Archive for September, 2007
By Sarah - Friday, September 28th, 2007
It seems obvious, but some employers often forget that the punishment must fit the crime when it comes to issues of conduct. The true legal test is whether the decision was within the band of reasonable responses for the employer to take.
I was speaking to someone today who had an employee caught stealing and who admitted the offence. They were advised (and not by us, I hasten to add) to issue a warning. Very safe advice but theft is Gross Misconduct and could warrant dismissal or a final written warning. The other extreme is where we acted for an employee who was dismissed for Gross Misconduct when one of her direct reports told her wrongly that something had been done. The punishment did not fit the crime in that case.
When carrying out training for employer clients, one exercise we sometimes do with management is getting them to distinguish between red and yellow card offences, to use a football term. It is suprising how lenient some are and how extreme others are. If in doubt seek advice, otherwise you could be left with a problem employee you do not want or be facing a Tribunal claim!
Posted in Unfair Dismissal | No comments »
Similar Posts:
By Liam - Thursday, September 27th, 2007
Under the Statutory Retirement Procedure that became mandatory in its transitional form on 1 October 2006 and then in permanent form on 1 April 2007, all employers must follow the Statutory Retirement Procedure before dismissing an employee by reason of retirement (which is now a sixth potentially fair reason for dismissal for unfair dismissal purposes).
The procedure requires employers to write to employees between 6 and 12 months before they are due to retire and inform them that they are due to retire (and state the date that retirement is due) and that they have the right to request to work on beyond retirement age. If the request is refused following the appropriate meeting and appeal meeting, the employee simply retires.
However, if the employee is granted an “extension” to their employment, what must be done in terms of the retirement procedure when the end of the “extension” is approaching?
The answer depends on the length of the extension. If the extension is for 6 months or fewer, there is no need to send another notice of retirement letter to the employee.
If the extension is for more than 6 months, then the employee must be sent another notice of retirement letter between 6 and 12 months before the new retirement date. If this is not done, the retirement procedure has not been followed and employers will either have to delay the employee’s retirement or risk an unfair dismissal claim.
For extensions between 6 and 12 months beyond the first retirement date (normally when the employee reaches the age of 65) the easiest way to deal with the requirement to write to employees 6 - 12 months before the new date is to include the new notice of retirement information in the letter confirming the extension of the first retirement date.
This means one letter will cover the following:
- That an extension has been granted;
- What the new retirement date is;
- That the employee has the right to make a further request to work beyond this date.
The employer can then wait to receive a further request, and if it does not, simply retire the employee safe in the knowledge that it has met its obligations under the retirement procedure.
Posted in Age Discrimination | 9 comments »
Similar Posts:
By Sarah - Wednesday, September 26th, 2007
The Civil Service Appeal Board has issued a report which said that government departments are unlawfully sacking one in four civil servants costing the taxpayer £628,632. The report showed that standard dismissal procedures were not being followed.
This mirrors this firm’s experience of dismissals in the public sector in the last twelve months. We have acted for employees who have been unfairly dismissed without the procedure being followed from all walks of the public sector. Unfair procedures in redundancy, no dismissal procedure in others. Of course this is not unique to the public sector but perhaps we should expect a bit more for our money?
Share your views on the subject with us and your experiences.
Posted in Statutory Procedures, Unfair Dismissal | No comments »
Similar Posts:
By Philip - Tuesday, September 25th, 2007
In redundancy situations, the 4 week trial period is a tricky section of law to navigate through.
Put simply there is a statutory right to a 4 week trial period if a suitable offer of employment has been made within 4 weeks of a contract coming to an end through redundancy. If accepted, the employee and the employer have 4 weeks to declare whether the trial is a success or not. If it is not a success the employee defaults back to redundancy and receives the redundancy payment that would have been received had the offer of alternative employment not been accepted.
What causes some difficulty is what the situation is where the employee declares the trial unsuccessful outside the four week trial period.
The case reported here gives an unequivocal answer, not even a shopping trip to the stores pictured above will save the redundancy payment. If you want to declare the trial unsuccesful you must do it within the statutory 28 days of the trial period. If you are outside that time frame, tough.
Posted in Redundancy, Redundancy Payment | No comments »
Similar Posts:
By Philip - Monday, September 24th, 2007
In my time I’ve dealt with a fair number of cases involving malingerers. Bad backs are diagnosed by Doctors based on what a patient tells a Doctor.For those employees who genuinely have bad backs, most employers have sympathy for and help and support the employee back to full fitness. However an alleged bad back sometimes is a useful cover for a work shy employee wishing to avail himself of generous sick pay scheme.
My personal favourites include an employee who was off with a supposed bad back for many months. One day the employer had a fire on the premises, the absent employee with the bad back was also a retained fire fighter and turned up on the back of a fire engine and put the fire out.
