Employment Law: An Update

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Employment Law An Update

• January 2006
• Alison Bell

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Hot Topics

• Discipline and grievance
• Long term sickness
• Changing terms and conditions
• Compromise agreements

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New Legislation

• TUPE 2006
• Work Families Act 2006
• Recent Cases
• What's in the pipeline

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Hot Topics
Discipline and grievance
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Disciplinary/dismissal and grievance procedures

• Statutory Dispute Resolution Regulations
• In 2 parts Disciplinary/Dismissal Procedure and
  Grievance Procedure
• Standard 3 step procedure
• Put it in writing
• Meet and discuss
• Appeal

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The disciplinary/dismissal procedure

• Mandatory Disciplinary/Dismissal Procedure
• An additional obligation
• If the employer fails to comply
• Automatic finding of unfair dismissal and
• An increase in compensation

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Points to note in the standard procedure

• Step 1 Put it in writing, send it to the
  employee and invite the employee to a meeting
• Step 2 Arrange the meeting before action is
  taken
• Step 3 If the employee appeals, invite the
  employee to a further meeting and inform the
  employee of the final decision

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Practical implications

• Post employment disputes
• Overlapping procedures

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Practical Implications

• Retirement
• Redundancy

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Practical implications

• Probationary periods
• Fixed term contracts

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Grievance and disciplinary procedures

• A wide definition of grievance letter
• Solicitors letter (open or without grievance)
• Flexible working request letter
• Complaint about handling of earlier grievance
• Solicitors letter asking for settlement not an
  appeal
• Information required as part of a DDP
• Employers must not rely on expired disciplinary
  warnings

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Long term sickness
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ACAS Code of Practice

• Investigation
• Establish underlying cause
• No reason for absence discipline
• Genuine illness capability
• Sympathetic and considerate approach
• Consultation, consultation, consultation !

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Long term sickness - capability

• Regular contact
• Consult employee
• Employees medical evidence
• Own medical evidence
• Need to replace

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Long term sickness (2)

• Warn employee of dismissal
• Meeting with employee to consider
• Alternative employment
• Reasonable adjustments

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Decision

• Nature of the illness(es)
• Likelihood of recurrences
• Other sickness absence?
• Length of absence

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Decision (2)

• Spaces between absences
• Need for particular employee
• Impact on others
• Length of employment
• Consistency

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Varying terms and conditions
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Varying terms and conditions

• Employment law implications
• Possible routes forward
• Contractual change
• Consultation
• Redundancy situation

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Contractual change ?

• Terms and conditions
• Employee handbook
• Individual agreements
• Longstanding practice

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If no contractual change

• Discuss at consultative forum
• Individual consultation process
• Reason for objection
• Discrimination issues
• Disciplinary procedure for refusals

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If contractual change

• How important
• Business reasons

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Introducing contractual change

• Four options
• Through a contractual right
• By agreement
• By imposing the change
• By dismissal and re-engagement

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Imposing the change

• Resign and claim constructive dismissal
• Continue to work under protest
• Claim unlawful deduction from wages (if there is
  an effect on pay)
• Claim breach of contract
• Claim discrimination (eg if there is a negative
  effect on a particular group of employees)

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Dismiss and re-engage

• Wrongful dismissal
• Unfair dismissal whether or not re-engaged
• Business need, some other substantial reason

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Redundancy

• Very significant changes
• Consultation with employees representatives
• Individual consultation

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Varying Terms and Conditions Summary

• Employment Law implications
• Possible routes forward
• Contractual change
• Consultation
• Redundancy situation

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Compromise Agreements
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• The technical requirements
• When to use
• Without prejudice conversations
• Tactical considerations

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New Legislation
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Summary of main TUPE changes

• More transactions likely to be TUPE transfers
• Old employer can be liable for failing to consult
  
• Old employer must disclose information to new
  employer
• New employer has (limited) ability to change
  contracts of employment
• Insolvency

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Work and Families Act

• Maternity and adoption pay
• Keeping in touch
• Early return to work notice
• Flexible working for carers
• Paternity pay
• Minimum annual leave entitlements

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Practical implications

• Pay administration
• Increased warning of return to work
• Reasonable contact KIT days
• Sharing maternity/adoption leave
• Impact of increase flexible working for carers

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Recent Cases
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Case law developments

