Invite to disciplinary – make the potential outcome clear
March 5, 2009
A recent case has highlighted the importance of outlining the possible consequences of a disciplinary hearing in the invitation letter. The letter that invites an employee to a disciplinary is called a ‘step one letter’ under the current Statutory Dispute Resolution Regulations as it is the first step in a three step procedure (invite, meeting/decision, appeal) and must set out clearly not only the allegations made against the employee but the action the employer is considering taking if the allegations are found to be correct.
In Zimmer v Brezan, the Employment Tribunal found that the statutory procedure had not been followed because Brezan had no idea the meeting he had been invited to could result in dismissal. The case went to the Employment Appeals Tribunal which recently upheld the ET’s decision. The Company had investigated Brezan’s mileage claims after he had complained about his mileage payment, and then invited him by email to a meeting in which the disciplinary procedure was included but there was no mention of gross misconduct or even misconduct. He was eventually dismissed.
The EAT actually said that what is important is that the employee should at least be aware that a dismissal is possible – and that in some cases this might not necessarily have to have been stated in the letter if they knew some other way. However in this case Brezan had no idea he could be dismissed and therefore it was unfair.
So the message to employers is clear: one simple sentence in an invitation letter could be the difference between a fair and unfair process. When the Statutory Dispute Resolution Regulations are repealed and replaced with the new ACAS Code of Practice in April, the part of the law that currently finds dismissals are automatically unfair if the exact procedure is not followed may be relaxed as long as the process followed is fair and reasonable. However the need to inform an employee of the possible consequences of a disciplinary meeting is a big part of how the Code specifies this ‘reasonableness’ and ‘fairness’ is measured, therefore the important element of the process that has been highlighted by this case will still be relevant.
Does the Working Time Directive encourage a long hours culture?
February 27, 2009
Today is officially ‘work your proper hours day’, which is an initiative from Worksmart, part of the TUC, intended to encourage UK workers to stop carrying out billions of hours of unpaid overtime and perpetuating a long hours culture. The Worksmart website says:
“Over five million people at work in the UK regularly do unpaid overtime, giving their employers £26.9 billion of free work every year. If you’re one, why not take some time to reflect on how well (or badly) you’re balancing your life? This is one day in the year to make the most of your own time. Take a proper lunchbreak and leave work on time to enjoy your Friday evening - You deserve it!”
The site goes on to explain the negative health-related effects of working long hours, including stress and damage to external relationships.
This information is not anything we haven’t heard before, but the long hours culture in the UK has been around for years and will probably still be in the future despite the efforts of organisations such as the TUC. What is it about our country that makes us all work so much, with arguably no benefit to productivity? Most of the time it doesn’t even impress the boss – whilst many people may be exercising a lot of ‘presenteeism’ at the moment in order to safeguard their jobs in uncertain times, a survey of 500 managers that was carried out in December by Kingston University found that 59% did not think that people who stayed late worked harder than those who didn’t.
One theory put forward by many Unions and a number of Labour MEPs is that our continuing support for the opportunity for employees to opt-out of the Working Time Directive (which limits the legal working hours to 48 per week) is ensuring the long hours culture remains in the UK. This is an issue that has again been in the news in the last few months as the EU continues to put pressure on the UK to remove the opt-out. Last year the UK managed to hold onto the opt out by negotiating better legislation for the protection of temporary workers (see Agreement reached on opt out of working time directive, June 08) however at the end of last year European MPs voted in favour of scrapping the opt out for the UK, and now Gordon Brown faces a difficult negotiation in order to keep it. Some members of the Labour party feel that the opt out should be scrapped, but Gordon Brown wants to keep it, as do Conservative and Liberal Democrat MPs.
