EMPLOYMENTMATTERSCELEBRATING 100 YEARSCHESTER VOLUNTARY ACTION MARK THEIR CENTENARY

FLEXIBLE WORKING HOURSHOW DO THE LATEST CHANGES TO FLEXIBLE WORKING AFFECT YOU?

CASE STUDY: EMPLOYEE DISMISSALSWE LOOK AT THE RULINGS OF TWO CASES OF EMPLOYEE DISMISSALS

www.employment-lawuk.co.uk | ISSUE JUNE 2014

‘World Cup Fever’ Study Reveals that one-in-ten employees will take a

sickie during the World Cup

Vince Cable Speaks Out Against Zero-Hours ContractsFOCUS

The (Red) Devils in The DetailsHow Manchester United Avoided Paying

£25m to Ex-Manager David Moyes

Vince Cable Speaks OutVince Cable speaks about

Zero Hour Contracts

Survey: Gender Divide44% of women feel their career

has been hindered by their gender

Auto EnrolmentWho’s eligible?

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EDITOR’S LETTER

4 EDITOR LETTERRichard Burnett comments on some of this month’s features & issues.

5 DEVILS IN THE DETAILHow Manchester United avoided paying £25m to ex-manager David Moyes.

6 ZERO-HOURS CONTRACTSVince Cable adds to the debate and speaks out about Zero-Hours Contracts.

8 GENDER DIVIDENew report reveals that 44% of women feel their career is hindered by their gender.

11 10 REASONS FOR AVENTIWe look at why employers need the fixed fee employment service.

12 AUTO ENROLMENTEmployment Solicitor Rachel Hughes shares her guide to pension auto enrolment.

13 CELEBRATING 100 YEARSWe join in the celebrations as Chester Voluntary

Action mark their centenary.

14 FLEXIBLE WORKINGWe look at how government will be implementing new changes to flexible working.

16 WORLD CUP FEVERNew study warns of an epidemic of ‘sickies’ as World Cup Fever spreads.

18 POLICEMAN DISMISSEDCase study: whistle-blowing Policeman who was dismissed after becoming ‘unmanageable’

19 DISMISSED FOR DEPRESSIONWe look at the case of a woman dismissed for post nation depression

20 SICKNESS ABSENCESLatest figures from the Office of National Statistics reveal reasons for absenteeism

05

contentsEMPLOYMENTMATTERS

06

Zero-Hours Contracts

16

World Cup Fever

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Welcome to the June edition of Employment Matters Magazine - a dedicated employment magazine written for employers and business owners.

World Cup Fever

With this year’s World Cup held in Brazil the significant time difference will play a big role in the likelihood of employees pulling sickies before and after key matches. Almost half of all men and women surveyed by Canada Life Group say that the time difference means they are more likely to call in sick.

So what does this mean for business? According to the Department for Work and Pensions, more than 130 million days are lost each year to sickness absences in the UK, costing employers around £9billion in sick-pay

and associated costs. In this month’s edition of EMM we look at the impact sickies have on the workplace, what you can do as an employer to mitigate them and should you catch anyone out - how you can handle a case of misconduct.

If you have an opinion on absenteeism and the prospect of losing your employees to ‘World Cup Fever’, tweet us @AventiES

Zero Hours Contracts

This month Employment Solicitor Rachel Hughes shares her guide to Auto Enrolment. The Solicitor from Hillyer McKeown’s employment team is back from hosting a series of seminars on pension Auto Enrolment.

If you woud like to know more about Rachel’s next Auto Enrolment seminar, then visit our events page on our website: employment-lawuk.co.uk

EMPLOYMENTMATTERS

Welcome

byRICHARD BURNETT Editor

EDITORIAL & FEATURES Employment-lawuk.co.ukT: 0845 366 4416E: enquiries@law.uk.com

Aventi Employment SolutionsMurlain HouseUnion Street ChesterCheshireCH1 1QP

EDITOR’S LETTER

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EMPLOYMENT CONTRACTS

T he (red) devil’s in the detailsThe red side of Manchester is united in its woes at present, with

a miserable season of failure being capped off by rivals City winning the Premiership.

But the club’s prospects of a rapid recovery have been given an enormous boost by the detailed wording of its contract with sacked Manager David Moyes.

