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Shared Parental Leave – One year on:

Shared Parental Leave celebrated its first birthday this month, however, take up by male parents has been low. A recent study suggests that there has been less than 1% take up of the policy despite over 250,000 working fathers being eligible. One factor behind the suggested low take up is believed to be that many male parents would not be able to afford to live off the statutory maximum weekly pay of £139.58 a week, interestingly this rate has been frozen for 2016. The study also revealed that some employers pay enhanced maternity pay but not enhanced shared parental pay. Another issue is perception. Over half the men surveyed said they felt they may receive unfavourable treatment for taking SPL, or, that their employers did not support SPL. Interestingly, 55% of the women surveyed stated that they did not wish to share their leave with their partner. Awareness could also be a factor. The low take up in seasonal/term based industries suggests many people are not aware of their rights. For example a male teacher, whose partner is not a teacher, could take SPL during term time, he could transfer the leave to his partner during the holidays meaning both could be at home. The leave could then transfer back to the teacher once term resumed. If you would like advice on this issue please contact us.

Posted: Apr 29, 2016 by admin in E Learning

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Immigration reform – What to do if you think an employee doesn’t have the right in the UK

Those of you attended our seminar will know that recent changes to immigration policy will impact companies’ abilities to recruit foreign workers. Any company who wishes to advertise vacancies abroad (including in the E.U) will have to advertise in the U.K before or at the same time as advertising abroad.

Furthermore tier two (non E.U) workers have to earn at least £35,000.00 a year but any company found employing workers illegally (accidental or otherwise) will face large fines and criminal sanctions. This raises the question about what to do if you are unsure whether an employee, or prospective employee, has the right to work in the UK.

The recent case of Nayak v Royal Mail answered that question. It held that if an employer has reasonable belief that an employee does not have the right to work in the UK then the dismissal will be fair, even if the employee did actually have the right to work in the UK. A reasonable belief should be based on not receiving correct documents in an agreed timeframe with no valid reason for delay.

To avoid employing illegal workers make sure your right to work policy is updated to reflect these recent changes. Obtain correct documents before or on the first day of employment and date your copies to indicate they were received before the employee started.

Note when the visa expires and make sure this process has been repeated before that date. If you suspect a document is a forgery or fraudulent then make sure you report the incident to the relevant authority and do not employ the applicant.

For any advice on this issue please contact us.

Posted: Apr 29, 2016 by admin in E Learning, Unfair Dismissal

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Jonas Gutierrez – Verdict

Last month we mentioned that former Newcastle player, Jonas Gutierrez, was fighting a disability discrimination claim against his former employer. Mr Gutierrez has since won his case.

Mr Gutierrez was found to have been prevented from activating an appearance related contract extension after Newcastle United dropped him from the team following his cancer diagnosis and did not start playing him again until he could not reach his appearance target.

How does this relate to employers you ask? Well firstly it is estimated that half of people born after 1960 will be diagnosed with cancer so the chances of any business being affected by cancer are high. Secondly any employee who is prevented from achieving a performance related contract, such as sales, due to cancer diagnosis, or any other disability, could have been unlawfully discriminated against.

Furthermore as a discrimination claim there is no cap on the award limit meaning employers found to have discriminated against employees with cancer risk huge losses. Mr Gutierrez has a remedy hearing next month and estimated losses of over £2 million!

Posted: Apr 29, 2016 by admin in Employment Tribunal, Unfair Dismissal

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Tabloid HR – Sacked after private Investigators follow disabled employee

This month’s sensationalist piece of employment law is the case of Samuel v Wincanton plc. Here it was held that a gross misconduct dismissal for ‘exaggerating’ physical injury was unfair. Ms Samuel worked in Wincanton’s warehouse and was hit on the head by a falling drill bit.

The injuries caused her to suffer from severe nausea, headaches and poor balance. Her doctor signed her off work for a considerable amount of time. Despite advice from occupational health, Wincanton made no attempt to allow the Claimant to work in a less physical role.

They then hired private investigators who filmed Ms Samuel lifting some fruit whilst shopping. Wincanton took this as an exaggeration of her ailments and believed she would be able to lift 25kg boxes in the warehouse.

She was sacked for gross misconduct. The ET held this was unfair because the medical evidence and job specification greatly supported the video evidence insofar that she was not exaggerating her disability.

Furthermore Wincanton had not tried to redeploy Ms Samuel in a more suitable role. This is consistent with our other case involving private investigators which held dismissal fair as the Claimant was exaggerating his condition.

