Employment Law Update - Heptonstalls Solicitors October 2015 Issue 178. Shaun Pinchbeck LL.B shaun.pinchbeck@heptonstalls.co.uk Tel:

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1 Welcome to the latest edition of our Employment Law update. If you have any questions arising from these articles or any other queries, please do not hesitate to contact Shaun Pinchbeck, Head of Employment Law. Shaun Pinchbeck LL.B Tel: We can help employers in all aspects of employment law including: Disciplinary / grievance issues Contracts of Employment Unfair dismissal / redundancy Settlement agreements / termination packages Discrimination claims Employment Tribunal claims including representation at the Employment Tribunal Contents + In this month's issue we look at: UNFAIR DISMISSAL We provide an overview of the main provisions regarding the law on unfair dismissal. INFORMATION ONLY A court has held that agency workers only have a right to be informed of a vacancy, not to be considered for it on an equal footing with a comparable permanent employee. GENUINE ERROR In race discrimination claims, it is not less favourable treatment for a manager to make a genuine procedural mistake, as long as it was not tainted by consideration of the employee's race.

2 Heptonstalls have created a very useful summary to guide you through the key points of current employment legislation. This covers key qualifying periods and limits including a schedule of forthcoming changes. To obtain your own FREE copy Sarah.Leddy@Heptonstalls.co.uk putting "FREE Summary" in the subject box IN BRIEF Acas have published guidance for employers on how to deal with demands for time off and performance issues during the Rugby World Cup in the UK. This Month UNFAIR DISMISSAL Every employee has the statutory right not to be dismissed without notice (unless summarily dismissed for gross misconduct), and employers have the right to terminate an employee s contract by giving notice. Who is and is not entitled to claim unfair dismissal? Generally, only employees who on the date on which their employment terminated, had accrued at least 2 years continuous employment, can make a claim of unfair dismissal. The right to claim unfair dismissal is not available to: self-employed people independent contractors members of the armed forces employees who have reached a settlement with their employer through Acas (Advisory, Conciliation and Arbitration Service) or the Labour Relations Agency (LRA) in Northern Ireland employees who have reached a settlement with their employer through a settlement agreement after taking legal advice employees employed under an illegal contract employees taking part in unofficial industrial action (unless the dismissal is for an automatically unfair reason) police staff (unless the dismissal relates to health and safety or whistle blowing)

3 those working on a fishing vessel and paid by a share in the profits or gross earnings of the vessel When is it fair to dismiss an employee? The first issue in an unfair dismissal claim (assuming the employer accepts that it dismissed the employee) is that the employer has to put forward the reason for the dismissal. The law lays down that there are only 5 possible reasons: misconduct at work; lack of capability (or qualifications) to do the job; redundancy; a statutory requirement; some other substantial reason. Was the employer reasonable in dismissing the employee? The mere fact that an employer puts forward one of these reasons and the Tribunal accepts that that was the reason for the dismissal, does not mean in itself that the employer will succeed. It is still necessary for the Tribunal to consider whether the decision to dismiss was reasonable. In considering this, the tribunal will take into account the size of the organisation; the administrative resources available; the employer s business needs; and the particular circumstances of the employee such as length of service or whether their performance could have been improved if the claim was one of capability. The tribunal will also look to see if the employer dealt fairly with the employee. For instance, if the aggrieved employee can show that others were dealt with more leniently than them in similar circumstances, this could result in a finding of unfair dismissal. Overall, tribunals will look at the individual circumstances of the dismissal in order to decide this question. Was the internal procedure fair? Procedural fairness is an integral part of the reasonableness test. In Polkey v AE Dayton Services, the Supreme Court said that the following procedural steps should be followed by employers if the dismissals are to be fair: in a case of incapacity, the employee must be given a fair warning and a chance to improve in a case of misconduct, employers must investigate fully and fairly and hear what the employee has to say in mitigation or explanation in a case of redundancy, employers must give a warning and consult affected employees, adopt a fair basis for selection and take reasonable steps to re-deploy affected employees

