Employment Law Update March 2010

March 2010

Dear Employer

With the milder weather upon us and the worst signs of the winter vanished, thoughts turn to spring-cleaning (at least, some peoples do!). Time to dust off those mouldy old contracts and policies festering from years ago and have some new ones drafted. For those who never had any policies or contracts in the first place, time to think about shifting into the 21st Century. The recently-retired Head of our Countys Law Society remembers when junior staff were not expected to address the Senior Partner without being spoken to first, and employment law was almost unheard of. But that was 1960, this is now

In the meantime, if you have any particular employment issues, please do not hesitate to contact us: details are at the end of this letter. If you have any comments or suggestions on this newsletter, please email newsletter@breezeandwyles.co.uk


The Employment Law Team

Some Recent Changes and Cases in Employment Law


This is a Court of Appeal decision. Staff at a mental health trust made complaints about a consultant psychiatrist alleging his conduct was harassing and distressing. The Trust dealt with the allegations under an informal procedure designed for conduct which does not constitute serious or gross offence. While the investigation was on-going further allegations were made against the employee. At the end of the informal proceedings the Trusts Medical Director stated unexpectedly that she would report the employee to the General Medical Council. As a result, the employee withdrew from the informal procedure, to be dealt with via an ordinary disciplinary hearing. The result was his summary dismissal for gross misconduct. He appealed unsuccessfully internally and then brought an unfair dismissal claim in the Tribunal.

It was held that his dismissal was unfair because the Trust had chosen to deal with the matter through the informal procedure, implying that the misconduct alleged was of a relatively minor nature. The same offences could not then be regarded as matters so grave and serious as to constitute gross misconduct and lead to summary dismissal later. As the additional misconduct during the investigation process could not amount to gross misconduct, either individually or cumulatively, it did not justify dismissal. Also, as the Medical Director had intentionally frustrated the informal procedure, the Trust could not reasonably sabotage those discussions and proceed down the disciplinary route of alleged gross misconduct. [Sakar v West London Mental Health Trust]


The Court of Appeal has held that the sexual abuse of a child was so closely connected with a priest’s employment that it would be fair and just to hold the Roman Catholic Archdiocese, his employer, vicariously liable. The priest used to pay the claimant for jobs such as cleaning his car or the presbytery. The boy (who had learning difficulties and epilepsy) also attended the church disco where he would help the priest clear up. Years later, he brought a claim against the Archdiocese.

The Court of Appeal considered the law on employers vicarious liability. The correct test is whether the acts (the torts) were so closely connected with the employment that it would be fair and just to hold the employer vicariously liable. Also, although the acts must be within the scope of the employment for a claim to succeed, a broad approach should be adopted when establishing the scope of the employment. The Court of Appeal held that, although the claimant was not a Catholic and had not had anything to do with the church itself, there was a sufficiently close connection between the priests employment at the church as a priest and the abuse which he inflicted, to render it fair and just to make his employer vicariously liable for the abuse. [Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church] (See Employers Traps Section)

Whats in the pipeline


From 6th April 2010, new legislation will provide employees with the right to request to undertake relevant study and training during working time (which will be unpaid). This applies to employees in organisations with at least 250 employees. Employers will be entitled to refuse any such request where a good business reason exists for doing so. It is expected that the right will be extended to all employees, irrespective of employer size, from April 2011. More details to follow. The legislation will be part of the Employment Rights Act 1996.


As advised in our last e-zine, these will come into effect from 6th April 2010 and will replace the current sick notes. On the new form, doctors can provide a may be fit statement if they think a patients health condition may allow them to work if they get suitable employer support, e.g. altered working hours, amended duties or workplace adaptations. Where an employee is too ill to work, the doctor will continue to advise this, as with the old sick notes. As before, self-certification will apply for the first 7 days. The fit note will not be required until after the 7th calendar day. There will be no change to statutory sick pay arrangements, nor to employers obligations under the Disability Discrimination Act. Guidelines are available for employers.


From 6th April 2010, the provisions relating to additional paternity leave and pay in the Work & Families Act 2006 are expected to come into force. If they do, then employers will have to wait another year before they take effect. However, it would be wise to plan in advance. Essentially, the new provisions mean that mothers of children due on or after 3rd April 2011 will be able to transfer up to 6 months of their maternity leave to the father when they return to work. The key points of the scheme are quite complicated and, therefore, this will be re-visited in a further issue once it is confirmed that the Regulations are coming into force in April.

The Employer Traps and Other Tips


Sometimes individuals are genuinely self-employed; sometimes they are in fact really employees. If they are employees, then they of course have considerably more rights than the self-employed. Sometimes the parties may genuinely think that there is a self-employment situation when actually the facts point to an employer/employee relationship. It is the Tribunal which will ultimately decide what the correct status is when there is dispute, by looking to see what the true working relationship is. It can be the case that individuals are in fact employees even though the Inland Revenue has accepted them as self-employed. As always, if in doubt, take advice.


Did you know that you as an employer are liable for the actions of third parties towards your employees in relation to sexual and sex-related harassment under the Sex Discrimination Act? This means that if one of your customers, for example, harasses a member of your staff in a way that is covered by the Act, then you could be liable. The Equality Bill which is due to receive royal assent this spring will extend employers liability for third parties to all elements of discrimination (i.e. not just sex).


Remember that an employee who is on maternity leave is entitled to accrue annual leave throughout the full period of her absence. It used to be the case that leave was only accrued whilst on ordinary maternity leave but it now applies to additional maternity leave also.


The case of Maga is a reminder of the liability of employers for the acts of their employees, even when the situation may not at first glance seem to be connected with work. It is a good idea to make your employees aware that they can be liable for acts committed outside works time (and thus making you as the employer liable).

Breeze & Wyles Employment Group

114 Fore Street, Hertford, Hertfordshire SG14 1AG
Tel: 01992 558411 Fax: 01992 503889
Email: jane.dismore@breezeandwyles.co.uk


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