United could have had to pay Moyes a staggering £25 million if the terms of his employment had been slightly different.Justine Watkinson, Head of Employment Law at Aventi, explained: “The exact wording of the contract can make a huge difference to the rights of someone who is dismissed early.

“David Moyes signed a six-year fixed term contract with Manchester United in July 2013 and was sacked 10 months later.“If the contract hadn’t contained the right clauses, the club could have been liable for the whole sum due under it.”

Lawyers for Manchester United reportedly included a “break clause” in the contract which limited Moyes’s compensation to a year’s wages if the club failed to qualify for the Champions League.

Without this, at a salary of £5 million a year, Moyes could have claimed Up to £25 million for what he lost as a result of early termination.

Instead, he is reported to have reached a settlement with the club for £7 million.Justine added: “With a fixed term contract,

The (Red) Devil’s in the Details

unless there is a provision such as a break clause or a notice clause or an agreed termination clause, the employee is entitled to receive the salary and benefits he would have received if the contract had continued for the agreed period.

“There are some constraints on this, for example the employee has a duty to try to minimise his losses by looking for replacement work.

“Also, if he finds a new job, the money from this will be subtracted from what he is considered to have lost.

“But it is quite possible for a sacked employee to try but fail to reduce his losses, so there is no guarantee that the amount which can be claimed will be reduced.

“If the deal says the person is to work for a certain period of time and the employer breaks this, there is a very real danger of the employee suing for wrongful dismissal and getting the whole lot, or at least a significant portion of it.

“Obviously most employees are paid less than football managers, but as an employer a few words in the wrong place or left out could still lead to you losing significant sums of money.

“With employment law problems we always say prevention is much more effective than the cure. If you get your agreements with your staff right, you can protect yourself against some unpleasant and expensive situations.”

A prime example of the price which can be paid for an unwise agreement was when Henning Berg was kicked out of Blackburn Rovers in 2013 with £2.25 million.

He had only been in charge of the club for 57 days, but the contract did not protect his employer and he took the whole value of the fixed term deal.

Do you need to protect your business from crippling legal action by employees? Be a Manchester United not a Blackburn Rovers. Get the right terms in your employee contracts from only £100 a month with Aventi.

by RACHEL HUGHESEmployment Solicitor

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Business secretary Vince Cable has spoken out about the growing issue of zero-hours contracts, saying the Government is considering giving workers on the contracts the right to instead request a fixed-hour contract.

Mr Cable said there was some evidence that employers are abusing the contracts, particularly with regards to exclusive contracts.

“I think that this is an area in which we need to move forward and we are looking at how we can best do it,” he said at the Resolution Foundation in London last week (14th May 2014).

Labour leader Ed Miliband last month proposed the idea of automatically giving workers the right to a fixed contract after a year of work, however Cable said this was not “wise”.

The Office for National Statistics (ONS) recently revealed that as many as 1.4 million people in the UK are currently on zero-hours contracts. They are popular with many employers as they offer flexibility for both the employer and employee; however there has been widespread concern recently about how they are being used. Critics say the contracts can affect the financial stability of workers due to there not being enough work. Workers on zero-hours contracts also do not currently have the same employment rights as other workers.

Last year, Cable ruled out a total ban on the contracts as they offer employers “welcome flexibility”. However, he has now signalled that there could be a re-think.

Justine Watkinson, Partner and Head of Employment Law at Hillyer McKeown said the issue needs to be “urgently addressed” to ensure that there is no abuse of the contracts.

“The contracts are popular because they give flexibility to employers,” Justine said, and “are particularly useful where business is irregular and cannot be guaranteed, because the risk of paying staff when no work is coming in is averted.

“This means the danger of poor trading conditions is effectively transferred to the employee.”

Earlier in May (6th May 2014) the Government said that jobseekers need to accept offers of zero-hours contracts from employers and if they don’t, could risk losing their benefits. The figures released by the ONS show that those currently on the contracts are predominantly students under 25, older workers over 65 and mostly female.

Justine said there are arguments on both sides. “Employers may argue their businesses would fold altogether without zero-hours contracts, while employees can

Vince Cable speaks out about Zero-hours contracts

FEATURE: ZERO HOURS

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claim such arrangements subject them to hardship,” she said.

“Their situation is similar to being self-employed in that the employer provides no buffer against hard times.

