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Employment Law Bulletin - January 2015

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We start this newsletter by wishing you a very happy New Year. We hope that 2015 is productive and prosperous for you.

At the start of this New Year a good resolution would be to review your family friendly policies, as significant changes, which are summarised in this newsletter, are going to come into force.

As well as ensuring that your policies are compliant with the changes in legislation, now would be a good time to think about what you want to achieve through your policies and assess whether they are effective and address any issues that have arisen over recent months. For example, have there been any issues where there has been regular uncertainty? Does that mean that the relevant policy needs to be reviewed to make the terms clearer or is it simply the case that the policy is not user friendly or assessable? Do ensure if you’ve made significant changes that you inform and consult with your workforce.

The team will be attending the annual HR Directors Summit on 3-4 February. If you are attending do let us know so that we can catch up at the event. If you are interested in attending please see www.hrevent.com  and contact heather.oates@clarionsolicitors.com who will be able to provide you with a discount code courtesy of Clarion.

Finally, we have a couple of dates for our diaries for our forthcoming complementary HR sessions - on 12 February and 21 April. Full details of the events are set out below. If you’d like to attend make sure that you register quickly as there is limited availability given the popularity of the topics.

We hope to see you in person soon.

Upcoming events...

Mock Employment Tribunal Hearing: Unfair Dismissal on Thursday 12th February 2015

Our Mock Tribunal will ensure you are up to speed with the litigation process. You will be able to witness how to give evidence, prepare for a hearing and gain an insight into the factors an Employment Judge would consider in reaching a judgment.

You will hear from a disgruntled Claimant who was dismissed from his role for alleged misconduct related to social media usage and allegations of sexual harassment. You will also hear from witnesses for the Respondent, who each played a part in the process which led to the Claimant’s dismissal.

Milestone Cases Which Have Shaped Employment Law on Tuesday 21st April 2015

Our informative session will provide you with a detailed overview of the following milestone case law principles together with practical hints and tips.

Principles to be covered:

· Basic steps for fairly dismissing an employee

· Ensuring that disciplinary decisions are proportionate to the offence

· Identifying when an employee may resign in response to an employer’s conduct

· Dismissing fairly for poor performance

· Compensation available in discrimination cases

Actions:

• Determine whether you, your HR team or managers would benefit from a refresher on the Employment Tribunal process. If so, register for 12 February event.
• Determine whether you or your HR team would benefit from understanding the milestone cases which shape employment law. If so, register for 21 April event.

To register for either of these events or for further information please email heather.oates@clarionsolicitors.com

Changes to the law in 2015

At the start of a new year it is always useful to reflect on the changes to the law that we know are coming. Of course, with a General Election looming, there is some uncertainty about what 2015 will bring, but we do know that certain changes will be made:

April 2015: Changes to Family Friendly Legislation


Shared Parental Leave

Employees with babies due on or after 5 April 2015, or employees who have a child placed with them for adoption on or after 5 April 2015, will be able to choose to end their Statutory Maternity or Adoption Leave and to take Shared Parental Leave instead.

Shared Parental Leave can be taken as continuous leave (one partner takes some leave followed by the other partner) or discontinuous leave (for example, the partners alternate taking short periods of leave or take leave at the same time). An employer has to accept a request to take continuous leave, but can refuse a request to take discontinuous leave provided certain requirements are met.

If Shared Parental Leave is being taken following the birth of a child, rather than adoption, the woman must still take the period of Compulsory Maternity Leave (2 weeks following the birth of the child – rising to 4 weeks if the woman works in a factory or similar environment).

We would be delighted to assist you to prepare for the changes. In the meantime, consider our top ten tips and hints http://www.clarionsolicitors.com/blog/top-ten-tips-shared-parental-leave  and if you need some help in navigating your way though the entitlement, email heather.oates@clarionsolicitors.com for an easy reference flow chart which the team has devised.


Statutory Adoption Leave

A number of changes are to be made to Statutory Adoption Leave:

• At present, employees must have at least 26 weeks’ continuous service before they can take Statutory Adoption Leave. From 5 April 2015 this requirement will be removed, and no minimum length of service will be required.

• At present, Statutory Adoption Pay is 39 weeks at £138.18 per week (or less if the employee earns less). From 5 April 2015 it will be brought in line with Statutory Maternity Pay – which is 6 weeks at 90% of salary followed by 33 weeks at £138.18 (or less if the employee earns less).

• From 5 April 2015 the primary adopter of the couple will be entitled to take paid time off to attend up to 5 appointments to meet with a child that might be placed with the couple for adoption. The secondary adopter will be able to take unpaid time off to attend up to 2 appointments.

• Those who are in a surrogacy relationship, who intend to apply for a parental order under the Human Embryology and Fertilisation Act 2008, will be entitled to take Statutory Adoption Leave.

Parental Leave

Parental leave is unpaid time off that an employee can take to care for their child. The total leave that can be taken is 18 weeks. At present that leave has to be taken before the child’s fifth birthday (18th birthday if the child is disabled). From 5 April 2015 the leave can be taken any time up to the child’s 18th birthday.

Actions:

• Review your policies now to ensure that they will be compliant when the changes are made.
• Communicate the changes to your line managers and ensure the changes are cascaded down to your workforce.
• Consider putting together a brief document explaining Shared Parental Leave which you could give to an employee who thinks they want to take it but is not sure (we can write this for you).

