We hope you have all had an enjoyable summer. As autumn now approaches, no doubt thoughts will be turning towards the winter and Christmas. Whilst we are not suggesting that you start to plan your Christmas shopping just yet, this is a good time to think about contracts for any additional employees that you will be taking on if you are affected by the seasonal trading around Christmas, or if you are likely to take on temporary employees to cover sickness absence due to winter bugs.
Since last Christmas there has been a change to the rules relating to zero hours contracts. From 26 May 2015 it has been unlawful to include an exclusivity clause in zero hours contracts, which means that you cannot insist that anyone working for you on a zero hours contracts does not work elsewhere. You need to check any contracts that you were using previously, to ensure that you do not have any such clauses included. In addition, you need to be aware that those working for you on a zero hours contract might not always be available for you, because they could be working elsewhere when you ask them to work for you.
Our next Employment Law Update will be taking place on Tuesday 6 October and is entitled "Nothing Remains Constant Except Change Itself". In our 2015 update the employment team at Clarion will explore developments in employment law including:
- How should holiday pay be calculated in light of recent case law?
- Will you have to report your gender pay gap?
- What to expect from the new apprenticeship regime.
- How do you calculate the number of affected employees for collective redundancy?
- Do you have to disregard disability related absence when applying attendance triggers
If you would like to reserve your place please email firstname.lastname@example.org
Derogatory comments on Facebook
There continues to be a steady trickle of cases relating to social media coming to the Employment Tribunals. These cases typically relate to a situation where the employee has been dismissed, and is claiming that the dismissal is unfair. A recent case is British Waterways Board v Smith .
Smith had raised a number of grievances relating to the working conditions in his role of maintaining canals, and also about the way in which staff were treated. However, the resolution of these grievances was postponed because disciplinary action was taken against him in relation to Facebook posts that he had made.
The posts made derogatory comments about management and the job that he was doing, and also referred to him being ‘half drunk’ whilst on standby. It was decided to dismiss him for gross misconduct because the posts had been damaging to the company, particularly those which suggested that he might have been drunk, to some extent, when working on standby. He claimed unfair dismissal on the basis that the company had not taken into account his previously unblemished service, and the fact that the Facebook comments were made 2 years prior to his dismissal, and the employer had known about them for a considerable part of that time, but taken no previous action.
The Employment Appeal Tribunal has ruled that the dismissal was fair. There was a reasonable investigation, and the decision to dismiss was not unreasonable.
- Remember that the Employment Tribunal do not substitute its view of whether to dismiss or not with yours. However, to ensure that you have acted “within the range of reasonable responses”:
- Before dismissing consider how other employees who have done something similar in the past have been treated. Are you over-reacting?
- Be clear about whether the posts are damaging to your company. If they insult customers, or are openly critical of your products or services then they could well be damaging and dismissal may be appropriate. If they are not damaging it is possible that a disciplinary warning will be more reasonable than dismissal.
Equal treatment of Agency Workers
Agency Workers are entitled to parity of basic terms of employment with a permanent employee doing similar work in the organisation where they are placed, after they have worked for twelve continuous weeks. This right is set out in the Agency Workers Regulations 2010.
The Regulations also require an employer to make an Agency Worker aware of any vacancies that arise in the organisation. However, a question not previously considered in case law is whether this is a requirement simply to make the Agency Worker aware, or whether the Agency Worker is entitled to receive the same treatment as existing employees in the recruitment process?
This was addressed in the case of Coles v Ministry of Defence . Mr Coles was placed as an Agency Worker in the MoD and was told that the job he was doing on a temporary basis was a vacancy. There were a number of existing employees who were under notice of redundancy, and one of them was redeployed into the role that Mr Coles was doing. Mr Coles argued that failing to allow him to apply for the post, and giving permanent employees preference over him, was a breach of the requirement to give equal treatment.
His argument has been rejected. Equal treatment only applies to basic terms and conditions of employment. There is a right to be made aware of vacancies, but there is no right to have any preferential treatment in the recruitment process or to be given a job if there is a vacancy.
- Ensure that you have a process in place for making Agency Workers in your organisation aware of any vacancies that occur.
- Ensure that you have a fair recruitment process in place, but it does not have to give preferential treatment to Agency Workers.
The importance of the appeal process
If an employee receives a disciplinary sanction s/he is entitled to appeal against the sanction. Getting the appeal right is extremely important, because it could address any defects in the original dismissal, hence ensuring that the dismissal is fair.
In Biggin Hill Airport v Derwich  an employee was promoted to Temporary Supervisor and ‘unfriended’ some colleagues, including Derwich, on Facebook. The colleagues, and Derwich in particular, objected to this. They put a picture of a witch as the Supervisor’s computer screensaver and also made obscene gestures behind her back.
Derwich admitted what she had done, and after a period of suspension was dismissed for gross misconduct. Five other members of staff were interviewed, but she was not given copies of the interviews until after her dismissal. However, she appealed against the dismissal and she was given copies of the interviews before the appeal took place. Her appeal against the dismissal was unsuccessful, and she brought a claim of unfair dismissal.