Posted: Apr 29, 2016 by admin in Employment Tribunal, Unfair Dismissal

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Tribunal Watch – Mental health attitudes

The recent case of Wickers v Colchester Visionplus Ltd t/a Specsavers Opticians indicates that Tribunals will not rule favourably on employers who have insensitive attitudes towards mental health issues.

Following some attendance and performance issues, Ms Vickers became teary during an appraisal. She was later diagnosed with depression. She mentioned this to a director and was told that he had no sympathy and that everyone gets depressed sometimes, you just need to pull yourself together.

Following further attendance issues and pending disciplinary action the Claimant resigned believing she was going to be dismissed. The ET allowed her claim citing that the attendance issues were an effect of the depression and that the director’s unsympathetic attitude amounted to discrimination.

Whilst this is a Tribunal decision that isn’t binding it does suggest that judges will take a similar approach in cases involving attitudes towards mental illness.

Posted: Apr 29, 2016 by admin in Employment Tribunal, Unfair Dismissal

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The Governing Body of Binfield Church of England Primary School v Roll – How do emergency call outs effect minimum wage regulations?

Mr Roll, the Claimant, was a site controller for Binfield C of E Primary School, the Respondent. The Claimant lived in a bungalow close to the school which he was required to inhabit as part of his contract. He was required to work 39 hours per week and was paid for any overtime worked.

The Claimant’s contractual duties included being present at, or near, the site in order to deal with emergencies if they arose and to keep the site secure. He felt this meant he had to be available 24/7 and thus even when was at home and not physically working he was working as per the terms of his contract.

As a result the Claimant felt he had a reduced level of freedom as he could not travel far from home, stay overnight at friends’ houses, or regularly attend social events as he believed he was essentially always on call. The Claimant raised several grievances about this and upon their rejection initiated Tribunal proceedings under the National Minimum Wage Regulations.

The ET allowed the claim stating that due to the nature of the Claimant’s work and the fact his movement was restricted he had not been correctly paid for the time he worked. It awarded £80,000.00 for underpaid wages.

The Respondent appealed and the EAT allowed the appeal and sent it back to Tribunal. It held that the fact the Claimant was allowed to leave the Respondent’s premises, even if he may get called back for an emergency, together with the infrequency of emergencies and there being no contractual requirement to be on call 24/7 meant there were grounds for the case to be reheard.

The takeaway points:

This case suggests that a worker whose movements and/or free time are not impaired by a requirement to respond to occasional out of hours issues are not on call 24/7 and thus have been remunerated appropriately. However, if the emergencies were more frequent or the frequency of emergencies impacted on the employee’s freedom then there could be grounds for claiming incorrect remuneration.

Furthermore any employee in such a scenario could bring a claim for breach of the Working Time Regulations if they have not signed a waiver of their right to work a maximum of 48 hours a week. The overall lesson for employers is that they may need to rethink about how they handle out of hours work or emergencies.

If you are interested to find out how Employment Law cases have impacted HR over the past year, would like to know how to structure a tax efficient termination payment, or, would like to know more about recent employment law changes, then please attend our free seminar this Friday, there are still a few tickets left and we would love to see you there.

Posted: Apr 20, 2016 by admin in Employment Tribunal

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Morgan v Royal Mencap Society – Can a disclosure that only affects one employee be in the public interest?

Ms Morgan, the Claimant, was employed by the Royal Mencap Society, the Respondent. The Claimant had suffered serious knee and back injuries outside of work. The Claimant raised several complaints regarding cramped working conditions which were aggravating her injury.

The Claimant resigned after these complaints were not addressed stating she had suffered detriment as a result of making protected disclosures. The Respondent alleged that the Claimant had not made disclosures in the public interest because they only concerned her. The Claimant believed that people who give money to Mencap would be interested in knowing how its staff are treated and that her conditions were also in the interest of all the Respondent’s staff who may be subjected to similar treatment.

The ET stated that, following the Chesterton case, a disclosure does not necessarily have to be in the public interest but the whistleblower has to believe that it is in the public interest. However in this case the ET held that the Claimant had no belief her disclosure was in the public interest when she complained about her conditions and that they were only relevant to her following her injuries.

The Claimant appealed and the EAT allowed the appeal. It ruled that the Claimant may have been the primary party affected by the Respondent’s treatment but she could still reasonably believe that other employees of the Respondent, or, the general public would have interest in her disclosures.

To answer today’s question:

Yes, as the matter was health and safety related there could be reasonable belief that other employees would be interested to know how an employer handles injured staff. Furthermore the public nature of this business, a charity, potentially makes any poor treatment of staff (particularly physically impaired staff working at a disability charity!) in the public interest.