• Disability absence and sick pay schemes
• Sickness vs disability
• Vicarious liability for harassment
• Whistleblowing detriment after termination
• Discrimination by association
• On racial grounds

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Case law developments

• Length of service and pay
• Employers vicarious liability for discrimination
• Public holidays for part time workers
• Using the right procedures

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In the pipeline
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Future legislation

• Commission for Equality and Human Rights Oct 07
• Data protection fully implemented Oct 07
• Smoking bans 2007/08

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Smoking

• Smoke free premises
• Signage requirements
• Vehicles
• Penalties

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Age Discrimination

• January 2006

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Age discrimination

• Outline of the Regulations
• Specific issues
• Recruitment
• Service related benefits
• Retirement
• Other areas of impact

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General observations

• Applies to all applicants/workers
• Irish experience 22 of claims about age
• Many existing policies/practices are ageist
• Uncapped compensation

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Some statistics

• 40 increase in age claims in the US
• High numbers already facing age discrimination
• Big cultural change required

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Main principles

• Direct different treatment actual/perceived age
• Indirect policy/practice/criterion
  disadvantages
• Harassment
• Victimisation
• Positive discrimination
• Selection must be age neutral

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Main Principles - Justification

• Direct and indirect
• Proportionate and legitimate
• Evidence not assertion

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Other exemptions to AD

• Genuine occupational requirements (very limited)
• Pay based on national minimum wage
• Complying with a statutory authority e.g. health
  safety, under 18s doing bar work
• Occupational pension schemes
• Life Assurance
• Some pay and other service-related benefits
• Contractual redundancy payments

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What else

• Employers liable for acts of employees
• No age limits for unfair dismissal and redundancy
• Default retirement at 65
• Right to request to work longer

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Enforcement Remedy

• In the Employment Tribunal
• Brought within 3 months of the discriminatory act
• Provided compliance with the Statutory Grievance
  Procedure
• Compensation Uncapped

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Recruitment issues
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Employment strategy

• Get the right person to do the right job
• Ensure you have an age diverse workforce

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Job adverts

• Wording of adverts
• Experience, qualifications, qualities
• Where are you advertising?

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Job applications

• Application Form
• Job Description
• Interview
• Selection panel
• Recruitment agencies

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Selection process

• Stereotypical assumptions
• References
• Monitoring applicants
• Monitoring workforce
• Records

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What the new legislationdoesnt mean

• you have to recruit over the age of 65
• you have to recruit the wrong person
• there are no circumstances for exclusion based on
  age

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Pay Benefits
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Service Related Pay Benefits

• Examples of benefits commonly related to service
• Incremental pay scales
• Enhanced holiday entitlement
• Extended notice periods
• Eligibility for private medical insurance
• Enhanced redundancy/sick pay scheme

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Service Related Pay Benefits

• Up to 5 years service OK, providing
• applies to all staff doing work of like nature
• and
• length of service is sole criterion
• 5 years OK with justification
• Backed up by evidence

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Retirement issues
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Retirement issues overview

• 65 default age, until 2011 review
• blanket dismissal at 65, with no reason given
• NRAs of less than 65, almost impossible to
  justify
• Less than 65 NRA risky
• above 65, do not have to justify where fixed
• No NRA no retirement dismissal protection

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Retirement issues contd

• No upper age limit for unfair dismissal
• Set timetable and process to achieve
• Includes right to request working after retirement

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Planned retirement (PR) process

• Employer triggers
• Notice must expire on planned retirement date
• Inform employee of right to request continued
  working
• Employee request 6 months 3 months prior
• Like flexible working process
• No requirement to give reasons for refusal

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Transitional provisions

• For retirement until 31 March 2007
• Must advise employee of right to request to
  continue working
• Normal notice
• Request up to 4 weeks after termination
• Meeting within reasonable time

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Points on process

• Consequence of breach (including insufficient
  notice of retirement)
• Automatic unfair dismissal
• Compensation up to 8 weeks (capped) pay
• Possible age discrimination claim

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Change working pattern post-65?

