Employment Bulletin - February 2006

In the February edition of Crutes’ Employment Unit Newsletter we cover:-

• the case of Sweetin v Coral Racing which deals with compensation for a failure to consult under the Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE);
• an interesting Scottish case dealing with whether an employer can rely on expired warnings;
• a heavy award for injury to feelings in a sex discrimination case;
• forthcoming legislation; and
• details of new services

WARNING!

It is perhaps not uncommon for employers to take previous warnings into account (after the warning has expired) when the same bad behaviour is repeated by an employee despite earlier warnings being given. From the employer’s point of view, it is clear the employee is aware of the what the employer considers to be acceptable behaviour.

However, in the case of Diosynth v Thomson the Scottish Court of Session held that if an employer relies on an expired warning when considering dismissal for a similar act of misconduct, the dismissal will be unfair. This was the case even though the employee in this case had breached health and safety rules on more than one occasion.

Lesson for Employers

For acts of serious misconduct, employers should consider amending their disciplinary procedures to provide for warnings to remain “live” in appropriate circumstances rather than to expire after a period of time. However, the weight an employer will be able to attach to an old warning for the same offence will be questionable and a Tribunal could find this approach, in itself, unfair.

An alternative is to amend the disciplinary procedure to allow for subsequent warnings for the same type of behaviour to be valid for a longer period of time to avoid the situation whereby an employee “behaves” for the duration of the period of the warning and then reverts to old habits. This tends to be more relevant for issues such as lateness and more minor conduct issues.

INJURY TO FEELINGS: SEX DISCRIMINATION

In the case of Miles v Gilbank a hairdresser was awarded £25,000 for injury to feelings after the Tribunal found that she had been the subject of a "targeted, deliberate, repeated and consciously inflicted" campaign of bullying and discrimination after she informed her manager that she was pregnant. This included the failure of the employer to pay the employee maternity pay.

The Tribunal also found that the manager had “fostered and encouraged a discriminatory culture to grow up which targeted the claimant" and made the manager jointly and severally liable for the payment of compensation.

What can you do?

Employers and managers must take their responsibilities seriously towards pregnant employees and ensure that all staff are aware that any discrimination will not be tolerated. To reduce the risk of a claim, employers should:

• have clear anti-discrimination policies in relation to sex (including pregnancy), sexual orientation, age, disability, race and religion and belief, and have a separate bullying policy for situations where there is no unlawful discrimination but which could result in a constructive dismissal claim;
• ensure that such policies are reviewed periodically and kept up to date with changes to legislation and case law;
• ensure that staff are made aware of the policies during induction training and through notice boards, intranet sites etc;
• have regular training sessions for managers and staff on the policies.

HEAVY PENALTIES FOR FAILING TO CONSULT

Under TUPE, an employer is obliged to inform representatives of affected employees of the following:

• the fact a transfer is to take place; when it is to take place and why;
• whether there are any legal, economic or social implications of the transfer;
• and whether he or the transferee intends to take any measures (any action, step or arrangement) in connection with the transfer.

Where it is envisaged that measures will be taken in connection with the transfer, then an obligation to consult with the affected employees (whether the employer be the transferor or transferee) arises. Where there is a failure to consult, an employee can be awarded up to 13 weeks’ pay.

In the case of Sweetin v Coral Racing, the Employment Appeal Tribunal held that as a general rule Tribunals should award the maximum 13 weeks unless there are circumstances to justify a lower award.

Therefore, in transfer situations, employers should be mindful of the employment implications and ensure that they comply with the relevant provisions or obtain suitable indemnities in relation to information and consultation in any Sale and Purchase Agreement.

FORTHCOMING LEGISLATION…

The long awaited changes to the Transfer of Undertakings (Protection of Employees) Regulations 1981 are due to come into force on 6 April 2006. At the time of writing we are still waiting for the final regulations to be published although the DTI has issued guidance.

The snappily titled Occupational Pension Schemes (Early Leavers: Cash Transfer Sums and Contribution Refunds) Regulations 2006 will come into force on 6 April 2006 and will permit members of an Occupational Pension Scheme to transfer a cash sum to another pension scheme rather than just receive a refund.

POLICIES AND PROCEDURES

If you would like to have your contracts, policies and procedures reviewed please contact a member of the Employment Unit.

CRUTES’ EMPLOYMENT UNIT TRAINING COURSES

We offer practical bespoke training courses on a whole range of employment issues, including:

• Dismissal and conduct issues;
• Dealing with bullying and harassment;
• Disability discrimination;
• Working Time Issues;
• Age Discrimination
• “Family Friendly” legislation – an employee rights and employer obligations

If you are interested in any of the above or would like training on any other employment issue, please contact a member of the Employment Unit on 0191 233 9700.

NEXT MONTH

Look out for our guide to the new TUPE Regulations and their implications for employers.

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