Fit for Work Service

The Fit for Work Service (previously named the Health and Work Service) is now being rolled out across the country. This is a service which will provide advice to employers, employees and doctors on managing ill health and sickness absence at work.  There are two aspects to the service:

•  A telephone advisory service and a website which can be accessed by employers, employees and doctors; and
• An assessment service for employees who have been absent from work for four weeks or more due to illness, or are likely to be absent from work for at least four weeks. An employer or a doctor will be able to make a referral to the service.

The assessment service will be approached on a case management basis, with a Case Manager being assigned to an employee and hence providing continuity in managing the situation. The Case Manager will help to create a return to work plan, giving advice on any specific issues which need to be considered.
The telephone advice service and website is now in place for most areas of the country. The assessment service is being phased in across the country, and should be fully in place by May 2015.

Actions:
• Look at the Fit for Work website covering your part of the country, and become familiar with the services that are offered.
• Consider if there are any employees who you might want to refer to the service when the assessment process becomes available.
 Other changes expected during 2015

In addition, there are some changes expected during 2015 which do not have dates allocated to them:

• Caste will be added to the list of protected characteristics within the Equality Act 2010 (e.g. sex, race, disability etc.). It is expected that this might happen in the summer of 2015.
• The ability to make recommendations in a discrimination claim will be reduced. At present, an Employment Tribunal can make broad recommendations relating to the management of equality in the workplace if a claim of discrimination succeeds. It is expected that this will be restricted to making recommendations relating to the specific case of discrimination that has been the subject of the claim to the Tribunal.

Redundancy and women on maternity leave

If a redundancy situation arises in your organisation you are required to consider whether there is any suitable alternative employment for any employee who is identified as being at risk of redundancy.

If a woman who is pregnant or on maternity leave is selected for redundancy she has the right to be considered for suitable alternative employment ahead of all other employees. So, for example, let us presume that there are three employees at risk of redundancy who could do an alternative role. One is a woman on maternity leave. She is not the best candidate for the alternative role, but she does have the appropriate qualifications and experience. She gets the role, ahead of the others.

In the case of Sefton Borough Council v Wainwright [2014] two roles were identified as being redundant. They were to be replaced with one new role. The two employees doing the redundant roles were Wainwright (who was on maternity leave) and a man. The two employees were both interviewed for the new role and it was given to the man. Wainwright argued that this amounted to discrimination on the grounds of maternity and unfair dismissal.
The Employment Appeal Tribunal (‘EAT’) agreed that Wainwright should have been given the new role ahead of the man, and that she had been unfairly dismissed. The employer argued that the requirement to offer her an alternative role did not apply until the restructuring was complete, and the duty on it was to consider the roles available at that time. However, the EAT did not accept that argument. The EAT confirmed that the duty to offer suitable alternative employment to a woman who is pregnant or on maternity leave applies as soon as it is known that the woman’s role is to be made redundant – and hence Wainwright should have been offered the new role that had been created, as she was qualified to do it.

The EAT remitted Wainwright’s claim of discrimination back to the first instance tribunal to assess whether there was any evidence of her maternity leave being the reason that she was not offered the new role.

Actions:

• If you are managing a redundancy situation identify whether any affected employees are on maternity leave at an early stage.
• Ensure that those interviewing for any suitable alternative employment are aware of the specific protection that women who are pregnant or on maternity leave receive in this situation.

Dismissal when a visa expires

If an employee’s visa entitling him to work in the UK expires then you are not allowed to continue employing that individual. However, what happens if the employee is appealing against a decision not to renew a visa?

In Venkatesan v Surabi Ltd [2014] the employee’s visa expired, and when he applied for it to be extended the request was refused. He appealed against this. Under immigration legislation he was allowed to continue to work whilst his appeal was being heard, but his employer did not realise this and, as the visa had expired, dismissed him. The employer did not follow a fair procedure and did not allow the employee to appeal against the dismissal. The dismissal was found to be unfair because, if an appeal had been allowed, the employer would have been shown information which demonstrated that the employee could remain in employment.

Actions:

• If you ever unsure about the right of an employee to work in your organisation contact the UK Visas and Immigration Service for advice.
• Always allow an appeal following the dismissal of an employee.

Threat was a breach of contract

There are situations when you might want to terminate the employment of an employee, but there are no specific reasons for you to dismiss. In such situations it can be tempting to ask the employee to resign. However, care needs to be taken. It could be seen that encouraging an employee to resign, particularly if the employee interprets it as a veiled threat that s/he will be dismissed if s/he does not resign, is a breach of contract.

In Receptek v Pearce [2014] Pearce was unhappy at work for a number of reasons, and there were tensions between him and the employer. His line manager asked him to attend a meeting at which Pearce was asked what it would take for him to go, and there was a veiled threat that disciplinary action would be taken if he did not resign. He resigned, and claimed that the threat was a fundamental breach of contract and hence there had been a constructive unfair dismissal.
He was successful in his claim, proving that the employer had fundamentally breached his employment contract, he resigned due to the breach and he did so in a timely manner (he resigned almost immediately).

It is possible to engage in a confidential pre-termination discussion with an employee, which cannot be referred to if the employee is later dismissed and brings a claim of unfair dismissal. However, certain rules apply and the discussions are only confidential if there is no improper behaviour – such as harassing or threatening an employee.

Actions:
• Ensure that your line managers understand that they must not threaten an employee, or coerce an employee into resigning.

• Take legal advice before engaging in pre-termination discussions with an employee to ensure that the rules are complied with and discussions are confidential.

• If you are discussing a possible exit with an employee keep thorough notes of all meetings, asking the employee to sign to indicate his/her agreement that the notes are accurate.