“From a legal perspective these arrangements remain permissible under the law, and a key point for individual employers and employees is that each contract can and should be drafted to reflect the bargain they have struck between them.

“The precise wording of a contract of employment is absolutely crucial if the risk of expensive legal action is to be avoided.”

On 4th June, the Queens Speech called for a “cracking down on abuse in zero hours contracts”. No specific details were given were given, however speculation on social media indicated the plans might involve giving workers the right to request not to be put on a zero hours contract.

Have a question about zero-hours contracts and need some advice? Contact our experienced employment solicitors here or call us on 0845 366 4416.

“ The precise wording of a contract of employment is absolutely crucial if the risk of expensive legal action is to be avoided.

”

Vince Cable vows government will tackle zero-hours contract abuses

Justine Watkinson,Employment Solicitor - Hillyer McKeown

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Report Reveals 44% of Women Feel Their Career is HinderedA report from Talking Talent has revealed that 44% of women feel their career has been hindered or will be hindered by their gender

A survey has revealed that 44% of women feel their gender has hindered or will hinder their career

in the future.

The report, released by Talking Talent, a career coaching firm, also shows that 36% of women have experienced prejudice in the workplace.

Over 1000 working women took part in the research, including many working mothers. Although 71% of mothers said their employer is supportive of them, 37% have experienced prejudice.

Eighty per cent of women overall said they do feel that their employer is supportive of their gender. However, some industries rank significantly worse in their satisfaction levels for women.

Accountancy is shown to be the best sector for women to work in, with those working in the profession submitting the highest scores for more positive indicators than other industries. 94% of women say their employer is supportive of them and they are a lot more positive about the ability of their employer to retain female talent; a third described their employer as ‘excellent’ compared to a one in five average.

Those least satisfied with their job however are women working in advertising, marketing and media industries. 31% of workers in this profession said they had

faced prejudice and discrimination and respondents rated their industry as the worst for progression of female talent.

In terms of the support received from employers, women working in the engineering and manufacturing industries rated their sector the least likely to offer support and were the least positive about their employer’s ability in retaining female talent (11%). Women in this sector said their gender is most likely to hinder their career progress, with the majority of respondents putting this down to a male dominated environment.

Satisfaction levels were high in the education and law sectors, deemed the best for working mothers. Education

was ranked most highly for recognising and accepting the need for a work/ life balance, assessing the performance of workers rather than the hours worked, and its attitudes towards working mothers. Far fewer mothers working in this sector saw the lowest level of discrimination too, with 25% reporting prejudice compared with 34% overall.

Those working in law reported the highest levels of satisfaction for the support of working mothers – 29% described the support they received as ‘excellent’ compared to 14% overall. The sector also scored highest in its implementation of career progression and the opportunities that it offered to working mothers.

REPORT

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On the other hand, women in advertising, marketing and media again rated their industry poorly on its attitudes to working mothers, flexible working and work/life balance. Women working in this sector were also more likely to say that being a working mother had somewhat hindered their career progress.

The results come at a time when discussions are being had to introduce new laws for shared parental leave and flexible working. On 30th June this year, the Flexible Working Regulations will be amended, meaning the right to request flexible working will be extended to all employees after 26 weeks service. In addition, a review of current law on parental law is underway, which could see parents able to share responsibilities in future.

Justine Watkinson, Head of Employment Law at Hillyer McKeown, said of the figures released by Talking Talent: “It is important to recognise the contrasts between industries in this research and understand how employers can work more effectively

to improve satisfaction levels amongst women.

“Whilst some industries, such as education and law are providing a healthy working environment for women with flexibility and support, others are sadly lagging behind. It is important to ensure that workers feel comfortable speaking out about the problems they are facing and to discuss how these can be resolved. The large figures released by Talking Talent need to be addressed so that they don’t increase further and risk employers losing some of their most talented workers.”

“ It is important to ensure that workers feel comfortable speaking out about the problems they are facing and to discuss how these can be resolved.

”

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AVENTI EMPLOYMENT

H illyer McKeown haved launched their fixed fee support service for employers - Aventi Employment

Solutions. We look at 10 reasons why your business needs Aventi Employment Solutions:

01 Support: You will have unlimited access to specialist employment

solicitors who can support all your employment and HR needs with complete and commercially sound legal advice.

