March 2015 bulletin

Easter already.

Being a movable feast, it keeps us on our toes. And that’s certainly going to be the case for some employers over the next few years as they’ll have to accommodate employees’ eggstra (sorry!) days off. Here’s why:

If you run an April to March holiday year and your contracts provide for 20 days’ annual leave plus bank holidays (of which there are eight) then the dates on which Easter falls mean you’ll have to do some adjusting. This year, Good Friday and Easter Monday fall on 3 April and 6 April. Next year, they’ll be on 25 March and 28 March. Two Easters fall within one holiday year. But in 2017, Easter returns to April.

So for the holiday year 2015/16, there will be ten bank holidays. Conversely, in 2016/2017, there will only be six bank holidays. In that year, therefore, some employers will need to allow two extra days’ leave to ensure that employees get eight, rather than six, public holidays. If that doesn’t happen, five-day-week employees will not be getting their statutory minimum 28 days’ annual leave entitlement.

So what to do? Well, you could simply top up leave as I’ve described. Or you could think about changing your holiday year to January to December. Or you could even look to make some contractual changes to provide for 28 days’ leave inclusive of public holidays. Be mindful though that changing employees’ contracts is a delicate process. It will need to be planned out and navigated very carefully; something I can help you do.

Shared parental leave

There’s not long to go before new shared parental leave entitlements begin. Parents of babies expected on or after 5 April 2015 will be able to share up to 50 weeks off work, something which the government hopes will kick-start a feeling of empowerment among fathers to spend more time with their children.

It’s estimated that 285,000 working couples each year will be eligible for the new leave arrangements. They’ll need to comply with some fairly complicated notice arrangements, which includes giving their employers eight weeks’ notice of the pattern of leave they plan to take.

Acas’s guide to Shared Parental Leave is a good place to start to get a handle on what the new rights mean. You can access it here. Acas is encouraging early discussions between employers and employees about the various options that are available so that proper plans can be put in place.

I can help you prepare a shared parental leave policy, and update your staff handbooks to cover this important new right for employees.

Sending obscene email was repudiatory breach

Williams v Leeds United Football Club

Mr Williams was employed by Leeds as technical director when he was given notice of redundancy. His contract would terminate at the end of his 12-month notice period (as the Club later agreed), or earlier if he was guilty of gross misconduct.

Shortly after receiving his redundancy notice, he was summarily dismissed on the grounds that five years earlier he had sent obscene and pornographic material from his work email account to a friend at a different club. It was later discovered that Mr Williams had also forwarded the email to two other people – one of whom was a female receptionist at Leeds.

He claimed wrongful dismissal, arguing that what he had done was not serious enough to amount to a fundamental breach of contract. The High Court held that it was. It was conduct which breached the implied term of mutual trust and confidence between Mr Williams and the Club. Relevant to this conclusion was:

– Mr Williams’ seniority
– the nature of the images
– the fact that images were sent by a senior manager to a junior female employee
– potential reputational damage: dissemination of the images was readily identified with the Club.

In this case, it didn’t matter that Mr Williams had not been given a copy of the Club’s internet policy. It ought to have been obvious to him – a member of senior management – that the Club’s email system should not be used to send obscene or pornographic images, the High Court held. So the Club had been entitled to dismiss him without notice, and Mr Williams’ claim failed.

One interesting point in this case was the Court’s finding that before dismissing him the Club had decided not to pay Mr Williams during his notice period and was actively looking for evidence of gross misconduct. Those facts didn’t prevent the Club dismissing Mr Williams summarily when it discovered the misconduct, said the High Court. Nor did they prevent the Club from relying on misconduct discovered after dismissal in order to justify it.

Reasonable investigation

Shrestha v Genesis Housing

How much investigation is it reasonable to carry out where misconduct is alleged? It’s a question every employer asks from time to time because a great deal hinges on what is discovered, and what could be discovered, by carefully looking into all the circumstances. And employers know just how important it is to reach the right conclusions. In Shrestha v Genesis the employee argued that his employer hadn’t done enough.