4 The court also said that, in exceptional cases, if the employer could show that it would have been completely futile to follow a proper procedure, then it might be reasonable to ignore it. Acas recommends in its code of practice (which is not legally binding but is taken into account by tribunals) that employers allow employees the right to appeal any disciplinary decision. What are the automatically unfair reasons for dismissal? There are a number of dismissals which are automatically unfair, for which employees do not need two years service with their employer to bring a tribunal claim. These include reasons relating to: pregnancy and maternity family, including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants acting as an employee representative acting as a trade union representative acting as an occupational pension scheme trustee joining or not joining a trade union being a part-time or fixed-term employee discrimination, including protection against discrimination on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation (in Northern Ireland, this also includes political beliefs) pay and working hours, including the Working Time Regulations, annual leave and the National Minimum Wage whistleblowing taking part in industrial action in the 12-week period from the day the action starts. TUPE Related Dismissals If the employee can satisfy an Employment Tribunal that the reason for the dismissal was because of a transfer of a business or part of a business, under the Transfer of Undertakings (Protection of Employment) Regulations 2006, then the dismissal is automatically unfair but please note it is in that particular case still necessary for the employee to have accrued at least 2 years continuous employment in total with the original and new employer.

5 Shaun Pinchbeck from Heptonstalls LLP has been advising employers in relation to disciplinary processes for over 25 years and in his experience seeking early advice in respect of any issue that an employer has with an employee is important to try to minimise the risk of claims being brought. If you have any concerns about any employees, you can call Shaun on INFORMATION ONLY The law gives agency workers the right to be informed about vacant posts in the organisation where they have a temporary assignment. In Coles v Ministry of Defence, the Employment Appeal Tribunal (EAT) held that the right was only to be informed of a vacancy, not to be considered for it on an equal footing with a comparable permanent employee. What happened? Mr. Coles was an agency worker for a section of the Ministry of Defence (MoD). In 2013 following a major restructure, 530 direct MoD employees were put into a redeployment pool and given priority over other applicants for suitable alternative vacant posts. In May the post Mr. Coles had been filling was advertised but he did not apply for it, although he would have had access to the advertisement. Instead a permanent employee was appointed and Mr. Coles was given notice that his assignment would cease in August He lodged a tribunal complaint that the MoD was in breach of Regulation 13 of the Agency Workers Regulations 2010 and Articles 5 and 6 of the Directive on Temporary Agency Work as it had failed to allow him access to details of the vacancy of his post and denied him the chance to apply for his position. The tribunal rejected Mr. Cole s claim, holding that the directive only required employers to provide agency workers with information about vacancies; it did not give agency workers the right to be considered for a vacancy on an equal footing with existing employees of the end user. It held that both the regulations and the directive allowed employers to give priority to workers whose posts were redundant, who were at risk of losing their employment, and who had been placed in a redeployment pool in the search for alternative work with their employer. The directive did not require the employer to displace existing permanent workers by offering temporary agency workers the right to compete with those permanent workers for a vacant post. The EAT dismissed the appeal, holding that the principle of equal treatment under article 5 of the directive applied to basic working