02 Protection: Aventi’s unique Legal Expenses cover ensures that your

business is protected from expensive tribunal claims.

03 Improve Cash Flow: Aventi is a fixed fee service so you know

exactly how much it is going to cost and can budget for the financial year knowing that all your employment and HR advice is covered.

04 Save Management Time: Knowing that your Managers have the

resource to resolve employment and HR queries quickly and professionally will allow them to spend more time focusing on the growth and improvement of your business.

05 Compliance: Aventi will keep you and your documentation up to

date with any changes and developments so you have all your ducks in a row! Aventi also offers health and safety support to ensure you fully comply with your H&S obligations.

06 Personal Service: Aventi gives you direct and speedy access to a

specialist employment solicitor who will take the time to get to know you and your business personally. Unlike other schemes Aventi does not have a call centre. Our Aventi Service is delivered by our technically excellent qualified employment solicitors.

10 Reasons Why You Need Aventi Employment Solutions

07 Insurance: Aventi’s unique Legal Expenses cover ensures that your

business is protected from expensive tribunal claims. A key feature is that you are not compelled to take our advice about an issue to be covered by the insurance. The small print with other schemes says you must take advice every step of the way and follow the advice to have the full benefit of the insurance cover; with Aventi Employment Solutions we offer a pragmatic and commercial approach which allows you to run your business as you see fit and still have the benefit of the cover.

08 Legal Privilege: We are solicitors therefore you will never need

to disclose our advice in any court case or tribunal proceedings. Advice given by a non-solicitor or consultant is always subject to disclosure to a court, no matter how damaging the consequences to you and your business.

09 No handcuffs: You will not be tied in to a long contract. We are

so confident that you will benefit from our service and renew, you can take Aventi for just 12 months (unlike other schemes which require a 3 or 5 year commitment).

10 Full Service: Our excellent reputation for quality service

is supported by a full service Commercial Law Firm. As part of Hillyer McKeown LLP we can offer you access to the full range of commercial legal services to complement every aspect of your business, from buying and selling commercial property, to dealing with intellectual property issues, handling commercial disputes, preparing effective terms of business, debt recovery and everything in between.

For more information visit: employment-lawuk.co.uk

by RACHEL HUGHESEmployment Solicitor

LEGAL SOLUTIONSaventi ®

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UPDATE: AUTO ENROLMENT

T he Government has, for some time now, shared its concerns that many of us aren’t prepared for retirement,

meaning we won’t have enough money to live on when we retire. To help us save more, the government has introduced a new scheme, which means that everyone who meets certain criteria will automatically be enrolled into a pension scheme through work. This is called ‘Automatic Enrolment’.

By law, all employers will be required to enrol workers into ‘auto enrolment’ if they meet the below criteria. It is important to note that this will be done at different stages depending on the size of business you work for. The scheme is nothing to worry about; it is a great opportunity to save for a fulfilling retirement.

Are you eligible?If you answer ‘yes’ to the following questions, you’ll be automatically enrolled into the Scheme (please note: if you are already paying into a workplace pension you will not be eligible)• Do you work (or normally work) in Great Britain

or Northern Ireland?

• Are you aged 22 or over?

• Are you under the State Pension age?

• Do you earn at least £9,440 per year basic

pay* (£787 a month/£182 per week) through

either full or part-time work?

If you don’t meet all of the above criteria, you will not be automatically enrolled. However, you can still choose to join the scheme. Speak to your employer about your options – by law, you have the right to join a pension scheme.

How it WorksIf you are eligible, you will automatically be enrolled into the Scheme. Please note that you will need to have been employed by the company for at least three months to be automatically eligible for the scheme.

Each month you’ll contribute a fixed percentage of your basic pay (before tax) into your pension, and your employer will contribute too. The money you contribute to your pension will depend on the amount of money you are paid each month. You’ll also receive tax relief on your payments

Your employer will set up the pension for you along with your pension provider, so it will not take up too much of your time. You will, however, be kept informed of any choices you need to make.

Once you have been automatically enrolled, you’ll have the option to opt-out if you wish. If you opt-out within one month of your automatic enrolment date, the contributions you have paid in will be refunded to you. (Please note: if you do choose to opt-out of the scheme, your employer must, by law, re-enrol you into the scheme again approximately every three years, providing you continue to meet the eligibility criteria. You will still be able to opt-out each time.)

When you retire, you will still be entitled to the Basic State Pension. However your workplace pension could give your retirement income a significant boost.

Each Month• Once you are enrolled on to the scheme,

you will need to pay in 1% of your basic pay each month

• Your employer will pay in 1% of your basic pay on top of this

• You can increase your contribution at any time should you wish to increase your savings, however your employer is not be required to match these.

• You will receive tax relief on all the contributions you have paid

Put simply, for every £100 of your basic pay, £1 will be put in by you and £1 by your employer - a total of £2 for every £100. Although this may not sound like a lot at the moment, it will soon add up over time. It’s also a tax-efficient way to save as you will receive tax relief on the contributions that you pay in. If you wish, you can pay more into the pension pot than the standard amount required, to increase your savings in the long run.

Have a question about auto-enrolment? We can help you. Contact our experienced employment solicitors on 0845 366 4416 or via our dedicated website www.employment-lawuk.co.uk for more information.

*Figure correct as at 22nd May 2013.

by RACHEL HUGHESEmployment Solicitor

Guide To: Auto EnrolmentFresh from her Auto Enrolment Seminars, Employment Solicitor Rachel Hughes shares her notes on Auto Enrolment

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O n 12th August, Hillyer McKeown’s employment solicitors Justine Watkinson and Rachel Hughes

will be joining Chester Voluntary Action (CVA) at a special centenary event hosted by the Lord Mayor of Chester Councillor Bob Rudd at the Town Hall.

The event will celebrate CVA’s work and achievements over the past 100 years which have helped shape the development of many of the local charities including CAB, Samaritans and Chester Aid to the Homeless, and social services which continue to be provided today. Special

tribute will also be made to all the volunteers past and present who have made such a significant and enduring contribution to the local community.

CVA was set up in 1914 days after the outbreak of WW1 as the ‘Council of Social Welfare’ to coordinated the provision of vital assistance on the home front and provided relief aid to support families whose main breadwinner was away in the services, wounded or killed, and those affected by unemployment arising from the disruption of trade.

CVA continues to support local voluntary and community organisations by providing a wide range of advice and support services to its 380+ members around governance and funding, and also specialist services such as its Volunteer Centre and Skillshare initiative. This vital support enables local charities and voluntary groups to become stronger, more effective, efficient, and sustainable, and therefore be better able to successfully deliver vital quality front-line services for some of the most vulnerable people in our community.

by SARAH LOWEFeatures Editor

FOCUS: NOT FOR PROFIT

Celebrating 100 Years in ChesterEmployment Lawyers Hillyer McKeown join Chester Voluntary Action to celebrate their work and achievements over the past 100 years

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C Commencing the 30th June 2014 the government will be implementing new changes in the law on Flexible Working. The current statutory procedure that employers

must follow when considering flexible working requests will be replaced with a duty on employers to consider all requests in a reasonable manner.

Current Position

The law as it stands at the moment is as follows; in April 2003 the Employment Law Act introduced the rights for parents of young and disabled children to apply for flexible working hours. In 2007 this right was extended allowing carers of adults to also apply for flexible working hours.

To apply for flexible working you must be an employee with a contract of employment and are required to have worked for the employer for 26 weeks continuously at the date that the application was made. An application will only be valid if the employee has a child who is 16 or under, or in the case of a disabled child under 18. The Work and Families Act states that an adult carer must either be married to the person they are caring for or must be a relative of said person.

Changes coming June 30th 2014

On June 30th 2014 Flexible Working Regulations will be amended. This will mean that the right to request flexible working will be extended to cover all employees after 26 weeks service. The government wants to remove the assumption that only parents and carers can use the system of flexible working

hours. This may cause a knock on effect opening up more jobs for people who have the opportunity to be flexible with the hours and times that they work as opposed to being constricted to a job which may not suit their lifestyle.

Business Minister Jo Swinson has stated: “The new system is good for business as it will create a more motivated and flexible, talented workforce. Employers will be able to attract and retain women and prevent them from dropping out of the world of work once they start a family. Flexible working will also help widen the pool of talent in the labour market, helping to drive growth.” (i)

The Future

On the 5th April 2015 a new system of shared parental leave is expected to be introduced which will be available for parents of children who are due to be born or placed for adoption with them on or after April 5th 2015. This means that employed mothers will still be entitled to 52 weeks of maternity leave however they can return after the initial two weeks of recovery and the parents can then choose how they will share out the remaining leave which they are legally entitled to.

Fathers will also gain a new right to take unpaid leave to attend two antenatal appointments. This will ultimately enable parents to make their own decisions about who will stay at home and who will go back to work. It should eradicate the concept that women typically stay at home and men go to work giving parents the freedom to choose their own parenting style.

(i) https://www.gov.uk/government/news/shared-parental-leave

byERIN OCSKO Contributor

FLEXIBLE WORKING

New Changes to Flexible WorkingBeginning on the 30th June 2014, the government will be implementing new changes in the law on Flexible Working. Erin Ocsko takes us through these changes.

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World CupFEVER

Dubbed ‘World Cup Fever’ almost two thirds of workers surveyed by Canada Life Group expected to pull a ‘sickie’ if their team reached the semi-final or final in this year’s World Cup.

The study of almost nine hundred employees found a small number willing to take an unauthorised day off when they were not sick at any point during the World Cup, with men more than twice as likely as women to pull the sickie (14% and 6% respectfully).

With this year’s World Cup held in Brazil the significant time difference will play a greater role in the likelihood of employees pulling sickies before and after the match. Almost half of all men and 41% of women say that the time difference means they are more likely to call in sick.

What can you do to avoid an empty office?

According to the Department for Work and Pensions, more than 130 million days are lost each year to sickness absences in the UK, costing employers around £9billion in sick-pay and associated costs. Although it’s undeniable that the number of unauthorised absences will spiral during the World Cup, there are a few actions that employers can take to help mitigate a total epidemic.

Over a third of the employees in the study suggested that moving to flexible working (35%) or having the ability to work from home (30%) would help to mitigate the potential for taking unnecessary sickies. Showing the matches at work was another popular choice with 18% of the employees surveyed suggesting that would encourage them not to call in sick the day of a match.

Unsurprisingly though, airing the match at work wasn’t the most popular choice when you take into consideration that 40% of the respondents expected to consume alcohol whilst watching a game (47% men v 34% women).

Canada Life Group Insurance’s marketing director Paul Avis reinforced the need for employers to talk with their employees: “with almost one in ten employees prepared to call in sick when they’re not ill during the tournament, it’s important that employers do their best to prevent the ‘World Cup Bug’ spreading and resulting in empty offices.”

During the Euro 2004 the supermarket Asda offered its staff ‘German Jolly’ unpaid leave for up to two weeks during the tournament. It claimed the offer as well as a shift-swapping scheme helped reduce absenteeism.

Which of the following would most encourage you not to take unnecessary sick leave during the World Cup?

• Flexible working hours 35%

• Ability to work from home 30%

• Matches being aired at work (wherever possible) 18%

• Being rewarded or incentivised for turning up to work 9%

• The option to take time off as unpaid leave 5%

• Less stigma surrounding taking annual leave for sporting events 4%

Source: canadalife.co.uk/group/Default.asp (May 2014)

by SARAH LOWE Features Editor

FEATURE: WORLD CUP

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Is a ‘sickie’ gross misconduct?

Absenteeism, where the sick day is unexplained, where no reason is given at all or where the employee admits ‘taking a sickie’ may be seen as misconduct. However, even this may vary between employers, depending on what is stated in their company handbooks and if the employer can prove that the employee was not sick. Indeed it is quite difficult to prove that an employee is not really sick if they have one day off, particularly if most company sick policies provide for the employee to self-certificate for the first day of their absence.

What constitutes gross misconduct may vary according to the particular circumstances of the employer and the work the employee is carrying out.

Acts of gross misconduct include: theft, fraud, physical violence, serious negligence or serious breach of health and safety regulations, and for most employers - being intoxicated whilst at work. All will result in a serious breach of an employee’s contract of employment or employer’s policy. Proving gross misconduct can be difficult and must take into account all of the facts of the employee’s situation as well as their employment record. Employment Tribunals and courts will challenge the fairness of an employer’s disciplinary rules and their resultant penalties if relatively minor offences, such as an employee ‘sickie’, are characterised as major breaches of discipline.

