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Managing requests for flexible working
The recent case of McBride v Capita Customer Management Ltd  has highlighted the importance of giving fair consideration to a request to work flexibly.
The employee returned to work after a period of maternity leave and a career break. She asked if she could work part-time hours so that she could care for her children, one of whom had health problems. She was told that her job could not be completed on a part-time basis, but that she could job share with someone else who was returning from maternity leave.
The job share started, but it soon became clear that the two employees were not sharing a job, but were given separate projects and were, in effect, working two separate part-time jobs. There was then a departmental restructuring, and the employees were told that it was not possible to operate the jobs on a part-time basis, and that their jobs would become full-time. After a series of meetings and discussions McBride, and the other employee she was job sharing with, were made redundant.
McBride was successful in her claim of unfair dismissal and indirect sex discrimination. It was found that there was insufficient consideration given to whether the jobs could be part-time, and that meant they were more difficult for those with caring responsibilities (which were more likely to be women). It was also found that the jobs were not really redundant, because the changes to the role did not meet the definition of redundancy.
This case is a useful reminder of the importance of managing a request for flexible work fairly. The key points you need to remember are:
- All employees with at least 26 weeks’ continuous service can make a request to work flexibly. They can make the request for any reason; it does not have to relate to caring responsibilities.
- Employees can only make one request in every 12-month period.
- You must consider the request and respond within three months.
- Once a request has been granted it is a permanent change of contract, unless you have agreed that the change will be for a limited period of time. Therefore, the employee has no right to insist that s/he changes back to the original working pattern at some point in the future.
- An Employment Tribunal will not ‘second guess’ whether you were right to refuse the request. They will simply consider whether you acted fairly, and whether you gave careful consideration to the request.
There are a limited number of grounds on which you can refuse a request to work flexibly. They are:
- The burden of additional costs.
- Detrimental effects on ability to meet customer demand.
- Inability to re-organise work among existing staff.
- Inability to recruit additional staff.
- Detrimental impact on quality.
- Detrimental impact on performance.
- Insufficiency of work during the periods the employee proposes to work.
- Planned structural changes.
Extending a restrictive covenant
If an employee resigns from your organisation, and they have a restrictive covenant in place (a contractual restriction on their ability to work for a competitor, or to work with past customers), it is likely to be difficult for the employer to extend the scope of this.
In Ward v Fiducia Comprehensive Financial Planning Ltd  the employee intended to resign from the organisation because he wanted a better work-life balance. He was planning on working with a former employee of the organisation in competition. He had a 12-month non-compete restrictive covenant in his contract of employment. His employer became increasingly aggressive with him and asked him to sign a new agreement which, amongst other things, extended the covenant to 24 months. He refused and resigned. He was successful in claiming constructive dismissal.
- A 12-month restrictive covenant might be enforceable, but it is very unlikely that a 24-month covenant would be. It is better to put in place a covenant that is robust and enforceable, rather than trying to put in place something that cannot be enforced, even if it is lengthier.
- If a line manager is talking to an employee who has resigned, and the discussion starts to get heated, it is best to end the discussion and resume at a later date. The employee could argue that the behaviour of the manager breaches trust and confidence, and then successfully claim constructive dismissal.
- Contact us if you plan to insert a restrictive covenant in a contract of employment. It is important to word them carefully to ensure that you have the protection you want.
Burden of proof
It is often difficult for an individual to prove that they have suffered discrimination. Therefore, when bringing a claim of discrimination, the only requirement for an individual is to show that something has occurred, which suggests that there might have been discrimination. When that low threshold has been met, the burden of proof passes to the employer to show a non-discriminatory reason for what has happened.
In Base Childrenswear v Otshudi  the employer originally told the Employment Tribunal (on the ET3 response form) that the employee had been made redundant for financial reasons. She alleged that she was dismissed because of her race. The employer later altered the ET3 form, saying that the reason for dismissal was that company product had been ‘concealed’ in the photography room and it was presumed that she was intending to steal it. They explained that she had not been confronted about this to avoid a difficult situation.
The change of reason was sufficient for the employee to be able to suggest that something discriminatory might have occurred. The lack of clarity regarding the reason for dismissal implied that the employer was trying to hide something. The employer was then unable to prove that there had not been discrimination, and therefore the claim of race discrimination was successful.
- Always think carefully when completing the ET3 form. The Employment Tribunal does not have to accept any late amendments, and it will always be difficult to explain why something as fundamental as the reason for dismissal has been changed.
- If there is a suspicion that an employee is stealing product, always address it. Although it is never easy, dealing with the issue promptly stops it escalating (and avoids any suggestions you are covering something up and/or being under hand).
