employment law: an update january 2006 alison bell

Employment Law: An Update

January 2006

Alison Bell

Hot Topics:

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

New Legislation:

• TUPE 2006• Work & Families Act 2006

Recent Cases What's in the pipeline

Hot Topics

Discipline and grievance

Disciplinary/dismissal and grievance procedures

• Statutory Dispute Resolution Regulations • In 2 parts: Disciplinary/Dismissal Procedure and Grievance

Procedure• Standard 3 step procedure

o Put it in writingo Meet and discuss o Appeal

The disciplinary/dismissal procedure

• Mandatory Disciplinary/Dismissal Procedure• An additional obligation• If the employer fails to comply:

o Automatic finding of unfair dismissal; and o An increase in compensation

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

Practical implications

• Post employment disputes• Overlapping procedures

Practical Implications

• Retirement • Redundancy

Practical implications

• Probationary periods • Fixed term contracts

Grievance and disciplinary procedures

• A wide definition of “grievance letter”o Solicitor’s letter (open or without grievance)o Flexible working request letter o Complaint about handling of earlier grievance

• Solicitor’s letter asking for settlement not an appeal• Information required as part of a DDP• Employers must not rely on expired disciplinary warnings

Long term sickness

ACAS Code of Practice

• Investigation• Establish underlying cause• No reason for absence – discipline • Genuine illness – capability• Sympathetic and considerate approach

Consultation, consultation, consultation !

Long term sickness - capability

• Regular contact • Consult employee• Employee’s medical evidence • Own medical evidence• Need to replace

Long term sickness (2)

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

Decision

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

Decision (2)

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

Varying terms and conditions

Varying terms and conditions

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

Contractual change ?

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

If no contractual change

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

If contractual change

• How important• Business reasons

Introducing contractual change

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

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)

Dismiss and re-engage

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

Redundancy

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

Varying Terms and Conditions – Summary

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

Compromise Agreements

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

New Legislation

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

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

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

Recent Cases

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’

Case law developments

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

In the pipeline

Future legislation

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

Smoking

• Smoke free premises • Signage requirements • Vehicles • Penalties

Age Discrimination

January 2006

Age discrimination

• Outline of the Regulations

• Specific issues o Recruitmento Service related benefitso Retiremento Other areas of impact

General observations

• Applies to all applicants/workers

• Irish experience: 22% of claims about age

• Many existing policies/practices are ageist

• Uncapped compensation

Some statistics…

• 40% increase in age claims in the US

• High numbers already facing age discrimination

• Big cultural change required

Main principles

• Direct – different treatment actual/perceived age

• Indirect – policy/practice/criterion disadvantages

• Harassment

• Victimisation

• Positive discrimination

• Selection must be age neutral

Main Principles - Justification

• Direct and indirect

• Proportionate and legitimate

• Evidence not assertion

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

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

Enforcement & Remedy

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

Recruitment issues

Employment strategy

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

Job adverts

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

Job applications

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

Selection process

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

What the new legislationdoesn’t 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

Pay & Benefits

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

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

Retirement issues

Retirement issues: overview

• 65 default age, until 2011 review…

• blanket dismissal at 65, with no reason given

• NRA’s 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

Retirement issues cont’d…

• No upper age limit for unfair dismissal

• Set timetable and process to achieve

• Includes right to request working after retirement

“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

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

Points on process

• Consequence of breach (including insufficient notice of

retirement):

o Automatic unfair dismissal

o Compensation up to 8 weeks’ (capped) pay

o Possible age discrimination claim

Change working pattern post-65?

• No statutory right to request (unlike flexible working)

• For employee to initiate

• Tie in with flexible working arrangements

Other areas of impact

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

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

Case Studies

December 2006

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.

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?

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.

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?

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 Dave’s 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.

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?

Case study 4 - fraud

• Judas is a sales team manager in the Moneytree area with over ten years service.

• Following an internal investigation Ben, Judas’s 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.

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?

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.

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?

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.

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?