It is necessary for an employer to at least consider whether there are any extenuating circumstances that would render summary dismissal on the basis of gross misconduct unfair. Furthermore the likelihood that an employee is willing to take a sick day during the World Cup may point to deeper problems with the

happiness of the employee, the quality of management they receive, their working relationships and with the design of their job.

Handling a case of misconduct

If after you’ve taken reasonable steps as an employer to mitigate the chances of absenteeism over the World Cup and can prove the misconduct of an employee, either taking a sickie or coming into work intoxicated, how can you ensure that you correctly handle their disciplinary? We’ve compiled five top tips for employers when dealing with gross misconduct:

1 Document EverythingIt is very important to keep records

of all meetings. You should take witness statements from protagonists of the misconduct, including the employee, their workers and line manager.

2 Consider Legal AdviceYou should do this at the earliest

possible opportunity. You need to contact your company’s legal department or employment solicitor as soon as possible. This should involve looking at discrimination and health and safety policy where there is evidence of a breach.

3 Look at the Company PolicyYour company should have a policy

on Gross Misconduct. You need to look at this carefully to assess whether this is indeed an incident of Gross Misconduct or a lesser conduct offence.

4 Consult Senior ManagementYou may need to bring in senior

management to any meetings with the employee.

5 Consider Security Some incidences of Gross Misconduct

may need the employee to be immediately escorted from the premises. You should

contact your security department at the earliest possible opportunity. This may be the case when theft has taken place. You may also decide to contact the police.

6 Look at Discrimination LawYou will need to ascertain exactly

what the employee has done. Legislation is constantly changing around unfair dismissal so you need to be sure that you have up to date legal advice.

7 Look at the Appeal ProcessIt is likely that the employee will

appeal against a decision of gross misconduct. They may even decide to bring in their Trade Union or Staff representative. You need to be sure that you understand the appeal process completely.

8 Consider the FactsIn each meeting you need to

concentrate on the factual elements of the case. Emotions can easily get in the way of making objective decisions.

9 Make a DecisionYour decision needs to be clear

and communicated in an effective and unambiguous way to the employee. They need to be told in writing what they have done. If you decide to dismiss the employee then this should be done in compliance with employment law.

10 Review the Case It is always a good idea for

organisations to consider misconduct cases and to try and learn from what happened. This can involve a review of the misconduct policy to try and iron out any problems, particularly with an employee’s job design and the quality of management they receive.

Are you facing ‘World Cup Fever’ at work or a difficult disciplinary with an employee? Enquire online and speak to one of Aventi’s advisors about their fixed-fee HR support service or call 0845 366 4416

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WHISTLE BLOWING

A police officer has lost an unfair dismissal claim after it was ruled that his conduct in making a

legitimate complaint had resulted in him becoming “unmanageable”.

During his time with the police force, the officer made several complaints about the attitude towards victims of rape, child abuse and domestic violence that he witnessed in some of his colleagues. The complaints were protected disclosures within the Employment Rights Act 1996.

While the officer’s complaints were mainly upheld, he remained unhappy with the way they were dealt with. He believed that punishments to the perpetrators didn’t go far enough.

He took up a lot of the management’s time with the issue and also spent a lot of time at home on sick leave. He was eventually dismissed because of his association with his wife’s business, which senior officers said represented an “incompatible business interest”.

He brought an action against the force claiming that the complaints he had made were the principal reason for his dismissal.However, the tribunal held that his actions following the complaints would have exhausted the patience of any organisation. He had become unmanageable and that was why he had been dismissed.

The Court of Appeal has upheld that decision. It said that the officer wouldn’t accept any answer other than the one he

felt appropriate following his complaints and had become unmanageable.

Rachel Hughes, Employment Solicitor at law firm Hillyer McKeown, said: “In this case, the employee was evidently unsatisfied by his employer’s handling of the multiple complaints he made, and proceeded to pursue each matter and work towards his desired outcome. Ultimately he took up large amounts of management time and the combination of this and his long term absence contributed to his ultimate dismissal.”