The Government is also under pressure from business groups including the CBI as they feel that the opt out allows businesses to have more flexibility in the use of their workforce – which was the whole point of introducing the opt out in the first place. On the other side of the argument it is said that the Working Time Directive is a health and safety law; protecting employees’ health from the adverse effect of long hours. In addition MEPs argue that the Directive as it has been adopted allows flexibility for workers to work longer than 48 hours in some weeks when there is a high workload because an average can be calculated over a period of 12 months.
What is your opinion of this issue? Does the opt-out provide flexibility for businesses and employees, or does it exploit UK workers and perpetuate a long hours culture in the UK?
Retirement procedures (2)
February 11, 2009
Yesterday’s article looked at the first two parts of the statutory retirement procedures (part of the Age Discrimination Regulations 2006): which were 1) giving notice of retirement and 2) the right to request to work beyond retirement age. Here is an explanation of the final stages of the statutory retirement procedures:
Considering the request:
The duty to consider the request should basically follow the statutory dispute resolution procedures (which are due to change in April this year). A meeting should be arranged to discuss the request, (unless the employer immediately grants the request) followed by the employer’s decision and the employee’s right to appeal the decision. As with disciplinary and grievance procedures, individual companies’ retirement policies may state time limits within which meetings will be arranged and decisions given, or may simply state ‘within reasonable time’. The employee has the right to be accompanied by a colleague or trade union official at the meeting.
Further requests:
If a later retirement date is agreed, the company needs to go through the correct procedure again to automatically dismiss the employee at their new retirement date (i.e. at least six months notice) unless they have agreed an extension of six months or less. If the employee then wants to work beyond that date, they must go through the whole process again with a request to work beyond the agreed retirement age. This would be treated as a completely different request.
Procedural fairness:
As with other statutory procedures; failure to follow any parts of the above rules could lead to a ruling of automatically unfair dismissal in an Employment Tribunal. It is therefore in employers’ interests to know and understand their responsibilities under the legislation. As I always say, the best thing to do when dealing with a retirement is to consult your employment law advisor or ACAS in plenty of time.
Retirement procedures (1)
February 10, 2009
Yesterday I explained the background and implications of the Heyday case on the default retirement age in the UK. At the moment the Age Discrimination Regulations (2006) still apply, which means that a mandatory retirement age of 65 can still be used and it is lawful to dismiss for reason of retirement after 65, as long as the statutory procedure is followed. Here is an explanation of the current procedure:
Notice of a planned retirement:
The employee needs to be given at least 6 months notice of the intended retirement date – which will be after they have reached the age of 65. It is important to note that if an employee has a longer notice period in their contract of employment (unlikely but possible) then they will be entitled to the longer notice period as you are giving them notice of the termination of their employment.
Requests to work beyond retirement age:
The employee has a right to request to work beyond the intended retirement age, and the employer has a duty to consider this request. When an employer gives notice of the intended date of retirement, they must also inform the employee of their right to request to work longer. The employee should put this request in writing and should indicate whether they would like to continue working indefinitely or until a specified date.
Tomorrow’s article will continue to look at the statutory retirement procedures.
Heyday and the mandatory retirement age
February 9, 2009
If you work in HR or are an employer, you will probably have heard about the famous case relating to the default UK retirement age that has been made by Heyday, which is part of the charitable organisation Age Concern. Here is an explanation of the background to the case, and where it leaves UK employers at the moment:
What is the basis for the case?
The case was brought by Heyday to the High Court, to challenge the mandatory retirement age of 65 that the UK currently has. The mandatory retirement age forms part of the age discrimination regulations that came into force in October 2006, and means that at the moment employers can legally dismiss employees over the age of 65 by reason of retirement (without any other justification), as long as they follow the correct procedure. The mandatory retirement age is due to be reviewed in 2011 but the case brought by Heyday is bringing the question of whether this aspect of the UK law complies with the Equal Treatment Framework Directive (EU Law) forward. The question is to do with the interpretation of the European Directive – and Heyday is arguing that the Directive has been incorrectly interpreted by the UK government when the age discrimination regulations were implemented. Heyday argues that it is against the principle of age discrimination to allow employers to dismiss employees simply because of their age.
