Employment NewsLetter February 2013
Our last newsletter referred to the increasing problems with social media in the workplace. We are pleased to offer a free seminar on this subject at our Hertford Office on Thursday, 11th April 2013 from 9am – 11am. The speaker will be Michael Duggan, Barrister. If you are interested, please email email@example.com and an invitation, with more detail about the event, will be sent to you.
Meanwhile, 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 firstname.lastname@example.org
The Employment Law Team
Some Recent Cases in Employment Law
LAP DANCER POLES APART FROM BEING AN EMPLOYEE
In an earlier Ezine, we reported the case relating to employee status, being Quashie v Stringfellow Restaurants. The Employment Appeal Tribunal (EAT) had held that the lap dancer was an employee. The Court of Appeal has overturned the decision and ruled that despite there being some contractual obligations, there was no contract of employment. The Court found that on the facts Stringfellows did not employ the dancers to dance but paid them to be provided with an opportunity to earn money by dancing for its clients. It was under no obligation to pay the dancer anything at all, and she negotiated her own fees with clients, taking the risk that on any particular night she would be out of pocket and receive from the club only monies from clients after deductions. The reality was the economic risk which was consistent with self-employed status.
Whilst we realise that not many of our clients or readers of this Ezine are in the business of employing lap dancers, it is a significant case on status of workers (and in any event, we aim to keep you up-to-date with the latest decisions).
NO CONSULTATION FOR REDUNDANCY
As employers will be aware, in order to avoid a claim of unfair dismissal it is necessary (in most cases) to carry out consultation before dismissing an employee; in any event, redundancy should be seen as the last resort (the alternatives to employment having been considered). However, a recent case confirms the principle that in appropriate cases, where consultation would have been “utterly futile”, the lack of consultation will not make redundancy dismissal unfair. This is seen in the recent case involving the restructuring of a sports company. The Board was reconstituted and a new HR Director appointed with the existing Head of HR made redundant. The company regarded the new employee as “head and shoulders” above the existing employee and argued that it would have been utterly futile to have a competitive interview of the two candidates. In this particular situation, given the urgency of the situation, the lack of consultation was not unfair and the reorganisation made this a redundancy situation. However, this should not be taken as a carte blanche to skip consultation in a typical case. This case was far from the ordinary case of redundancy selection as it concerned a Manager in a very senior post which was being lost due to a substantial reorganisation. In the vast majority of cases consultation should take place. [Ashby v JJB Sports PLC ]
RELYING ON PREVIOUS WARNING
The Employment Appeal Tribunal (EAT) has given guidance on how far earlier warnings can be relied on in disciplinary hearings. In this case, an employee had been given a first warning (because of a dispute over a new system of working) and he later got a second warning (because of dangerous driving). He argued that the lack of the similarity between the causes of the two warnings meant that the earlier warning should not be taken into account. However, the EAT rejected that and their guidance includes the following:
· Tribunals must not go behind the facts of an earlier warning (unless satisfied that it was given for an obscure reasons or was clearly inappropriate)
· If the warning is valid, the Employment Tribunal cannot substitute its own view for that of the employer (i.e. it cannot say it would have imposed a lesser sanction)
· If a disciplinary warning has been validly issued and is still current, it can be taken into account even if it is for a dissimilar act
· When deciding what sanction to impose, an employer should take into account the factual circumstances of any earlier warning
· Employers should always take into account how other employees have been treated for similar offences (i.e. maintaining consistency)
[Wincanton Group PLC v Stone and Anor ]
What’s in the pipeline?
Children & Families Bill
The Government has published the Children & Families Bill which aims to fulfill a number of commitments it has made on children and families, including proposals on shared parental leave and pay and extending the right to request flexible working to all employees.
New rights to shared parental leave and pay
The Bill will amend the Employment Rights Act 1996 to create new rights to shared parental leave and statutory shared parental pay. Precise detail will be contained in Regulations (as yet unpublished). What is clear is that women will continue to be eligible for maternity leave and statutory maternity pay or allowance but will be able to choose to end their leave and pay or allowance early and share the remaining leave and pay with their partner.
Time Off Work : Ante-natal care etc
There will be a new right for employees and agency workers in qualifying relationships to take unpaid time off work to attend up to two ante-natal appointments with a pregnant woman, for a maximum period of 6½ hours for each appointment. Those in a “qualifying relationship” are the pregnant woman’s husband, civil partner or partner, the father or parent of the pregnant woman’s child and intended parents in surrogacy situations who meet specified conditions.
Right to request flexible working
Amendments to the Employment Rights Act will extend the right to request flexible working from employees who are parents or carers to all employees. It is also proposed to remove the current statutory procedure for considering flexible working requests and allow employers to consider requests using HR processes. However, employers will be under a duty to deal with applications for flexible working “in a reasonable manner” and to notify the employee of its decision within three months of the employee’s application unless a longer period is agreed between the parties.
Please note the above is very much a brief summary of the prospective amendments.
The Employer Traps and Other Tips
Sick employees who receive payments under a personal health insurance policy
After a major case in 1996, it was very difficult for an employer to dismiss a long-term sick employee who was in receipt of payments from a personal health insurance policy. This was even if there was a contract containing an express provision allowing for dismissal in the case of prolonged incapacity. A recent case shows the position may now be different. The result is that employers now have greater freedom to dismiss employees who are on long-term sick leave even if they are receiving PHI benefit. However, it will all depend on the contract: there must be an express right to terminate for incapacity (even if PHI benefit is being received). You would be wise, however, to take advice before dismissing, as cases of this sort may raise disability arguments. [Lloyd v BCQ Ltd ]