Another employee also off with a bad back was pictured in the local paper having won a pro-am golf tournament. Needless to say both employees were dismissed. We would suggest in cases like this that the reason for dismissal is given as abusing the sick pay scheme.
In the case reported here, the employee was also off with a bad back but was caught on video tape loading and unloading shopping, driving and coming out of the bookies. An employer can discount an employee’s sick note and place weight on what they see, which is normally covert video surveillance.
Just because an employee is caught red handed malingering, it does not mean that this will prevent them from claiming unfair dismissal.
Provided a fair procedure is followed, Employment Tribunals will find in favour of employers where good evidence exists that the employee is shirking. Video evidence is normally good enough, as is a private investigator’s report.
Posted in Unfair Dismissal | No comments »
Similar Posts:
By Sarah - Friday, September 21st, 2007
A recent survey suggested that 22% of male directors of UK companies avoid hiring potential mothers. 29% of such directors over the age of 55 were reluctant to hire women of this age group. The survey by YouGov was reported in the Observer and shows that more than thirty years after the Sex Discrimination Act came into force, sex discrimination is still rife.
The Equal Opportunities Commission responded by saying that “These shocking results show that UK firms are wasting a huge pool of potential talent”.
The problem as I see it is changing the mind set of a generation. The million dollar question is how? One solution may be training in dignity at work so employees and business owners understand the implications of their actions and that they too can be personally liable. If Bush was running such a campaign it would be “shock and awe” but for those of us that actually do such training, this is a good way of describing the delegates reaction to such news!
For more about training your workforce see our Training section or our innovative award winning e-learning product Dignity at Work.
Posted in Sex/Race Discrimination | No comments »
Similar Posts:
By Philip - Thursday, September 20th, 2007
Employers who recognise Trade Unions will often have collective agreements with the Trade Union which cover employees in the bargaining unit. The case reported here answers some old chestnuts that crop up from time to time:
1. A collective agreement is an agreement between a Trade Union and an employer, provisions within that collective agreement cannot be directly enforced by an employee as he was not a party to the agreement, unless the agreement was incorporated into the employee’s contract of employment.
2. Where an individual employee’s contract conflicts with a collective agreement, in this case over a weekend working allowance, then the contract normally trumps the collective agreement as the contract is a bespoke document for the individual employee whereas a collective agreement is a generic document which covers a group of employees, of which the individual employee may be a part.
Posted in Trade Unions | No comments »
Similar Posts:
By Liam - Wednesday, September 19th, 2007
The EAT in E A Gibson Shipbrokers Limited v Mr J Staples have reaffirmed the EAT’s earlier decision in O’Hanlon reported here that paying sick pay is not something an employer is normally required to do in order to comply with its duty to make reasonable adjustments under the Disability Discrimination Act 1995.
Posted in Disability Discrimination | No comments »
Similar Posts:
By Liam - Tuesday, September 18th, 2007
As reported by this Blog back in January, the Working Time Regulations minimum holiday entitlement is increasing on 1 October 2007 from 20 days’ holiday entitlement per year to 24 days’ holiday entitlement per year. The 24 days can include bank holidays in the same way as the current 20 days can include bank holidays.
Where the 1st October falls part way through the holiday year of an employer who only allows employees 20 days holiday per year, that employer will have to work out how much extra holiday his employees are entitled to for the part of his holiday year falling after the 1st October.
Help is at hand with this extremely taxing bit of degree level mathematics calculation from the DTI who have produced a Ready Reckoner which will recalculate holiday entitlement based on when an employer’s holiday year starts.
Posted in Holidays | No comments »
Similar Posts:
By Philip - Monday, September 17th, 2007
The Daily Mail report that a Hindu worker has been sacked for wearing a nose stud.This does seem a bit over the top, particularly as it would appear that the employee had worn the nose stud for a year without a problem.
It would seem that this Company had a rule stating that with the exception of sleeper stud ear rings, no “flesh piercing” jewellery was permitted.
Discreet (and indiscreet) piercings and tattooes have now become part and parcel of youth culture, with people in the public eye like David Beckham and Zara Phillips being quite open in their tattooed and pierced flesh. A tongue stud was no reason to take Zara Phillips off the public payroll, although for the more republican of our readers it may have been an useful stick to beat her with.
In this particular case there was a religious reason for the piercing. Is it time for Companies to take a broader minded approach to appearance codes? Have managers not got more to do than police whether or not their employees are abiding by the Company’s appearance policies?Does a strict dress code add value or is it HR make work?Your thoughts.
Posted in Miscellaneous, Religion or Belief Discrimination | No comments »
Similar Posts:
