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Employment Law Bulletin - November 2014


As we approach the winter months it is the time of year when sickness absence often increases due to the number of illnesses that go around. Managing attendance at this time can often be a difficult balancing act.

If you have an absence procedure which includes trigger points (a set number of days of absence during a period of time which result in a disciplinary penalty being given), ensure that you are applying this consistently. There is no problem with having such a procedure, but it could be difficult to justify disciplinary action if you are more lenient with some employees than with others.

If you do not have a trigger point system but you are considering using a disciplinary procedure to manage absence, again, ensure that you have a consistent approach across the organisation. You should ideally focus your efforts on those who persistently take occasional days of absence for a range of reasons, rather than those employees who you know are genuinely suffering with an illness.

That said, taking a strict disciplinary approach to absence is not always effective. If you are too punitive you will encourage ill employees to be at work. Ill employees in the workplace make it more likely that germs will be passed from one to another, with the outcome being yet more of your workforce being unwell. Also bear in mind the potential impact on staff morale as well as well-being.

To avoid these implications, ensure that any disciplinary trigger points you do set are not so harsh that employees return to work before they are ready. The key is to find a balance.

Finally, if you’d like to learn more about the real cost of employee absence and how to effectively manage ill health, join the employment team at our seminar on 25 November, which will include guest speakers from Jelf and FriendsLife. To reserve a place please contact Heather Oates at heather.oates@clarionsolicitors.com. We’d be delighted to see you over breakfast!

Bereavement Leave

Acas has published a new guide to managing bereavement in the workplace, which can be accessed at http://www.acas.org.uk/media/pdf/0/m/Managing-bereavement-in-the-workplace-a-good-practice-guide.pdf.

As noted at the start of the guide, there is no legislation that specifically entitles employees to bereavement leave. However, there are a number of points which you should be aware of:

Apart from these points the law does not suggest how bereavement leave should be managed. However, Acas suggests that all employers should do the following:

Action points:

Read through the Acas Guide and consider whether your bereavement leave policy needs amending.

Ensure that managing bereavement is covered in your induction training for new managers.

Employing Reservists

As a result of the Defence Reform Act 2014 there have been a number of changes relating to the rights of those who serve in the reserve forces. A number of these relate to employment.

Firstly, from 1 October 2014, an employee who alleges that s/he was dismissed due to membership of the reserve force will not be required to have any qualifying period to bring a claim of unfair dismissal (it is usually one year if employment started prior to 6 April 2012, two years if it started on or after 6 April 2012).

However, the dismissal would not be automatically unfair and the reservist would still have to show that the reason for the dismissal was membership of the reserve forces. There has just been a relaxation of the requirement to have qualifying service.

Secondly, from 1 October 2014, the rules relating to financial support for employers of reservists have changed. Small and medium sized businesses (which are defined as those with an annual turnover of less than £25.9 million and with not more than 250 employees) will be able to claim £500 per month for a full time employee from the Ministry of Defence when an employee is absent on military service. In addition, up to £110 a day can be claimed for additional salary costs that occur as a result of providing cover for the reservist.

Action points:

If you employ any individuals who serve in the reserve forces, and you qualify as a small and medium sized business, ensure that relevant money is claimed when the employee is on active service.

Regardless of the size of business, ensure that your line managers are aware of the need to treat reservists fairly.

Deductions from wages must be clearly explained

Deductions from wages can only be made when:

However, situations do arise when an employee has been overpaid due to errors in calculating the employee entitlement. This happened in the case of Ridge v HM Land Registry [2014] when an employee had exhausted his entitlement to sick pay.

In Ridge, the employee still had periods of absence despite having exhausted his sick pay entitlement, which meant that some months he had unpaid days. However, the payroll department did not always know what hours he had worked and as a result he was overpaid in some months.

When it transpired that the employee had been overpaid, the payroll department deducted the relevant amount from the next month’s salary. The problem was that the purpose of the deduction was not specified on his payslip. He claimed, therefore, that this was an unlawful deduction from his wages.

He was not successful in arguing that the money should not have been deducted, but he was successful in arguing that the reason for the deductions should have been specified on the payslip.

The Employment Rights Act 1996 does allow an employer to deduct overpaid wages. However, there is a requirement on the employer to act reasonably.

If the amount concerned is significant then the employer should discuss the situation with the employee, possibly agreeing that the money is deducted over a number of months. Not doing this and just deducting the full amount without explanation and agreement could be an unlawful deduction from wages and also seen as a breach of mutual trust and confidence, potentially resulting in the employee resigning and claiming constructive dismissal.