What has happened so far?
In July 2008 the High Court referred the question of whether the mandatory retirement age is lawful to the European Court of Justice (ECJ). In September 2008 the Advocate-General, who is responsible for making recommendations to the ECJ on these sorts of rulings, gave his opinion, and it was not good news for Heyday. The Advocate-General said that whilst he agreed that the retirement provisions as stated in the UK age discrimination regulations do fall under the Equal Treatment Framework, he did not think that the Directive prevents EU states from introducing a mandatory retirement age. Whilst this is not a binding decision, around 80% of past ECJ decisions have gone the same way as the Advocate-General, so it is quite a telling opinion. The ECJ is due to make its decision this year, and there are around 260 cases in the UK that are waiting for the outcome before they can be decided.
What should employers do for the time being?
At the moment, employers can still dismiss employees after the age of 65 by reason of retirement, as long as they follow the statutory procedure and as long as they are a private sector company. The rules relating to public sector employers are different and they cannot necessarily automatically dismiss by reason of redundancy after the age of 65. This is because of the principle of ‘direct effect’ which means that EU rulings apply directly to the public sector, whereas the private sector continues to rely on UK regulations until they are changed or removed. So if the ECJ finds the UK regulations are incompatible with the Directive, public sector employers will have to immediately change their procedures. Employers need to keep their eye out for the ruling as this may affect their policies and procedures if it means a change to the UK regulations.
ECJ ruling ends dispute over holidays on long term sick
February 3, 2009
The European Court of Justice (ECJ) made a ruling at the end of last month that will end years of debate over whether staff who are on long term sickness absence should continue to accrue holidays and then be entitled to them at the end of their sick leave.
The right to a minimum amount of paid leave (which will increase to 20 days plus bank holidays in April) is part of the Working Time Directive (1998), and the ECJ ruling found that this right remains even when the employee has been absent through sickness for a long time:
“A worker does not lose his right to paid annual leave which he has been unable to exercise because of sickness. He must be compensated for his annual leave not taken”
This news has been taken badly by many employers and business groups, because of the added expense this ruling is likely to mean, especially in the current economic circumstances. It means that an employee will be entitled to take the accrued annual leave after the end of their sick leave, no matter how long this period is – which will mean issues with providing cover for extended leave requests and effectively integrating the employee back into work. In many cases employees on long term sickness absence do not return to work at all, and in this case the employee would be entitled to a lump sum payment of their outstanding accrued holidays when their employment is eventually terminated.
What this means for HR departments is that they will need to review their policies and handbooks to ensure the new rules are incorporated into the wording. Many current policies will give a maximum length of sick leave during which an employee may accrue annual leave (e.g. 6 or 12 months) and this will therefore need to be taken out. Many companies have a policy that states that employees on long term sick will continue to accrue the statutory minimum amount of holidays, but will not be entitled to accrue their additional company holidays (if they have an enhanced number of days) after a certain period. It is my understanding that this type of policy will still be legal after the ECJ ruling – as long as the employee accrues the legal minimum amount of holidays whilst they are on long term sick. It might therefore be prudent to add this into the policy when changing it, so that the company is not liable to pay even more annual leave that has been accrued by the employee if they are entitled to an enhanced amount of days when they are in work.
When is a TUPE not a TUPE?
January 22, 2009
With all the recent events as a result of the economic crisis, many business owners and HR professionals are currently dealing with TUPE issues. With companies facing troubled times and struggling to keep their heads above water, there are a lot of mergers and last minute buy-outs taking place or being negotiated. But it seems impossible to work out when TUPE regulations apply in the different situations, and even the most experienced legal experts cannot advise us with any certainty.