This further strengthens the Chesterton judgement that states a whistleblower can be an interested party in a disclosure but as long as the disclosure is in the public interest, or, they reasonably believe it to be so, then any dismissal arising from detrimental treatment will be unfair.

Posted: Apr 20, 2016 by admin in Employment Tribunal, Unfair Dismissal

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Brighton v Tesco Stores Ltd – Can medical evidence produced by a Claimant be ignored?

Good morning and welcome back to our weekly case law update. Last week we had a two for one on case law, and, whilst we’re talking about two for one deals, how about a ticket to our employment update AND a bacon roll, for free!!

Due to popular demand our 14th Annual Employment Law Update now has extra tickets. The seminar will have a roundup of the most significant employment law cases over the past twelve months, an explanation of all employment law recent changes, including the National Living Wage and Gender Pay Gap Reporting, a session explaining how to structure tax efficient termination payments (David Cameron may be attending) and an Employment Law Surgery to finish. To book a place, or, to find out more click here.

Without further ado, today’s case is about disability discrimination and expert medical evidence.

The question today is:

Can medical evidence produced by a Claimant be ignored?

Mr Brighton, the Claimant, worked for Tesco Stores Ltd, the Respondent, in a community liaison role. After several years of employment the Claimant was diagnosed with epilepsy and then an anxiety disorder. Prior to his dismissal the Claimant was involved in several aggressive incidents with his line manager, for this he was issued a final written warning.

A charity event was due to take place and the Claimant’s manager approached him about ideas he had planned for the event. The Claimant said he had left a note in the manager’s pigeon hole which could no longer be found. In the absence of the note the manager suggested they go through the ideas orally.

The Claimant then became very aggressive towards his manager and a colleague had to intervene. The Claimant was suspended. During his suspension his GP felt the aggressive outburst could have resulted from an epileptic seizure and referred the Claimant to a specialist consultant neurologist.

The Claimant did not return to work, was dismissed and initiated Tribunal proceedings. The Claimant believed that he was dismissed due to the results of an epileptic seizure. The Respondent argued that at the time of the outburst the Claimant was not having a seizure and no discrimination had occurred.

The ET rejected the claim. It acknowledged that there was medical evidence to suggest the Claimant had suffered an epileptic fit, however, the ET viewed this evidence to be self-generated, meaning it was evidence based only on what the Claimant had told his GP and consultant.

The Claimant appealed and the EAT allowed the appeal. It held that the ET had not properly considered the evidence of the consultant neurologist. Whilst it was allowed to reject the consultant’s opinion the ET should have at least given the evidence some consideration.

To answer today’s question: No, specialist medical evidence, even if produced by the Claimant should not be disregarded. Whether it be by the ET or the employer, when handling cases arising from a disability the deciding body should consider all evidence and justify its reasons for accepting or rejecting certain pieces of evidence.

Furthermore, any evidence that comes to the decision maker’s attention between the decision to suspend and the decision to dismiss should also be considered. If the Respondent in this case found out the Claimant had epilepsy after he was suspended BUT before they dismissed that could render the dismissal unfair.

Posted: Apr 15, 2016 by admin in Employment Tribunal, Unfair Dismissal

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TIC International Ltd v Ali – Can new Respondents be added to a claim after early conciliation has taken place?

Hello , last week it was the newsletter and thus the time lapse between our last Case of the Week and this one means we have two cases for you this week, a Friday treat. The first concerns disability discrimination and death in service benefits whilst the second is about Early Conciliation.

TIC International Ltd v Ali which is a rare decision concerning Early Conciliation. The previous decisions taught us that any problems during the conciliation process can result in claims being thrown out. This case asks whether Respondents can be added to the claim after Early Conciliation has taken place?

The Claimant, Ali, made a claim against TIC International Ltd, the Respondent, and began the process of Early Conciliation. During the process the Claimant incorrectly listed the name of the Respondent as its subsidiary name instead of the parent company name.

The Claimant completed the process of conciliation and proceeded with his claim, again with the incorrect Respondent named. At this point the name of the correct Respondent was added to proceedings. They argued that Early Conciliation had not been complied with. The hearing went ahead anyway and the claims were dismissed.

However, the Respondent wished to appeal anyway stating that the hearing should never have taken place due to incorrect names on both the original claim and Early Conciliation certificate. The EAT rejected the claim. It held that conciliation only concerns prospective parties and once this has been done and the claim is issued the Claimant is no longer a prospective one.

