October 2014 bulletin

Around about now, some parents-to-be will be thinking ahead to next April. In less than nine months’ time babies will start to be born to mothers, fathers and partners or will be placed with adopters who are entitled to a new form of shared parental leave.

The key date is 5th April 2015; babies born or placed through adoption on or after then will trigger rights for their parents to combine and divide their individual leave entitlements.

It may seem some way off, but now is the time for businesses to think about preparing policies to deal with employees’ requests, and to have the answers to their queries in the lead-up to the changed law. Early discussions will help you understand the sort of arrangements you’re going to need to make, and plan for a smooth transition.

The birth of new antenatal rights

Sticking with the parent and child theme, the right to attend antenatal appointments during working hours has been extended. As of 1 October 2014, expectant fathers and the partners of pregnant women can request to take unpaid time off work to be present at pregnancy-related medical appointments, as well as classes like parentcraft. The right extends to intended parents in a surrogacy arrangement too.

Under the previous rules, pregnant women were the only category of worker entitled to reasonable time off, and they had (and still have) the right to be paid their normal hourly rate for that time. Now anyone who has a “qualifying relationship” with the pregnant woman or her unborn child has the right to accompany her to antenatal appointments, regardless of how long that person has worked for you (although an agency worker must have completed their 12-week qualifying period).

As an employer, you only have to allow that employee or agency worker to be away from work for up to two antenatal occasions lasting no more than six and a half hours each. This is the minimum required by law; it’s open to you to agree to someone taking more time off if that’s reasonable.

Dismissal for non-criminal conduct

Okhiria v Royal Mail

Gross misconduct at work can be criminal behaviour. But that crossover doesn’t necessarily have a bearing on an employer’s internal procedures. It’s perfectly possible that an employer can fairly dismiss even where the police decide not to prosecute or where there has been an acquittal.

Mr Okhiria was a postman, dismissed for gross misconduct after being suspected of various criminal activities. He was due to be prosecuted but before that happened the Royal Mail dismissed him. He was later acquitted of the criminal charges and brought an unfair dismissal claim, arguing that his employer should have waited until the criminal proceedings were over before deciding whether or not he should lose his job.

His claim failed. The Employment Tribunal held that the employer had adequately and reasonably investigated the alleged misconduct and its decision to dismiss fell within the band of reasonable responses.

Every case turns on its facts but here there were some quite interesting points, aside from the main thread that criminal processes are usually distinct from a company’s internal disciplinary decisions.

It didn’t matter that the disciplining officer did not have a transcript of the police interview (or a copy of the tape) to hand. Relying on a summary of that interview was fine. Nor did it matter that papers relating to the internal appeal and which invited a response from Mr Okhiria were sent to the wrong address. The employer had no reason to believe that had happened because employees rarely respond, and also Mr Okhiria had an opportunity to point out later that he hadn’t commented on the notes (which, incidentally, he didn’t).

The Employment Appeal Tribunal upheld the tribunal’s decision; there was no reason not to, it said, because there was nothing perverse in it.

Acas guidance on appearance

Last month I wrote about the vague possibility of body art becoming a protected characteristic for discrimination purposes. I’d love to say that in response Acas knocked up some guidance on dealing with dress codes and appearances in the workplace. Clearly that’s not how things turned out, but here’s the result.

It’s a good summary of the sorts of things employers should think about before, during and after issues about appearance in the workplace arise.

Can’t buy me self-employed status

Plastering Contractors Stanmore v Holden

Mr Holden was employed by Plastering Contractors Stanmore (PCS) as a general labourer. Four years after he started he agreed to pay PCS £200 in return for becoming a self-employed contractor, leading to him being paid and taxed differently.

From that point, PCS used him on an as-and-when basis although he worked almost exclusively for the company. His pay depended on the work he undertook, according to a tariff set by PCS. PCS provided some safety clothing and a vehicle to ferry him from site to site.

That arrangement continued for 12 years until Mr Holden became fed up. He started working elsewhere and brought a holiday pay claim against PCS. The question was, was he a worker (and entitled to holiday pay) or self-employed (and not)?