Employees must understand the allegations against them
Before dismissing an employee, you must follow a fair procedure. This includes giving information to the employee, setting out the allegations against them with documentation, if appropriate. The employee must be allowed to respond to the allegations.
In Sidhu v Rathor t/a Allenby Clinic/Northolt Family Practice  the employee and her mother ran a medical practice together. It was alleged that they had made a number of unauthorised financial transactions, including raising Sidhu’s salary from £24,000 to £97,000 per annum. Sidhu was dismissed but was not given the details of the alleged financial transactions and was, therefore, not able to respond to them.
The dismissal was unfair (although the compensation was reduced to reflect the conclusion that she would still have been dismissed if a fair procedure had been followed).
- When inviting an employee to a disciplinary hearing, attach to the letter all documents that you are relying on in making the disciplinary allegations.
- At the disciplinary hearing, work through all of the documents, and any other evidence, asking the employee to comment on them.
- Keep a written record of the documents that you have given to the employee and the responses made.
Copyright law is not a protected belief
An individual must not be discriminated against because they have a particular religion or belief. Defining a religion does not usually cause a lot of difficulty but defining a belief can be more complicated. A belief must be a philosophical belief which is more than an opinion and it must be genuinely held. It must be cogent, serious and apply to an aspect of human life or behaviour.
In Gray v Mulberry Company (Design) Limited  the employee was asked to sign a document giving the copyright for anything she created during her employment to her employer. She refused to sign the document and was dismissed. She argued that this was discrimination on the grounds of her belief that she had a moral right to own the copyright to her creative works.
She was unsuccessful. This was not a philosophical belief that was sufficiently serious and cogent to be covered by the law.
- If an individual is arguing that they have a belief that should be covered by discrimination law, please contact us for advice. This is not a straightforward area, and it will always be useful to have a conversation to try to understand the employee’s argument, and to evaluate the likelihood of it being successful.
Unfairly dismissed following IVF treatment
If a woman is taking time off for IVF treatment she must not be treated less favourably. This is not a straightforward area because the fact that she is undergoing the treatment means that she is not pregnant (although it could be argued that she is once the fertilised egg has been implanted) and therefore cannot claim pregnancy/maternity discrimination. However, there is a possibility that she could claim sex discrimination if she can argue that she has been treated less favourably due to any absence she has had. Although a man might also undergo fertility treatment, the treatment does tend to be longer and more invasive for women.
In Kavadra v BJ Cheese Packaging Ltd  the employee was undergoing fertility treatment. She booked one month’s annual leave so that she could rest after each treatment. She then found out she was pregnant and booked two weeks of extra leave, although she did not tell her employer she was pregnant. She then told her employer she was ready to return, and told him she was pregnant. He suggested that she take more time off (which she refused to do) and then told her that she had taken too long off and her employment had ended. Her employer argued that he did not know that she was having treatment and that she had simply not returned after annual leave, but the Employment Tribunal did not accept his version of events.
There is no entitlement to any special type of leave when undergoing fertility treatment. Employees should book leave in the same way that they would for attending any medical appointment.
Once an employee is pregnant you must not treat her less favourably because she is pregnant.
You should treat any time off for fertility treatment in the same way that you treat any absences for health reasons. For example, if you were carrying out a redundancy assessment and you deduct marks for time off for any medical reason, you could also deduct marks for time off for fertility treatment. However, you should not deduct any marks for any appointments made once the woman is pregnant.
A final word – Improving your cashflow
As another Brexit deadline comes and goes, the uncertainty continues for British businesses and we’re left with more questions and few answers. What impact will Brexit have when it happens (if indeed it ever does)? How will businesses be affected? How will the economy react? Are we heading into another recession?
Meanwhile, the general uncertainty about the future is making some businesses take steps now to prepare for leaner times, in particular, by building up cash reserves and paying invoices more slowly. If your customers are doing this, you may find you are spending a lot of time and energy trying to get paid for your products and services and, if so, you may want to enlist the services of our Debt Recovery Team.
With a reputation for efficient and successful conclusion of cases, the Team recovers, on average, 85% of debts within seven days (without the need for court action). They operate on highly flexible terms, which are based on results (meaning you don’t pay anything unless they can recover the debts – a win/win scenario).
In addition, if you want to check your debtor days and compare your performance to your competitors, have a look at the Team’s DSO comparison tool. Knowing your debtor days or your ‘DSO’ number (i.e. how long it generally takes your customers to pay your invoices) will allow you to see how much your working capital could be improved by dealing with late payments and can be extremely useful when analysing the effectiveness of your cash collection.
One thing we can be certain of is that the political and economic outlook is likely to be challenging over the next few years. It is therefore more important than ever to ensure you have procedures in place for prompt payment. Small changes and addressing problems early can make a huge difference to how resilient your business is.