Action points:

Check your payslips. Ensure that the reason for all deductions is clearly stated. 

If an employee is overpaid ensure that there is a procedure in place to reclaim the money in a reasonable way. Always discuss the situation with the employee before making any deduction from their pay.

Essential to have a fair reason for dismissal

Employees are entitled to take a reasonable amount of unpaid time off to deal with an emergency relating to a dependant. They are entitled not to be dismissed or suffer a detriment because they have taken this time off. However, if they have acted unreasonably in taking emergency leave, it is possible that there is a conduct issue which may be a potentially fair reason for dismissal.

In the case of Ellis v Ratcliff Palfinger [2014] an employee was absent from work one Monday because he had taken his heavily pregnant wife to hospital. He did not phone his employer (he said he did not know the number) but called his father who contacted his employer on his behalf.

The employee’s wife gave birth on the Tuesday, but again the employee did not contact his employer (he said his phone battery was dead). He received a text from his employer on the Wednesday and made contact at that point. He already had a final written warning on his record, and following a disciplinary hearing he was dismissed.

The employer argued that the reason for the dismissal was conduct – the employee had unreasonably omitted to contact his employer and explain his whereabouts. The employee argued that he had been dismissed for taking time off to care for a dependant in an emergency and hence the dismissal was unfair.

The Employment Appeals Tribunal found that the dismissal was fair. The reason for the dismissal was the employee’s unreasonable conduct.

Action point:

Review your policy relating to time off to care for a dependant in an emergency. Ensure it makes clear what is expected of the employee, in particular the importance of contacting you as soon as reasonable practicable.

Change of location was not a breach of contact

When a transfer of undertaking (eg: sale of a business) takes place, employees must transfer on their existing terms and conditions of employment. If those terms and conditions are changed, the employee can resign and claim constructive dismissal. However, for this to happen, the change must be fundamental.

In the case of Cetinsoy and others v London United Busways Ltd [2014] four bus drivers transferred to a new bus company. As a result of the transfer they were required to operate their routes from a different depot, which was 3.5 miles away from their existing depot. They did have a mobility clause in their existing contract of employment which allowed their employer to move them to a different depot.

However, the drivers resigned and claimed constructive dismissal. In doing so they relied on a similar case (Abellio London v Musse and others [2012]). InAbellio the bus drivers were moved to a different depot following a transfer, meaning that their commute to work increased by 45-75 minutes. In Abellio the employees did not have a mobility clause in their contracts. The employees were successful in their case of constructive dismissal.

The Employment Appeals Tribunal ruled that there were significant differences between the Abellio and Cetinsoy cases, despite them both relating to a change of bus depot. In Cetinsoy the mobility clause could have resulted in the employees being moved to a depot that was 3.5 miles away regardless of the transfer. As such, post-transfer, there had been no fundamental and non-permitted change – the move that was made was allowed by the employees’ existing contracts. In addition, a move of 3.5 miles was not seen as a fundamental change to the contract.

Action points:

If you are involved in a TUPE situation identify the fundamental terms of the contract of employment.

Ensure that none of these terms are varied unless permitted by the contract or there is an economic, technical or organisational reason for making the changes (take legal advice from us on this).

Apprenticeships and the National Minimum Wage

At present, there is a specific NMW rate for apprentices aged under 19 years or those aged 19 years and in their first year of an apprenticeship.

On 7 October 2014, the government announced that it plans to put in place a single NMW rate for apprentices and those aged 16-17 years. As the apprentice rate is currently £2.73, and the 16-17 year old rate is £3.79, this will be a significant increase for apprentices.

As well as this announcement, there has also been a report of a case where the employer paid individuals the apprenticeship rate. However, the individuals were successful in arguing that they were not actually apprentices and should have been paid at a higher rate.

In HMRC v Jones and others t/a Holmescales Riding Centre [2014] the individuals worked in livery stables. They lived on site, and worked an average of 40 hours a week, being paid a total of £100.

The employer argued that the rate of pay was correct because the individuals were apprentices. However, on closer investigation, it became apparent that the individuals spent most of their time working, and were receiving very little training. As the central element of an apprenticeship agreement is a training programme, HMRC did not accept that the individuals were apprentices. On these grounds, the individuals were being underpaid.

Action points:

If you have any individuals in your organisation working as apprentices check that the primary element of their activity is training.

Also, keep an eye out for an update on the change of the NMW rate for apprentices – we will inform you when the proposal has been confirmed.