TUPE stands for the Transfer of Undertakings (Protection of Employment) regulations (2006). It means that when an undertaking (business) is transferred from one person or company to another, the people employed in the transferring company (the ‘transferor’) automatically become employed by the company taking over the business (the ‘transferee’), and their employment, including all their terms and conditions, is therefore protected. This legislation obviously provides implications for companies or investors considering buying a business or its assets, and unfortunately the law is very complicated and because of this, it is hard to know whether TUPE applies in certain situations.
A recent situation I heard about was a company that went into liquidation, and therefore all the employees became redundant. An investor started a new company in the same place, took over the lease of the equipment, and employed some of the staff that had worked in the company that was liquidated. I thought that this sounded like a classic case of TUPE, however I was informed that it wasn’t because the previous company had gone into liquidation under the supervision of an insolvency practitioner, which has different implications for TUPE than administration. I should really be satisfied with this explanation, but in reality the TUPE regulations are really difficult to comprehend and can be interpreted in different ways, so it means that in most situations you can never be completely sure. Basically, each case is different and it would be up to the Employment Tribunal to make the final call, which is not ideal for anyone.
I recently read a blog written by an experienced legal advisor who described TUPE as “Totally Unworkable, Penalises Everybody”. This is because it is too hard to decide who is right and wrong before a case reaches tribunal, and therefore nobody can get decent advice. Because of this problem and the difficulties in deciphering the legislation, many buy-outs that might happen which would save struggling businesses and many jobs, fail to go ahead because the potential buyer is too afraid of the implications of the possible liabilities they might or might not take on under TUPE.
I don’t think I will ever understand TUPE, and until the law is reviewed to make it more practical and helpful, I doubt a lot of other HR professionals will either.
What is your experience of TUPE?
Court of Appeal decision affects tricky discrimination legislation
January 20, 2009
A recent case in the Court of Appeal has changed the way that legislation covering discrimination on the grounds of sexual orientation can be applied.
In English v Thomas Sanderson Blinds Ltd the employee, Stephen English, argued that he had been discriminated against on the grounds of sexual orientation after being subjected to repeated taunts of “faggot” by his workmates, because he had been t o boarding school and because he lived near Brighton; despite the fact that he is not gay and his colleagues are aware of this.
Last year the Employment Appeal Tribunal held that English had not been discriminated against, and the key factor here was that his workmates knew he is not gay. UK law on sexual orientation discrimination is currently different from the European Directive on which it is based; which states that the reason for the behaviour that led to the claim does not need to necessarily be caused by the sexual orientation of the victim. So under the European Directive, English’s sexual orientation would be irrelevant to the fact that the behaviour was related to sexual orientation; and this is why the case was appealed and went to the Court of Appeal, which found in English’s favour. The Judge stated that the 2003 Employment Equality (Sexual Orientation) Regulations applied to the case because:
“The incessant mockery created a degrading and hostile working environment, and it did so on the grounds of sexual orientation”
This decision means that the legislation is now more far-reaching, and organisations will now need to ensure their internal procedures and staff training covers the new requirements.
What’s your opinion on this? I am slightly split. On the one hand I feel that the type of behaviour English was subjected to was completely unacceptable and should be managed very stringently within companies, so this example is a good reminder to organisational leaders to do something about inappropriate behaviour within their workforce. On the other hand I can’t help feeling that in some way the legislation has been stretched slightly to cover someone that did not belong to a protected group, and will this now open the door to claims under other legislation arising from behaviour that is not acceptable but is equally not “discriminatory”. For example, I can think of a lot of derogatory words and phrases that relate to learning disabilities but that are used commonly against people who are clumsy or have said something wrong – does this mean they can claim disability discrimination? I don’t think disability legislation covers this at the moment but could this be argued after the Court of Appeal decision in the sexual orientation case? Let me know what your thoughts are!
Unfair Dismissal (3)
December 29, 2008
This is the third and final post in a series on unfair dismissal. So far I have covered employees’ eligibility to claim, what dismissal is, and the fair reasons for dismissal. This post looks at the way the employer acted in dismissing the employee.
