(1) Taking account of spent warnings
The Code of Practice issued by arbitration and conciliation service ACAS recommends that employers should set a time limit on formal warnings that they give to employees. Commonly, these last for a period of six or 12 months, although it appears that in appropriate circumstances it can be longer.
What about the repeat ‘offender’ whose behaviour or performance merits further action after a warning period has expired? Can you take account of the original warning in any form? The answer, according to the 2006 case involving Diosynth versus Thompson, is an emphatic ‘No’.
In this case, Thompson was given a written warning in July 2000, which was to remain on his record for 12 months. The warning related to his failure to follow safety procedures, and to ‘inert’ a vessel (which resulted in a methanol leakage). Sixteen months later, an operative died in an explosion.
Thompson was subsequently found to have been one of a number of operators to have continued disregarding safety procedures in the interim (although he was not directly linked to the explosion). His employer also found that he had falsified safety records. The Court of Session nevertheless found that the decision to dismiss Thompson was unfair because of the Company’s reliance on the previous warning after it had expired.
(2) Changing the charge
The charges brought against an employee at a disciplinary hearing must be comprehensive and precise as “it is only matters charged which can form the basis for a dismissal”.
In the recent Strouthos case, the claimant was successful – in part – in his claim for unfair dismissal because the disciplinary charge and the reason for dismissal differed. In particular, Strouthos was never formally charged with acting dishonestly, but a finding of dishonesty formed part of the basis for his dismissal.
(3) A compromise too few
There are a number of requirements that must be observed in order to conclude a binding compromise agreement with an employee and prevent future employment-related claims.
One that deserves particularly careful consideration is the list of ‘particular complaints’ that are compromised. Each must be individually set out in order to be properly covered. A generic catch-all clause waiving future employment claims is not legally enforceable against statutory claims.
The perils of failing to consider which claims to compromise are clear from the case of Professor Hinton versus the University of East London. The University concluded an agreement with Hinton, who was threatening to bring a claim under the Public Interest Disclosure Act – a so-called ‘whistle blowing’ claim. Despite this, the Compromise Agreement that the parties concluded made no reference to whistle blowing or the Act.
When the University subsequently sought to rely on the Agreement to prevent Hinton from bringing his claim, the Court of Appeal held that the Agreement did not prevent him from doing so because there was no specific reference to that type of claim.
(4) All about collective oversight
Where employers are seeking to change workforce Terms and Conditions, they frequently fail to recognise the need for collective consultation. Many employers are more familiar with the requirements on collective consultation which apply where 20 or more employees are to lose their jobs as a result of redundancy.
The relevant legislation states that there’s a requirement for collective consultation where the employer is proposing to make ‘redundancies’ at one establishment within a period of 90 days or less. Fewer employers appreciate, however, that ‘redundancies’ in this context includes any termination of employment on a collective basis (that is to say, not relating to individual employees). A general change of Terms and Conditions imposed on the workforce requires exactly the same type of consultation as a mass redundancy exercise.
Overlooking this requirement may turn out to be more than an expensive mistake. A failure to notify the DTI where mass consultation is required is also a criminal offence under the Trade Union and Labour Relations Consolidation Act of 1992.
(5) Clarity in references
Employers often fail to appreciate the care required when giving references about current and former employees. They aren’t normally obliged to provide a reference, except where required to do so by professional bodies.
If employers do give a reference on behalf of an employee, they then owe a Duty of Care in law both to the prospective employer and to the employee themselves. There is an obligation in giving such a reference to be true, accurate and fair, and the reference must not convey a misleading impression.
Just as an employer may put itself at risk by giving a reference which is unjustifiably negative in respect of the individual, they may equally put themselves at risk where they mislead by omission by, for example, failing to mention disciplinary proceedings which concerned an employee before he left the company. For this reason, some employers choose to adopt a policy of limiting all references to the bare facts of employment, and stating to all prospective employers that they limit the information provided in references as a matter of course.