It added that the Tribunal has discretion to add new Respondents to the claim, where it is in the interests of justice to do so.

The lesson here is somewhat conflicting to the previous Early Conciliation decisions as it gives Claimants a greater margin of error when initiating conciliation. However it would seem that the correct conciliation number is more important than the name and/or spelling of the Respondent.

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If you would like to find out more about how employment law judgments from the last twelve months have impacted on HR practise, or, would like to find out about how  recent employment law changes will impact your business, then please attend our free seminar.

Thank you to everyone who has already booked, we look forward to seeing you there, however we do still have a few spare places. It will be a great opportunity to prepare for all the recent changes and you can even submit a question on a specific issue related to your business that we will deal with anonymously on the day. It will also be a chance to network with local businesses and as an added perk there will be bacon rolls on the house.

To book your ticket or find out more please click here.

Posted: Apr 8, 2016 by admin in Employment Tribunal

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London Underground Ltd v O’Sullivan – Can an employer dismiss on capability grounds if it doesn’t implement reasonable adjustments?

Grim-reaper

Hello , last week it was the newsletter and thus the time lapse between our last Case of the Week and this one means we have two cases for you this week, a Friday treat. The first concerns disability discrimination and death in service benefits whilst the second is about Early Conciliation.

Our first case is London Underground Ltd v O’Sullivan and asks:

Can the estate of a deceased employee continue an ongoing claim?

Is work shadowing a reasonable adjustment?

Can an employer dismiss on capability grounds if it doesn’t implement reasonable adjustments?

Mr O’Sullivan, the Claimant, was a Station Supervisor for London Underground Ltd, the Respondent. The Claimant had over 21 years’ service with an immaculate record. Following the death of his mother he was diagnosed with depression.

dark-cloud!

As a result of the medicine prescribed to the Claimant, the Respondent was advised that he should not perform safety critical duties. This meant the Claimant could no longer continue as a station supervisor.

The Claimant’s condition did not improve and he was absent for a considerable length of time. Occupational Health suggested that the Claimant be transferred to the role of Customer Service Advisor, which was not safety critical. They suggested a four week period of work shadowing whereby a manager at the Respondent would support the Claimant. They believed this may help his illness but would also condition him to work.

The Respondent rejected this proposal as the manager was not prepared to shadow the Claimant for such a lengthy period of time. The Claimant was dismissed on capability grounds and initiated Tribunal proceedings but tragically and unexpectedly died shortly after. The Claimant’s wife continued the claim.

back-to-work!

The Tribunal allowed the claims, it held that, following the decision in Fox v British Airways, the estate of a deceased employee could pursue a claim and gain death in service benefits if the dismissal was deemed unfair. The ET felt that there was an 80% chance the work shadowing would have resulted in the Claimant successfully returning to work and the Respondent not following Occupational Health’s advice was discriminatory. The Claimant’s estate was awarded £220,000.

The Respondent appealed the decision. It alleged that the decision in Fox was wrong and that the ET had incorrectly calculated the prospects of the Claimant successfully returning to work and being employed at his time of death.

The EAT rejected the appeal, it felt that as the Respondent had not implemented the work shadowing the ET had correctly decided the prospects of the Claimant remaining in work. The appeal regarding the Fox decision was also rejected but the Respondent can appeal to the Court of Appeal if it wishes to pursue the issue.

The takeaway points:

Yes an estate of a deceased Claimant can pursue Tribunal proceedings, for now. This decision supports the Fox judgement and unless the Respondent challenges this decision it is safe to assume that an estate can be entitled to a death in service benefit, as well as the usual Tribunal award, if an employee is unfairly dismissed shortly before their death.

Work shadowing is a reasonable adjustment, particularly in cases where a disabled employee’s condition might mean they initially need support after a lengthy absence. Not implementing a reasonable adjustment then dismissing on capability grounds will always be unfair. We advise a softly, softly approach when handling mental illness related disabilities, with support employees can often make a successful return to work.

bacon-roll1.

If you would like to find out more about how employment law judgments from the last twelve months have impacted on HR practise, or, would like to find out about how  recent employment law changes will impact your business, then please attend our free seminar.

Thank you to everyone who has already booked, we look forward to seeing you there, however we do still have a few spare places. It will be a great opportunity to prepare for all the recent changes and you can even submit a question on a specific issue related to your business that we will deal with anonymously on the day. It will also be a chance to network with local businesses and as an added perk there will be bacon rolls on the house.

To book your ticket or find out more please click here.

Posted: Apr 8, 2016 by admin in Employment Tribunal, Unfair Dismissal

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