Employment Bulletin - July 2008

In this issue

Changes to working time regulations
 
EU Ministers met recently to discuss the future of the Working Time Directive. This meeting included issues of opt-out and the effects of judgments of the European Court that time spent on call at a workplace, even where the worker was inactive or was allowed to sleep, counts as working time and not a rest period.
 
At that meeting various issues were agreed. In particular:
  • The opt-out from the maximum 48-hour working week has been preserved
  • On-call time is to be split into active and inactive on-call time, with active on-call time being counted as working time, and inactive time being neither working time nor rest time
  • A cap on the number of hours that can be worked will apply to an individual who has opted out of the 48-hour working week. The cap will be set at 60 hours per week, unless member states agree otherwise
  • Certain safeguards have been imposed on the use of the opt-out: in particular, it cannot be signed until the worker has been employed for a month, and there will still be a cap of 60-hours on average. 

For more information please contact employment@withyking.co.uk , or call 01225 425731 / 01793 536526.

 
New Advisory, Conciliation and Arbitration Service (ACAS) Code of Practice issued on discipline and grievance
 

ACAS has published a revised code of practice on discipline and grievance for public consultation.
 
Employers cannot afford to ignore this important code because unreasonably failing to follow it can result in a tribunal increasing compensation by up to 25%.
 
The key principles set out in the code are as follows:
  • Procedures for handling disciplinary and grievances should be set out in writing
  • Matters should be dealt with promptly and meetings and decisions should not be unduly delayed
  • Employers should act consistently and similar cases should be treated in the same way
  • Appropriate investigations should be carried out
  • Meetings should, so far as is possible, be carried out by a manager not involved in the matter giving rise to the dispute (save where the matter is a performance issue, in which case the manager may have to be involved)
  • Employees should know the basis of the problem and have the chance to put forward their case
  • Employees should be given the right to be accompanied at any disciplinary or grievance meeting by a colleague or trade union representative
  • Employees should have the right to appeal against any decision made.
The Code also sets out the basic procedure to be followed when handling disciplinary issues or employee grievances.
 
ACAS intend to publish more comprehensive advice and guidance on dealing with disciplinary and grievance situations as well as model disciplinary and grievance procedures.
 
For more information please contact employment@withyking.co.uk , or call 01225 425731 / 01793 536526.
 
 
Important House of Lords ruling on the Disability Discrimination Act 1995
 
The House of Lords has delivered a judgment which radically alters the approach, which should be taken, in disability discrimination cases. The decision has important implications for employers who dismiss employees for sickness absence. The effect of the judgment is likely to be that claimants will find it harder to succeed with a claim of disability discrimination.

The Court has had to consider the meaning in (what is now) s3A of the DDA 1995 of the phrase "a person discriminates against a disabled person if - (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply"
 
Until the House of Lords decision the test for identifying the correct comparator was that set out by the Court of Appeal in Clark v Novacold in 1999. In that case, C was dismissed after an injury to his back prevented him from working. The tribunal ruled that the comparison had to be with someone who was off work for the same length of time as C but for a reason that did not relate to disability and applying that test C had not been treated less favourably than any one else who would have been absent for the same length of time.
 
The Court of Appeal reversed the tribunal’s decision and substituted a finding of discrimination, ruling that the ‘reason’ for C’s dismissal was his absence and the correct comparator was someone who was at work.
 
Applying that test, virtually every dismissal of someone who is absent with a serious medical condition would amount to disability discrimination unless the dismissal could be justified.

By a majority the House of Lords decided that Clark v Novacold was wrongly decided because it overlooked the requirement for a link between the reason for the employer’s treatment of the disabled person and that person’s disability. On this approach, the comparator, in the example above, is someone who is absent for the same length of time as the claimant but for a non-disability reason.
 
The impact of the House of Lords’ decision can be seen if one compares how the following situation would have been treated before and after the latest decision:
A woman applies for a secretarial position, but is turned down because she cannot type. She cannot type because she has arthritis.

Applying the House of Lords’ test, her treatment must be compared with that afforded to someone who cannot type for a different reason. On that test she would not show that she has been treated less favourably because the employer would not consider anyone for a secretarial position who could not type. But under the Clark test her comparator would be with someone who can type and on that test she would be treated less favourably.

For more information please contact employment@withyking.co.uk , or call 01225 425731 / 01793 536526. 

Information to provide to employees about misconduct

The following case is a good illustration of the principles that an employee must be told in advance of the hearing if he is at risk of dismissal and that the conduct ultimately relied on for dismissal, must not be materially different to the allegations set out in advance of the disciplinary hearing.

The facts of the case were that the Claimant, a refuse collection driver, was summarily dismissed for gross misconduct in "deliberately and wilfully" taking an unauthorised break and failing to complete his work with a view to causing disruption. The Claimant had been threatened by colleagues, taking industrial action, who told him not to go back to the depot and not to speak to anyone about it. The Claimant thought he would only get a warning, and therefore, decided not to mention the real reason for his actions.
 
Because it had not previously been alleged that the Claimant’s actions were "wilful" or that he intended to cause disruption, combined with the fact that no mention of gross misconduct or the possibility of dismissal had been advised, the tribunal found that the dismissal was unfair.

For more information please contact employment@withyking.co.uk, or call 01225 425731 / 01793 536526.

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Proposed new right to request time off work for training

The Government proposes to introduce a new right to request time off work for training. The new right, which will apply to all employees who have been employed for more than 26 weeks, will operate in a similar way to the right to request flexible working. Employers will have to consider requests fairly and can only refuse them for defined business reasons. Employers will not have to pay for the training under the proposals and employees may only make one request in a 12 month period.
 
Employees will be able to appeal to an employment tribunal if an internal appeal is unsuccessful. Tribunals may then award compensation, within defined limits, if the complaint is upheld. It is expected that the necessary legislation could be in place by 2010, subject to its passage through Parliament. The consultation is open until 10 September 2008.

For more information please contact employment@withyking.co.uk, or call 01225 425731 / 01793 536526.

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Status of a grievance

The Employment Appeal Tribunal (EAT) has ruled that a statutory grievance is still a statutory grievance, even when the grievance itself states it is not.

The Claimant lodged a grievance with his employer expressly stating it was informal, and that only a failure to address it, would result in a formal grievance under the statutory procedure being lodged. This never happened.

The EAT held that the letter was, nevertheless, a valid statutory grievance ruling that "The issue is not whether the grievance lodged is stated to be a statutory grievance. The only question is whether it satisfies the requirements laid down for a Step 1 grievance letter. This merely requires that the grievance is set out in writing and sent to the employer. That has been done. We do not see that the classification placed on it by [Mr Procek] can affect that conclusion."

Countering the argument that it would be unfair on the employer to face a statutory uplift in compensation when he did not realise that the grievance (which was ignored) was a "statutory grievance", the EAT pointed out that the tribunal had a discretion to conclude that it would not be "just and equitable" to apply any uplift.

For more information please contact employment@withyking.co.uk, or call 01225 425731 / 01793 536526.

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