Her claim of unfair dismissal was unsuccessful. Although she had not got the information about the interviews at the time of her dismissal, she had received all of the information six days before the appeal, which gave her adequate time to prepare for the appeal hearing. The appeal had, therefore, corrected the mistakes in the dismissal.
- Ensure that anyone who hears an appeal against a disciplinary sanction understands the importance of reviewing all the facts.
- Ideally, ensure that anyone hearing an appeal is more senior than the person who makes the dismissal decision so that it cannot be alleged that they were unprepared to overturn the decision of a more senior employee.
- If the employee specifies particular concerns in their letter of appeal ensure that they are addressed in the appeal meeting.
- Avoid potential unfair dismissals by ensuring that employees are provided with all the information intended to be relied upon prior to the disciplinary hearing.
Carrying leave forward when absent due to sickness
A number of cases have made it clear that an employee who is on sick leave is not required to take annual leave, because the purpose of sick leave is different to that of annual leave. However, if an employee who has been on long term sick leave then leaves the organisation is there a requirement to pay an amount to the employee to reflect all of the annual leave that has remained untaken, and does he have to show that the sickness is the reason he has not taken leave?
These questions were addressed in the case of Plumb v Duncan Print Group Ltd . The employee had been absent due to illness for four years. When his employment was terminated he claimed payment for 60 days’ accrued holiday, stretching over three years.
The Employment Tribunal found that he was not entitled to the money because he was not able to show that his illness was the reason that he had not taken the leave. However, the Employment Appeal Tribunal overturned that ruling. It stated that there is no requirement for an employee absent due to sickness to show that the sickness is the reason for not taking annual leave.
However, the EAT also said that leave cannot be carried forward indefinitely, and ruled that Plumb should only be able to carry forward leave for 18 months. Hence, he was entitled to annual leave relating to 30 days, and not the full 60 days that he had claimed.
- Check your policies, to ensure that you are treating payments relating to untaken annual leave in accordance with this ruling.
- If an employee is absent for a long a period due to illness talk to us about the options for managing the situation, rather than just leaving the employee as long term absent.
Removal of the Koran was not religious discrimination
An individual must not be treated less favourably because of their religion or beliefs. However, to be successful in such a claim they must be able to show that the treatment was due to their religion/belief, and that they were treated less favourably than others.
In Hussain v Bandera Ltd  the employee was unsuccessful in his claim. He was due to go on holiday, and was instructed to clear his locker before he went (all employees going on holiday were given the same instruction). He did not clear his locker, and so his manager cleared his personal possessions and put them in a bin bag. Amongst the possessions, unknown to the manager who did not check what was in the locker, was Hussain’s copy of the Koran. He claimed that putting this in a bin bag was disrespectful to his religion, and amounted to religious discrimination.
His claim was unsuccessful. All employees who did not clear their locker were treated in the same way, the employer was not aware that the Koran was amongst his possessions and there was no requirement on the employer to carry out a log of the personal possessions which were removed.
- Do not be fearful of a possible discrimination claim. Ensure that you treat all employees the same, regardless of their personal characteristics.
- Ensure that none of your policies or procedures could be seen as adversely affecting employees from a particular group.
The Acas Early Conciliation Scheme, which most potential claimants have to engage with before bringing a claim to the Employment Tribunal has now been in place since April 2014. Acas has published a report on the use of the scheme, which includes some interesting statistics.
Of the claims that were received between April and December 2014:
• In 75% of cases the employer and claimant have engaged with conciliation to try to resolve the dispute (meaning that either the claimant or employer refused to engage in conciliation in 25% of cases)
• 15% of the claims were settled using an Acas COT3 agreement (meaning that Acas was involved in the settlement process and documented the agreement)
• 62% of early conciliation cases did not proceed to an Employment Tribunal claim (but did not involve a COT3)
• Of the 22% of claims that did progress to a tribunal 51% were settled through Acas before coming to a full hearing
Of course, every case depends on the facts, but do remember that it is not always the best solution to rush to settle a potential claim. Waiting to see if the claimant does proceed to an Employment Tribunal does not mean that a settlement will be impossible, as shown by the figures above.
Seek our advice if you are not sure whether to seek a settlement or defend a claim.
National Living Wage
Looking ahead to next year, the government has announced that a National Living Wage will be introduced from the Spring of 2016. This will apply to those aged 25 years plus, and will be at the rate of £7.20 per hour (with the aim of it reaching £9 per hour by 2020).
This will effectively replace the National Minimum Wage for those who are aged 25+. Although the introduction is some months away, you might want to start planning for the introduction now. In particular, you might want to be looking at the implications of this for your pay structures generally, particularly if it will mean that the gap between your lower grades is squashed.
It is important not to confuse the National Living Wage with the Living Wage. The Living Wage is a voluntary rate of pay, which a number of organisations have chosen to pay. It is higher than the National Minimum Wage (it is £7.85 outside London, and £9.15 in London) and a number of employers have chosen to pay it because they think it is a fairer rate of pay. This is voluntary, whereas there will be a legal requirement to pay the National Living Wage when it is introduced.