The Employment Appeal Tribunal (EAT) upheld the tribunal’s decision that, despite the purported change in status, Mr Holden remained a worker. He had been regularly offered work by PCS over a period of 16 years and the company expected him to turn up – and that meant he was integrated into the workforce. There was enough mutuality of obligation during each assignment to suggest worker status and PCS had exercised the necessary degree of control over him.

So attempts to change status, even where agreed and understood – and, as in this case, paid for – will not necessarily succeed where the reality of the working relationship is something else. It’s a message issued quite regularly by the EAT but still raises very arguable points and, therefore, grey areas for employers to carefully navigate.

Fixed term worker denied PHI

Hall v Xerox UK

Fixed term workers have their own branch of protection against discrimination. It’s there to ensure that these workers, whose contracts are set to end on a particular date, are not (without justification) treated less favourably than permanent staff.

But, as Hall v Xerox UK illustrated, differences in treatment are sometimes beyond an employer’s control; and where that’s the case, the employer cannot be liable.

Xerox’s permanent and fixed term employees were entitled to permanent health insurance. Payments kicked in once the employee had been off work for 26 weeks because of a qualifying injury. But Xerox was only contractually bound to pay the employee if the insurer had already paid up.

Here the insurer refused cover because Mr Hall’s contract expired within the 26-week period, even though Xerox had agreed to renew it.

The Employment Appeal Tribunal upheld the tribunal’s decision that Xerox was not liable for fixed term workers discrimination. While Mr Hall had been treated less favourably than a permanent employee and that was because he was a fixed term worker, the employer wasn’t to blame. Xerox hadn’t caused the discrimination. Rather, it emanated from the insurer; it was the insurer’s decision not to pay.

It was relevant in this case that the policy exclusion was a standard one and was replicated in other insurance policies. So the fact that it hadn’t been open to Xerox to negotiate out of that particular term provided further exoneration.

Emergency time off

Ellis v Ratcliff Palfinger

Employees are entitled to take unpaid reasonable time off work to deal with dependant-related emergencies. It’s subject to their telling the employer – as soon as reasonably practicable – why they are absent and for how long they expect to be off work.

Mr Ellis’ automatically unfair dismissal case failed because he hadn’t taken the necessary steps to keep his employer informed of his whereabouts when his wife went into labour and went on to give birth.

He was already on a final written warning for attendance issues. He took his wife to hospital several times one Monday without telling Ratcliff where he was, although his father telephoned for him that afternoon. The next day he again attended hospital where she gave birth. He didn’t go into work and didn’t telephone to explain why. He was then contacted by his employer who asked him to explain his absence urgently, and Mr Ellis left a voicemail message explaining that he would not be in work the next day.

At his disciplinary hearing Mr Ellis said that the battery on his mobile phone had died and he couldn’t remember Ratcliff’s phone number. He was dismissed.

The tribunal held that he had not been automatically unfairly dismissed for taking time off. Employment protection did not kick in because Mr Ellis had not kept his employer informed about his absence. The reasonable practicability of making contact depends on the employee’s state and condition, and here Mr Ellis could have made more of an effort.

The Employment Appeal Tribunal upheld that decision.

Elys v Marks & Spencer

It comes to something when you fall asleep at work.

For one employment tribunal lay member, this may have been the unfortunate reality when he was observed with his eyes closed at various points during a three-week hearing. He had been drooling and even received a nudge from the judge.

The claimant (who had lost) appealed the decision, arguing that the judgment should be overturned because a sleeping lay member is a material procedural irregularity.

The Employment Appeal Tribunal (EAT) held not. On the subject of sleep, the EAT said that the member had dry eyes, so closed them, and had been taking painkillers. But other than that, the member wasn’t guilty of inattention or of giving the appearance of inattention. He had asked questions, taken notes and taken a full part in the tribunal’s discussions. The 15 to 20 seconds he had spent ostensibly asleep was not enough to be a procedural irregularity.