Mr Shrestha was a mobile worker; he travelled by car to visit clients in their homes and he submitted mileage claims. When his claims were audited, it was suspected that he had been over-claiming. At his disciplinary hearing he explained that the high mileage was due to difficulties in parking, one-way road systems and roadworks.

The employer did not put each specific journey to Mr Shrestha and analyse the purported reasons for the additional mileage. Each journey was above the AA suggested mileage and it didn’t seem plausible, the employer said, that they could all be justified in the way Mr Shrestha had sought to do. He was dismissed.

Mr Shrestha lost his unfair dismissal claim. The employer’s investigation was reasonable, the Court of Appeal held. While an employer must consider every defence the employee puts forward, the extent to which these must each be investigated depends on the circumstances. An employer’s reasonableness should be assessed by looking at the investigation as a whole.

Victimisation compensation reduced

Das v Ayrshire & Arran Health Board

Successful claimants don’t always get the compensation they think they’re entitled to. One reason is the possibility of awards being reduced to reflect the part the claimant played in what happened to them. In the Das case, it came down to how likely it was that the claimant would have got the job he felt he been denied the opportunity of getting.

The claimant was a doctor who had previously worked for the Health Board. The employment relationship had been rocky. Some years after having resigned, he applied for a role there. (This followed some unsuccessful applications for other posts with the Health Board.) He was the only applicant and was shortlisted but the vacancy was withdrawn before he could be interviewed. There was concern that if he wasn’t offered the job then he would claim discrimination. There was also a re-organisation underway, and the Health Board might have decided not to fill the vacancy in any event.

The tribunal held that he had been subjected to victimisation. But it reduced his compensation by 90% on the basis that he had only a 10% chance of being appointed in that role. The Employment Appeal Tribunal upheld that decision. It was significant that the Health Board was prepared to not appoint anyone to the position.

Compensation on the rise

Guaranteed to leave you pondering the whereabouts of the last 12 months, the annual compensation limit increases have arrived.

The changes you really need to know about are:
– maximum week’s pay for redundancy payments – £475
– maximum compensatory award for unfair dismissal – £78,335
(or, in most cases of unfair dismissal, a year’s pay, whichever is lower)

These figures will apply to dismissals from 6 April 2015.

Another look at employee status

Stack v Ajar-Tec

Mr Stack was a company director who, last year, the Employment Appeal Tribunal (EAT) held wasn’t an employee. He had no formal employment arrangement with the company and no contract, he had other business interests, and he wasn’t paid for the work he did. There couldn’t be a binding contract if he wasn’t being paid, the EAT held.

The Court of Appeal has now reversed that decision; Mr Stack is both an employee and a worker. The lack of remuneration terms wasn’t fatal to his status. The nature of the agreement between Mr Stack and his co-directors was that they accepted some obligation to work for the company. In view of the way these three worked together, a remuneration term could be implied, and that created enforceable obligations between the parties.

This case once again brings to light the thorny issue of employment status. Its main message is: don’t assume that people in your organisation who may not work under conventional terms will not be regarded in law as employees.

And finally…

It was only a matter of time before electronics got its clever bionic fingers on cigarettes. Now e-cigarettes are everywhere – including at work. But how many employers have amended their smoking policies to cover e-smoking? It’s a real issue. “Vaping” has earned itself a place in company rules.

This point was highlighted by a tribunal in Insley v Accent Catering. A school catering assistant was accused of using her e-cigarette in full view of pupils. She resigned before her disciplinary hearing and brought a constructive dismissal claim. It failed because the tribunal said that the employer had acted properly. But the tribunal made it clear that had Ms Insley been dismissed then the school’s smoking policy would have become relevant (and dismissal might have been unfair). In this case, while the policy prohibited smoking on school premises, it didn’t say the same about the use of e-cigarettes.

If you do one thing today, look at updating your policy.