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Employment Law Bulletin March 2017

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March is a busy month at Clarion HQ with a number of events taking place.

There are still a few places available for our TUPE & Tenders seminar on 16 March 2017 and HR Breakfast Club on 31 March, and we hope to see some of you there.

Clarion will also host a Best Practice in Healthcare event on 14 March 2017. The event will focus on the future of the private and public care sector, and a number of experts will be joining us at this session to share their experiences, ideas and plans for the future. The event will include speakers from NHS Leeds, Skills for Care, Horizon Healthcare, Essential Care Group and Local Care Force. Please click here for more details or email lauren.perry@clarionsolicitors.com to register your details.

We are also very pleased to launch our annual Leeds 10K Corporate Challenge for the 11th year running. Taking place on 9 July 2017, the Corporate Challenge is an excellent way to encourage team spirit and some healthy competition amongst you and your colleagues - and all for an excellent cause.

This month’s employment law bulletin provides an update on the increases to statutory rates. It also details the latest case developments relating to reasonable adjustments, mobility clauses, constructive dismissal and flexible working.

Changes to statutory rates

In the last newsletter, we updated you on changes to statutory rates such as Statutory Maternity Pay, which are due to increase in April. The government has announced two further rate increases which will take place on 6 April 2017:

The maximum amount used to calculate a week’s pay will increase from £479 to £489. This rate is used when calculating statutory redundancy pay, amongst other things.

The maximum amount for the compensatory award in unfair dismissal claims will increase from £78,962 or the employee’s annual salary (whichever is lower) to £80,541 or the employee’s annual salary (whichever is lower).

You are responsible for identifying reasonable adjustments

If an employee is disabled, as defined in the Equality Act 2010, you are required to consider whether there are any reasonable adjustments that you could make to assist the employee to work. It is important to note that the responsibility for identifying possible reasonable adjustments lies with you. You can certainly ask the employee if they have any ideas about possible adjustments, but you cannot require them to suggest possible adjustments.

In The Home Office (UK Visas & Immigration) v Kuranchie [2016] the employee had dyslexia. She had identified that it took her longer than others to complete her work tasks, and hence she had asked to work compressed days (work 4 days, but longer hours each day) and also to be provided with some specialist equipment. These adjustments were made, but she continued to struggle.

She claimed disability discrimination, namely that the employer had not made reasonable adjustments to reduce the disadvantage she was experiencing. In her claim, she specifically identified the adjustment of reducing her workload even though she had not suggested this previously. The employer unsuccessfully argued that it was not required to make this adjustment because it had not been suggested earlier. The employer is responsible for identifying any adjustments that would remove the disadvantage that the disabled employee is experiencing.

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Mobility clause was not sufficient to force a move

If an employee has a mobility clause in their contract of employment this does give you some ability to force them to relocate. However, a mobility clause does not mean that you can force any relocation on an employee. You must act reasonably.
In the case of Kellogg Brown and Root (UK) Ltd v Fitton and another [2016] the employer was closing the location where the employees worked. They were told that they would have to relocate, and they were offered some financial assistance with making the move. They were told that they could have some flexibility with their working time.

Two employees would have had to spend an extra 20-30 hours per week in travelling, and hence they refused to move. They were told that they had to move because of a mobility clause in their contract of employment which required them to work at any location in the UK or overseas, on a permanent or temporary basis. They continued to refuse, were dismissed and successfully claimed unfair dismissal.

The mobility clause in their contract was found to be too broad. It basically required them to work anywhere in the world, and that was not reasonable. In addition, it was found to be unreasonable to ask the employees due to the extra time travelling and because one employee did not have a car (making the travelling even more complicated) and one was aged 64 years and he argued that driving 100 miles around the M25 each day would be too stressful.

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Ensure you have clarity when an employee resigns

If an employee resigns it is very important to ensure that there is a common understanding that the situation is a resignation and not a dismissal. It is also important to address any issues that the employee might raise, so that they do not argue that there is constructive dismissal.

In Ishaq v Royal Mail Group Ltd [2016] a postman was accused of being involved in an altercation with a member of the public. He was asked for his account of what had happened, but this did not tally with what the employer viewed on CCTV footage of the evidence. He was called to a disciplinary meeting. He resigned prior to the meeting, and in his letter of resignation raised a number of issues relating to his alleged ill treatment by management. He then unsuccessfully claimed constructive dismissal. His employer argued that he had actually resigned to avoid disciplinary action.

He was unsuccessful in his claim because the Employment Appeal Tribunal did not accept that he had resigned due to a breach of contract.

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An inadequate investigation can mean an unfair dismissal

If an employee is alleged to have acted in a way that amounts to gross misconduct it is essential to ensure that you investigate this fully. An inadequate investigation could mean a finding of unfair dismissal.

In Arnold Clark Automobiles Ltd v Spoor [2016] an employee lost his temper with a colleague and momentarily put his hand around the colleague’s neck. There was no injury. The colleague reported the matter to a line manager. The employee apologised, and the two men shook hands.

The employee was told that a ‘letter of concern’ would be placed on his personal file. This was an internal Company procedure which simply noted that an incident had occurred. However, when the HR department read this letter they were alarmed and started an investigation. This lead to a formal disciplinary meeting and the employee was dismissed.

This was an unfair dismissal. The investigation leading to the dismissal was inadequate. Neither the employee nor the colleague were interviewed as part of the investigation, and there was no real assessment of how serious the events were.

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Employer can decide on flexible working request

If an employee requests to work flexibly you can refuse that request. To do so, you must refuse on one of the grounds allowed for in the legislation, and you must have relied on accurate facts to come to that decision. If an employee is not satisfied that you have given a fair reason, or you have used wrong facts, then s/he can make a claim to the Employment Tribunal. The Tribunal can award compensation of up to eight weeks’ pay if a fair reason has not been given but it cannot ‘second guess’ your decision. You have the right to decide if someone can work flexibly.

In Singh v Pennine Care NHS Foundation Trust [2016] the employee had worked on the night shift at a residential home for several years. Family issues meant that she wanted to change to the day shift. Her request was refused because the management said that it was not possible to cover her night shifts from existing staff, and it was too expensive to use agency staff. She argued that this was not correct, and that other staff were willing to cover her shifts.

The Employment Appeal Tribunal did not agree that the employer had acted unreasonably. There was no evidence that it had used wrong information in determining whether the request could be met, and hence there was no procedural defect with the decision to refuse the request.

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