For more information and updates on important employment tribunal cases, sign up to our fortnightly newsletter:Hillyermckeown.co.uk/newsletter

Whistle-Blowing Policeman Dismissed

After Becoming ‘Unmanageable’

by RACHEL HUGHESEmployment Solicitor

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byERIN OCSKO Contributor

EMPLOYMENT TRIBUNALS

T he recent case of Lyons v DWP Jobcentre Plus has highlighted an employment issue of whether it

is appropriate or legally acceptable for a woman to be dismissed during or after her pregnancy. The EAT considered whether Miss Lyons, an employee, who was dismissed following a period of absence owing to post natal depression had been discriminated against because of her pregnancy and/or sex.

The Facts of the Case

Ms Lyons (L) carried out her 6 months maternity leave which she was legally entitled to and had then arranged to take 6 weeks annual leave directly after.

During her maternity leave L had been diagnosed with post natal depression leading to a subsequent declaration of her being certifiably unfit for work for at least a month, two days before she was due to return to work. L had previously suffered from periods of depression and had been emotionally affected by being involved in a car accident. The employer (D) said they were no longer able to support her absence as it was unlikely she would return within a reasonable time.

She was dismissed, and lodged claims of unfair dismissal, direct sex discrimination and/or pregnancy and maternity discrimination.

Decision

The EAT dismissed L’s complaint of pregnancy discrimination under the Equality Act s.18 because although she may have been treated unfavourably during a pregnancy related illness, the treatment had occurred after the end of her maternity leave period. She could not therefore rely on s.18 of the Act as the treatment occurred outside of the ‘protected period’.

It was also found that D’s treatment of L did not amount to less favourable treatment for the purpose of sex discrimination within s.13 of the Equality Act as there was an absence of an appropriate, actual or hypothetical male comparator.

The Law

Section 13 of the Equality Act states that, “a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others” subsection 6 “if the protected characteristic is sex”.

Going forward, following the decision in this case, with adverse treatment to other gender specific absences an employee such as Miss Lyons will not succeed with a sex discrimination claim unless she can prove that she has been treated less favourably than an appropriate male comparator.

Section 18 of the Act states that “a person (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavorably – (a) because of the pregnancy, or (b) because of illness suffered by her as a result of it”. Sub section 6 goes on to say “the protected period, in relation to a woman’s pregnancy, begins when the pregnancy begins, and ends – (a) if she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when she returns to work after the pregnancy, or (b) if she does not have that right, at the end of the period of 2 weeks beginning with the end of the pregnancy”.

The EAT’s decision confirms that periods of pregnancy related illness outside the protected period do not attract special attention.

According to employment law pregnant women do have special protection with regards to dismissal and unfavourable treatment but only during the protective period, once their maternity leave has ended the special protection has also ended therefore allowing action to be taken against them if necessary.

For more information and updates on important employment tribunal cases, sign up to our employment news bulletins by email.

Woman Dismissed For Post Natal Depression

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SICKNESS & ABSENCE

F igures released by the Office for National Statistics (ONS) have revealed some interesting statistics

on sickness absence during 2013.

The ONS reported that in 2013, 131 million sick days were taken by employees in the UK. Some of the biggest reasons included:

l 31 million days of sickness absence were taken in 2013 as a result of back, neck and muscle pain.

l 27 million days were lost as a result of minor illnesses, such as colds.

l 15 million days of absence were taken due to mental illness, such as stress, depression and anxiety.

The Gender Divide

l Women were more likely to be absent from work than men

l Men lost 1.6% of their hours as a result of sickness in 2013

l Women lost 2.6% of their hours to sickness.

Businesses Most Affected

The caring and leisure industry was hit hardest by sickness absence in 2013 - 3.2% of hours were lost in 2013.

The ONS identified that these sectors are predominately made up of women, who are more likely to take sick days than men.

Sickness absence rates were lower in the private sector in the past year but the gap has narrowed between the public and private sector over the last 20 years.

In an analysis of the larger public sector organisations, the health sector saw the highest rates of sickness.

Managers, directors and senior officials are less likely to take absence due to sickness, according to latest figures.

Sickness Absence Letters

Download a sickness absence template letter free from Employment-lawuk.co.uk. The letter invites an employee to a formal meeting to discuss a long period of sickness.

by RACHEL HUGHESEmployment Solicitor

Sickness Absence by NumbersLatest figures from the Office of National Statistics reveal some interesting statistics on sickness absences during 2013

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