• No statutory right to request (unlike flexible
  working)
• For employee to initiate
• Tie in with flexible working arrangements

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Other areas of impact

• Promotion open and objective
• Training and development equal access and
  engagement
• Redundancy procedures

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Suggested action list

• Audit age profile (including recent applicants)
• Agree action plan and timetable
• Announce with top level backing
• Do impact assessment on all policies/practices
• Train/educate all staff
• Employment terms/benefits requiring renegotiation

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Case Studies

• December 2006

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Case study 1 long term absence

• Jane has been employed as a sales representative
  in Shire for three years. In January of last year
  she started to suffer from stress and has been
  off work ever since.
• She recently submitted a doctors note for an
  additional three months which cited work related
  stress.
• Bob, the sales team manager does not think the
  condition is genuine and is keen to replace Jane.
• Bob calls you later that afternoon to confirm
  that he is due to meet with Jane this afternoon
  and intends to dismiss her on grounds of
  capability.

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Case study 1 long term absence

• What are the associated risks if Bob decides to
  dismiss Jane?
• What could Bob have done to minimise the risk of
  a dismissal?
• What alternatives are there to dismissal?
• How would you advise Bob to proceed?

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Case study 2 disciplinary

• Sam is the manager of a sales team in Bigwood and
  has been employed in that role for five years.
• Sam has a chequered disciplinary history and has
  a number of both verbal and written warnings on
  his record.
• Following a recent incident Sam was suspended
  pending the outcome of an investigation. After
  the suspension Sam wrote to the company claiming
  that his conduct was the result of bullying.
• Having concluded the investigation the company
  decided to proceed to a disciplinary hearing
  which they have asked you to chair.

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Case study 2 - disciplinary

• What if any difference will the previous
  disciplinary warnings have in relation to the
  proposed disciplinary hearing sanction?
• Will the fact that Sam has previously complained
  of bullying impact on the process?
• How would you advise the company to proceed?
• What are the potential risks to the company?

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Case study 3 - probationary

• Dave started as an sales representative in the
  City two months ago. During this time his
  performance has been assessed as average/poor,
  albeit that Helen, the sales team manger, has not
  communicated this to Dave.
• Helen is also disappointed at Daves continual
  moaning about other members of staff and about
  the layout of the area office following a recent
  incident in which he tripped.
• Helen is keen to dismiss Dave and cite the fact
  that he has not reached the standards required
  during his probationary period.

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Case study 3 - probationary

• What is the relevance/purpose of the probationary
  period?
• Is Helen safe from an Employment Tribunal Claim
  if she dismisses Dave?
• Does the fact that Dave has made complaints have
  any relevance?
• What other considerations might be relevant?
• What could the company have done better?

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Case study 4 - fraud

• Judas is a sales team manager in the Moneytree
  area with over ten years service.
• Following an internal investigation Ben, Judass
  line manager, uncovered a number of discrepancies
  in Judas sales figures and area receipts and
  carried out an internal investigation. Ben also
  reported the matter to the police.
• Ben later dismissed Judas for gross misconduct.

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Case study 4 - fraud

• What should Ben have done when he suspected a
  possible Fraud?
• Did Ben follow the right procedure?
• Prior to the disciplinary the Police told Ben not
  to disclose certain documents to Judas, what if
  any impact will this have on the disciplinary
  process?
• What other sanctions are available to the
  company?

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Case study 5 unauthorised absence

• Sue is a sales representative in Skive. In her
  three years with the company Sue had received a
  number of verbal warnings in relation failing to
  follow absence reporting procedures.
• Having failed to turn up to work for 2 weeks the
  company write to Sue confirming that she has been
  dismissed.
• Sue appeals the dismissal and provides a post
  dated sick note citing work related stress. You
  are asked to conduct the appeal.

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Case study 5 unauthorised absence

• What should the company have done when Sue failed
  to turn up to work?
• What else will you want to know prior to
  conducting the appeal?
• What options are available to you at the appeal?
• What potential risks are there in upholding the
  dismissal?

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Case study 6 - disciplinary

• Adrian the area manager in Risk has asked you to
  chair an appeal in relation to an employee they
  dismissed for capability.
• On receipt of the papers it soon becomes clear
  that the company have not followed any of the
  correct procedures.
• In addition it appears that Greg (the employee)
  had often complained that his line manager did
  not support him or investigate his requests for
  further training.

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Case study 6 - disciplinary

• Upon further review you note that Greg is 64 and
  suffering from arthritis, what if any impact
  might this have?
• In his appeal Greg states that he often asked to
  be excused from manual work, but that he was told
  this formed part of his duties. Does this impact
  on your decision?
• What options are available to you at the appeal?
• What do you see as the perceived risks?

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