(6) A sense of grievance
In 2004, the Government introduced the Statutory Dispute Resolution Regulations, which required employers and employees to meet minimum legal requirements on disciplinary and grievance procedures. The intention was to reduce litigation by requiring parties to observe minimum internal procedures before litigating their disputes in an employment tribunal. This has led to a proliferation of technical issues on procedures.
One of the most common mistakes made by employers, however, is also one of the simplest: a failure to recognise and deal with an employee’s written grievance.
Under the terms of the Regulations, a written grievance needs to be dealt with without unreasonable delay. It is important to appreciate that Employment Tribunals have taken a broad view of what can amount to a written grievance. A grievance does not have to take a specific form. It can be contained in an e-mail, a resignation letter and even in a letter from representatives such as solicitors.
(7) Sit up, take notice
Most employers will be aware that employees usually require a year’s service to acquire the right to claim unfair dismissal. What, then, of the problem employee whose dismissal is considered around the anniversary of their employment? Some employees are tempted to take a short cut over the formalities. They dismiss without notice where it is otherwise due, to prevent the employee obtaining unfair dismissal rights.
Most employment lawyers have been consulted by a client who, to their horror, has taken such pre-emptive action, only to find out (when it’s far too late) about Section 97(2) of the Employment Rights Act 1996. This little-known provision usually extends the last day of employment (for the purposes of qualifying to claim unfair dismissal) by the minimum statutory notice period.
Terminating summarily a few days before the anniversary of employment will commonly provide the employee with enough service to claim unfair dismissal, and make such a dismissal automatically unfair into the bargain (due to the lack of procedural adherence).
(8) Annual leave entitlements
One common perception on which many employers rely is the entitlement of their employees to a minimum of 20 days’ holiday each year. In fact, the legislation in this area imposes a slightly different requirement. According to the Working Time Regulations 1998, a worker is entitled to four weeks annual leave per year.
You might dismiss this as a lawyer’s semantics, but consider that the requirement applies to ‘workers’ and therefore includes those individuals who provide services personally to the Company – among them consultants, agency and casual staff – who are assumed not to be employees. Second, the 20-day presumption derives from an assumption that a worker works for a week. A worker who only works two days per week is entitled to eight days while a worker present for six days per week is entitled to 24 days.
(9) What about Bank Holidays?
Perhaps the area that causes most confusion surrounding holidays on a day-to-day level is the issue of Bank Holidays. Currently there are eight statutory Bank Holidays per year. Contrary to the assumptions of many employees, there is no absolute right (unless granted under the Contract of Employment) to take Good Friday, Easter Monday or any of the other six Bank Holidays each year. Also, where such holidays are granted, they currently go towards discharging the minimum four-week holiday entitlement under the Working Time Regulations 1998.
For example, an employee working five days per week who also receives his eight Bank Holidays per year need only be offered an additional 12 days per year to satisfy the minimum statutory requirements for annual leave. This looks likely to change, with the Government currently consulting on how to implement a system such that employees will receive Bank Holidays in addition to their four weeks’ annual leave entitlement.
(10) Adjusting for disability
Disability discrimination is quite unlike other forms of discrimination in one fundamental respect. This was something the House of Lords was at pains to point out in one of the most important judgements – Archibald versus Fife County Council in 2004 – ever made on disability discrimination. “The 1995 Act… does not regard the difference between disabled people and others as irrelevant. It does not expect each to be treated in the same way. It expects reasonable adjustments to be made to cater for the special needs of disabled people. It necessarily entails an element of more favourable treatment.”
What employers sometimes fail to appreciate is that this positive duty to make adjustments has been deliberately left open-ended by legislators, the Courts and tribunals. What a ‘reasonable adjustment’ might be will depend on the disadvantages the employee faces as a result of their disability.
A classic example is when considering alternative duties. Suppose, for example, that an employer is presented with the problem of an employee who cannot carry out the job that they were hired to do because of a chronic disability such as a severe back problem. Many employers in these circumstances would appreciate the need to examine what existing alternative employment might be available, but this sometimes consists only of a cursory sweep of the Intranet jobs page.
In fact, case law has now established that the employer may have to be pro-active and go as far as looking at whether a job can be ‘devised’ from work available.