6 and employment conditions, defined as pay and working hours. The EAT drew a distinction between the right to equal treatment for agency workers and that for fixed-term employees. In particular, it noted that the right to equal treatment for fixed-term employees was a general right not to be treated less favourably simply because the person was on a fixed-term contract which was broader than it was for agency workers. Likewise article 6 of the directive only gave temporary workers the right to be informed of a vacancy, which was not the same as the right to have an opportunity to be considered for a post such as a right to an interview. Both the directive and the regulations provided a general right for agency workers to have the opportunity to find permanent employment by giving them information about vacant posts. In other words, equal provision of information is what is stressed, rather than equality in the job application process. GENUINE ERROR To prove a claim of direct race discrimination, claimants have to show that they have been treated less favourably because of their race. In Adeshina v St George s University Hospitals NHS Foundation Trust and ors, the Employment Appeal Tribunal (EAT) held that it was not less favourable treatment if a manager made a genuine procedural mistake, which was not tainted by consideration of the employee s race. What happened? Ms Adeshina, who is British of Nigerian origin and black African ethnicity, worked as a member of the senior management team within the pharmacy department of HMP Wandsworth. She was responsible for leading a project to change the way in which prison pharmacy services were provided. However, following a meeting in July 2011 to discuss the project she was asked to attend a disciplinary hearing because of alleged unprofessional behaviour at the meeting. She was ultimately dismissed for misconduct in May 2012, a decision that was upheld on appeal in October Ms Adeshina claimed race discrimination and unfair dismissal, among other things. The tribunal dismissed all her claims. Although it found that there were a number of procedural deficiencies at the disciplinary hearing, these had been cured at the appeal stage. Taken overall, therefore, the dismissal was fair. In terms of the race discrimination claim, the tribunal concluded quite comfortably that she had not been less favourably treated because of her colour. It was not enough for Ms Adeshina just to show that she had suffered a detriment and that she was a member of a protected class. There has to be something

7 more because otherwise a finding of unfair dismissal of anyone falling within a protected class would lead to an automatic finding of direct discrimination. As she had not produced that something more her claim could not succeed. Any mistakes in the process had arisen because of genuine errors that were not consciously or subconsciously tainted by race discrimination. The EAT also dismissed her appeal. In terms of the unfair dismissal claim, the tribunal was simply required to consider the fairness of the process overall, which it had done. It had not overlooked the flaws at the first stage but concluded that these were not so serious that they could not be remedied at the appeal stage. As for the claim of race discrimination, the EAT was satisfied that the tribunal had considered the explanation provided by the Trust and found as a fact that it was not tainted by race discrimination. It was true that mistakes had been made during the process, but these were genuine and could be attributed to human error. The tribunal was satisfied that the dismissing manager genuinely believed in Ms Adeshina s misconduct and was not informed, consciously or subconsciously, by her race. IN BRIEF Workplace experts Acas have published guidance for employers on how to deal with demands for time off and performance issues that may arise during the Rugby World Cup, which runs from mid- September to the end of October, in the UK. Acas advises employers and small businesses to have agreements in place that cover requests for time off, sickness absence, website use during working hours and to be fair and consistent throughout. It recommends that employers: Speak to employees to find out who is thinking of booking time off, reminding them that they should book annual leave in the normal way. Leave should be booked well in advance of the event, although during the games the company may, at its discretion consider late requests for time off work. Employers may have to monitor sickness absence during this period, ensuring that any action is in accordance with the company's attendance policy. Employers could offer a more flexible working day in order to allow employees to come in a little later or finish sooner or swap shifts. Allowing staff to listen to the radio or watch the TV may be another possible option. Employers could also

8 allow staff to take a break during match times. As there may be an increase in the use of social media such as Facebook, Twitter or websites, employers should have a clear policy on web use in the workplace that is communicated to all employees. Employers must be fair and consistent and remember that not everyone is a sporting fan. When considering requests they should ensure that any temporary changes to rules and policies are non-discriminatory. Disclaimer: This newsletter is a summary of legal issues not intended to provide specific legal advice nor intended to be comprehensive. If advice is required please contact your solicitor. This transmission is intended solely for the addressee (s) and is confidential.if you are not the named addressee, or if the message has been addressed to you in error, you must not read, disclose, reproduce, distribute or use this transmission Delivery of this message to any person other than the named addressee is not intended in any way to waive confidentiality. If you received this transmission in error please contact the sender or delete the message. List Maintenance To unsubscribe from our update sarah.leddy@heptonstalls.co.uk