker. Essentially, the preconditions that must be met are as follows:-
- the employee must have 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 arises from processes, working conditions or physical, chemical or biological agents in the workplace.
There is not an actual requirement that a meeting with the worker has to take place before the obligation to carry out a risk assessment is satisfied (although it is clearly advisable to have one), but an employer must provide her with comprehensive and relevant information on any identified risks.
The danger for employers is that, if an obligation to carry out a risk assessment arises (as detailed above) and there is a failure to carry out that risk assessment, discrimination results regardless of proof of detriment.
Loss of paid holiday entitlement
In the case of Lyons v Mitie Security, an employee failed to take all of his paid holiday leave within the employer’s contractual leave year. Mr Lyons had 9 days left to take, near the end of his holiday year. He did not give his employer four weeks notice and lost his untaken entitlement in that holiday year. As a result, Mr Lyons resigned and claimed constructive dismissal.
This is an important and helpful decision, because it is the first time the Employment Appeal Tribunal (EAT) has tackled the question of whether the minimum right to holiday leave in the Working Time Regulations is an absolute right for employees (and therefore must be taken or, failing that, compensated for), or whether it can be lost if untaken. The EAT concluded that an employee’s minimum entitlement (currently 28 days for an employee who works 5 days per week) can be subject to an employer’s statutory or contractual notice requirements, if operated fairly.
It therefore transpires that the right to statutory leave is not incontrovertible, but the EAT did confirm that employers must not operate entitlement conditions in an unreasonable, arbitrary, or capricious way so as to deny any holiday entitlement requested.
The right to legal representation at disciplinary hearings
You may remember that last year we reported a Court of Appeal decision, in which it found that where the outcome of a disciplinary process could prevent an employee from practising his profession, the individual had the right to legal representation at the hearings. This decision has now been confirmed, in the case of G v X School. A 15 year old boy had made an allegation that G (a school teaching assistant) had had sexual contact with him. The school governors conducted disciplinary proceedings, to determine whether G should be placed on the “barred list” of people unsuitable to work with children. They denied G the right to legal representation at the disciplinary hearings. The Court confirmed that Article 6 of the European Convention of Human Rights requires that an individual should be allowed legal representation at a disciplinary/appeal hearing, where the outcome could be determinative of a right to practise a profession.
Neither a “contract of service” nor a “contract for services”
In the case of Muschett v HM Prison Service, the Court of Appeal considered whether an agency worker with HM Prison Service had become over time an “employee”, and thereby obtained unfair dismissal and discrimination rights. It found that where contractual terms are clear, as they were in this case, there is no need to imply a contract of employment. In this case the Court had carried out the standard tests by analysing the elements of control, personal performance and mutuality of obligation in the work carried out. In addition, because the Appellant had no contractual obligation to HM Prison Service to do any work for them, and because there was no contract between him and HM Prison Service, he had no contract for service with it either. This case highlights, once again, a gap in protection in agency worker arrangements. There is typically no contract of employment between the agency and the worker and agency workers who suffer discrimination at the hands of the end-user will only come within the law's protection if a contract of service with either the end-user or agency can be implied, or a contract for services can be implied. This will be a high hurdle to clear where, as here, the contractual arrangements are quite clear as to the working relationship.
And Finally…
The boss of a recruitment firm, who attempted to place an advert for a domestic cleaner with a Jobcentre in Thetford near Norfolk, was told that it couldn’t be displayed because it was discriminatory. Nothing particularly unusual in that, except according to the Telegraph the advert was rejected because it required that applicants “must be very reliable and hard working”. A Jobcentre worker explained that the use of the word “reliable” meant that they could be sued for discriminating against unreliable workers and that they’ve had cases brought against them before for just that sort of thing. It may be that entirely unreliable people are walking into Jobcentres all over the UK and, after apologising for being late for their appointments, immediately take offence that they are being brazenly shunned by employers. What seems to have been overlooked in all of this is that “labour-indifferent” people could be offended by the phrase "hard working”. Surely they should be afforded protection too... |
