Archive for January, 2008
By Liam - Thursday, January 17th, 2008
Regulation 16 of the Management of Health and Safety at Work Regulations 1999 requires employers employing women of child bearing age to conduct a risk assessment in respect of risks posed to new or expectant mothers.
It is established law that failing to comply with these provisions may amount to sex discrimination.
In Home Farm Trust Ltd v Nnachi the EAT held that a woman who notified her employer on 9 May 2005 that she was pregnant had been discriminated against in circumstances where a risk assessment was not conducted until 22 May 2005 owing to the absence through illness of a member of management.
The EAT commented that “an employer should not wait until an employee is pregnant before making an assessment of the risks by reason of her condition to a new and expectant mother. An employer should have such an assessment in place for each undertaking where the person’s work include women of child bearing age.”
The lessons to be learned from this case are that if you employ women of child bearing age, a risk assessment should be conducted and in place even if no women are actually pregnant. Failing to do so could result in a finding of sex discrimination!
Posted in Maternity, Sex/Race Discrimination | 4 comments »
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By Sarah - Wednesday, January 16th, 2008
The NHS have been in the news twice this week in the employment field. The first employment issue was that NHS staff could be disciplined for failing to wash their hands or failing to take infection control seriously. The Government has lauched a new strategy called “Clean, safe care” which will see employers and unions working together to determine how HR processes can be used to cut infections.
Secondly, you may or may not have heard of Agenda for Change. I certainly have as this was relevant for one of my recent cases of Unfair Dismissal (successfully won) against an NHS Trust. In typical public sector style it is a complex mechanism and is still largely strouded in secrecy. Our Practice Manager herself went through Agenda for Change before she left the NHS to join us and has such fond memories!
Well the NHS is facing a landmark test case, which could pave the way for hundreds of thousands of equal pay claims. The test case will attempt to prove that Agenda for Change was flawed when it was introduced in 2004. It was supposed to be an equal pay deal reflecting skills and knowledge. The allegation is that it was instead based on salaries before Agenda for Change, which were discriminatory.
The first case is set to be heard before the Newcastle Employment Tribunal towards the end of 2008. The test case will argue on behalf of the claimants that the policy is based on discriminatory principles and will try to force the NHS to re-examine Agenda for Change. The NHS argues that the Agenda for Change principle was agreed between the unions, the Department of Health and the NHS. If successful, the challenge could open the floodgates for equal pay claims in the NHS. As always watch this space.
Posted in Equal Pay | No comments »
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By Liam - Tuesday, January 15th, 2008
In an Employment Tribunal in Kent, the Managing Director of a company called Safetel is reported to have described a relatively new and previously highly regarded Sales Director who fell pregnant as “useless” and said she “would never be the same again”. He is reported to have told her that her company car would be downgraded to a “run around” and that he was “tempted to dismiss and take the consequences”.
The Sales Director’s subsequent appraisal stated her “pregnancy has quite naturally had an adverse effect on her ability, motivation and dedication”.
Unsurprisingly, the Tribunal upheld a claim of Sex Discrimination. Damages will be dealt with at a remedies hearing in February. It is reported that damages could be as much as £200,000.00.
Employers should take this as a lesson in how not to deal with pregnant employees. We recommend taking legal advice to any employer who has a need to take any disciplinary action, deal with redundancy or dismiss a woman who is pregnant or on maternity leave as although the above is an extreme example of blatant discrimination, it is also easy for comments or behaviour that were not intended to cause any harm to be misconstrued and result in a claim!
Another way employers can help avoid discrimination in the workplace (which could cost the employer as they are vicariously liable for their employees’ action) is to ensure employees are trained properly in equal opportunities and understand what behaviour is acceptable. One cost effective way of doing this is through online training such as Dignity at Work.
Posted in Sex/Race Discrimination | No comments »
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By Sarah - Monday, January 14th, 2008
Smoking inspectors are on the rampage having issued over £1,000 written warnings to employers for failing to prevent smoking in their premises in the first four months of the ban leading to eight court hearings. Over £6,000 warnings were issued for failing to display the correct signs in their premises or vehicles.
Companies need to ensure they have the correct framework in place. We have had reports from one Company client of the police camping out at the end of the industrial estate stopping vehicles leaving the estate and checking for signs. Nothing to do with a quick buck I’m sure!
Posted in Health and Safety | No comments »
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By Liam - Saturday, January 12th, 2008
Whether an employee has resigned or has been dismissed affects whether an employee can claim unfair dismissal. If there is no dismissal, the employee can not claim unfair dismissal. Whether a dismissal has occured is therefore often an important point to be considered by Tribunals.
A resignation can be a dismissal (if the requirements of s.95(c) Employment Rights Act 1996 is satisfied, commonly known as a “constructive dismissal”), but is it possible that unilaterally requiring an employee not to work part of her notice period after she has resigned can amount to a dismissal?
The employment Tribunal in TOM FINDLAY & CO LTD v MRS M DEVLIN held that such a requirement could amount to a dismissal on the basis that the termination date had not been agreed because it had changed from the date specified in the employee’s resignation letter. This decision was overturned by the EAT. The EAT confirmed various well established principles - that an employee generally has no right to be given work, that a contract of employment can subsist while an employee does no work and that once a resignation has been given in accordance with an employee’s contract, the employee can not withdraw that resignation. Once Mrs Devlin had resigned, not requiring any work from her for part of her notice period did not change the date her employment ended. Neither did not requiring her to work change the cause of the termination of her employment - the termination was brought about by her resignation. Accordingly not requiring Mrs Devlin to work all her notice period did not amount to a dismissal.
Employers remain safe in putting their employees on garden leave! However, employers may wish to consider it could potentially be more tax efficient to pay employees in lieu of notice, but that’s a different issue.
Posted in Unfair Dismissal | No comments »
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