4. Has the employer acted reasonably?
After the dismissal has been found to be for one of the fair reasons, the tribunal will look at how reasonably, or fairly the employer has acted in dismissing the employee. This assessment takes into account the size and administrative resources of the company, and also the process followed. The courts take into account the ACAS Code of Practice on dismissals, even though the Code is not actually part of the legislation, so this is a good place to start when carrying out a dismissal. The Code is based on the Statutory Dispute Resolution Regulations 2004, and as it stands currently, an employer that has not followed the basic statutory procedure will be found to have automatically unfairly dismissed the employee. The basic procedure follows three steps:
Step 1: Statement
The employer should write to the employee notifying them of the issues and invite them to a meeting (with adequate notice) to discuss.
The Employment Relations Act (ERA) 1999 gives employees the right to be accompanied by a Trade Union Official or colleague at dismissal hearings, and the employer should notify the employee of this right in the written invitation.
Step 2: The meeting
The employee must be given the opportunity to state his/her case, which needs to be considered prior to the decision to dismiss or not.
Step 3: The appeal
Employees have a right to appeal against a dismissal, and the employer must notify the employee of this right when giving the decision to dismiss. If the employee appeals, the employer must invite the employee to attend a further meeting (at which the employee has a right to be accompanied), then must inform him/her of the final decision.
In April 2009 the Statutory Dispute Resolution Regulations will be repealed, and a new ACAS Code of Conduct will be introduced. Employers will need to review and change their procedures, and people that are involved in dispute resolution procedures (disciplinaries, dismissals and grievances) should be re-trained on the correct process to follow.
Dismissal is a complicated and lengthy process. The information in the last few blog posts gives you an overview of the considerations an employment tribunal would make when dealing with an unfair dismissal claim, but unless you’re extremely experienced, it is advisable to seek legal advice before acting in any potential dismissal situation.
Unfair Dismissal (2)
December 28, 2008
Yesterday’s post introduced the concept of unfair dismissal, and the first factor to consider, which is whether the employee qualifies to claim. The next two factors to consider are has a dismissal actually taken place, and what is the reason for the dismissal?
2. Has a dismissal taken place?
You’d think this was fairly obvious, but not always. There have been cases where an employer claims that the employee has resigned, and the employee claims they have been dismissed. The onus of proof is on the employee in this dispute. In certain extreme circumstances, a radical variation of the employment contract could actually be classed as a dismissal. There is also constructive dismissal – this is where an employee leaves the company because they are forced to do so because of the conduct of the employer. The conduct needs to be quite serious to entitle the employee to leave and claim constructive dismissal. Lots of things might lead to a constructive dismissal, for example asking an employee to do something inappropriate (e.g. discriminatory) or a breach of contract.
3. What is the reason for dismissal?
Whether a dismissal is fair basically relates to two things: what the reason was for the dismissal, and how the dismissal was carried out.
There are lots of automatically unfair reasons for dismissal, including for carrying out the duties of a health and safety representative, participation in protected industrial action, the assertion of a statutory right (e.g. the right to be accompanied at a disciplinary or grievance hearing), and many more.
The possible fair reasons for dismissal are:
Capability or qualifications: this could relate to the employee’s skills, academic achievements or health.
Conduct: this is the behaviour of the employee at work
Redundancy: the legal definition of a redundancy is where there is a reduction or cessation of work, or a cessation of business (like many of the companies that have gone into administration recently) or a cessation of business at a particular site.
Retirement: this is closely linked to the age discrimination legislation, and a key decision on the fairness of an automatic retirement age is soon to be made by the European Court of Justice.
Contravention of a statutory duty: this means that the employer is not legally able to employ the employee, for example a person who has not been granted leave to enter or stay in the UK.
Some other substantial reason: this reason allows the courts to accept a dismissal that appears not to fall into the other categories, but that they deem to be reasonable.
The next post will look at the way the employer has carried out the dismissal.