Employment Bulletin
- August 2006
In this month's edition we look at:-
- Look at how employers should deal with disabled employees.
- Comment on a key case in relation to bullying at work.
- Consider the ramifications of sleeping on duty.
- Outline key developments in relation to fixed term workers.
- Examine important forthcoming developments in relation to maternity legislation.
Disability Discrimination: Reason for Dismissal
The Court of Appeal has held in the case of A J Taylor v OCS Group Ltd that a deaf employee, who had not been able to fully participate in the disciplinary process because of his disability, had not been discriminated against for a reason related to his disability when he was dismissed for misconduct. The issue was what was in the employer’s mind when the employee was dismissed and there was no evidence to suggest that it was a reason relating to the employee’s disability.
The employee had still been subjected to a detriment by failing to make arrangements to prevent his deafness putting him at a disadvantage at the disciplinary hearing and the duty to make reasonable adjustments should also not be forgotten.
Practical tips for employers:
Do not avoid dealing with issues simply because the employee has a disability. When dealing with grievance or disciplinary hearings involving a disabled employee, ensure that the employee is not placed at a disadvantage due to the arrangements in place:
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consult the employee as to any adjustments which the employee may require, and if appropriate, obtain advice from occupational health; |
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where the disability may have an effect on the employee’s ability to prepare for a hearing, vary time limits to allow the employee more time; |
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in certain circumstances, it may be appropriate to offer the employee assistance (from a manager or member of the HR department not connected to the issues); |
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where an employee suffers from a hearing or visual impairment, make sure that there is an appropriate interpreter or method of communication used throughout the hearings and at any appeal; |
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for employees who may have difficulty attending the workplace for a hearing due to either a physical or mental impairment, make arrangements for the hearing to be conducted at a neutral venue (appropriate for access etc). |
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following such a procedure will impress on any Employment Tribunal that careful consideration has been given by the employer to the specific needs of the employee. |
Beat the Bully
An employer can be held vicariously liable for the actions of its employees where they are in breach of the Protection From Harassment Act 1997 ( William Majrowski v Guy’s & St Thomas’s NHS Trust ). This means that victims of bullying at work could bring a civil claim for harassment against either the actual bully or the employer. To obtain protection under the Act the behaviour must have occurred on at least two occasions and must be unacceptable to the extent that criminal liability under the Act would be sustained; rather than being irritations or even unreasonable behaviour. Firm management, even where there is a question as to the reasonableness of the conduct, is not likely to come within the Act, but employers should be aware that there could be other consequences, such as constructive dismissal claims.
For an employee to be liable, the harassment must have taken place on at least two occasions, although in the case of Fiona Jane Daniels v Commissioner of Police of the Metropolis the High Court held that an employer can also be vicariously liable where more than one employee, each acting on different occasions, has acted in furtherance of some joint design.
Unlike the discrimination legislation, there is no statutory defence to assist an employee under the Protection From Harassment Act.
Advice for employers:
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Review and update policies on harassment to ensure that they cover not only unlawful harassment as defined by the discrimination legislation but generally bullying as well; |
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Consider implementing a separate bullying/dignity at work policy which identifies which personnel can be approached about bullying concerns; |
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Amend dismissal and disciplinary procedures to ensure that contravention of such policies is listed as gross misconduct; |
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Take the time to inform all employees of the policy and what is considered unacceptable by the organisation; |
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Provide training to managers on dealing with bullying complaints; |
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Deal with issues as soon as they arise and in accordance with the procedures. |
Asleep on the Job
For the purposes of the Working Time Regulations where an employee is required to be on the employer’s premises, even if allowed to sleep (such as a doctor on call) this will be regarded as working time.
In the case of Anderson v Jarvis Hotels a similar claim was brought by the general manager in respect of his wages. He had been required to sleep at night at the hotel on occasions to deal with emergencies if and when they arose. The hotel did not pay him for this time. The Employment Appeal Tribunal held that the manager was contractually obliged to be at the hotel and should have been paid.
Practical tips:
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Consider whether it is necessary to have the employee based at the premises. |
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If it is not necessary, ensure that contractual arrangements are in place to require the employee to be contactable should they be required. |
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Monitor such work to ensure that the employee receives appropriate rest under the Working Time Regulations. |
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If it is necessary for the employee to be at work, this counts as working time for the purpose of hours, rest, pay and minimum wage issues. These issues should be considered when taking into account staffing arrangements and budgets. |
Fixed Term Contracts
From 10 July 2006, any employee who has been on a fixed term contract, which has previously been renewed, or was employed on a fixed term contract before the start of the new contract, for four years will become a permanent employee unless the fixed term was objectively justified when renewed or entered into (if it has not been renewed).
Practical advice:
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Review the contracts of employees on fixed term contracts to see whether the 4 year period is satisfied. |
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Consider the reasons for renewing the fixed term or for giving the employee a fixed term if it has not been renewed. If there are sound business reasons for the fixed term, the fixed term can remain. |
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If not, the employees should be informed of the notice periods applicable within one month of the employees being employed four years. |
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Diarise when other employees will reach the four year mark under the fixed term contracts. |
Draft Maternity Regulations
The draft maternity and adoption leave regulations (the “Regulations”), set to come into force for employees whose expected week of childbirth, or expected week of adoption, is on or after 1 April 2007, have been published.
The Regulations will entitle all employees, irrespective of their length of service, to additional maternity leave so that all employees will be entitled to 12 months maternity leave (made up of six months ordinary maternity leave and six months additional maternity leave). An employee wishing to return early from additional maternity leave will be required to give the employer eight weeks’ notice. This is a significant change in the legislation.
The Regulations will also introduce keeping in touch days (known as ‘KIT’ days) which will enable an employee to work for up to ten days during the maternity leave period although the employer will not be obliged to offer keeping in touch days, and if it does, the employee will not be obliged to accept.
Practical Tips:
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Employers should review and update maternity policies to come into force at the same time as the Regulations (not before); |
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The policy should reflect the statutory maternity rights and the company should reserve the right to update the policy in line with legislation; |
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Consider whether your company wishes to take advantage of ‘keeping in touch days’ and keep the company’s options open by referring to such days being offered subject to the company’s ability to accommodate such activities; |
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Ensure managers are made aware of the changes. |
Further Information
The Employment Training Unit provides bespoke training on all employment issues in a practical and comprehensive format. Again, please contact a member of the unit for further details.
If you would like further information on our Employment Unit or to discuss topics covered in this newsletter, please do not hesitate to contact Kevin McKernan, Head of our Employment Unit, or any other member of the team on 0191 233 9700.
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